EXHIBIT 10.8
Standard Lease
between
Blue Lake, Ltd.
and
Cybear, Inc., a Florida corporation
Dated September 14, 1998
INDEX TO
BLUE LAKE CORPORATE CENTER
STANDARD LEASE
LEASE PAGE NO.
--------
1. PREMISES; BUILDING; AND COMMON AREAS............................ 1
2. LEASE TERM; LEASE DATE.......................................... 2
3. RENT............................................................ 3
4. SECURITY DEPOSIT................................................ 6
5. USE............................................................. 6
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK......................... 6
7. PARKING......................................................... 7
8. BUILDING SERVICES............................................... 7
9. SECURITY........................................................ 9
10. REPAIRS, MAINTENANCE AND UTILITIES.............................. 9
11. TENANT'S ALTERATIONS............................................ 10
12. LANDLORD'S ADDITIONS AND ALTERATIONS............................ 11
13. ASSIGNMENT AND SUBLETTING....................................... 11
14. TENANT'S INSURANCE COVERAGE..................................... 13
15. LANDLORD'S INSURANCE COVERAGE................................... 14
16. WAIVER OF RIGHT OF RECOVERY..................................... 14
17. DAMAGE OR DESTRUCTION BY CASUALTY............................... 14
18. CONDEMNATION AND EMINENT DOMAIN................................. 15
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION............. 15
20. RELOCATION OF TENANT............................................ 16
21. COMPLIANCE WITH LAWS AND PROCEDURES............................. 16
22. RIGHT OF ENTRY.................................................. 17
23. DEFAULT......................................................... 17
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT........................ 18
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT................ 19
26. LIENS........................................................... 20
27. NOTICES......................................................... 20
28. MORTGAGE ESTOPPEL CERTIFICATE; SUBORDINATION.................... 20
29. ATTORNMENT AND MORTGAGEE'S REQUEST.............................. 21
30. TRANSFER BY LANDLORD............................................ 22
31. SURRENDER OF PREMISES; HOLDING OVER............................. 22
32. NO WAIVER, CUMULATIVE REMEDIES.................................. 22
33. WAIVER.......................................................... 22
34. CONSENTS AND APPROVALS.......................................... 23
35. RULES AND REGULATIONS........................................... 23
36. SUCCESSORS AND ASSIGNS.......................................... 23
37. QUIET ENJOYMENT................................................. 23
38. ENTIRE AGREEMENT................................................ 23
39. HAZARDOUS MATERIALS............................................. 23
40. BANKRUPTCY PROVISIONS........................................... 25
41. FIRE PREVENTION SYSTEMS......................................... 26
42. SPECIAL EVENTS.................................................. 27
43. MISCELLANEOUS................................................... 27
44. DELIVERY OF GUARANTY............................................ 29
45. CONFIDENTIALITY................................................. 29
46. SIGNAGE CRITERIA................................................ 29
47. CARPOOLING, MASS TRANSIT AND TRAFFIC CONTROL.................... 29
48. LEASE CONTINGENCIES............................................. 29
49. ASSOCIATION..................................................... 29
50. VENDING MACHINES................................................ 30
51. FOOD SERVICE.................................................... 30
52. AUDITORIUM/CONFERENCE CENTER.................................... 30
53. TELECOMMUNICATIONS.............................................. 30
54. INCENTIVE PROGRAMS.............................................. 31
55. SAVING PROVISION................................................ 31
56. SATELLITE DISH.................................................. 31
BASIC LEASE INFORMATION RIDER
BLUE LAKE CORPORATE CENTER
STANDARD LEASE
PREAMBLE Date of Lease September 14, 1998 ("Lease Commencement Date")
PREAMBLE Landlord: BLUE LAKE, LTD., a Florida limited partnership.
PREAMBLE Tenant: CYBEAR, INC. a Florida corporation, authorized to do
business in the State of Florida
SECTION 1 Premises: A portion of the second floor of 0000 Xxxx Xxxx
Xxxxx, as shown on Exhibit "A" of Blue Lake Corporate Center,
Boca Raton, Florida, being hereby designated as: Suite 200.
The office building campus (as shown on Exhibit "F") including
parking spaces, driveways, walkways, drainage systems, utility
systems, green space areas and other elements of the "Blue
Lake Corporate Center" are hereinafter collectively referred
to as the "Building."
SECTION 1 Net Rentable Area of Premises: [18,400] square feet which is
stipulated and agreed by the parties (based on [16,000] square
feet of usable area and a fifteen (15%) add-on factor);
provided, however, that within ten (10) days after substantial
completion of the Improvements to the Premises, either
Landlord or Tenant shall be entitled to have the Premises
measured in accordance with BOMA Standards (ANSI Z65.1-1996).
Following such measurement, if it is determined that in fact
the Premises contain more or less than the Rentable Area set
forth above, Base Rent, Tenant's Share, and any other
provision which is based on the amount of square footage
leased by Tenant shall be ratably modified. The Rentable Area
of the Premises includes restrooms, electrical and mechanical
rooms over which the Tenant is herein granted exclusive
control and dominion which are themselves deemed part of the
Premises, except that Landlord shall maintain such restrooms,
electrical and mechanical rooms which are shared among
tenants.
SECTION 2 Rent Commencement Date: The earlier to occur of (i) the
"Completion Date" as defined in the Work Letter,
notwithstanding that any Tenant finish work, special fixtures
or equipment or decorative treatment has not been performed by
Tenant or (ii) the date that Tenant first uses the Premises or
any portion thereof for any purpose permitted under this
Lease, but in no event shall the Rent Commencement Date occur
later than January 1, 1999.
SECTION 2 Tenant Access for Improvements Prior to Commencement Date:
Upon the execution of this Lease and all addenda hereto, and
the delivery by Tenant to Landlord of the appropriate
insurance certificates reflecting Tenant's securing of all
insurance required by Tenant hereunder and following the
recordation of a Notice of Commencement prepared and recorded
in accordance Florida Statute 713.10 and Landlord's reasonable
approval of Tenant's construction contract for the purpose of
confirming the inclusion of a lien prohibition provision in
accordance with Section 26 of this Lease, Tenant and Tenant's
contractor and sub-contractors shall be provided reasonable
access to the Premises at all reasonable times in order to
make improvements to the Premises. All work will be defined in
the Work Letter attached hereto as Exhibit "B".
SECTION 2 Expiration Date: Five (5) years after Rent Commencement
Date.
SECTION 2 Lease Term: From the Rent Commencement Date plus Five (5)
years after the Rent Commencement Date, unless sooner
terminated pursuant to any provision hereof; provided,
however, that if the Rent Commencement Date is a date other
than the first day of a calendar month, said Term shall extend
for said number of days at said in addition to the remainder
of the calendar month following the Rent Commencement Date.
XXXXXXX 0 Xxxxxxx Xxxx(x): One Renewal Term of Five (5) years; at
Market Rate Rent.
SECTION 3 Base Rent: Tenant agrees to pay to Landlord as Rent for the
Premises, in advance without demand, deduction or set off
(except as otherwise may be specifically provided in the
Lease), from and after the Rent Commencement Date and
throughout the term, the Annual Base Rent in the amounts as
indicated in the following Schedule of Base Rent in equal
monthly installments, plus applicable sales tax.
Page I
------------------
Blue Lake Standard Lease
SCHEDULE OF BASE RENT
------------------------------------------------------------------------------
PERIOD PER SQUARE FOOT ANNUAL BASE RENT MONTHLY BASE RENT
------------------------------------------------------------------------------
Months 1 -12: $12.50 $230,000 $19,167.17
------------------------------------------------------------------------------
Months 13-24: $12.88 $236,992 $19,749.33
------------------------------------------------------------------------------
Months 25-36: $13.27 $244,168 $20,347.33
------------------------------------------------------------------------------
Months 37-48: $13.67 $251,528 $20,960.67
------------------------------------------------------------------------------
Months 49-60: $14.08 $259,072 $21,589.33
------------------------------------------------------------------------------
Each monthly installment in accordance with the above Schedule shall be due and
payable on or before the first day of each calendar month succeeding the Rent
Commencement Date, except that the rental payment for any fractional calendar
month commencing on the Rent Commencement Date of the Lease shall be prorated.
SECTION 3 Base Year for Overhead Rent: Calendar year 1999.
Estimated per square foot Overhead Rent in Base Year $4.50
SECTION 3 Cap on "Controllable Operating Expenses" (as defined): eight
(8.0%) percent applied non-cumulatively.
SECTION 3 Tenant's Share: 1.039%. Landlord and Tenant acknowledge that
Tenant's Share has been obtained by taking the Net Rentable
Area of the Premises and dividing such number by [1,770,600]
square feet, being the rentable area contained in the Building
as determined by Landlord, and multiplying such quotient by
100. In the event Tenant's Share is changed during a calendar
year by reason of a change in the Net Rentable Area of the
Premises, Tenant's Share shall thereafter mean the result
obtained by dividing the new Net Rentable Area of the Premises
by [1,770,600] and multiplying such quotient by 100.
SECTION 4 Security Deposit Received: $ N/A
Date Received:________________________
Prepaid First Month's Rent $ N/A (including Florida sales tax)
Date Received: _________________________
Prepared First Month's Overhead Rent: $ N/A (including Florida
sales tax)
Date Received: _________________________
Prepaid Last Month's Rent $ N/A (including Florida sales tax)
Date Received: _________________________
Prepaid Last Month's Overhead Rent: $ N/A (including Florida
sales tax)
Date Received: _________________________
Deposit for Energy Management: $ N/A
Date Received:_________________________
Deposit for Electric Utilities: $ N/A
Date Received:_________________________
Guarantor: Andrx Corporation, a Florida corporation
0000 X. X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
SECTION 5 Use of Premises: Corporate offices, including software
development, internet related sales and service (but not
retail sales), and the supporting use of conference and
computer facilities, employee breakroom and related
non-commercial facilities for employee use only.
Page II
------------------
Blue Lake Standard Lease
Tenant's Address for Notices Prior to Commencement Date:
Cybear, Inc.
c/o Andrx Corporation
000 X. X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Tenant's Address for Notices After Commencement Date:
Tenant
The Premises; Attention: Xx. Xxxx XxxXxxx
with a copy to Tenant's pre-Commencement Date Address
Landlord's Address for Notices:
Blue Lake, Ltd.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Executive Vice President
With copies of default notices only to:
Sachs, Sax & Xxxxx, P.A.
Suite 4150
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
SECTION 8 Standby Electrical Generator System Subscription Fee:
$500,000.00; pursuant to Rider attached hereto as Exhibit "G"
SECTION 15 Amount of General Comprehensive Liability Insurance:
$1,000,000.00 per occurrence $3,000,000.00 in the aggregate.
WORK LETTER:
PARAGRAPH 3G. Landlord's Contribution: $ 15.00 per usable square foot
PARAGRAPH 6. Tenant's Construction Agent: /s/ Xxxx Xxxxxx
Tenant may, from time to time, identify a substituted Tenant's
Construction Agent from a list of persons pre-approved by
Landlord to act as a Tenant's Construction Agent for the
Building, or such other person as requested by Tenant having
experience in construction of the type and nature of the
undertaking pursuant to the Work Letter, and who shall be
reasonably acceptable 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"). The BLI Rider and the Lease are, I by this reference,
hereby incorporated into one another. In the event of any direct conflict
between the terms of the BLI Rider and the terms of the Lease, the BLI Rider
shall control. Where the Lease simply supplements the BLI Rider and does not
conflict directly therewith, the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI Rider as
of this 14 day of September, 1998.
WITNESSES: "TENANT"
CYBEAR, INC., a Florida corporation
/s/ [ILLEGIBLE]
-----------------------------------
/s/ [ILLEGIBLE]
-----------------------------------
(As to Tenant) By: /s/ XXXXX XXXXX
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President/General Counsel
(SEAL)
WITNESSES: "LANDLORD"
BLUE LAKE, LTD.,
/s/ [ILLEGIBLE] a Florida limited partnership
-----------------------------------
/s/ [ILLEGIBLE] By: Blue Lake, Inc., a Florida
----------------------------------- corporation, its general partner
(As to Landlord)
By: /s/ [ILLEGIBLE]
-------------------------------------
Authorized Agent
[Illegible}
Executive Vice President
Page III
------------------
Blue Lake Standard Lease
BLUE LAKE CORPORATE CENTER
STANDARD LEASE
THIS LEASE ("Lease") is made as of today of the 14th day of September,
1998, by and between BLUE LAKE, LTD., a Florida limited partnership ("Landlord")
and BEAR, INC., a Florida corporation, authorized to do business in the State of
Florida ("Tenant").
WITNESSETH:
1. PREMISES; BUILDING; AND COMMON AREAS.
A. PREMISES; BUILDING; AND COMMON AREAS. Landlord leases to Tenant
and Tenant leases from Landlord the Premises described in the Basic Lease
Information Rider (the "BLI Rider") attached to the front of this Lease and
incorporated into this Lease by this reference, and as more particularly
outlined on the floor plan attached hereto as Exhibit "A" and by this reference
incorporated herein ("Premises"). The parties hereby agree that the Premises
contain the number of Net Rentable Area set forth in the BLI Rider. The Premises
constitute a portion of the office building campus, including parking spaces,
driveways, walkways, drainage systems, utility systems, green space areas, and
other elements of the Blue Lake Corporate Center (collectively the "Building").
In addition to the Premises, Tenant has the right to use, in common with others,
the lobby, public entrances, public stairways, public areas and public elevators
of the Building (the "Common Areas"). The Common Areas serving the Building will
at all times be subject to Landlord's exclusive control and management in
accordance with the terms and provisions of this Lease. In addition, the Tenant
shall be entitled to use during the term of this Lease, up to four thousand
square feet of raised flooring located in the Building and identified by
Landlord as available for the Premises. Such raised flooring shall be accepted
by the Tenant in its "as is, where is, with all faults" condition and Tenant
shall be solely responsible for removing the flooring from its current location
and installing such in the Premises. Tenant shall return the flooring to the
Landlord at the expiration or earlier termination of this Lease, in its current
condition, reasonable wear and tear excepted.
B. RIGHT OF FIRST REFUSAL. Provided that no default beyond any
applicable notice and cure periods shall have occurred under this Lease, the
Landlord grants to the Tenant a right of first refusal, exercisable from the
date hereof and continuing through one (1) year prior to the expiration of the
term of this Lease, unless Tenant, prior to such one (1) year, elects to renew
the term hereof as provided in Paragraph 2B hereof, inclusive, to lease the
Expansion Premises as described on Exhibit "A-1" attached hereto and made a part
hereof upon the terms herein provided (the "Right of First Refusal Term"). If
during the Right of First Refusal Term the Landlord shall receive a BONAFIDE
third-party offer to lease all or a portion of the Expansion Premises ("Third
Party Offer"), then Landlord shall advise Tenant, in writing, of Landlord's
intention to accept such Third Party Offer and shall furnish to Tenant all of
the basic terms and conditions of such Third Party Offer (the "Landlord's
Notice"). Tenant shall thereafter have the option, within ten (10) days
following Tenant's receipt of Landlord's Notice, to exercise its Right of First
Refusal to lease not less than all of the entire Expansion Premises
(notwithstanding a Third Party Offer for the lease of less than all of the
Expansion Premises) by giving notice of its election to exercise its Right of
First Refusal in writing to Landlord (the "Tenant's Acceptance"). If Tenant
timely exercises the right of first refusal, Landlord and Tenant shall, within
five (5) business days thereafter, enter into an amendment to this Lease
affirming the covenants and conditions contained in this Lease, except that the
amendment, with respect to the Expansion Premises shall contain the applicable
business terms and conditions as contained in the Third Party Offer. If Tenant
waives or fails to exercise its right of first refusal, the Landlord may then
lease all or such portion of the Expansion Premises to any other party,
including the third party offerer on the same terms and conditions set forth in
the Landlord's notice and the Right of First Refusal shall thereafter be
terminated on a self-effectuating basis and be of no further force or effect
until the third party lease expires (after all elected renewal terms thereof)
Notwithstanding the immediately preceding sentence, Landlord may, additionally,
request the Tenant to execute a written certification of the lapse and
termination of the Right of First Refusal as herein contained.
C. NO RESERVATION. Nothing herein shall constitute a reservation or
other rights in or to the Expansion Premises or shall impose an obligation on
the Landlord to abstain from marketing the
Page 1
------------------
Blue Lake Standard Lease
Expansion Premises for lease to third parties, subject to this right of first
refusal.
2. LEASE TERM; LEASE DATE
A. GENERAL. 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 ("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, will commence on the Rent
Commencement Date. Tenant shall observe and perform all of its obligations under
this Lease (except its obligations to conduct business), from the earlier to
occur of the date that the Premises are delivered to Tenant for the purpose of
commencement of the Tenant's improvements to the Premises or the date Tenant
otherwise takes possession of the Premises (until the Commencement Date) in the
same manner as though the Lease Term began when the Premises were so delivered
to Tenant. Except as specifically provided in the BLI Rider, under no
circumstances, however, may Tenant enter into possession of the Premises prior
to the earlier to occur of the date that the Premises are delivered to Tenant
for the purpose of commencement of Tenant's improvements to the Premises or the
Commencement Date without the express written consent of Landlord and subject to
any reasonable terms of the consent. Tenant shall not be required to pay Rent
(as such term is hereinafter defined) for any period prior to the Rent
Commencement Date or as otherwise stated in the BLI. However, Tenant shall pay
for all utilities and services consumed by or on behalf of Tenant prior to the
Rent Commencement Date for construction, fixturing and move-in. Upon Landlord's
request, Tenant shall execute a "Rent commencement Expiration Certification
Rider" in the form attached hereto and made a part hereof as Exhibit "I".
B. RENEWAL OPTION. Landlord grants to Tenant an option (the
"Option") to extend the term of this Lease for one (1) additional period of five
(5) years (the "Renewal Term") under the terms set forth below. Tenant shall not
be entitled to exercise the Option unless each of the following conditions shall
be fully satisfied at the time of its exercise: (i) the Lease shall be in full
force and effect; (ii) the Tenant originally named in this Lease, or its
permitted assignees, shall be in possession of the entire Premises; and (iii)
Tenant shall not then be in default under any of the material terms, provisions,
covenants or conditions of the Lease beyond any applicable notice and cure
periods. In order to exercise the Option, Tenant must first give written request
to Landlord, not less than twelve (12) months prior to the Expiration Date of
the Initial Lease Term for delivery of Landlord's determination of Market Rent,
as defined below. Base Rent for each Renewal Term shall be equal to the Market
Rent, as determined in accordance with this section ("Market Rent"). Within
thirty (30) days following its receipt of Tenant's request, Landlord shall
advise Tenant of Market Rent for each year of the respective Renewal Term.
Market Rent (including escalations for successive years of the Renewal Term)
shall be determined by Landlord in its reasonable judgment. Landlord's
determination of the Market Rent shall be based, as Landlord reasonably deems
appropriate, upon then current and projected rents for space in the Building,
adjusted for any special conditions applicable to such space and leases, for
location, length of term, amount of space and other factors Landlord deems
relevant in computing rents for space in the Building, including adjustments for
anticipated inflation. Tenant may exercise its option by notifying Landlord;
within 30 days from the date on which Tenant was first advised by Landlord of
its determination of Market Rent, that Tenant has elected to exercise the Option
at the Market Rent determined by Landlord or proceed as provided below. If
Tenant exercises the Option as provided, the Expiration Date of the Lease shall
be extended for the length of the Renewal Term and Base Rent shall be adjusted
to Market Rent. If Tenant shall fail to timely exercise the Option as provided.
Tenant shall be deemed to have waived its right to exercise the Option and to
occupy the Premises beyond the initial Term of the Lease or beyond any
previously exercised Renewal Term of this Lease. The Base Year for the Renewal
Term shall be the first Lease year of the Renewal Term. Upon a determination of
Base Rent for the First Lease Year of the Renewal Term, Landlord and Tenant
shall agree on a Base Rent schedule, in the same format set forth in the BLI
Rider for the Initial Lease Term, for the balance of the Renewal Term, based
upon the herein above prescribed formula. Landlord's determination shall be
based, as Landlord reasonably deems appropriate, upon then current and projected
rents for space in the Building, adjusted for any special conditions applicable
to such space and leases, for location, length of term, amount of space and
other factors Landlord deems relevant in computing rents for space in the
Building, including adjustments for anticipated inflation. Any agreement of
Landlord and Tenant regarding the amount of Market Rent shall be in writing
signed by them within thirty (30) days after the date Tenant was first advised
by Landlord of its initial determination of Market Rent, in which event Tenant
shall be deemed to have exercised the Option. If Landlord and Tenant are unable
to agree upon Market Rent in writing within such thirty (30) day period, Tenant
may nevertheless exercise its option by notifying Landlord, within 30 days from
the date on which Tenant was first advised by Landlord of its initial
determination of Market Rent, that Tenant has elected to exercise the Option at
the Market Rent determined by Landlord subject to a reservation of Tenant's
right to arbitrate Landlord's determination of Market Rent in accordance with
this Section. If Tenant exercises the Option as provided, the termination date
of the Lease shall be extended for a period of five (5) years and Base Rent
shall be adjusted to Market Rent. If Tenant shall fail to timely exercise the
Option as provided, Tenant shall be deemed to have waived its right to exercise
the Option and to occupy the Premises beyond the initial term of the Lease. If
the parties cannot agree in writing on Market Rent and Tenant timely exercises
the Option,
Page 2
------------------
Blue Lake Standard Lease
then within thirty (30) days after Tenant's exercise of the Option, Tenant and
Landlord shall each select a licensed real estate appraiser with at least ten
(10) years substantial commercial leasing expertise particularly in the this
area of Palm Beach County, Florida and notify the other party of such selection,
and the selected appraisers shall in turn select a similar third appraiser who
will determine Market Rent. If the appraisers are unable to agree on a third
appraiser within sixty (60) days after Tenant's exercise of the Option, Market
Rent shall be determined by suit for declaratory relief. The cost of the third
appraiser and any court costs shall be shared equally by the parties. If either
party fails to timely select a appraiser and notify the other party of such
selection, the other party's timely selected appraiser shall unilaterally
determine Market Rent. If Tenant elects to exercise the Option subject to its
reservation to contest Market Rent, Tenant shall nonetheless on the commencement
of the Renewal Term begin paying Base Rent at the Market Rate determined by
Landlord. If Market Rent is ultimately determined to be other than the amount
initially determined by Landlord, the next due payment or payments of Rent shall
be appropriately adjusted to reflect such overpayment or underpayment
retroactive to commencement of the Renewal Term.
3. RENT
A. BASE RENT. Beginning on the Rent Commencement Date, and
continuing during the Lease Term, Tenant will pay to Landlord in lawful It is
estimated that on or before March 31 following a United States Currency as the
base rent for the Premises ("Base Rent") the amounts set forth in the BLI Rider,
with same being payable without demand, setoff or deduction except as otherwise
specifically provided in this Lease, in advance, on or before the first day of
each month, in equal monthly installments of the amounts set forth in the BLI
Rider, plus applicable sales and other such taxes as are now or later enacted.
All payments of Base Rent, Overhead Rent, (and Security Deposits if subsequently
applicable during the Lease Term), and any other sums due from Tenant under this
Lease shall be made by wire transfer to such account as may be designated (or
re-designated from time to time) by Landlord's written notice. Such Rent shall
be immediately payable to Landlord upon written demand and any failure to so
pay, subject to the grace provisions set forth in Section 3, shall constitute an
Event of Default.
B. OVERHEAD RENT Beginning on the Rent Commencement Date, Tenant
shall pay Tenant's Share, as defined in the BLI Rider, of (I) the total amount
of the annual Operating Expenses (as hereafter defined). And (ii) the total
amount of Taxes (as hereafter defined). As used herein, "Overhead Rent" means
the total of Tenant's allocated Share of Operating Expenses and Taxes.
B.1. "CAP" ON CONTROLLABLE OPERATING EXPENSES. Notwithstanding
the foregoing, in no event shall the Tenant's share of the Controllable
Operating Expenses be increased by more than eight (8%) percent, on a
non-cumulative basis, from that charged to the Tenant, as part of Overhead Rent,
for the immediately preceding calendar year. Increases in Operating Expenses
that are not deemed "controllable" as defined hereunder shall not be limited by
the foregoing sentence. Controllable Operating Expenses do not include (i)
Taxes, (ii) utility charges and fees (including, but not limited to, water,
sewer, electrical, telephone, chilled water and ventilation and air-conditioning
charges, cable communications and the like), (iii) premiums for any increases in
insurance contracted for by Landlord to the extent that any such increases shall
be a commercially reasonable judgment by Landlord, and in conformance with
responsible management customary for a Building of the size, nature and
character of the Building; (iv) minimum wage changes, and (v) costs resulting
from changes in law, to the extent however that any such cost is incurred as to
an item which is otherwise chargeable as an Operating Expense and is not
otherwise an exclusion from Operating Expenses.
B.2. ESTIMATES OF OVERHEAD RENT. Prior to each subsequent
calendar year; beginning with the calendar year immediately following the Base
Year, Landlord shall, in advance, reasonably estimate for each such calendar
year the total amount of the Overhead Rent. One-twelfth (1/12) of the estimated
Overhead Rent shall be payable monthly, along with the monthly payment of the
Base Rent. B. Overhead Rent Beginning on the Rent Commencement Date, Tenant
shall pay Tenant's Share, as defined in the BLI Rider, of (i) the total amount
of the annual Operating Expenses (as hereafter defined) and (ii) the total
amount of Taxes (as hereafter defined). As used herein, "Overhead Rent" means
the total of Tenant's allocated Share of Operating Expenses and Taxes.
B.3. RECONCILIATION STATEMENT. It is estimated that on or before
March 31 following a calendar year for which Overhead Rent is payable hereunder,
Landlord shall provide Tenant with a reconciliation statement showing the amount
of the actual components of Overhead Rent for the immediately previous calendar
year only. Notwithstanding the provisions of the immediately preceding sentence,
should Landlord fail to provide Tenant with a reconciliation statement by June
30 for the immediately preceding calendar year, Tenant shall have no further
liability for any additional payment to Landlord that would otherwise be
reflected and required in the said reconciliation statement for the preceding
year. If the reconciliation statement reflects an underpayment in either
component of Overhead Rent, Landlord shall also deliver to Tenant an invoice
which Tenant shall pay within thirty (30) days following receipt of such
invoice. If the reconciliation statement reflects an overpayment in either
component of Overhead Rent, Tenant shall be entitled to either, at Landlord's
option, to a credit against the next month's payment of Rent together with a
refund check from Landlord for the balance of such overpayment or a refund check
from the Landlord for the entire amount of such overpayment If the Lease has
expired, the overpayment shall be refunded. In no event shall the Base Rent
under this Lease be reduced by virtue of this Section. As used in this paragraph
3., the following terms shall have the following meanings:
(1) The term "Operating Expenses" shall mean (i) any and all
reasonable costs of ownership, management, operation, repair and maintenance of
the Building, including, without limitation, wages, salaries, professionals'
fees, taxes,
Page 3
------------------
Blue Lake Standard Lease
insurance, benefits and other payroll burdens of all employees,
Building Management fee, Common Area janitorial, maintenance, guard and other
services, building management office rent or rental value, power, fuel, water,
waste disposal, chilled water and hearing, ventilating and air conditioning
charges, stand-by electric generator system maintenance, upkeep, monitoring and
refueling charges, landscaping care, lighting, garbage removal, window cleaning,
system maintenance, parking area care, fees and assessments paid to or on behalf
of the "Association" (as later defined herein), and any and all other utilities
not separately metered for the Premises or a portion thereof, materials,
supplies, maintenance, repairs, insurance applicable to the Building and
Landlord's personal property and depreciation on personal property, and (ii) the
cost (amortized over such reasonable period as Landlord shall determine together
with interest at 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 in a commercially reasonable manner Operating
Expenses or made to the Building by Landlord after the date of this Lease that
are required under any governmental law or regulation; provided, however, that
Operating Expenses shall not include real property taxes, depreciation on the
Building, costs of tenants' improvements, marketing or advertising costs for the
rental or sale of the Building, costs of electricity or other utilities
separately metered for other tenant's spaces, executive or managerial salaries
or benefits above the level of management, consulting fees not related to
operation, management or repairs, market study fees, capital repairs or
replacements (except as provided above), real estate broker's commissions, costs
of repairs covered and paid by insurance (subject to deductibles paid by
Landlord), fines or penalties for Landlord's failure to pay taxes and
assessments before such became delinquent, or any other obligation on time,
points, fees and interest charges, principal payments or any other payments of
any kind related to Landlord's financing or refinancing of the Building as a
whole, transaction costs directly incurred in a sale or transfer of the
Building, expenses resulting from defective construction work performed by
Landlord, the initial acquisition and installation costs of the stand-by
electrical generator and related systems, interest and capital items other than
those referred to in subsection (ii) above. Landlord shall maintain accounting
books and records in accordance with sound accounting principles. Landlord
hereby agrees to deduct each calendar year from the amount of 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 or specific utility charges, if applicable.
Notwithstanding anything to the contrary in the definition
of "Operating Expenses", Operating Expenses shall, also, not include any of the
following:
(a) Legal fees, accounting fees or other expenses related to
the defense of Landlord's title to or interest in the Premises or the Building.
(b) Payment of debt service on loans secured by a mortgage
or lien encumbering the Building or any portion or interest of or in the
Building.
(c) All costs and expenses which have been paid by Landlord
and reimbursed directly to Landlord by third-parties, including other tenants in
the Building, rather than through Operating Expenses.
(d) Legal fees and disbursements incurred for negotiation of
leases or enforcement of leases.
(e) Rent and additional rent payable under a ground lease or
any other superior lease encumbering the Building.
(f) Costs for which Landlord is compensated by insurance
proceeds or for which Landlord would have been compensated by insurance proceeds
had Landlord carried the insurance required by this Lease.
(g) Any fee or expenditure paid to an entity related to
Landlord materially in excess of the amount which would be paid in an arms
length transaction for materials or services of comparable quality (but only to
the extent of such excess).
(h) All costs and expenses, including fines, penalties and
legal fees) incurred due to a violation caused by Landlord in connection with
any new improvements constructed by Landlord within or as part of the Building.
(i) Salaries or fringe benefits of full-time personnel of
Landlord for any time periods performing for properties other than the Building.
(j) Any bad debt loss, rent loss, or reserves for bad debts
or rent loss.
(k) Costs incurred by Landlord for repairs or replacements
to the extent that Landlord is actually reimbursed under warranties or
guaranties.
(l) Any compensation paid to clerks, attendants, or other
persons in any potential commercial parking garage constructed to support the
Building for which separate parking fees or charges will be made to tenants.
(m) The cost of installing and maintaining any specialty
facility, such as a dining facility, athletic or recreational club, or luncheon
club if such facility is exclusive to any single tenant of the Building.
(n) Costs for sculptures, paintings, and other objects of
art located within or outside of the Building, other than the cost of
maintaining such sculptures, paintings and objects.
Page 4
------------------
Blue Lake Standard Lease
(2) The term "Taxes" shall mean the amount actually incurred
by Landlord (exclusive of any penalties, interest or late fees) 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 (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
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 it is located) attributable in any
manner to the Building, the land on which the Building is located and the
approximately 350 acre portion of the property surrounding the building, shown
on Exhibit "F" hereto (but excluding the assessed value of any new building(s)
and the land allocated to such new building(s) constructed on such campus), or
the rents (however the term may be defined) receivable therefrom, or any part
thereof, or any use thereon, or any facility located therein or used in
conjunction therewith or any charge or other amount required to be paid to any
governmental authority. For purposes hereof, until such time as a separate tax
folio is established for the Building and the approximate 350 acre campus, the
taxes on the Building and other improvements shall be determined from the
assessment line-item therefor and the taxes on the approximate 350 acres campus
shall be determined by comparison to the assessment for unimproved land located
in the Arvida Park of Commerce located in Boca Raton, Florida. The term "Taxes"
does not include income, excess profits, estate inheritance, succession,
transfer of capital tax assessments on Landlord or on Rent.
Tenant hereby agrees that the Overhead Rent from time to time computed
by Landlord shall be final and binding for all purposes of this Lease unless,
within ninety (90) days after Landlord provides Tenant with written notice of
the amount thereof, Tenant provides Landlord with written notice (i) disputing
the mathematical accuracy of such amount or whether such is a proper Operating
Expense under this Lease (the "Disputed Amount"), and (ii) designating an
attorney or accountant, reasonably acceptable to Landlord, and appointed by
Tenant, at its sole cost and expense, to review the mathematical accuracy of the
Disputed Amount, or whether such is a proper Operating Expense under this Lease
with Landlord and/or its designated representatives Tenant shall within thirty
(30) days of invoice, pay all of Landlord's reasonable costs and expenses in
connection with such review, including reasonable attorneys' fees and
accountants' fees, unless as a result thereof the Disputed Amount is
demonstrated to reflect a mathematical error in excess of three and one-half
percent (3.5%) of the amount actually due from Tenant. If such error is in
excess of three and one-half percent (3.5%), Landlord shall pay, within thirty
(30) days of invoice, Tenant's reasonable costs and expenses in connection with
such review, including reasonable attorneys' fees and accounting fees. Landlord
hereby agrees, in the event it receives such notice from Tenant, to cooperate in
promptly completing such review and promptly refunding any portion of the
Disputed Amount which exceeds the amount actually due from Tenant. Such an audit
shall be at Tenant's expense, at any time within ninety (90) days after
Landlord's annual statement is delivered to Tenant for such calendar year,
provided, that Tenant shall give Landlord not less than fifteen (15) days prior
written notice of any such audit and sign a confidential non-disclosure
agreement prior to the audit reasonably acceptable to Tenant and subject to any
qualifications expressly provided in this Lease. Notwithstanding the foregoing,
in no event shall Tenant have the right to dispute or audit Overhead Rent to the
extent that such Overhead Rent is less than $4.50 per square foot of Rentable
Area.
C. LATE CHARGE. Tenant covenants and agrees to pay a late charge in
the amount of Five (5.0%) percent of any payment of Base Rent and Overhead Rent
not received by Landlord within three (3) days from written notice from Landlord
and within ten (10) days from written notice from Landlord for all other
payments due hereunder. Tenant shall also pay Landlord interest at a rate equal
to twelve percent (12%) per annum accruing on any Rent(s) outstanding beyond
such three (3) day period or ten (10) day period, as applicable. Tenant shall
pay Landlord any such late charge(s) or interest within five (5) days after
landlord notifies Tenant of same.
D. DEFINITION OF RENT. The term "Rent" shall refer collectively to
Base Rent, Overhead Rent and Additional Rent. The term "Additional Rent" is
sometimes used herein to refer to any and all other sums payable by Tenant
hereunder, including, but not limited to, parking charges and sums payable on
account of default by Tenant. All Rent shall be paid by Tenant without offset,
demand or other credit except as otherwise specifically provided herein, 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. All sums payable by Tenant hereunder by check shall be
obtained against a financial institution located in the United States of
America. The Rent shall be paid by Tenant at the Building management office
located in the Building or elsewhere as designated by Landlord in writing to
Tenant. Any Rent payable for a portion of a month shall be prorated based upon
the number of days in the applicable calendar month.
E. RENT TAXES. 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.
F. COMMENCEMENT OTHER THAN FIRST DAY. If the Commencement Date
occurs on any
Page 5
------------------
Blue Lake Standard Lease
day other than the first day of the month, or the Lease Term ends on a date
other than the last day of a calendar month, Tenant shall occupy the Premises
under the terms of this Lease and the pro rata portion of the Rent shall be paid
by Tenant; provided, however, that in such an event the Commencement Date, for
the purposes of this Lease, shall be deemed to be the first day of the month
immediately following the month in which possession is given.
G. OVERHEAD RENT AFTER EXPIRATION DATE. Overhead Rent for the final
months of this Lease is due and payable even though it may not be calculated
until subsequent to the Expiration Date of the Lease.
4. SECURITY DEPOSIT.
A. SECURITY DEPOSIT. [Intentionally Omitted.]
B. SECURITY INTEREST. Landlord waives any statutory and common law
liens for rent, except as any tenant improvements installed or constructed in
the Premises, which waiver shall be automatic and self-executing.
Notwithstanding the foregoing, Landlord agrees to execute such reasonable
documents requested by Tenant to evidence such waiver set forth herein.
5. USE
A. GENERAL. Tenant will use and occupy the Premises solely specific
uses set forth in the BLI Rider and for no other use whatsoever. Tenant shall,
at its own cost and expense, obtain any and all licenses and permits necessary
for such use. Tenant acknowledges that its type of business, as above specified,
is a material consideration for Landlord's execution of this Lease. Tenant will
not commit waste upon the Premises nor suffer or permit the Premises or any part
of them 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) 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 installed therein, (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. Tenant agrees and
acknowledges that Tenant shall be responsible for obtaining, and for any and all
costs of 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.
B. PROHIBITED USES. Notwithstanding anything to the contrary in this
Lease or the BLI Rider, including but not limited to, the "Use of Premises"
Section of the BLI Rider, Tenant hereby covenants and agrees that Tenant's
business is not and shall not be, and that Tenant shall not use the Premises or
any part thereof, or permit the Premises or any part thereof to be used without
Landlord's prior written consent, [(i) for the business of photographic,
multilith or multigraph reproductions or offset printing; (ii) for a retail
banking, trust company, depository, guarantee or safe deposit business open to
the general public, or indoor automated teller machines, (iii) as a savings
bank, a savings and loan company open to the general public, (iv) for the sale
to the general public of travelers checks, money orders, drafts, foreign
exchange or letters of credit or for the receipt of money for transmission, (v)
as a stock broker's or dealer's office or for the underwriting or sale of
securities open to the general public, (vi) as a restaurant, cafeteria, bar, or
an establishment for the sale of confectionery, soda, beverages, sandwiches, ice
cream or baked goods or for the preparation, dispensing or consumption of food
or beverages in any manner whatsoever, (vii) as a news or cigar stand, (viii) as
an employment agency, labor union office, physician's or dentist's office, dance
or music studio, school (except for the training of employees and clients of
Tenant), (ix) as a xxxxxx shop or beauty salon, (x) for the business of (a)
operating a shared office facility, that is, a business which subleases space
and/or offers centralized services to subtenants or customers on a shared basis,
such as secretarial, receptionist, telephone, etc., or (b) for a fee to persons
inside or outside of the Building, providing as a service word processing,
secretarial, video conferencing, conference services, telephone answering,
receptionist or mail receipt services, (xi) for any services or uses to the
general public to be conducted on the Premises, (xii) amateur recreational uses
or movie theaters, (xiii) retail sales, including but not limited to drug stores
or florists, or (xiv) warehousing, showroom and wholesale uses. Nothing in this
Section shall preclude Tenant from using any part of the Premises for
photographic, multilith or multigraph reproductions to the extent that such uses
are incidental to Tenant's own business or activities.
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK
Taking possession of the Premises by Tenant shall be conclusive
evidence that the Premises were in good and satisfactory condition when
possession was so taken subject to latent defects and Landlord's maintenance and
repair obligations provided in this Lease. Unless expressly stated herein to the
contrary, Landlord has no obligation to repair, improve, or add to the Premises
subsequent to Tenant's taking possession thereof and Tenant shall, at its sole
cost and expense and in compliance with the provisions of this Lease, be
responsible for any changes, alterations, replacements or repairs, maintenance
and decorations to the Premises. Except as may be specifically provided in this
Lease, Tenant shall not be required to make alterations to the structural or
base building improvements of the Building. Neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Building or the Premises,
Page 6
------------------
Blue Lake Standard Lease
or any other matter or thing affecting or relating to Premises except as herein
expressly set forth, and no use, and its right to permit its principals and
guests to rights, easements or licenses are acquired by Tenant use, the parking
facilities pursuant to this Lease are by implication or otherwise, except as
expressly set subject to the following conditions: (i) Landlord forth in the
provisions of this Lease. Notwithstanding Deserves the right to reasonably
reduce the number of the foregoing, Landlord represents and warrants to Tenant
that it has not received any notice that the Building is currently in violation
of any laws, regulations or ordinances. Any existing ceiling system and
demountable partitions are to be removed from the Premises to the delivery of
the Premises at Landlord's expense. Improvements if any, to be made to the
Premises by Tenant shall be made in accordance with the Work Letter. Landlord's
published list of pre-approved general contractors and architects for The Blue
Lake Corporate Center, as may be amended from time to time Landlord at its
option (except if Landlord has already approved a general contractor or
architect), shall have exclusive right to bid for Tenant's construction
contracts. Improvements, if any, to be made to the Premises by Landlord are
specifically set forth in Work Letter and there are no others. All leasehold
improvements (as distinguished from trade fixtures and apparatus) installed in
the Premises at any time, whether by or on behalf of Tenant or by or on behalf
of Landlord, shall not be removed from the Premises at any time, unless such
removal is consented to in advance by Landlord; and at the expiration of this
Lease (either on the Expiration Date or upon such earlier termination as
provided in this Lease), all such leasehold improvements shall be deemed to be
part of the Premises, shall not be removed by Tenant when it vacates the
Premises, and title thereto shall vest solely in Landlord without payment of any
nature to Tenant. All trade fixtures and apparatus (as distinguished from
leasehold improvements) owned by Tenant and installed in the Premises shall
remain the property of Tenant and shall be removable at any time, including upon
the expiration of the Term; provided that Tenant shall repair any damage to the
Premises caused by the removal of said trade fixtures and apparatus and shall
restore the Premises to substantially the same condition as existed prior to the
installation of said trade fixtures and apparatus. The taking of possession by
Tenant (or any permitted assignee or subtenant of Tenant) of all or any portion
of the Premises for the conduct of business will be deemed conclusive evidence
that Tenant has found the Premises, and all of their fixtures and equipment,
acceptable, subject to latent defects and Landlord's maintenance and repair
obligations provided in this Lease.
7. PARKING
A. RESERVATIONS. Landlord has and reserves the right to reasonably
alter the methods used to control parking and the right to reasonably 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 will 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 and/or owner of the vehicle.
B. CONDITIONS. Tenant's right to use, and its right to permit its
principals and guests to use, the parking facilities pursuant to this Lease are
subject to the following conditions: (i) Landlord reserves the right to
reasonably reduce the number of spaces in the parking area by not more than ten
percent (10%) of the then number of parking area spaces in the parking area
and/or reasonably change access thereto so long as such does not materially
reduce the number of parking spaces within reasonable priximity to the Premises;
and none of the foregoing shall entitle Tenant to any claim against Landlord or
to any abatement of Rent (or any part thereof); (ii) 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 caused by the negligence or willful
misconduct of Landlord, or its agents, employees or contractors, Tenant hereby
agreeing to bear the risk of loss for same; (iii) Tenant, its agents, employees
and invitees, shall park their automobiles and other vehicles only where and as
reasonably designated from time to time by Landlord within the parking area so
long as such remain in reasonable proximity to the Premises; and (iv) if and
when so requested by Landlord, Tenant shall furnish Landlord with the license
numbers of any vehicles of Tenant, its agents and employees.
8. BUILDING SERVICES
A. GENERAL. In general, the services set forth below will be
provided by Landlord or Landlord's licensee or an independent contractor
contracted for by Landlord at a service level set, defined and regulated
consistent with office buildings of similar quality to and in the same immediate
geographic area as the Building. During the Lease Term, the regular business
hours ("Business Hours") of the Building (including the auditorium and
cafeteria) will be 7:00 a.m. to 7:00 p.m., Monday through Saturday, except
holidays generally recognized by state and federal governments or as may be
shortened in accordance with applicable policies or regulations adopted by any
utility company servicing the Building or government. During periods other than
Business Hours chilled water will be available from Landlord or its energy
manager on prior request on an as-available basis at the per-ton-pricing from
time-to-time then in effect, except if such chilled water is separately metered
to the Premises, in which event Tenant shall pay the costs of such chilled water
as provided in below. Landlord reserves the right to increase the Business
Hours. The Building will be accessible to Tenant, its subtenants, agents,
servants, employees, contractors, invitees or licensees (collectively, "Tenant's
Agents") twenty-four hours per day, seven days per week except in the case of
temporary closure due to emergencies, repairs, casualty, governmental or
quasi-governmental requirements or as Landlord reasonably deems necessary in
order to prevent damage or injury to person or property. Landlord shall use
reasonable efforts not to materially disturb or interfere with Tenant's business
or Tenant's use of the Premises in connection with any such entry.
Page 7
------------------
Blue Lake Standard Lease
(1) ELECTRICITY:
(a) Landlord is the exclusive vendee of electrical utility
services for the Project. There shall be installed, at Landlord's expense, in
conformance with the Work Letter, separate electric metering for the Premises.
Tenant shall pay all applicable security deposits required to secure electrical
services as provided in the BLI Rider. Landlord shall be solely responsible for
the expenses of all sub-metering for all other utility services to the Premises,
to the extent such may be reasonably sub-metered. In the event that sub-metering
is not available until completion of all demising work for the Premises prior to
the Rent Commencement Date electric power will be available through the auspices
of lighting and general office equipment use in amounts consistent with Building
Standard Electric Capacities. Landlord reserves the right after business hours
during non-Business Hours to turn off all unnecessary lighting in the unoccupied
areas of the Building to minimize the energy consumption of the Building. Tenant
will not, without written consent of Landlord connect with electric current
except through existing electrical outlets in the Premises, any major apparatus
or major device for the purpose of using electric current, except for Tenant's
ability to add a supplemental package air-conditioning unit as provided in this
Section 8.
(2) STAND-BY ELECTRIC GENERATOR RIDER. Tenant may participate in
the stand-by electric generator service program available to the Building by
executing the stand-by electric generator subscription rider attached hereto and
made a part hereof as Exhibit "G".
(3) AIR-CONDITIONING SERVICES: Landlord agrees that either
Landlord or its designated utility manager (the "Utility Manager") shall
provide, air-conditioning services to the Premises which air-conditioning
services (including chilled water) shall be separately metered to the Premises
and billed directly by either Landlord or the Utility Manager directly to
Tenant. During Business Hours, air conditioning consistent with comparable
buildings in the Boca Raton area shall be supplied to the Premises for the
purposes of comfort control in the Premises during regular business hours
consistent with comparable office buildings in the Boca Raton area. Landlord and
Tenant agree that Landlord's air-conditioning system is not designed to cool
machinery and equipment. Tenant shall not re-direct, or in any manner modify,
the air-conditioning duct distribution to accommodate Tenant's build-out unless
any such modifications are first approved in writing by the Landlord, which
modifications shall be designed only by an engineer pre-approved by the
Landlord. If Tenant requires additional air-conditioning services for comfort
control during Business Hours, (i.e., in excess of Building Standard) or during
non-Business Hours Landlord shall, in response to Tenant's request for any such
additional air-conditioning service accommodate Tenant subject to availability
at the then prescribed per-ton hour basis which service shall be billed to
Tenant as Additional Rent. At the time of the execution of this Lease, the
per-ton hour charge for additional air-conditioning services is $.24. This rate
may be subject to change during the Lease Term as evaluated and determined by
FPL Services, the Utility Manager or a similar service. At Landlord's option,
Landlord may secure air-conditioning controls (thermostats) in lockable metal
boxes to regulate the efficiency and use of the system. The Landlord may, at its
option, contract with FPL Services, or such other provider of chilled-water
distribution system sources as the Landlord may reasonably elect.
(4) WATER AND SEWER: Landlord agrees to provide municipally
supplied cold water and sewer services to the Common Areas for lavatory
purposes.
(5) ELEVATOR SERVICE: Subject to events of force majeure, Tenant
shall have passenger elevator access to the Premises twenty-four (24) hours per
day, seven days per week; however, access for deliveries and use of freight
elevators are subject to Landlord's reasonable rules and regulations.
(6) WINDOW WASHING: Landlord will provide exterior window washing
with reasonable frequency.
B. INTERRUPTION OF SERVICES. Tenant understands and agrees that
Landlord does not warrant that any of the services referred to above, or any
other services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more of such services may be suspended by reason of
accident or repairs, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or other causes beyond
the control of Landlord. No such interruption or discontinuance of service will
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 from the responsibility of performing any of
Tenant's obligations under this Lease. However, to the extent that electrical
service is interrupted for more than five (5) consecutive business days due to
the negligence or willful act of the Landlord, its agents, employees or
contractors, and such interruption prevents the Tenant from occupying the
Premises for its business operations and Tenant does not occupy the Premises for
the duration of such interruption, Rent shall xxxxx to the extent that such
interruption continues beyond the five (5) consecutive business day period.
C. FIBER OPTICS. Tenant may contract with BellSouth, which has been
provided access through the underlying property by Landlord for
telecommunication service wiring and installation and which has been designated
by the Landlord as the vendor of choice at the Blue Lake Building, for
Page 8
------------------
Blue Lake Standard Lease
voice and data telecommunication wiring and services, and installing any
telecommunication products and, specifically, dual access points for Tenant's
fiber optic lines, at Tenant's sole expense. To the extent that such
installation requires the digging of a trench through the Property in order to
gain dual access points, the Tenant shall provide the Landlord with plans and
schematics for the referenced installation which plans and schematics shall be
subject to the reasonable satisfaction of the Landlord and which installation
shall be further subject to the approval, as necessary, of the City of Boca
Raton or other agencies having jurisdiction thereon.
D. UTILITY DEREGULATION: Landlord has advised Tenant that presently,
Florida Power & Light ("Electric Service Provider") is the utility company
selected by Landlord to provide utility service for the Building.
Notwithstanding the foregoing, if permitted by law, Landlord shall have the
right at any time and from time to time during the Lease Term to either contract
for service from a different company or companies providing electric service (a
such company shall hereinafter be referred to as an "Alternate Service
Provider") or continue to contract for service from the Electric Service
Provider. Tenant shall cooperate with Landlord, the Electric Service Provider
and any Alternate Service Provider at all times and, as reasonably necessary,
shall allow Landlord, Electric Service Provider, and any Alternate Service
Provider reasonable access to the Building's electric lines, feeders, risers,
wiring and any other machinery within the Premises. Landlord shall be in no way
liable or responsible for any loss, damage or expense that Tenant may sustain or
incur by reason of change, failure, interference, disruption or defect in the
supply or character of the electric energy furnished to the Premises (except to
the extent caused by the negligence or willful misconduct of Landlord, its
agents, employees or contractors), or if the quantity or character of the
electric energy supplied by the Electric Service Provider or any Alternate
Service Provider is no longer available or suitable for Tenant's requirements,
then no such change, failure, defect, unavailability or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of Rent, or relieve Tenant from any of its
obligations under the Lease.
9. SECURITY
With respect to security for the Building and the parking lot,
Landlord and Tenant hereby agree as follows: Security of the Premises is the
sole responsibility of the Tenant and that the Landlord has no liability for
breach of security to the Premises. Tenant may at Tenant's expense install a
security system to the Premises; provided, however, that Tenant, in addition to
access otherwise required hereunder, will provide Landlord adequate access to
the Premises in case of emergencies particularly regarding Premises that contain
fire sprinkler risers and equipment. Landlord will install in the Building, an
access device, such as a keypad or card reader, as Landlord may deem appropriate
for the Building, in Landlord's sole and absolute discretion. All repairs
required to the Premises caused by security breaches are the responsibility of
the Tenant, except to the extent caused by the negligence or willful misconduct
of Landlord, its agents, employees or contractors, however, Landlord may elect
to effect such repairs, if appropriate to insure continued security, protection
of property, or safety of life. The cost of such repairs shall be Additional
Rent.
A. TENANT'S RESPONSIBILITY. Tenant shall: (1) abide by all
reasonable policies, procedures and rules and regulations for use of the access
system, (2) report promptly the loss or theft of all keys which would permit
unauthorized entrance to the Premises, Building or parking lot, (3) promptly
report to Landlord door-to-door solicitation or other unauthorized activity in
the Building or parking lot, and (4) promptly inform the Landlord's security
contractor in the event of a break-in or other emergency. In addition, Tenant
may, at its option and sole cost and expense, install its own interior security
system pursuant to plans to be submitted to Landlord for Landlord's approval,
which approval shall not be unreasonably withheld. The Tenant shall deliver
mechanic's lien releases prior to the initiation of the work.
B. INTERRUPTION OF SECURITY. Tenant acknowledges that the above
security provisions may be suspended or modified at Landlord's sole discretion
or as a result of causes beyond the reasonable control of Landlord. No such
interruption, discontinuance or modification of security service will constitute
an eviction, constructive eviction, or a disturbance of Tenant's use and
possession of the Premises, and further, no interruption, discontinuance or
modification of security service will render Landlord liable to Tenant or
third-parties for damages, abatement of Rent, or otherwise, or relieve Tenant of
the responsibility of performing Tenant's obligations under this Lease.
C. HURRICANE SHUTTER OPTION. Tenant may, at Tenant's sole cost and
expense (which shall include all expenses reasonably incurred by Landlord unless
plans for hurricane shutters were incorporated as part of the initial
construction document review process) install protective hurricane shutters one
the interior of the windows of the Premises. Any such installation of hurricane
shutters shall be subject to the prior approval of the Landlord, which approval
shall not be unreasonably withheld. The hurricane shutters shall be approved by
the Landlord as to size, color, type of shutter, mode of attachment and such
other criteria as Landlord shall from time-to-time determine. The Tenant must
also receive the approval of the City of Boca Raton, Florida prior to the
installation of hurricane shutters.
10. REPAIRS, MAINTENANCE AND UTILITIES
A. LANDLORD'S RESPONSIBILITIES. During the Lease Term, Landlord
shall maintain the
Page 9
------------------
Blue Lake Standard Lease
level of repairs and maintenance (and replacements if needed) for the Building,
the Common Areas, and all other areas serving the Building, in a manner
comparable to office buildings of similar quality to and in the immediate
geographic area of the Building and perform or have performed all such repairs
and maintenance. Landlord's responsibilities for repairs and maintenance with
respect to this paragraph are as follows: (1) the structural, foundation, and
roof systems of the Building and the surface parking lot, (2) the Building
standard electrical and mechanical systems, (3) the primary water and sewer
systems, life-safety, air conditioning, and sprinkler systems, of the Building
and to the Premises (excluding, however, those systems which are installed by
Tenant for Tenant's sole use), (4) the Building Common Areas and the common area
furniture, fixtures, and equipment and exterior windows, (5) the landscaped
areas in and about the Building, (6) the parking lot, driveways, sidewalks,
drainage systems and exterior Common Areas, and (7) replacement of Building
standard fluorescent light bulbs in the Common Areas.
B. TENANT'S RESPONSIBILITIES. Tenant shall at its own cost and
expense keep and maintain all parts of the Premises and such portion of the
Building within the exclusive control of Tenant in good condition, promptly
making all necessary repairs and replacements, whether ordinary or
extraordinary, with materials and workmanship of the same character, kind and
quality as the original, including but not limited to interior windows, glass
and plate glass, doors, skylights, any, special office entries, interior walls
and finish work, floors and floor coverings, heating and air conditioning,
electrical systems and fixtures, sprinkler systems, water heaters, truck doors,
and plumbing work and fixtures, all of the foregoing systems inside the
Premises. Tenant as part of its obligation hereunder shall keep the whole of the
Premises in a clean and sanitary condition. Tenant will as far as possible keep
all such parts of the Premises from Deteriorating, ordinary wear and tear
excepted, and from falling temporarily out of repair, and upon termination of
this Lease in any way. Tenant will yield up the Premises to Landlord in good
condition and repair, loss by fire or other casualty covered by insurance to be
secured pursuant to section 14 excepted (but not excepting any damage to glass
or loss not reimbursed by insurance because of the existence of a deductible
under the appropriate policy, ordinary wear and tear excepted). Tenant shall not
damage any demising wall or disturb the integrity and supports provided by any
demising wall and shall, at its sole cost and expense, properly repair any
damage or injury to any demising wall caused by Tenant or its employees, agents
or invitees. Tenant shall, at its own cost and expense, as additional rent, pay
for the repair of any damage to the Premises or the Building, resulting from
and/or caused in whole or in part by the negligence or misconduct of Tenant, its
agent, servants, employees, patrons, customers, or any other person entering
upon the Building as a result of Tenant's business activities caused by Tenant's
default hereunder.
C. REPAIRS AND MAINTENANCE; MISCELLANEOUS. Notwithstanding Anything
to the contrary in this Lease, 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 improper 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 as Additional Rent all such reasonable
costs and expenses incurred by Landlord. Landlord shall have the right to
reasonably approve in advance all work, repair, maintenance or otherwise, to be
performed under this Lease by Tenant and all of Tenant's repairmen, 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, by contractors, subcontractors, and suppliers retained by
Tenant.
11. TENANT'S ALTERATIONS
A. GENERAL. During the Lease Term, Tenant will make no alterations,
additions or improvements in or to the Premises or the Building envelope,
structure, roof, mechanical and plumbing systems, electrical systems, or any
area in which asbestos has been located (as noted in the Environmental Report
(as hereinafter defined) or as identified in writing by the Landlord), and will
perform no work the cost of which is in excess of $20,000.00 in the aggregate
(any and all of such alterations, additions or improvements other than those set
forth in the Work Letter attached hereto are collectively referred to in this
Lease as the "Alteration(s)", and the foregoing Alterations collectively
referred to as "Major Alterations"), without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant shall submit
to Landlord detailed drawings and plans of the proposed Major Alterations at the
time Landlord's consent is sought. Upon Landlord's consent to any proposed Major
Alterations by Tenant, such consent will be conditioned upon Tenant's agreement
to comply with all reasonable requirements established by Landlord, including
safety requirements and the matters referenced in Section 22 of this Lease. All
Alterations shall be done in compliance with all other applicable provisions of
this Lease and with all applicable laws, ordinances, directives, rules and
regulations of government or authorities having jurisdiction, including, without
limitation, the Americans with Disabilities Act (ADA), the Florida Accessibility
Code, and all laws dealing with the abatement, storage, transportation and
disposal of asbestos or other hazardous materials, which work, shall be effected
by contractors and consultants reasonably approved by Landlord and in compliance
with all applicable laws and with
Page 10
------------------
Blue Lake Standard Lease
Landlord's rules and regulations. Tenant may provide Landlord with a list of
proposed contractors and consultants regularly engaged by Tenant for minor
Alterations such as carpeting, painting, and low voltage wiring. Once such list
has been approved by Landlord, the Tenant shall not be required to obtain
separate approvals for such contractors and consultants for each such minor
Alterations project. Notwithstanding anything to the contrary contained in this
Section, Tenant shall not penetrate or disrupt the structural columns of the
Building located within the Premises; and shall not penetrate or disrupt any
area within three (3) feet of any structural column in performing any
Alterations, without Landlord's prior written consent which shall not be
unreasonably withheld or delayed. All Material Alterations shall be performed by
those pre-qualified architects and contractors designated by Landlord as
approved for the Blue Lake Corporate Center, a list of which are attached hereto
and made a part hereof as Exhibit "B-3", which list is subject to amendment from
time-to-time. If Tenant elects to remove any Major Alterations at the expiration
of the Lease, Tenant shall repair any and all damage caused to the Premise by
such removal. Additionally, prior to the commencement of any work by or for
Tenant, Tenant shall furnish to Landlord certificates evidencing the existence
of builder's risk, comprehensive general liability, and worker's compensation
insurance complying with the requirements of Insurance Section of this Lease.
Any damage to any part of the Building that occurs as a result of any
Alterations shall be repaired by Tenant, as soon as reasonably practicable, to
the reasonable satisfaction of Landlord. Tenant and its contractor and all other
persons performing any Alterations shall abide by the Landlord's reasonable job
site rules and regulations and reasonably cooperate with Landlord's construction
representative in coordinating all of the work in the Building including,
without limitation, the hours of work, parking, and use of the construction
elevator. Landlord shall not charge any other fee to Tenant in respect of
Landlord's construction representative. All alterations will comply with the
requirements of any energy efficiency program offered by the electric service
provided to the Building to the extent practicable. All materials used in any
Major Alterations, including, without limitation, paint, carpet, wall or window
coverings, carpet glues, and any other chemicals shall be subject to Landlord's
prior written reasonable approval. All alterations shall be done in a good and
workmanlike manner. Tenant shall, prior to the commencement of any Alterations,
obtain and exhibit to Landlord any governmental permit required for the
Alterations. Within ten (10) days after completion of any Alteration, Tenant
shall deliver to the Landlord, copies of any plans and specifications for such
Alteration. All contractors, sub-contractors, mechanics, laborers and
materialmen shall be put on notice of and shall be subject to the fact that
Tenant is not authorized to subject Landlord's interest in the Building or the
Premises to any claim for construction, mechanics, laborer's and materialman's
liens and all persons dealing directly or indirectly with Tenant may not look to
the Landlord's interest in the Premises as security for payment, all as more
fully provided in Section 26 of this Lease.
B. ALTERATION COSTS.
(1) Tenant shall pay to Landlord as Additional Rent (or to its
nominee or designated contractor, as Landlord may direct) in connection with all
Major Alterations (other than the initial tenant improvements) reasonable fees
and costs of Landlord's engineers, architects, and construction managers for
review and approval of all plans and specifications for such Major Alteration,
and for all other reasonable costs and expenses incurred by Landlord as a result
of or in connection with each such Major Alteration, based on an hourly fee and
reasonable and customary hours expended for each such Major Alteration.
(2) The Major Alteration costs shall be paid monthly installments
during the course of the performance of the Major Alteration, within thirty (30)
days from receipt of Landlord's reasonably detailed invoice. Within thirty (30)
days after completion of the Major Alteration, Tenant shall pay to Landlord the
entire balance of the Major Alteration costs if not theretofore paid in full.
12. LANDLORD'S ADDITIONS AND ALTERATIONS
Landlord has the right to make changes in and about the Building and
parking areas, including, but not limited to, signs, entrances, address or name
of Building. Such changes may include, but not be limited to, rehabilitation,
redecoration, refurbishment and refixturing of the Building and expansion of or
structural changes to the Building. The right of Tenant to quiet enjoyment and
peaceful possession given under the Lease will not be deemed breached or
interfered with by reason of Landlord's actions pursuant to this paragraph so
long as such actions do not materially deprive Tenant of its use and enjoyment
of the Premises. If Landlord voluntarily changes the street address of the
Building, then Landlord will reimburse Tenant for all reasonable expenses
incurred by Tenant in connection with reprinting stationery, business cards, and
brochures due to such change (but not to exceed $5,000.00), unless Landlord
provides Tenant at least one hundred twenty (120) days prior written notice of
such change.
13. ASSIGNMENT AND SUBLETTING
A. LANDLORD'S CONSENT REQUIRED. Except as provided below with
respect to assignment of this Lease following Tenants bankruptcy, neither
Tenant, nor Tenant's legal representatives or successors-in-interest by
operation of law or otherwise will effect a "Transfer", as herein defined
without first obtaining the consent of Landlord, which consent Landlord shall
not unreasonably withhold or delay provided that all of the requirements of
paragraph B. of this Section 13 are satisfied. As used in this Section 13, any
of the following shall be deemed to be a Transfer ("Transfer"): assignment of
this Lease, in whole or in part; sublet of all or any part of the Premises; any
license allowing anyone other than Tenant to use or occupy all or any part of
the
Page 11
------------------
Blue Lake Standard Lease
Premises; a pledge or encumbrance by mortgage or other instrument of Tenant's
interest in this Lease; any transfer of corporate shares as described in
paragraph C. of this Section 13; or any transfer of partnership interest as
described in paragraph D. of this Section 13. Consent by Landlord to any
transfer shall not constitute a waiver of the requirement for such consent to
any subsequent transfer. Upon such approved assignment, Tenant shall not be
released from its obligations hereunder arising after such assignment has been
accomplished, unless the approved assignee specifically assumes, in writing, for
the benefit of the Landlord, all such obligations, in which event Tenant shall
be released of all such obligations hereunder.
B. CONDITIONS FOR TRANSFER APPROVAL. Unless all of the following
conditions are satisfied, Landlord withholding of consent will be deemed
reasonable:
(1) In Landlord's reasonable judgment, the proposed assignee or
subtenant or occupant is engaged in a business or activity, which (a) is in
keeping with the then zoning requirements, (b) is limited to the use of the
Premises as set forth in the BLI Rider, and (c) will not violate any negative
covenant as to use contained in any other lease of office space in the Building;
(d) use of the Premises by the proposed transferee or assignee will not violate
or create any potential violation of any laws or any other agreements affecting
the Premises, the Building, the Landlord or other tenants;
(2) The proposed transferee is a reputable person of good
character, in Landlord's reasonable judgment, and has sufficient financial
wherewithal to discharge its obligations under this Lease and/or the proposed
Agreement of Assignment or the Sublease.
(3) The form of the proposed sublease or instrument of assignment
or occupancy shall be reasonably satisfactory to Landlord, and shall comply with
the applicable provisions of this Section;
(4) There shall not be more than a total of three (3) occupying
entities (including Tenant and any assignee or sublessee requiring approval by
Landlord hereunder) of the Premises; and
(5) The proposed subtenant or assignee or occupant shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity and shall
be subject to the service of process in, and the jurisdiction of the courts of
the State of Florida.
(6) Such transferee (if an assignment) shall assume in writing,
in a form reasonably acceptable to Landlord, all of Tenant's obligations
hereunder and Tenant shall provide Landlord with a copy of such assumption/
transfer document;
(7) Tenant shall reimburse Landlord for all of its reasonable
out-of-pocket costs and expenses incurred with respect to the transfer, not to
exceed $5,000.00.
(8) Tenant to which the Premises were initially leased shall
continue to remain liable under this Lease for the performance of all terms,
including but not limited to, payment of Rental due under this Lease;
(9) Tenant's Guarantor, if any, shall continue to remain liable
under the terms of the Guaranty of this Lease and, if Landlord deems it
necessary, such guarantor shall execute such documents necessary to insure the
continuation of its guaranty;
(10) Each of Landlord's Mortgagees shall have consented in
writing to such transfer.
(11) Tenant shall give notice of a requested transfer to
Landlord, which notice shall be accompanied by (a) a conformed or photostatic
copy of the proposed assignment or sublease, the effective or commencement date
of which shall be at least thirty (30) days after the giving of such notice, (b)
a statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Premises, (c) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report and (d) such other information as Landlord may reasonably request.
(12) The proposed use of the Premises by the Transferee will not
require increased services from the Landlord from that provided to Tenant under
the Lease.
(13) Then sublease or assignment will not violate any exclusivity
clause contained in any lease affecting any portion of the Building.
C. TRANSFER OF CORPORATE SHARES. Notwithstanding anything to the
contrary contained in this Lease, Tenant may assign this Lease or sublet all or
any portion of the Premises from time to time, without Landlord's consent, to
any entity controlling, controlled by or under common control with Tenant, or to
any successor of Tenant resulting from a merger or consolidation of Tenant, or
as a result of a sale by Tenant of all or substantially all of its assets or
stock, provided that no such transfer shall relieve Tenant or the Guarantor from
any liability under this Lease, whether accrued to the date of such transfer or
thereafter accruing. In addition, any change in the controlling interest in the
stock of Tenant as a result of an initial public offering of Tenant's stock, and
any transfer of the capital stock of Tenant by persons or parties through the
"over-the-counter market" or through any recognized stock exchange, shall not be
deemed to be a transfer requiring Landlord's consent. Landlord shall not be
entitled to receive any portion of
Page 12
------------------
Blue Lake Standard Lease
the Transfer consideration as described below arising out of an assignment or
sublease not requiring Landlord's consent. Tenant shall provide written notice
of such assignment or subletting, together with the name and address of the
assignee or subtenant, five (5) days prior to the assignment or subletting to
the extent permitted by law, but in no event more than ten (10) days after such
assignment or subletting.
D. ACCEPTANCE OF RENT FROM TRANSFEREE. The acceptance by Landlord of
the payment of Rent following any assignment or other transfer prohibited by
this Section shall not be deemed to be a consent by Landlord to any such
assignment or other transfer nor shall the same be deemed to be a waiver of any
right or remedy of Landlord hereunder. Following a permitted sub-lease, if
Tenant breaches any of the terms and provisions of this Lease, Landlord may
elect to receive directly from the Sub-tenant due or payable to Tenant by
Sub-Tenant pursuant to the Sub-Lease, and upon receipt of a written notice from
Landlord referencing this section, Sub-Tenant shall have to pay to Landlord any
and all sums becoming due or payable under the Sub-Lease. Tenant shall receive
from Landlord a corresponding credit for such sums against any payments then due
or thereafter becoming due from Tenant. Neither the giving of such written
notice to Sub-Tenant nor the receipt of such direct payments from the Sub-Tenant
shall cause the Landlord to assume any of Tenant's duties, obligations, and/or
liabilities under any sublease, nor shall such event impose upon Landlord the
duty or obligation to honor the sublease or subsequently to accept Sub-Tenant's
attornment.
E. If, this Lease is purported to be assigned, without the consent
of the Landlord, or the Premises are sublet or occupied by anyone other than
Tenant, Landlord may accept rents from the assignee, subtenant or occupant and
apply the net amount received to the Rent reserved in this Lease, but no such
assignment, subletting, occupancy or acceptance of Rent shall be deemed a waiver
of the requirement for Landlord's consent as contained in this section or
constitute a novation or otherwise release Tenant from its obligations under
this Lease.
F. If Landlord shall consent to any Transfer, Tenant shall in
consideration therefor, pay to Landlord as Additional Rent, an amount equal to
one hundred (100%) percent of the Transfer Consideration, or Landlord may elect
to recapture the Transferred portion of the Premises and terminate this Lease
with respect to that portion only. For purposes of this paragraph, the term
Transfer consideration shall mean in any Lease Year (i) any rents, additional
charges or other consideration payable to Tenant by the transferee of the
Transfer which is in excess of the Base Rent and Overhead Rent accruing during
such Lease Year, net of the reasonable costs incurred by Tenant in connection
with the Transfer including but not limited to reasonable fees paid to Tenant's
attorneys and accountants with respect to the Transfer, broker commissions, and
advertising costs associated therewith, and improvement costs. Landlord shall
have the right to audit Tenant's books and records during normal business hours,
at a location in South Florida reasonably designated by Tenant, upon reasonable
notice to determine the amount of Transfer Consideration payable to Landlord. In
the event such audit reveals an understatement of Transfer Consideration in
excess of five percent (5%) of the actual Transfer Consideration due Landlord,
Tenant shall pay for the cost of such audit within ten (10) business days after
Landlord's written demand for same otherwise, Landlord shall be solely
responsible for the costs of such audit.
G. Any permitted sublease shall provide: (i) the subtenant shall
comply with all applicable terms and conditions of this Lease to be performed by
Tenant (except as to Rent); (ii) the sublease is expressly subject to all of the
terms and provisions of this Lease; and (iii) unless Landlord elects otherwise,
the sublease will not survive the termination of this Lease (whether voluntarily
or involuntarily) or resumption of possession of the Premises by Landlord
following a default by Tenant. The sublease shall further provide that if
Landlord elects, the sublease shall further survive a termination of this Lease
or resumption of possession of the Premises by Landlord following a default by
Tenant, the subtenant will, at the election of Landlord, attorn to the Landlord
and continue to perform its obligations under its sublease as if this Lease had
not been terminated and the sublease were a direct lease between the Landlord
and subtenant. The sublease shall otherwise be in form and substance reasonably
satisfactory to the Landlord's lawyer. Any permitted assignment of lease shall
contain an assumption by the Assignee of all terms, covenants and conditions of
this Lease to be performed by the Tenant and shall otherwise be in form and
substance reasonably satisfactory to the Landlord's lawyer.
H. BUILDING DIRECTORY ADDITIONS. The listing or posting of any name,
other than that of Tenant, whether on the door or exterior wall of the Premises,
the Building's tenant directory in the lobby or elevator, or elsewhere shall not
(i) constitute a waiver of Landlord's rights to withhold consent of any sublease
or assignment pursuant to this Section 13; (ii) be deemed an implied consent by
Landlord to any sublease of the Premises or any portion thereof, to any
assignment or transfer of the Lease, or to any unauthorized occupancy of the
Premises, except in accordance with the express terms of that Lease; or (iii)
operate to vest any right or interest in the Lease or in the Premises. Any such
listing as described in this subsection shall constitute a privilege extended by
Landlord to Tenant and shall be immediately revocable at Landlord's will by
notice to Tenant.
14. TENANT'SINSURANCE COVERAGE
A. GENERAL. Tenant 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 will keep in force,
with an insurance company licensed to do business in the State of Florida, and
at least A+lX-rated in the most current
Page 13
------------------
Blue Lake Standard Lease
edition of Best's Insurance Reports and acceptable to Landlord, (i) without
deductible in excess of $5,000.00, 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, (ii) with deductible of not more
than Five Thousand Dollars ($5,000.00), insurance on an "All Risk or Physical
Loss" basis, including sprinkler leakage, vandalism, malicious mischief, fire
and extended coverage, covering all improvements to the Premises, fixtures,
furnishings, 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) workmen's compensation and employer's
liability insurance, if required by statute. Such policies will: (i) include
Landlord, Landlord's Lender, and Landlord's affiliates, or such other parties as
Landlord may reasonably designate as additional insured's, (ii) be considered
primary insurance, (iii) include within the terms of the policy or by
contractual liability endorsement coverage insuring Tenant's indemnity
obligations under paragraph 19 for bodily injury and property damage, and (v)
provide that it may not be canceled or changed without at least thirty (30) days
prior written notice from the company providing such insurance to each party
insured thereunder. Tenant will also maintain throughout the Lease Term worker's
compensation insurance with not less than the maximum statutory limits of
coverage.
B. EVIDENCE. The insurance coverages to be provided by Tenant will
be for a period of not less than one year. At least thirty (30) days prior to
the Commencement Date, Tenant will deliver to Landlord original certificates of
all such paid-up insurance; thereafter, at least thirty (30) days prior to the
expiration of any policy Tenant will deliver to Landlord such original
certificates as will evidence a paid-up renewal or new policy to take the place
of the one expiring. Any insurance required of Tenant under this Lease may be
furnished by Tenant under an umbrella or blanket policy carried by Tenant. Such
umbrella or blanket policy shall contain an endorsement that names Landlord as
an additional insured, references the Premises, and provides for a minimum limit
available for the Premises equal to the insurance amounts required in the Lease.
15. LANDLORD'S INSURANCE COVERAGE
A. GENERAL. Landlord will at all times during the Lease Term
maintain a policy or policies of insurance insuring the Building against loss or
damage by fire, explosion or other hazards and contingencies typically covered
by insurance for an amount acceptable to the mortgagees encumbering the
Building. Landlord reserves the right, in its reasonable business judgement, to
self insure in lieu of maintaining such policies.
B. TENANT'S ACTS. Tenant will 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
will reimburse Landlord for that part of all insurance premiums charged because
of such violation or occupancy by Tenant. Tenant agrees to comply with any
reasonable requests or recommendation made by Landlords insurance underwriter
inspectors.
C. EXCLUSIONS. Tenant acknowledges that Landlord will not carry
insurance on tenant improvements, furniture, furnishings, trade fixtures,
equipment installed in or made to the Premises by or for Tenant, in accordance
with the Work Letter attached hereto, and Tenant agrees that Tenant, and not
Landlord, will be obligated to promptly repair any damage thereto or replace the
same.
16. WAIVER OF RIGHT OF RECOVERY Except as otherwise provided in this
Lease, neither Landlord nor Tenant shall be liable to the other for any damage
to any building, structure or other tangible property, or any resulting loss of
income, or losses under worker's compensation laws and benefits, even though
such loss or damage might have been occasioned by the negligence of such party,
its agents or employees. The provisions of this Section shall not limit the
indemnification for liability to third parties pursuant to Section 19. As used
in this section 16.A., "damage" refers to any loss, destruction or other damage.
17. DAMAGE OR DESTRUCTION BY CASUALTY
A. LANDLORD'S ABSOLUTE RIGHT TO TERMINATE. If by fire or other
casualty the Premises or the Building is damaged or destroyed to the extent of
Twenty Five (25%) Percent or more of the insured value thereof but in the
reasonable estimation of Landlord made within thirty (30) days of the fire or
casualty cannot be restored in less than two hundred ten (210) days from the
date of Landlord's notice, Landlord or Tenant will have the option of
terminating this Lease or any renewal thereof by serving written notice upon the
other within ninety (90) days from the date of the casualty and any prepaid Rent
or Additional Rent will be prorated as of the date of destruction and the
unearned portion of such Rent will be refunded to Tenant without interest. If
neither party elects to terminate, Landlord shall promptly commence to restore
and diligently and continuously complete within such two hundred and ten (210)
days.
B. QUALIFIED RIGHT TO TERMINATE. In addition to the foregoing, if
this Lease is not cancelled and the Landlord undertakes such reconstruction or
repair but does not complete the reconstruction or repair within two hundred ten
(210)
Page 14
------------------
Blue Lake Standard Lease
days after the date of the fire or other casualty, then the Tenant shall have
the additional right to terminate this Lease by written notice to the Landlord
delivered within thirty (30) days after the expiration of such two hundred ten
(210) day period.
C. OBLIGATION TO RESTORE. If by fire or other casualty either the
Premises or the Building is destroyed or damaged, but only to the extent of less
than Twenty-Five (25%) Percent of the insured value of the Premises or the
Building (as applicable), and more than one (1) year remains in either the
initial Lease Term or Renewal Term, as applicable, then Landlord will restore
the Premises within ninety (90) days of the date of the fire or other casualty
subject to events of force majeure.
D. RENT ADJUSTMENTS. In the event of restoration by Landlord, all
Base Rent and Additional Rent paid in advance shall be apportioned as of the
date of damage or destruction and all such Base Rent and Additional Rent as
above described, thereafter accruing, shall be equitably and proportionally
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 impossible for
Tenant to conduct Tenant's business in the Premises, Rent and Additional Rent
will be fully abated until the Premises are substantially restored by Landlord
or until Tenant resumes use and occupancy of the Premises, whichever shall first
occur. In lieu of abating Rent and Additional Rent, as provided above, Landlord
shall have the right to temporarily or permanently relocate Tenant to another
space reasonably acceptable to Tenant. Landlord will not be liable for any
damage, whether proximate or consequential, to, or any inconvenience or
interruption of the business of Tenant or Tenant's Agents, occasioned by fire or
other casualty except to the extent caused by the negligence or its willful
misconduct of the Landlord, its agents, employees or contractors.
E. QUALIFICATIONS. Notwithstanding the foregoing, Landlord's
obligation to restore exists (i) only if and/or to the extent, that the
insurance proceeds received by Landlord are sufficient to compensate Landlord
for its restoration costs and/or (ii) the area unaffected by the casualty may,
as determined by Landlord's reasonable business judgment, be restored as a
profitable, and self functioning unit.
18. CONDEMNATION AND EMINENT DOMAIN
A. ABSOLUTE RIGHT TO TERMINATE. If all or a material part of the
Premises or the Building or the parking spaces is taken for any public or
quasi-public use under any governmental law, ordinance or regulation or by right
of eminent domain or by purchase in lieu thereof, and the taking would prevent
or materially interfere with the use of the Premises for the purpose for which
they are then being used, this Lease will terminate and the Rent will be abated
during the unexpired portion of this Lease effective on the date physical
possession is taken by the condemning authority and any unearned portion of Rent
prepaid will be refunded to Tenant. Tenant will have no claim to the
condemnation award, other than as to its Tenant Improvements, trade fixtures,
moving expenses, and other out of pocket damages so long as such does not
diminish the Landlord's award.
B. OBLIGATION TO RESTORE. In the event an immaterial part of the
Premises or the Building or the parking spaces is taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by purchase in lieu thereof, and this Lease is not
terminated as provided in subsection A above, then Landlord shall, subject to
the remaining provisions of this Section, at Landlord's expense, as soon as
reasonably practicable, restore the portion of the Premises (for which Landlord
receives the condemnation award pursuant hereto) and the Building to the extent
necessary to make them reasonably tenantable. The Rent payable under this Lease
during the unexpired portion of the Lease Term shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. Tenant shall have
no claim to the condemnation award with respect to the leasehold estate but, in
a separate proceeding, may make a separate claim for trade fixtures and tenant
improvements installed in the Premises by and at the expense of Tenant and
Tenant's moving expense. In no event will Tenant have any claim for the value of
the unexpired Lease Term.
C. QUALIFICATIONS. Notwithstanding the foregoing, Landlord's
obligation to restore exists (i) only if and/or to the extent, that the
condemnation or similar award received by Landlord is sufficient to compensate
Landlord for its loss and its restoration costs and/or (ii) the area unaffected
by the condemnation or similar proceeding may, as determined by Landlord's
reasonable business judgment, be restored as a profitable, and self functioning
unit.
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION
A. PERSONAL PROPERTY. All personal property placed or moved into the
Building will be at the sole risk of Tenant or other owner. Landlord will not be
liable to Tenant or others for any damage to person or property arising from
theft, vandalism, air-conditioning malfunction, the bursting or leaking of water
pipes, any act or omission of any cotenant or occupant of the Building or of any
other person, or otherwise, except to the extent caused by the negligence or
willful misconduct of the Landlord, its agents, employees or contractors.
B. LIMITATIONS. Notwithstanding any contrary provision of this
Lease: (i) Tenant will look solely (to the extent insurance coverage is not
applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Building (including proceeds of sale, insurance and
condemnation) for the satisfaction of any judgment or other judicial process
requiring the payment of money
Page 15
------------------
Blue Lake Standard Lease
as a result of any negligence or breach of this Lease by Landlord or its
successor or of Landlord's managing agent (including any beneficial owners,
partners, corporations and/or others affiliated or in any way related to
Landlord or such successor or managing agent) and Landlord has no personal
liability hereunder of any kind.
C. INDEMNITY. Tenant agrees to indemnify, defend and hold harmless
Landlord and its agents from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs, including appellate proceedings and
bankruptcy proceedings, incurred or suffered by Landlord and arising from or in
any way connected with the Premises or the use thereof or any acts, omissions,
neglect or fault of Tenant or any of Tenant's Agents, including, but not limited
to, any breach of this Lease or any death, personal injury or property damage
occurring in or about the Premises or the Building or arising from environmental
Concerns, as hereafter defined, except to the extent caused by the Landlord, its
agents, employees, or contractors. Tenant will reimburse Landlord upon request
for all costs incurred by Landlord in the interpretation and enforcement of any
provisions of this Lease and/or the collection of any sums due to Landlord under
this Lease, including collection of agency fees, and reasonable attorneys' fees
and costs, regardless of whether litigation is commenced, and through all
appellate actions and proceedings, including bankruptcy proceedings, if
litigation is commenced. The foregoing claims, causes of actions, liabilities,
judgments, damages, losses, costs and expenses shall include but not be limited
to any of same arising from Tenant's failure to comply with any of the
requirements of Americans with Disabilities Act ("ADA") or Florida Accessibility
Code ("FAC")within the Premises and/or any and all claims or liability arising
from the performance of the repair, renovation, and/or maintenance described
above. This indemnity shall include, but not be limited to, claims or
liabilities asserted against Landlord based upon negligence, strict liability or
other liability by operation of law to any third party or government entity, and
all costs, attorney's fees, expenses, and liabilities incurred by Landlord in
the defense of any such claim. Landlord shall defend any such claim at Tenant's
expense by counsel selected by Landlord. Tenant shall not alter, cut, drill,
penetrate, remove or damage any portion of the Premises in which Landlord has
identified to Tenant the presence or suspected presence of asbestos, without
Landlord's prior written consent. Tenant indemnifies Landlord from and against
any and all damages, liabilities, fines, costs and expenses, including without
limitation reasonable attorneys fees and costs, from Tenant's violation or
breach of this covenant.
20. RELOCATION OF TENANT
A. GENERAL. Recognizing that the Building is large and the needs of
tenants as to space may vary from time to time, and in order for Landlord to
accommodate Tenant and prospective tenants, 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 relocate Tenant in other comparable space of
Landlord's choosing of approximately the same dimensions and at least the same
size within the Building (or additions to the Building or new construction
related to the Building or the campus in which Building is located), which other
space will be decorated by Landlord at its expense. Landlord shall, in
exercising its right to relocate the Tenant, make said decision in full
consideration and deference to the nature of Tenant's business which business
operates (including Tenant's on-line computer network) on a twenty-four (24)
hour basis, seven (7) days per week. Landlord may use decorations and materials
from the existing Premises, or other materials, so that the space in which
Tenant is relocated will be comparable in its interior design and decoration to
the space from which Tenant is removed.
B. NO INTERFERENCE. During the relocation period Landlord will use
reasonable efforts not to unduly interfere with Tenants business activities
(recognizing that such business operations may only be shut down for a de
minimus period of time during the relocation, and will not limit Tenant's access
to the Premises prior to such relocation. 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 will
remain in full force and effect and be applicable to any such new space and such
new space will be deemed to be the Premises demised hereunder; upon request
Tenant will execute such documents which may be requested to evidence,
acknowledge and confirm the relocation (but it will be effective even in the
absence of such confirmation).
D. COSTS. Landlord's obligation for expenses of removal and
relocation will be the actual cost of relocating and decorating Tenant's new
space, moving expenses, telephone and computer relocation and all other
reasonable costs arising directly from such relocation, and Tenant 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, will 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
paragraph, Tenant will be given ninety (90) days prior notice in writing.
21. COMPLIANCE WITH LAWS AND PROCEDURES
A. COMPLIANCE. Except as otherwise provided herein, Tenant, at its
sole cost, will promptly comply with all applicable laws, guidelines, rules,
regulations and requirements, whether of
Page 16
------------------
Blue Lake Standard Lease
federal, state, or local origin, applicable to the Premises, including, but not
limited to, the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. The FAC
(as to the interior of the Premises), 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. Tenant acknowledges that
(i) the Premises and the parking facilities may contain potentially hazardous
substances, including, but not limited to, asbestos containing materials, radon
gas, mineral fibers, and other like materials (all of such materials are
referred to herein as "Environmental Concerns") and (ii) Tenant has been advised
that the Premises and the Building do contain either encapsulated or non-friable
asbestos containing materials. Accordingly, Tenant agrees that Tenant and
Tenant's Agents shall comply with all operation and maintenance programs and
guidelines implemented or promulgated from time to time by Landlord or its
consultants, including, but not limited to, those matters set forth in
subsections B and C below, in order to reduce the risk to Tenant, Tenant's
Agents or any other tenants of the Building of injury from Environmental
Concerns. Except as otherwise provided herein, Tenant at its sole cost and
expense shall be solely responsible for taking any and all measures which are
required to substantially comply with the requirements of the ADA and the FAC
within the Premises. Landlord shall be responsible for causing compliance of the
Building, other than the Premises, with the requirements of the ADA and the FAC,
the cost of such compliance being an Operating Expense hereunder. Any
Alterations to the Premises made by or on behalf of Tenant for the purpose of
complying with the ADA and FAC or which otherwise require compliance with the
ADA and FAC shall be done in accordance with this Lease; provided, that
Landlord's consent to such Alterations shall not constitute either Landlord's
assumption, in whole or in part, of Tenant's responsibility for substantial
compliance with the ADA and FAC, or representation or confirmation by Landlord
that such Alterations comply with the provisions of the ADA and FAC.
Notwithstanding the foregoing, Landlord shall be solely responsible at its sole
cost and expense, for making any changes or improvements which are required
pursuant to the terms of this Lease, to the condition of the Premises delivered
by Landlord to Tenant.
B. NOTICE PRIOR TO WORK. Except as provided in Section 11, Tenant
shall provide thirty (30) days notice to Landlord prior to the performance by
Tenant, Tenant's Agents or contractors of any repairs, renovation and/or major
structural or mechanical systems maintenance, to the Premises. Such notice shall
include a detailed description of the work contemplated. Tenant shall not
perform, or cause to be performed, any such repair, renovation and/or
maintenance without the written consent of Landlord and, if such consent is
granted, the repair, renovation and/or maintenance must be performed in
accordance with the terms of Landlord's consent.
22. RIGHT OF ENTRY
Landlord and its agents will have the right to enter the Premises
during all reasonable hours to make necessary repairs to the Premises upon
reasonable prior notice. In the event of an emergency, Landlord or its agents
may enter the Premises at any time, without notice (except that Landlord shall
make a good faith effort to contact Tenant's designated representative by
telephone prior to such entry), to appraise and correct the emergency condition.
Said right of entry will, after reasonable prior 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 will have the right to
exhibit the Premises at any time to prospective tenants within one hundred and
eighty days (180) before the Expiration Date of the Lease.
23. DEFAULT
A. EVENTS OF DEFAULT BY TENANT. The following shall, upon the giving
of notice to Tenant of the nature of the default and the expiration of any
applicable grace period afforded Tenant hereunder as set forth in Section 23.B.
constitute an Event of Default under this Lease. If (1) Tenant fails to make any
payment of Rent when due (a "Monetary Default"); or (2) Tenant fails to fulfill
any of the terms or conditions, covenants, agreements or any rules and
regulations attached to this Lease, as Exhibit "C" or promulgated by Landlord
under this Lease which shall in all instances be reasonable and have as close to
equal application to all tenants of the Building as is practicable (a
"Non-Monetary Default"); or (3) the appointment of a trustee or a receiver to
take possession of all or substantially all of Tenant's assets occurs, and such
appointment is not dismissed within thirty (30) days after appointment, 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 (4) Tenant or any of its successors or assigns or any
guarantor of this Lease ("Guarantor"), if any, 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 and such proceeding is not dismissed within thirty (30) days of filing; or
(6) Tenant, before the expiration of the Lease Term and without the prior
written consent of Landlord, vacates the Premises or abandons possession of the
Premises, and fails to pay Rent on a timely basis; or (7) Tenant shall permit,
allow or suffer to exist any lien by or through Tenant, judgment, writ,
assessment, charge, attachment or execution upon Landlord's or Tenant's interest
in this Lease or to the Premises, and/or the fixtures, improvements and
furnishings located thereon, whether claimant or holder thereof has acquired its
right by or through Tenant, unless such lien, judgment, writ, assessment,
charge, attachment or execution is discharged of record or transferred from
Page 17
------------------
Blue Lake Standard Lease
the Property by bond within ten (10) days following notice to Tenant.
X. XXXXX PERIOD. Notwithstanding anything contained in this Lease to
the contrary, Tenant shall have (i) a period of three (3) calendar days after
written notice from Landlord of a Monetary Default with respect to payment of
Base Rent or Overhead Rent; (ii) a period of ten (10) days after notice from
Landlord of a Monetary Default, other than as to payment of Base Rent or
Overhead Rent; and (iii) a period of twenty (20) days after notice from Landlord
of a Non-Monetary Default in which to cure the Event of Default. In addition,
provided that the Event of Default does not involve an emergency that must be
addressed in a shorter time frame, the grace period for Non-Monetary Defaults
shall be extended for such time as is reasonably necessary to complete such cure
if the Event of Default is of a nature that it cannot be completely cured within
the twenty (20) day period solely as a result of nonfinancial circumstances
outside of Tenant's control, provided that Tenant has promptly commenced all
appropriate actions to cure the default after notice and those actions are
thereafter diligently and continuously pursued by Tenant in good faith. However,
if the Non-Monetary Default is not cured prior to a maximum of ninety (90) days
from the date of the notice of the Non-Monetary Default, then Landlord may
pursue all of its remedies. The notice of a Non-Monetary Default to be given
under this subsection may be combined with the notice required under Section
83.20(3), Florida Statutes or any successor statute and this Lease shall not be
construed to require Landlord to give two separate notices to Tenant before
proceeding with any remedies.
C. REPEATED LATE PAYMENT. Regardless of the number of times of
Landlord's prior acceptance of late payments and/or late charges, (i) if
Landlord notifies Tenant four (4) times in any 1 2-month period that Rent has
not been paid when due, then any other late payment within such 12-month period
shall automatically constitute an event of default hereunder and (ii) the mere
acceptance by Landlord of late payments of Rent in the past shall not,
regardless of any applicable laws to the contrary, thereafter be deemed to waive
Landlord's right to strictly enforce this Lease, including Tenant's obligation
to make payment of Rent on the exact day same is due, against Tenant.
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT
A. LANDLORD'S OPTIONS. Upon an Event of Default by Tenant under this
Lease, Landlord may, at its option exercise any of the remedies enumerated
below, in addition to such other remedies as may be available under Florida law:
(1) terminate this Lease and Tenant's right of possession by
notice to Tenant; or
(2) terminate Tenant's right to possession but not the Lease
and/or proceed in accordance with any and all provisions of paragraph B below.
B. LANDLORD'S REMEDIES. If there is an Event of Default by Tenant
under this Lease (subject to applicable notice and cure periods), in addition to
all other remedies available to Landlord at law or in equity, Landlord may:
(1) Terminate this Lease by notice to Tenant and retake
possession of the Premises;
(a) Terminate Tenant's right of possession by notice to
Tenant without terminating this Lease and retaking possession of the Premises
and relet the Premises or any part of the Premises in the name of Landlord, or
otherwise, as Tenant's agent, for a term shorter or longer than the balance of
the Lease Term, and may grant concessions or free rent to the new tenant,
thereby terminating Tenant's tenancy in the Premises and right to possess the
Premises, without terminating Tenant's obligations to pay (a) the entire balance
of all forms of Base Rent and Additional Rent for the remainder of the Lease
Term, plus (b) the Reletting Expenses, and (c) the unamortized balance of any
brokerage commissions paid by Landlord in connection with this Lease, any
allowances granted to Tenant under this Lease, and the cost of any Tenant
Improvements made by Landlord. Landlord shall have no obligation to relet the
Premises, and its failure to do so, or failure to collect rent on reletting,
shall not affect Tenant's liability under this Lease. Landlord shall not, in any
event, be required to pay Tenant any surplus of any sums received by Landlord on
a reletting of the Premises in excess of the rent provided in this Lease. If
Landlord decides to relet the Premises or a duty to relet is imposed by law,
Landlord shall only be required to use commercially reasonable efforts to relet
the Premises. Commercially reasonable efforts shall not require Landlord to: (i)
use any greater efforts than Landlord then uses to lease other properties
Landlord or its affiliates owns or manages; (ii) relet the Premises in
preference to any other space in the Building; (iii) relet the Premises to any
party that Landlord could reasonably reject as a transferee under the Assignment
or Subletting section of this Lease; (iv) accept rent in an amount which is less
than the fair market rental for the Premises; (v) perform any tenant
improvements, grant any tenant improvement allowances, grant any "free rent," or
otherwise pay any sums or grant any monetary concessions in order to obtain a
new tenant; (vi) observe any instruction given by Tenant about the reletting
process or accept any tenant offered by Tenant unless the offered tenant leases
the entire Premises and the criteria of this subsection are otherwise fully met.
Any entry or reentry by Landlord, whether had or taken under summary proceedings
or otherwise, shall not absolve or discharge Tenant from liability under this
Lease so long as Landlord's actions are not in violation of applicable laws.
"Reenter" and "re-entry" as used in this Lease are not restricted to their
technical legal meaning. No reentry or taking possession of the Premises by
Landlord shall be construed as an election on Landlord's part to accept a
surrender of
Page 18
------------------
Blue Lake Standard Lease
the Premises unless a notice of such intention is given to Tenant;
(2) Stand by and do nothing, and hold Tenant liable for all
Base Rent and additional rent payable under this Lease through the remainder of
the Lease Term; provided by law;
(3) Institute any action as
(4) Obtain injunctive and declaratory relief, temporary or
permanent, or both, against Tenant or any acts, conduct or omissions of Tenant,
and further to obtain specific performance of any term, covenant, or condition
of this Lease;
(5) After regaining possession of the Premises, remove all
or any part of Tenant's Property from the Premises and any property removed may
be stored at the cost of, and for the account of, Tenant, and Landlord shall not
be responsible for the care or safekeeping of Tenant's Property whether in
transport, storage, or otherwise, and Tenant waives any and all claims against
Landlord for loss, destruction, damage or injury that may be occasioned by any
acts taken by Landlord under this subsection. Landlord may retain possession of
Tenant's Property until all storage charges and all other amounts owed by Tenant
to Landlord under this Section 23 have been paid in full. Nothing set forth in
this subsection shall limit Landlord's rights to enforce any lien or security
interest in favor of Landlord against Tenant's Property or Landlord's rights
under the End of Term section of this Lease; and
(6) If all or any part of the Premises is then assigned,
sublet, transferred, or occupied by someone other than Tenant, Landlord, at its
option, may collect directly from the assignee, subtenant, transferee, or
occupant all rent becoming due to Tenant by reason of the assignment, sublease,
transfer, or occupancy. Any collection directly by Landlord from the assignee,
subtenant, transferee, or occupant shall not be construed to constitute a
novation or a release of Tenant from the further performance of its obligations
under this Lease.
C. ACCELERATION. If Landlord exercises the remedies provided in
Subsections (2), (3) or (4) above, Landlord may declare the entire balance of
all forms of Rent due under this Lease for the remainder of the Lease Term to be
forthwith due and payable and may collect the then present value of the rents
calculated using a discount rate equal to the yield then obtainable from the
United States Treasury Xxxx or Note with a maturity date closest to the date of
expiration of the Lease Term) by distress or otherwise, provided, however that
Landlord shall utilize commercially reasonable attempts to mitigate its damages.
The accelerated additional rent for expenses shall be calculated by multiplying
the highest additional rent amount for Expenses payable by Tenant in any
calendar year times the number of calendar years (including any fractional
calendar year) remaining in the Lease Term following the date of default. If
Landlord exercises the remedy provided in Subsection (2) above and collects from
Tenant all forms of rent owed for the remainder of the Lease Term, Landlord
shall account to Tenant, at the date of the expiration of the Lease Term for
amounts actually collected by Landlord as a result of reletting, net of the
Tenant's obligations under Subsections 24 B. 2(a)-(c).
D. GUARANTY. In addition to the remedies of the Landlord contained
in this Section 24, a separate action or actions may, at Landlord's option, be
brought and prosecuted against the Guarantor, if any, whether or not any action
is first or subsequently brought against Tenant or whether or not Tenant is
joined in any such action. The Landlord may, at its sole option, proceed against
the Tenant without first seeking recourse against the Guarantor and may pursue
any other remedy in Landlord's power whatsoever and the Tenant waives any right
to complain of delay in enforcement of Landlord's rights under this Lease.
E. Notwithstanding the foregoing or anything to the contrary
contained in this Lease, any and all rights and remedies of Landlord and Tenant
set for forth in this Lease shall be exercisable only to the extent permitted by
Florida law at the time of exercise. Any waivers by Tenant of damages or
liability shall be applicable only to the extent Landlord's actions are in
material accordance with applicable law and only to the extent that Landlord or
its agents, employees or contractors are not negligent or willfully at fault.
F. Landlord shall not be deemed to be in default of this Lease
unless and until Landlord fails to cure any default within thirty (30) days
after written notice from Tenant; provided, however, that if such default
reasonably requires more than thirty (30) days to cure, Landlord shall have a
reasonable time to cure such default, provided Landlord commences to cure within
such thirty (30) day period and thereafter diligently prosecutes such cure to
completion. In the event of an uncured default by Landlord, Tenant shall have
the right to exercise any available legal and equitable remedies.
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT.
Should Tenant fail to observe or perform any term or condition of
this Lease within a provided grace period following notice, Landlord may at any
time thereafter, perform the same for the account of Tenant in a commercially
reasonable manner. 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 appeal), the sums
paid or obligations incurred, with interest at Twelve Percent (12%) per annum,
will be paid by Tenant to Landlord within ten (10) days after rendition of a
xxxx or statement to Tenant. In the event Tenant, in the performance or
non-performance of any term or
Page 19
------------------
Blue Lake Standard Lease
condition of this Lease, should cause an emergency situation to occur or arise
within the Premises or in the Building, Landlord will have all rights set forth
in this paragraph immediately without the necessity of providing Tenant any
advance notice.
26. 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 whether personally or in the Premises, or in the
underlying land or Building of which the Premises are a part, or the leasehold
interest aforesaid shall be subject to liens for improvements made by Tenant or
caused to be made by Tenant hereunder. Further, Tenant shall have no power or
authority to create any lien or permit any lien to attach to the present estate,
reversion, or other estate of Landlord in the Premises or in the Building, and
all mechanics, materialmen, contractors, artisans and other parties contracting
with Tenant or its representatives or privies as to the Premises or any part of
the Premises are hereby charged with notice that they must look to the Tenant to
secure payment of any xxxx for work done or material furnished or for any other
purpose during this Lease term. The foregoing provisions are made with express
reference to Section 713.10 of the Florida Statutes. Notwithstanding the
foregoing provisions, Tenant, at its expense, shall cause any liens filed
against the Premises or the Building for work or materials claimed to have been
furnished to Tenant to be discharged of record or properly transferred to a bond
under Section 713.24 of the Florida Statutes within ten (10) days after notice
to Tenant. Landlord has recorded a notice of the foregoing in the Public Records
of Palm Beach County, Florida, pursuant to the provisions of Section 713.10
Florida Statutes.
B. DEFAULT. Notwithstanding the foregoing, if any construction lien
or other lien, attachment, judgment, execution, writ, charge or encumbrance is
filed against the Building or the Premises or this leasehold, 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 will discharge same of record within ten (10) days after the
filing thereof and written notice from either Landlord or the lien or, failing
which Tenant will be in default under this Lease. Further, Tenant agrees to
indemnify, defend and save Landlord harmless from and against any damage or
loss, including reasonable attorneys' fees, incurred by Landlord as a result of
any liens or other claims arising out of or related to work performed in the
Premises by or on behalf of Tenant. 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 will reimburse
Landlord for all costs and expenses so incurred by Landlord plus interest
thereon at the rate of eighteen percent (18%) per annum.
27. NOTICES
Notices to Tenant under this Lease will be in writing (unless
otherwise specifically provided herein) addressed to Tenant and mailed or
delivered to the address set forth for Tenant in the BLI Rider. Notices to
Landlord under this Lease (as well as the required copies there of) will be in
writing and addressed to Landlord (and its agents) and mailed or delivered to
the address set forth in the BLI Rider. Notices will be personally delivered or
given by registered or certified mail, return receipt requested. As used herein,
personal delivery includes delivery by overnight courier. Notices delivered
personally will be deemed to have been given as of the date of delivery and
notices given by mail will be deemed to have been given forty-eight (48) hours
after the time said properly addressed notice is placed in the mail. Each party
may change its address from time to time by written notice given to the other as
specified above.
28. MORTGAGE ESTOPPEL CERTIFICATE; SUBORDINATION
Landlord has the unrestricted right to convey, mortgage and
refinance the Building, or any part thereof. Tenant and Landlord agree, within
ten (10) days after notice but not more than twice in any calendar year, to
execute and deliver to the other or its mortgagee or designee such instruments
as the other or its mortgagee may reasonably require, certifying (i) whether
this Lease is in full force and effect (or if there shall have been any
modification, that the Lease is in full force and effect as modified and stating
the modification, (ii) the amount of any prepaid rent paid under this Lease,
(iii) the dates to which the rents and other charges have been paid, (iv)
whether or not Tenant claims any defenses or offsets concerning its obligations
under this Lease and whether or not the other is in default in the performance
of any covenant, agreement, or condition contained in this Lease on its part to
be performed, and if so, specify each defense, offset or default of which the
party may have knowledge, and (v) such other matters as may be reasonably
required by institutional lenders or purchasers in similar estoppel
certificates. Nothing contained in this Section shall constitute a waiver by
Landlord of any default in payment of rent or other charges existing as of the
date of any notices or certificates under this Section. Subject to the
provisions hereof, this Lease is and at all times will be subject and
subordinate to all present and future mortgages or ground leases which may
affect the Building and/or the parking lot, and to all recastings, renewals,
modifications, consolidations, replacements, and extensions of any such
mortgage(s), and to all increases and voluntary and involuntary advances made
thereunder. The foregoing will be self-operative and no further instrument of
subordination will be required. However, in confirmation of this subordination,
Tenant shall execute promptly any certificate that Landlord may request provided
that, without limiting Landlord's right of specific performance and right to
injunctive relief, the Tenant's failure to do so shall constitute an Event of
Default under the Lease. In the event that the
Page 20
------------------
Blue Lake Standard Lease
holder ("Lender") of any encumbrance ("Mortgage") on the Building or any other
person acquires title to the Building pursuant to the exercise of any remedy
provided for in the Mortgage or by reason of the acceptance of a deed in lieu of
foreclosure (the Lender, any other such person and their participants,
successors and assigns being referred to herein as the "Purchaser"), Tenant
covenants and agrees to attorn to and recognize and be bound to Purchaser as its
new Landlord, and except as provided below, this Lease shall continue in full
force and effect as a direct Lease between Tenant and Purchaser, except that,
notwithstanding anything to the contrary herein or in the Lease. It is an
express condition of the subordination of this Lease set forth herein, that so
long as Tenant is not in material default under any provision of this Lease
beyond any applicable notice or cure period, and no event has occurred that has
continued to exist for a period of time (after notice, if any, required by this
Lease) as would entitle Landlord to terminate this Lease or would cause without
further action by Landlord, the termination of this Lease or would entitle
Landlord to dispossess the Tenant thereunder:
A. The right of possession of Tenant to the Premises and Tenant's
rights hereunder shall not be terminated or disturbed by any steps or
proceedings taken by Lender or anyone claiming by or through Lender in the
exercise of any of its rights under the Mortgage or the indebtedness secured
thereby;
B. This Lease shall not be terminated or affected and Tenant's
possession, use, and enjoyment of the Premises shall not be disturbed by said
exercise of any remedy provided for in the Mortgage, and any sale by Lender of
the Building pursuant to the exercise of any rights and remedies under the
Mortgage or otherwise, shall be made subject to this Lease and the rights of
Tenant hereunder.
C. In no event shall Lender or any other Purchaser be:
(1) liable for any act or omission of Landlord or any prior
landlord (except to the extent such continue without cure after acquisition of
the Building by the Lender and such may be cured by Lender with its reasonable
efforts;
(2) subject to any offsets or defenses that the Tenant might have
against Landlord or any prior landlord;
(3) bound by any payment or rent or additional rent that Tenant
might have paid to Landlord or any prior landlord for more than the current
month unless the same is delivered to the Lender or the Purchaser; or
(4) bound by any material amendment or modifications of the Lease
made without Lender's or such other Purchaser's prior written consent, which
shall not be unreasonably withheld or delayed.
D. Provided that Landlord has previously notified Tenant of Lender's
address for notice, Tenant agrees to give written notice to Lender as soon as
reasonably practicable of any default by Landlord that would entitle Tenant to
cancel this Lease, and agrees that notwithstanding any provision of this Lease,
no notice of cancellation thereof given on behalf of Tenant shall be effective
unless Lender has received said notice and has failed within 30 days of the date
of receipt thereof to cure Landlord's default, or if the default cannot be cured
within 30 days, has failed to promptly commence and to diligently pursue the
cure of Landlord's default which gave rise to such right of cancellation. Tenant
further agrees to give such notices to any successor of Lender, provided that
such successor shall have given written notice of Tenant of its acquisition of
Lender's interest in the Mortgage and designated the address to which such
notices are to be sent.
E. Tenant acknowledges that Landlord may execute and deliver to
Lender an Assignment of Leases and Rents conveying the rentals under this Lease
as additional security for the loan secured by the Mortgage, and Tenant hereby
expressly consents to such Assignment.
F. Within ten (10) days after the execution of this Lease, and as a
condition to the effectiveness of this Lease, Landlord shall obtain, for the
benefit of Tenant, a Subordination, Non-disturbance and Attornment Agreement
from each and every Lender as of the date of this Lease, such Subordination,
Non-Disturbance and Attornment Agreement to be in form substantially similar to
that attached hereto as Exhibit "J". Landlord represents and warrants to Tenants
that, as of the date of this Lease, it is the fee simple owner of the Building,
and that, as of the date hereof, there are no (i) ground leases of all or any
part of Landlord's interest in the Building, or (ii) mortgages with respect to
the Building, other than with Lenders providing such Subordination,
Non-Disturbance and Attornment Agreements to Tenant.
G. Notwithstanding anything to the contrary contained in this Lease,
after the date of this Lease, any subordination of this Lease to a mortgage or
any ground lease shall be conditioned on Tenant obtaining a. Subordination,
Non-Disturbance and Attornment Agreement from the applicable Lender and ground
lessor, such Subordination, Non-Disturbance and Attornment Agreement in a form
substantially similar to that attached hereto as Exhibit "J".
29. ATTORNMENT AND MORTGAGEE'S REQUEST
A. ATTORNMENT. Subject to the provisions of Section 28, if any
mortgagee of the Building comes into possession or ownership of the Premises, or
acquires Landlord's interest by foreclosure of the mortgage or otherwise, upon
the mortgagee's request Tenant will attorn to the mortgagee.
Page 21
------------------
Blue Lake Standard Lease
30. TRANSFER BY LANDLORD
If Landlord's interest in the Building terminates by reason of a
bona fide sale or other transfer, Landlord will, upon assumption by the new
owner of the Landlord's obligations hereunder from and after the date of
transfer, thereupon be released from all further liability to Tenant under this
Lease. At the expiration or termination of the Lease Term, Tenant shall deliver
to Landlord all keys to the Premises and make known to Landlord the location and
combination of all safes, locks and similar items.
31. SURRENDER OF PREMISES; HOLDING OVER
A. SURRENDER. Tenant 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 they were at the
commencement of Tenant's occupancy, ordinary wear and tear, and damage by fire
and windstorm excepted.
B. RESTORATION. In all events, Tenant will promptly restore all
damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession, including claims of any succeeding tenant.
C. REMOVAL. Upon expiration of the Lease Term, at Landlord's option,
Tenant may not be required to remove from the Premises, Building Standard Items
(as defined in the Work Letter), all of such Building Standard Items are the
property of Landlord or tenant improvements installed prior to the Rent
Commencement Date unless Landlord shall require such removal during the review
and approval of the plans and specifications as provided in the Work Letter.
D. HOLDOVER. In the event of a holding-over by Tenant, after the
expiration of the Lease or the early termination of the Lease without the
written consent of Landlord, Tenant shall, in addition to being responsible for
any liquidated damages provided by Florida statute, also indemnify Landlord
against all claims for damages by any other tenant to whom Landlord may have
leased all or any part of the Premises covered hereby effective after the
termination of this Lease so long as Landlord has previously provided Tenant
notice of such lease. No payments of money by Tenant after the expiration of the
Lease Term of the earlier termination of this Lease will reinstate, continue or
extend the Term; reduce the liability of Tenant to Landlord for damages; or
affect any termination notice given by Landlord to Tenant. No extension of the
Lease Term will be valid unless and until the same will be reduced to writing
and signed by both Landlord and Tenant.
E. NO SURRENDER. No offer of surrender of the Premises, by delivery
to Landlord or its agent of keys to the Premises or otherwise, will be binding
on Landlord unless accepted by Landlord, in writing, specifying the effective
surrender of the Premises. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the Premises and make known to
Landlord the location and combinations of all locks, safes and similar items.
32. NO WAIVER, CUMULATIVE REMEDIES
A. NO WAIVER. No waiver of any provision of this Lease by either
party will 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 and
Tenant under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord and Tenant will be entitled to pursue all rights and
remedies available under the laws of the State of Florida.
B. RENT PAYMENTS. No receipt of money by Landlord from Tenant at any
time, or any act, or thing done by, Landlord or its agent shall be deemed a
release of Tenant from any liability whatsoever to pay Rent, Additional Rent, or
any other sums due hereunder, unless such release is in writing, subscribed by a
duly authorized officer or agent of Landlord and refers expressly to this
Section. 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 right to collect all remaining sums due and
pursue all of its remedies under the Lease.
33. WAIVER
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH (i) THIS LEASE, (ii) THE PREMISES, (iii) TENANT'S USE OR
OCCUPANCY OF THE PREMISES, OR (iv) THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY.
TENANT FURTHER~WAIVES THE RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY
NATURE IN ANY ACTION OR PROCEEDING COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF
THE PREMISES. IF TENANT VIOLATES THIS PROVISION BY FILING A PERMISSIVE
COUNTERCLAIM, WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO HAVE SUCH COUNTERCLAIM
DISMISSED, THE PARTIES STIPULATE THAT SHOULD THE COURT PERMIT TENANT TO MAINTAIN
THE COUNTERCLAIM, THE
Page 22
------------------
Blue Lake Standard Lease
COUNTERCLAIM SHALL BE SEVERED AND TRIED SEPARATELY FROM THE ACTION FOR
POSSESSION PURSUANT TO RULE 1.270(b) OF THE FLORIDA RULES OF CIVIL PROCEDURE OR
OTHER SUMMARY PROCEDURES SET FORTH IN SECTION 51.01 1, FLORIDA STATUTES (1993).
THE WAIVERS SET FORTH IN THIS SECTION ARE MADE KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY BY TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL, SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH COUNSEL.
THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD IN AGREEING TO ENTER INTO
THIS LEASE.
34. CONSENTS AND APPROVALS
[Intentionally Omitted]
35. RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations attached hereto
as Exhibit "C" and incorporated herein by this reference, as reasonably amended
and supplemented from time to time by Landlord. Landlord will not be liable to
Tenant for violation of the same or any other act or omission by any other
tenant except to the extent the same materially affects Tenant's use and
enjoyment of the Premises as provided in this Lease. All rules and regulations
shall, to the extent reasonably practicable, be uniformly applicable to all
tenants and occupants and shall not interfere with Tenant's use of the Premises
in any material manner. In the event of a conflict between the rules and
regulations and the provisions of this Lease, the provisions of this Lease shall
prevail.
36. SUCCESSORS AND ASSIGNS
This Lease will be binding upon and inure to the benefit of the
respective heirs, personal and legal representatives, successors and permitted
assigns of the parties hereto.
37. QUIET ENJOYMENT
In accordance with and subject to the terms and provisions of this
Lease, Landlord warrants that it has full right to execute and to perform under
this Lease and to grant the estate demised. Tenant, upon Tenant's payment of
Rent and performing of all of the terms, conditions, covenants, and agreements
as and when required in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the full Lease Term.
38. ENTIRE AGREEMENT
This Lease, together with the BLI Rider, exhibits, schedules,
addenda and guaranties (as the case may be) 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 Landlord and Tenant
after the date hereof.
39. HAZARDOUS MATERIALS
A. REPRESENTATION. Tenant represents, warrants and covenants that (1
) the Premises will not be used for any dangerous, noxious or offensive trade or
business and that it will not cause or maintain a nuisance there, (2) it will
not bring, generate, treat, store, use or dispose of Hazardous Substances at the
Premises other than use in the ordinary course of business and in compliance
with all applicable laws, (3) it shall, with respect to Tenant's use and
occupancy of the Premises, the parking lot and any other area of the Building,
as applicable, at all times comply with all Environmental Laws (as hereinafter
defined) and shall cause the Premises, while in the possession and control of
Tenant to comply, and (4) Tenant will keep the Premises free of any lien imposed
pursuant to any Environmental Laws. Only for purposes of this paragraph entitled
"Representation", the term "Premises" shall mean, only with respect to Tenant's
use and occupancy of the Premises, the Building including Common Areas, parking
areas, greenspace and all other elements thereof.
B. REPORTING REQUIREMENTS. Tenant warrants that it will promptly
deliver to the Landlord, (i) copies of any documents received from the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning the Tenant's operations upon the
Premises; and (ii) copies of any documents submitted by the Tenant to the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning its operations on the Premises,
including but not limited to copies of permits, licenses, annual filings,
registration forms.
C. TERMINATION, CANCELLATION, SURRENDER. At the Expiration Date or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord free of any and all Hazardous Substances which have been placed on, in
or about the Premises by Tenant or Tenant's agents, and in compliance with all
Environmental Laws. Landlord may at Landlord's expense at the end of the term,
order a clean-site certification, environmental audit or site assessment with
respect to the Premises the cost of which shall be reimbursed by Tenant to
Landlord in the event such environmental audit reflects a violation of this
Section 39 by Tenant.
D. ACCESS AND INSPECTION. Landlord shall have the right, subject to
not materially disturbing Tenant's peaceful use and occupancy of the Premises
and the Common Areas and subject to reasonable advance notice, except in the
instance of emergencies, but not the obligation, at all times during
Page 23
------------------
Blue Lake Standard Lease
the term of this Lease to (i) enter upon and inspect the Premises, (ii) conduct
tests and investigations and take samples to determine whether Tenant is in
compliance with the provisions of this article, and (iii) request lists of all
Hazardous Substances used, stored or located on the Premises; the cost of all
such inspections, tests and investigations to be borne by Landlord, unless,
however, said inspections, tests and investigations reflect a violation of
Environmental Laws by Tenant in which instance the Tenant shall promptly either
pay or reimburse Landlord for all inspections, tests and investigations.
Promptly upon the written request of Landlord, from time to time, if Landlord
shall reasonably suspect a violation of Environmental Laws, Landlord may obtain
an environmental site assessment or environmental audit report prepared by an
environmental engineering firm acceptable to Landlord to assess, with a
reasonable degree of certainty, the presence or absence of any Hazardous
Substances and the potential costs in connection with abatement, clean-up, or
removal of any Hazardous Substances found on, under, at, or without the
Premises. If such audit reveals a violation of Environmental Laws caused by
Tenant or Tenant's agents, or the presence of Hazardous Substances not in the
Premises upon delivery of possession to Tenant, and such was not caused by
Landlord or its agents, the Tenant shall pay the cost of such audit. Tenant will
reasonably cooperate with Landlord, at no cost or expense to Tenant, and allow
Landlord and Landlord's representatives access, upon ten (10) days notice
(except in the case of an emergency), to any and all parts of the Premises and
to the records of Tenant with respect to the Premises for environmental
inspection purposes at any time. In connection therewith, Tenant hereby agrees
that Landlord, or Landlord's agent, may perform any testing upon or of the
Premises that Landlord's deems reasonably necessary for the evaluation of
environmental risks, costs, or procedures, including soils or other sampling or
coring. Landlord shall repair and restore the Premises damaged during such
testing unless testing reveals a violation by Tenant of Environmental Laws in
which case all such expenses shall be that of Tenant. Landlord shall use
reasonable effort to minimize any disruption or interference with Tenant's
operations in the Premises in connection with such inspection and/or testing.
E. VIOLATIONS - ENVIRONMENTAL DEFAULTS. Tenant shall give to
Landlord immediate verbal and follow-up written notice of any actual or
threatened spills, releases or discharges of Hazardous Substances on the
Premises, caused by the acts or omissions of Tenant or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Tenant covenants to promptly investigate, clean up and otherwise remediate any
spill, release or discharge of Hazardous Substances in or about the Premises or
the Building, including but not limited to those caused by the acts or omissions
of Tenant or its agents, employees, representatives, invitees, licensees,
subtenants, customers or contractors at Tenant's sole cost and expense; such
investigation, clean up and remediation to be performed in accordance with all
Environmental Laws and after Tenant has obtained Landlord's written consent,
which shall not be unreasonably withheld or delayed. Tenant shall return the
Premises to the condition existing prior to the introduction of any such
Hazardous Substances by Tenant or Tenant's agents.
(1) In the event of (1) a violation of an Environmental Law by
Tenant, (2) a release, spill or discharge of a Hazardous Substance on or from
the Premises, or (3) the discovery of an environmental condition requiring
response which violation, release, or condition is attributable to the acts or
omissions of Tenant, its agents, employees, representatives, invitees,
licensees, subtenants, customers, or contractors, or (4) an emergency
environmental condition which is the result of an act of Tenant (collectively
"Environmental Defaults"), Landlord shall have the right, but not the
obligation, within ten (10) business days after notice to Tenant, except in the
case of an emergency which requires more prompt action, to enter the Premises,
to supervise and approve any actions taken by Tenant to address the
Environmental Default; and in the event Tenant fails to immediately address such
Environmental Default, then Landlord may perform, at Tenant's expense, any
lawful actions necessary to address the Environmental Default.
(2) Landlord has the right, but not the obligation to cure any
Environmental Defaults, has the reasonable right to suspend some or all of the
operations to the extent that the operations have caused the Environmental
Default of the Tenant until it has determined to its sole satisfaction that
appropriate measures have been taken, and has the right to terminate this Lease
upon the occurrence of an Environmental Default.
F. ADDITIONAL RENT. Any expenses which the Landlord incurs, which
are to be at Tenant's expense pursuant to this Article, will be considered
Additional Rent under this Lease and shall be paid by Tenant on demand by
Landlord.
G. ASSIGNMENT AND SUBLETTING. Notwithstanding anything to the
contrary in this Lease, the Landlord may condition its approval of any
assignment or subletting by Tenant to an Assignee or Subtenant that in the
judgment of the Landlord, reasonably exercised, does not create any additional
environmental exposure.
H. INDEMNIFICATIONS.
(1) INDEMNIFICATION OF LANDLORD. Tenant shall indemnify, defend
(with counsel approved by Landlord) and hold Landlord and Landlord's affiliates,
shareholders, directors, officers, employees and agents harmless from and
against any and all claims, judgments, damages (including consequential
damages), penalties, fines, liabilities, losses, suits, administrative
proceedings, costs and expenses of any kind or nature which arise out of or in
anyway related to any Environmental Default by Tenant, its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors
during or after the term of this Lease
Page 24
------------------
Blue Lake Standard Lease
(including, but not limited to, attorneys', consultant, laboratory and expert
fees expert fees and including without limitation, diminution in the value of
the Premises, damages for the loss or restriction on use of rentable or usable
space or of any amenity of the Premises and damages arising from any adverse
impact on marketing of space), arising from or related to the use, presence,
transportation, storage, disposal, spill, release or discharge of Hazardous
Substances on or about the Premises, to the extent caused by Tenant or Tenant's
agents, employees, representatives, invitees, licensees, subtenants, customers
or contractors.
(2) INDEMNIFICATION OF TENANT. Landlord shall indemnify, defend
(with counsel reasonably approved by Tenant) and hold Tenant and Tenant's
affiliates, shareholders, directors, officers, employees and agents, harmless
from and against any and all claims, judgments, damages (including consequential
damages), penalties, fines, liabilities, losses, suits, administrative
proceedings, costs and expenses of any kind or nature which arise out of or are
in any way related to an environmental condition constituting a violation of
this Section, except due to the acts of Tenant or Tenant's agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
I. DEFINITIONS.
(1) "Hazardous Substance" means, (i) asbestos and any asbestos
containing material and any substance that is then defined or listed in, or
otherwise classified pursuant to, any Environmental Laws or any applicable laws
or regulations as a "hazardous substance", "hazardous material", "hazardous
waste", "infectious waste", "toxic substance", "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (ii) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration, development
or production of crude oil, natural gas, or geothermal resources and (iii)
petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive material (including any source, special nuclear, or by-product
material), and medical waste. Excepted from the foregoing shall be substances
(for example, those used in construction or cleaning supplies or office
machines) which contain Hazardous Substances but in amounts and/or quantities
which comply with all Environmental Laws as herein below defined.
(2) "Environmental Laws" collectively means and includes all
present and future laws and any amendments (whether common law, statute, rule,
order, regulation or otherwise), permits, and other requirements or guidelines
of governmental authorities applicable to the Premises and relating to the
environment and environmental conditions or to any Hazardous Substance
(including, without limitation, CERCLA, 42 U.S.C. 9601, et. seq.; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. 1801, et seq., the Federal Water
Pollution Control Act, 33 U.S.C. 1251, et seq., the Clean Air Act, 33 U.S.C.
7401, et seq., the Clear Air Act, 42 U.S.C. 741, et seq., the Toxic Substances
Control Act,15 U.S.C. 2601 -2629, the Safe Drinking Water Act, 42 U.S.C.
300f-300j, the Emergency Planning and Community Right-To-Know Act, 42 U.S.C.
1101, et seq., and any so-called "Super Fund" or "Super Lien" law, any law
requiring the filing of reports and notices relating to hazardous substances,
environmental laws administered by the Environmental Protection Agency, and any
similar state and local laws and regulations, all amendments thereto and all
regulations, orders, decisions, and decrees now or hereafter promulgated
thereunder concerning the environment, industrial hygiene or public health or
safety.)
J. RADON. RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risk to persons who are exposed to it over time. Levels of radon
that exceed Federal and State Guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
K. SURVIVAL OF INDEMNIFICATIONS. All indemnities herein shall
survive termination or expiration of this Lease.
40. 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
consideration payable to Landlord or otherwise to be delivered to Landlord in
connection with such assignment shall be paid or delivered to Landlord, shall be
and remain the exclusive property of 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 constituting
Landlord's property under this Section 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. Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. For purposes of this Lease, an
"Event of Bankruptcy" shall mean the filing of a voluntary petition by Tenant or
the entry of an order for relief against Tenant, under Chapter 7, 11 or 13 of
the Bankruptcy Code (or the conversion to a Chapter 11 or 13 proceeding of a
proceeding that is filed by or against Tenant under any other Chapter of the
Bankruptcy Code).
Page 25
------------------
Blue Lake Standard Lease
B. ADDITIONAL REMEDIES. In addition to any rights or remedies herein
before or hereinafter conferred upon Landlord under the terms of this Lease, the
following remedies and provisions shall specifically apply in the event Tenant
is in default of this Lease beyond applicable notice and cure periods:
(1) In all events, any receiver or trustee in bankruptcy shall
either expressly assume or reject this Lease within ninety (90) days following
the entry of an "Order for Relief" or within such earlier time as may be
provided by applicable law.
(2) In the event of an assumption of this Lease by a debtor or by
a trustee, such debtor or trustee shall within thirty (30) days after such
assumption (i) cure any default or provide adequate assurance that defaults will
be promptly cured; (ii) compensate Landlord for actual pecuniary loss or provide
adequate assurance that compensation will be made for actual losses, including,
but not limited to, all attorneys" fees and costs incurred by Landlord resulting
from any such proceedings; and (iii) provide adequate assurance of future
performance.
(3) Where an Event of Default exists under this Lease beyond
applicable notice and cure periods, the trustee or debtor assuming this Lease
may not require Landlord to provide services or supplies incidental to this
Lease before its assumption by such trustee or debtor, unless Landlord is
compensated under the terms of this Lease for such services and supplies
provided before the assumption of such Lease.
(4) The debtor or trustee may only assign this Lease if (i) it is
assumed and the assignee agrees to be bound by this Lease, (ii) adequate
assurance of future performance by the assignee is provided, whether or not
there has been a default under this Lease, and (iii) the assignee has been
approved by Landlord in accordance with Section 13 or is an assignee permitted
under Section 13. Any consideration paid by any assignee in excess of the rental
reserved in this Lease shall be the sole property of, and paid to, Landlord.
(5) Landlord shall be entitled to the Rent provided under the
Federal Bankruptcy Code subsequent to the commencement of an Event of
Bankruptcy.
(6) Any security deposit given by Tenant to Landlord to secure
the future performance by Tenant of all or any of the terms and conditions of
this Lease shall be automatically transferred to Landlord upon the entry of an
"Order of Relief", such being deemed a material part of the consideration for
Landlord's agreement to enter into this Lease.
(7) The parties agree that Landlord is entitled to adequate
assurance of future performance of the terms and provisions of this Lease in the
event of an assignment under the provisions of the Bankruptcy Code. For purposes
of any such assumption or assignment of this Lease, the parties agree that the
term "adequate assurance" shall include, without limitation, at least the
following: (i) any proposed assignee must have, as demonstrated to Landlord's
reasonable satisfaction, a net worth (as defined in accordance with generally
accepted accounting principles 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 the payment of all Rent; the
financial condition and resources of Tenant are material inducements to Landlord
entering into this Lease; (ii) any assumption of this Lease by a proposed
assignee shall not adversely affect Landlord's relationship with any of the
remaining tenants in the Building taking into consideration any and all other
"use" clauses and/or "exclusivity" clauses which may then exist under their
leases with Landlord; and (iii) any proposed assignee must not be engaged in any
business or activity which it will conduct on the Premises and which will
subject the Premises to contamination by any Hazardous Materials.
41. FIRE PREVENTION SYSTEMS
After the Landlord installs the base sprinkler system, the Tenant shall
be responsible for the cost of any change, modification, alteration or
installation of any new or existing sprinkler system, fire extinguishing system
and/or fire detection system which may now or hereafter be required as follows:
A. If the National Board of Fire Underwriters or any local Board of
Fire Underwriters or Insurance Exchange (or other bodies hereafter exercising
similar functions) shall require or recommend the installation of fire
extinguishers, a Sprinkler system," fire detection and prevention equipment
(including, but not limited to, smoke detectors and heat sensors), or any
changes, modifications, alterations, or the installation of additional sprinkler
heads or other equipment for any existing sprinkler, fire extinguishing system,
and/or fire detection system for any reason, to the extent attributable to
Tenant's specific use of the Premises or Alterations performed by Tenant; OR
B. If any law, regulation, or order or if any bureau, department, or
official of the Federal, State, and/or Municipal Governments shall require or
recommend the installation of fire extinguishers, a "sprinkler system," fire
detection and prevention equipment (including, but not limited to, smoke
detectors and heat sensors), or any changes, modifications, alterations, or the
installation of additional sprinkler heads or other equipment for any existing
sprinkler system, fire extinguishing system, and/or fire detection system for
any reason, to the extent attributable to Tenant's specific use of the Premises
or Alterations performed by Tenant; OR
C. If any such installations, changes, modifications, alterations,
sprinkler heads, or other equipment become necessary to prevent the imposition
of a penalty, an additional charge, or an increase in the fire insurance rate as
fixed by said
Page 26
------------------
Blue Lake Standard Lease
Board or Exchange, from time to time, or by any fire insurance company as a
result of the use of the Premises whether or not the same is a Permitted Use
under this Lease.
D. The Landlord may elect to perform the work and charge the cost
thereof to Tenant as Additional Rent. The Tenant shall pay to Landlord the full
cost of such work within thirty (30) days after Landlord has presented invoices
and/or paid receipts for the same. If the Landlord does not elect to perform
such work, the Tenant shall immediately proceed, at its sole cost, to perform
the work upon the following conditions:
(i) a general contractor licensed in Florida and reasonably
approved by Landlord shall be utilized
(ii) all laws, ordinances and regulations governing such work
shall be complied with
(iii) a payment and performance bond in Landlord's favor and with
a surety acceptable to Landlord shall be obtained
(iv) the construction contract and all plans and specifications
for the work shall be subject to Landlord's reasonable approval.
42. SPECIAL EVENTS
The Tenant shall not, without the prior written consent of the Landlord
which shall not be unreasonably withheld or delayed, schedule, advertise or
undertake any exposition, promotion or other type of special event at the
Premises. Any approval of the Landlord to a special event may include, but not
be limited to, at the Landlord's option, to reasonable conditions such as
guidelines for traffic and pedestrian control, security, parking and other
considerations in the interest of maintaining the health and safety for both the
Tenant's invitees as well as that of other tenants. In addition, the Landlord
may, in its reasonable discretion, require the Tenant to have delivered a bond
by a surety acceptable to Landlord to guaranty any financial undertakings of any
indemnification in connection with a special event.
43. MISCELLANEOUS
A. If Tenant has a lease for other space in the Building, an Event
of Default by Tenant under such lease beyond applicable notice and cure periods
will constitute a default hereunder.
B. 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 circumstances 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 will be construed in accordance with the laws of the State of
Florida.
C. Submission of this Lease to Tenant does not constitute an offer,
and this Lease becomes effective only upon execution and delivery by both
Landlord and Tenant.
D. Tenant acknowledges that it has not relied upon any statement,
representation, prior or contemporaneous written or oral promises, agreements or
warranties, except such as are expressed herein.
E. Tenant agrees to pay, before delinquency, all taxes assessed
during the Lease Term agreement (i) all personal property, trade fixtures, and
improvements located in or upon the Premises and (ii) any occupancy interest of
Tenant in the Premises. Landlord agrees to pay all real estate taxes and
assessments against the Building before the Building would be sold by tax deed
to pay such delinquent taxes.
F. If Tenant, with Landlord's consent, occupies the Premises or any
part thereof for the purpose of conducting business prior to the Rent
Commencement Date all provisions of this Lease will be in full force and effect
commencing upon such occupancy, and Base Rent and Additional Rent, where
applicable, for such period will be paid by Tenant at the same rate herein
specified.
G. Each party represents and warrants that it has not dealt with any
agent or broker in connection with this transaction except for Blue Lake Realty,
Inc. and the agents or brokers specifically set forth in the BLI Rider whose
commissions shall be paid by Landlord pursuant to separate agreement. If either
party's representation and warranty proves to be untrue, such party will
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, if any. The foregoing will
survive the end of the Lease Term.
H. Neither this Lease nor any memorandum hereof will be recorded by
Tenant.
I. 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,
partnership, joint venturer or any 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.
J. Whenever in this Lease the context allows, the word "including"
will be deemed to mean "including without limitation". The headings of articles,
sections or paragraphs are for convenience
Page 27
------------------
Blue Lake Standard Lease
only and shall not be relevant for purposes of interpretation of the provisions
of this Lease.
K. Except as otherwise stated in this Lease, this Lease does not
create, nor will 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.
L. Landlord reserves the right, upon reasonable advance notice to
Tenant, except in the case of an emergency, to use, install, monitor, and repair
pipes, ducts and conduits within the walls columns, and ceilings of the
Premises. Landlord shall use all reasonable efforts to not materially interfere
with Tenant's peaceful use and occupancy of the Premises.
M. Any acts to be performed by candors under or in connection with
this Lease may be delegated by Landlord to its managing agent or other
authorized person or firm. Provided, however that any such delegation shall not
reduce or alter the obligations to be performed by Landlord as set forth in this
ease.
N. It is acknowledged that each of the parties hereto has been fully
represented by legal counsel and that each of such legal counsel has contributed
substantially to the content of this Lease. Accordingly, 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.
O. If more than one person or entity is named herein as Tenant,
their liability hereunder will be joint and several. In case Tenant is a
corporation, Tenant (a) represents and warrants that this Lease has been duly
authorized, executed and delivered by and on behalf of Tenant and constitutes
the valid and binding agreement of Tenant in accordance with the terms hereof,
and (b) Tenant shall deliver to Landlord or its agent, within three (3) business
days of the execution of this Lease, executed by Tenant, certified resolutions
of the board of directors authorizing Tenant's execution and delivery of this
Lease and the performance of Tenant's obligations hereunder. In case Tenant is a
partnership, Tenant represents and warrants that all of the persons who are
general or managing partners in said partnership have executed this Lease on
behalf of Tenant, or that this Lease has been executed and delivered pursuant to
and in conformity with a valid and effective authorization therefor by all of
the general or managing partners of such partnership, and is and constitutes the
valid and binding agreement of the partnership and every partner therein in
accordance with its terms. It is agreed that each and every present and future
partner in Tenant, to the extent that Tenant is a partnership, 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 in writing to such release.
P. Landlord has made no inquiries about and makes no representations
(express or implied) concerning whether Tenant's proposed use of the Premises is
permitted under applicable law, including applicable zoning law; should Tenant's
proposed use be prohibited, Tenant shall be obligated to comply with applicable
law and this Lease shall nevertheless remain in full force and effect. Landlord
covenants that the Building is zoned to permit corporate headquarters office use
as contemplated in the BLI Rider.
Q. Notwithstanding anything to the contrary in this Lease, if
Landlord or Tenant cannot perform any of its non-monetary obligations due to
events beyond that party'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 either party's control include, but are not limited to,
hurricanes and floods and other acts of God, war, civil commotion, labor
disputes, strikes, fire, flood or other casualty, shortages of labor or
material, government regulation or restriction and weather conditions. Nothing
herein contained shall constitute a waiver or mitigation of Tenant's
responsibility to pay Rent.
R. Notwithstanding anything to the contrary contained in this Lease,
in the event of any litigation under this Lease the prevailing party will be
reimbursed by the non-prevailing party for all reasonable attorneys' fees and
costs including through all appellate actions and proceedings, including
bankruptcy proceedings.
S. This Lease and the schedules and riders attached, form part of
this Lease together with the Rules and Regulations adopted and promulgated by
Landlord and set forth all the covenants, promises, assurances, agreements,
representations, conditions, warranties, statements and understandings
("Representations") between Landlord and Tenant concerning the Premises and the
Building and there are no Representations, either oral or written between them
other than those in this Lease. This Lease supersedes and revokes all previous
negotiations, arrangements, letters of intent, offers to lease, lease proposals,
brochures, Representations and information conveyed whether oral or in writing,
between the parties hereto or their respective representatives or any other
person purporting to represent Landlord or Tenant. Tenant acknowledges it has
not been induced to enter into this Lease by any representations not set forth
in this Lease, and has not relied on any such Representations not set forth
herein, no such Representations not set forth herein shall be used in the
interpretation or construction of this Lease, and the Landlord shall have no
liability for any consequences arising as a result of any such Representations
not set forth herein. Except as herein otherwise provided, no subsequent
alteration, amendment, change, or addition to this Lease shall be binding upon
Landlord or Tenant unless in writing and signed by each of them.
Page 28
------------------
Blue Lake Standard Lease
T. Time shall be of the essence for all actions required under this
Lease.
44. DELIVERY OF GUARANTY
If Tenant is required to deliver a Guaranty by a Guarantor, Tenant shall
deliver a guaranty in the form of guaranty (the "Guaranty"),together with the
form of Guarantor's resolution in the form attached hereto attached as Exhibit
"K", and the Guarantor's certificate of financial standing attached hereto as
Exhibit "K" fully executed by each Guarantor. If a Guaranty is required pursuant
to the BLI Rider then, at or prior to the parties' execution of this Lease
Landlord has delivered to Tenant a form of guaranty (the "Guaranty") to be
signed by each Guarantor identified in the BLI Rider. Tenant's failure to
deliver the Guaranty fully executed by the Guarantor within 5 days from the
earliest date on which this Lease has been signed by the parties shall
constitute an Event of Default.
45. CONFIDENTIALITY
Landlord and Tenant acknowledge that the terms and provisions of this
Lease have been negotiated based upon a variety of factors, occurring at a
coincident point in time, including, but not limited to: (i) the individual
principals involved and the financial strength of Tenant, (ii) the nature of
tenant's business and use of the Premises, (iii) the current leasing market
place and the economic conditions affecting rental rates, (iv) the present and
projected tenant mix of the Building, and (v) the projected juxtaposition of
tenants on the floor(s) upon which the Premises are located and the floors
within the Building. Therefore, recognizing the totality, uniqueness, complexity
and interrelation of the aforementioned factors, the Tenant agrees that
information concerning Landlord and the Blue Lake Building, and the financial
terms of this Lease, are confidential and proprietary information and Tenant
agrees that it will use all reasonable efforts to not permit the duplication or
disclosure (whether by word of mouth, mechanical reproduction, physical tender
or visual or oral transmission or review) of any such information, including the
terms and conditions of this Lease to third parties who could, in any way, be
considered presently or in the future as prospective tenants of the Building, to
any person, unless such duplication, use, or disclosure is specifically
authorized by Landlord in writing. Confidential information is not meant to
include any information that is in the public domain. In addition, Tenant agrees
to use all reasonable efforts to keep the terms and conditions as contained
herein confidential, with the following exceptions:
A. Tenant may disclose the contents of this Lease to its advisors in
the contemplated transaction, so long as the advisor agrees in wroting to use
all reasonable efforts to maintain confidentiality;
B. Tenant may disclose such information as required by court order;
C. Tenant may disclose such information as required by any laws,
regulations or requirements applicable to Tenant or any affiliate of Tenant; and
D. Tenant may disclose the contents of this Lease to potential
assignees or subtenants, so long as such potential assignees or subtenants agree
in writing to use all reasonable efforts to maintain confidentiality.
Tenant shall issue no press release or statement to the media regarding
this Lease without the Landlord's prior approval, which approval shall not be
unreasonably withheld or delayed.
46. SIGNAGE CRITERIA
Tenant shall be permitted to erect or enplace a sign, as applicable, in
conformance with the BLOC design criteria for the Premises as attached hereto
and made a part hereof as Exhibit "H".
47. CARPOOLING, MASS TRANSIT AND TRAFFIC CONTROL
Tenant acknowledges that, due to the nature and size of the Building,
Landlord may be required by applicable governmental authorities to participate
in, and require tenants to participate in, carpool programs, mass transit
programs, flexible shift and other flexible time programs, and other frame
reduction programs and measures. Tenant agrees to participate in and comply with
such programs and measures required by applicable governmental authorities or
agreed to by Landlord with respect to the Building. Tenant's breach of this
provision shall not be a default under this Lease or expose Tenant otherwise to
damages or injunction.
48. LEASE CONTINGENCIES
This Lease shall be conditioned and contingent upon the occurrence of
the following event: within ten (10) days from the Effective Date hereof,
Landlord's mortgagee(s) and other lenders have approved this Lease and the
Tenant (including but not limited to Tenant's financial condition).
49. ASSOCIATION
The Building, in which the Premises are located shall be subject to a
Declaration of Restrictive Covenants, Easements and Conditions (the
"Declaration") which shall govern certain matters with respect to the
development, management and maintenance of the Building and to satisfy contents
of this Lease to its advisors in the requirements with respect to surface water
management, drainage and other aspects of the agrees in writing to use all
reasonable efforts to Building. The Declaration shall provide for the creation
maintain confidentiality; of a property owner's association ("Association") to
perform certain management, operational and maintenance obligations pursuant
thereto. The Association will have the authority to levy fees and assessments
against the Building, including the Building, to pay for the obligations of the
Association.
Page 29
------------------
Blue Lake Standard Lease
This Lease is subject to the Declaration, upon the recordation of the
Declaration, and to the rights of the Association pursuant thereto.
Additionally, fees and assessments of the Association paid by the Landlord shall
be deemed Operating Expenses for the purpose of determining Overhead Rent. The
Declaration shall not materially impair Tenant's rights under this Lease.
50. VENDING MACHINES
No Tenant shall obtain, or accept for use in the Premises, vending
machines or pay telephones, or other similar services from any persons other
than those specifically designated by Landlord to offer or distribute such
services. Landlord shall designate at least one vendor for such services.
51. FOOD SERVICE
At all times during the term of the Lease (subject; however, to
reasonable temporary interruptions), Landlord will provide a cafeteria or other
food service facility within the Building campus to serve breakfast and lunches
to employees of Tenant and other tenants. The scope and types of food to be
served, and all other aspects of such food service facility shall be determined
in Landlord's sole discretion.
52. AUDITORIUM/CONFERENCECENTER
Landlord will make available to Tenant on an as available, first come -
first serve basis, the existing auditorium and conference center, at a cost no
greater a cost than that charged to other tenants, together with Landlord's
charges for setup and cleanup, and for any damages thereto resulting from
Tenant's use thereof.
53. TELECOMMUNICATIONS
A. TENANT'S RESPONSIBILITY. Tenant acknowledges and agrees that all
telephone and telecommunications and data services, including wiring and
installation therefor, 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 closets on the floor on which the Premises is
located, in accordance with the rules and regulations adopted by Landlord from
time to time. Unless otherwise specifically agreed to in writing, Landlord shall
have no responsibility for the maintenance of Tenant's telecommunications or
data equipment, including wiring; nor for any wiring or other infrastructure to
which Tenant's telecommunications or data 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, unless caused by the negligence or willful misconduct of the
Landlord, its agents, employees, or contractors.
B. REMOVAL OF EQUIPMENT AND WIRING AND OTHER FACILITIES. Any and all
telecommunications and data equipment installed in the Premises or elsewhere in
the Building or the Project by or on behalf of Tenant, including wiring, or
other facilities for telecommunications or data transmittal reception, shall be
removed prior to the expiration or earlier termination of the Term, by Tenant at
its sole cost or, at Landlord's election, by Landlord at Tenant's sole cost,
with the cost therefor to be paid as Additional Rent.
C. NEW TELECOMMUNICATIONS OR DATA PROVIDER INSTALLATIONS. Tenant
acknowledges that the Landlord has or will enter into an agreement with a
telephone, telecommunications or data provider for the installation and
maintenance of telecommunications lines to and within the Building and that such
lines will be the exclusive lines serving the Building and the Premises. In the
event that Tenant wishes at any time to utilize the services of a telephone,
telecommunications or data provider whose equipment is not then servicing the
Project, no such provider shall be permitted to install its line within the
Building or Project without first securing the prior written approval of
Landlord, which approval shall be in the Landlord's sole and absolute
discretion. The Landlord's approval, if given, shall not be deemed any kind of
warranty or representation by Landlord, including without limitation, any
warranty or representation as to the suitability, confidence, or financial
strength of the provider without limitation of the foregoing standard and may be
conditioned upon such terms as shall be determined by Landlord in its reasonable
judgment.
D. LIMITS ON PROVIDER RELATIONSHIP. Notwithstanding anything herein
to the contrary, no telephone, telecommunications or data provider shall be
deemed a third-party beneficiary of this Lease.
E. INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Subject to
Paragraph 56 hereof, Tenant shall not utilize any wireless communications or
data equipment (other than usual and customary cellular telephones), including
antenna and satellite receiver dishes, within the Premises, or the Building or
the Project, without Landlord's prior written consent, which consent may be
arbitrarily withheld. Such consent may be conditioned in such manner so as to p
protect Landlord's financial interest and the interest of the Building and the
other tenants therein, in a manner similar to the arrangement described in the
immediately preceding paragraphs.
F. CONSENT NOT LANDLORD WARRANTY. Landlord's consent under this
Section 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 provider.
G. TENANT RESPONSIBLE FOR SERVICE INTERRUPTION. Tenant agrees that
to the extent service by its provider is interrupted, curtailed or discontinued,
Landlord shall have no obligation or liability with
Page 30
------------------
Blue Lake Standard Lease
respect thereto and it shall be the sole obligation of Tenant at its expense to
obtain substitute service as to another, except to the extent caused by the
negligence or willful misconduct of Landlord, its agents, employees or its
contractors..
H. NO THIRD PARTY RIGHTS. The provisions of this Section may be
enforced solely by the Tenant and Landlord, and are not for the benefit of any
other party, specifically without limitation, no telephone or telecommunications
provider shall be deemed a third party beneficiary of the Lease.
I. LIABILITY FOR EQUIPMENT INTERFERENCE. In the event that
telecommunications or data equipment, wiring and facilities or satellites and
antenna equipment of any kind installed by or at the request of Tenant within
the Premises, on the roof, or elsewhere within or on the Building, or the
Project, causes interference to equipment used by another party, Tenant shall
assume all liability related to such interference. Tenant shall use reasonable
efforts, and shall cooperate with Landlord and other parties to promptly
eliminate such interference. In the event that Tenant is unable to do so, Tenant
will substitute alternative equipment which remedies the situation. If such
interference persists, Tenant shall discontinue the use of such equipment, and
at Landlord's discretion, remove such equipment according to the foregoing
specifications. Tenant agrees to and shall indemnify and hold Landlord harmless
or any liabilities and claims against Landlord resulting from such interference.
54. INCENTIVE PROGRAMS. Tenant acknowledges advice from Landlord that
Landlord may, from time to time, apply for various loans, grants and/or other
incentive programs ("Incentive Programs"), which may enhance the value of the
Building. It is anticipated that certain applications for solicitations may
require a tenant or other possessor of portions of the Building to be the
applicant, co-applicant or participating party in applying for and/or securing
the Incentive Program(s). Within five (5) business days of Landlord's request,
Tenant shall, at Landlord's expense execute, to the extent required as to any
Incentive Program, any and all applications, petitions and/or other
documentation in support of Incentive Program. In any instance in which an
Incentive Program is applied for and secured, Tenant hereby irrevocably assigns
and quit-claims to Landlord any and all rights and interests which Tenant may
claim in and to any benefits or proceeds of t the Incentive Programs. The
assignment contained in the immediately preceding sentence is self-effectuating
without need for further confirmation to be effective; however, at the request
of Landlord, Tenant shall execute and deliver such assignment(s), confirmations
with supporting documentation as may from time-to-time be required by Landlord
in furtherance of this Section. Landlord covenants with Tenant that Tenant shall
not incur any liability or obligation by virtue of or associated with the
application, processing or any participation in the securing of any Incentive
Program, and Landlord shall indemnify Tenant in connection therewith. Tenant
further agrees that, except that to the extent necessary in processing any
application for Incentive Programs, Tenant will use all reasonable efforts to
have all information received by Tenant or any employee, shareholder, attorney,
accountant or other party acting by, through or under Tenant shall and remain
confidential as proprietary information owned and reserved solely by Landlord.
Landlord may exclusively, and its sole option, prepare a memorandum of this
Section which shall be executed by Tenant upon request of Landlord and which may
be recorded in the public records of Palm Beach County, Florida.
55. SAVING PROVISION. If any provision of this Lease, or its application
to any situation shall be invalid or unenforceable to any extent, the remainder
of this Lease, or the application thereof to situations other than that as to
which it is invalid or unenforceable, shall not be affected thereby and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
56. SATELLITE DISH. Landlord agrees that Tenant, at its sole cost and
expense, has the right to install a satellite dish, fibre optics and microwave
transmission equipment (collectively, the "Satellite Dish") on the roof of the
Building. Should Tenant elect to install a Satellite Dish on the roof of the
Building, Tenant agrees to install the Satellite Dish in accordance with all
applicable codes and laws and sound engineering and construction practices.
Tenant further agrees to use any specified roofing contractor or other general
contractor required by Landlord to install the Satellite Dish so as avoid any
compromise to the roof structure or membrane. The architectural and engineering
plans and specifications for the Satellite Dish and any required Alterations to
the Building in connection therewith shall be subject to the Landlord's approval
as an Alteration under this Lease. Tenant warrants and represents that any
emissions from the Satellite Dish are not harmful to humans and indemnifies the
Landlord from and against any claims thereof in the same manner as for any other
Environmental Default hereunder.
Page 31
------------------
Blue Lake Standard Lease
IN WITNESS WHEREOF, the parties have signed and delivered this Lease as
of the day and year first above written.
WITNESSES: "TENANT"
CYBEAR, INC., a Florida corporation
/s/ [ILLEGIBLE]
-----------------------------------
/s/ [ILLEGIBLE]
-----------------------------------
(As to Tenant) By: /s/ XXXXX XXXXX
-------------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President/General Counsel
(SEAL)
WITNESSES: "LANDLORD"
BLUE LAKE, LTD.,
/s/ [ILLEGIBLE] a Florida limited partnership
-----------------------------------
/s/ [ILLEGIBLE] By: Blue Lake, Inc., a Florida
----------------------------------- corporation, its general partner
(As to Landlord)
By: /s/ [ILLEGIBLE]
-------------------------------------
Print Name: [Illegible]
Authorized Agent: Executive Vice
President
Page 32
------------------
Blue Lake Standard Lease
EXHIBIT "A"
FLOOR PLAN
Page 33
------------------
Blue Lake Standard Lease
EXHIBIT "A"
EXHIBIT "A-1"
EXPANSION
EXHIBIT "B"
WORK LETTER AGREEMENT
In the event of any inconsistencies between this Agreement and the
Lease dated currently herewith to which this Agreement is attached as Exhibit
"B", this Agreement shall control. Capitalized terms used in this Agreement
shall, unless otherwise specifically set forth herein, have the same meanings as
in the Lease.
1. Tenant shall complete or cause the completion of improvements to the Premises
as shown on the Final Plans (defined below) and as more fully described in this
Section (the "Work"). Tenant shall retain an architect and engineer from and
amongst a group which shall consist of the published list of pre-approved
architects and engineers at Blue Lake Corporate Center, listed pursuant to
Schedule B-3 to prepare complete and detailed architectural plans and
specifications, and structural, mechanical and engineering plans and
specifications, showing the Work (collectively, the "Construction Plans").
Subject to the Landlord's Contribution for Tenant Improvements, the cost of the
Construction Plans shall be the responsibility of Tenant. The Construction Plans
shall be prepared in a manner as will be acceptable to Landlord in its
reasonable discretion. The Work shall meet or exceed the minimum standards for
the Work ("Minimum Building Materials and Construction") attached hereto as
Exhibit "B-1" and otherwise as determined by Landlord in its reasonable
discretion. It is the intent of the parties that Exhibit "B-1" set forth the
minimum quality of the Work, however, Exhibit "B-1" shall not be construed to
require any particular quantity of the items described therein except to the
extent required by applicable codes or laws. The Construction Plans shall be
consistent with all applicable laws, codes, ordinances and regulations,
including but not limited to the Americans with Disabilities Act of 1990, of
governmental and quasi-governmental entities having jurisdiction regarding the
Work and/or the Building.
Tenant's Construction Plans shall include, but not be limited to, indication or
identification of the following:
A. locations and structural design of all floor area requiring live
load capacities in excess of 75 pounds per square foot; areas;
B. the density of occupancy in large work
C. the location of any food service areas or vending equipment rooms if
permitted by Landlord;
D. areas requiring 24-hour air conditioning, Tenant's supplemental
air-conditioning units (if any), and electrical consumption subverters if
required by Landlord;
E. location of rooms for telephone equipment;
F. locations and types of plumbing, if any, required for toilets (other
than core facilities), sinks, drinking fountains, etc.;
G. light switching of offices, conference rooms, etc.;
H. layouts for specially installed equipment, including computers, size
and capacity of mechanical and electrical services required and heat projection
of equipment;
I. dimensioned location of: (a) electrical receptacles (120 volts),
including receptacles for wall clocks, and telephone outlets and their
respective locations (wall or floor), (b) electrical receptacles for use in the
operation of Tenant's business equipment which requires 208 volts or separate
electrical circuits, (c) electronic calculating, CRT systems, etc., and (d)
special audio-visual requirements;
J. special fire protection equipment and raised flooring where
permitted by Building systems and otherwise approved by Landlord;
K. reflected ceiling plan;
L. information concerning air conditioning loads, including, but not
limited to, air volume amounts at all supply vents;
M. non-building standard ceiling heights and/or materials;
N. materials, colors and designs of wall coverings and finishes;
O. painting and decorative treatment required to complete all
construction;
P. swing of each door;
Q. a schedule for doors (including dimensions for undercutting of doors
to clear carpeting) and frames complete with hardware; and
R. all other information necessary to make the work complete and in all
respects ready for operation.
2. Tenant shall deliver Construction Plans to Landlord for Landlord's approval.
Landlord shall respond to Tenant's request for approval of Tenant's Construction
Plans within ten (10) business days of their submission, during which time the
Landlord's architect and engineer ("Landlord's Consultants") xxxx
Xxxx 34
------------------
Blue Lake Standard Lease
review the Construction Plans. In the event Landlord or Landlord's Consultants
shall reasonably disapprove of all or a portion of Tenant's Construction Plans,
it shall set forth its reasons therefor in writing in reasonable detail within
such ten (10) business day period. Tenant shall be required to incorporate any
reasonable changes to the Construction Plans as required by Landlord. Landlord
or Landlord's Consultants shall respond to `Tenant's request for consent of its
revised plans within three (3) business days of submission unless the revisions
are substantial in which event Landlord's response shall be within five (5)
business days thereafter. Neither the recommendation or designation by the
Landlord of a pre-approved list of architects or contractors shall be deemed to
create any liability on the part of Landlord with respect to the Construction
Plans (whether with respect to design, functionality, specifications, compliance
with legal requirements or otherwise). Tenant shall reimburse Landlord for
reasonable architect, engineer and other professional fees incurred by Landlord
in connection with review of Tenant's Construction Plans and Revisions to the
extent that such relate to an a Landlord-approved structural, roof or mechanical
system modification. However, (i) Tenant may use Landlord's Contribution, if
provided for in the BLI Rider, for such reimbursement, and (ii) reimbursement
shall be limited to customary rates.
3. As used herein, "Final Plans" refers to the Construction Plans after the same
have been approved in writing by Landlord. The Landlord Contribution to cost of
construction, if any, is set forth in the BLI Rider. Tenant shall be responsible
for the entire cost of demolition, if any, and Tenant's Initial Improvements
including any revisions to the Final Plans ("Revisions") subject to the
Landlord's Contribution. Tenant shall obtain, or cause to be obtained, all
necessary governmental permits and commence and diligently pursue at its sole
cost and expense construction of the Work contemplated by the Final Plans,
substantially in accordance with the Final Plans. Tenant shall obtain Landlord's
prior written approval of its building permit application before submission of
same. If applicable, Tenant's plans shall include all information necessary to
reflect Tenant's requirement for the installation of any supplemental air
conditioning system and ductor, electrical, plumbing and other mechanical
systems and all work necessary to connect any special or non-standard facilities
to the Building's base mechanical, electrical and structural systems. Tenant's
submission shall include not less than one (1) set of sepias, three (3) signed
and sealed sets, and six (6) bidding sets of black and white prints for each
bidder.
A. PERFORMANCE OF WORK. The Work shall be constructed in a good and
workmanlike manner substantially in accordance with the Construction Plans. The
Work shall be subject, at the option of Landlord, to the inspection of Landlord,
Landlord's Architect and Landlord's General Contractor from time to time, during
the period in which the Work is being performed, provided that such inspection
does not unreasonably interfere with the completion of the Work. If such
inspections reveal that any of the Work is not being constructed substantially
in conformance with the provisions of this Agreement or the Final Plans, Tenant
at its expense shall correct same forthwith. Only new, first class materials
shall be used in the performance of the Work. At all times during the
construction of the Work, it shall be Tenant's responsibility to cause each of
Tenant's contractors and subcontractors to maintain protection of the Premises
in such a manner as to prevent any damage to the Work, or to adjacent property
and improvements by reason of the performance of the Work. Tenant's contractor
and subcontractors shall properly secure the Premises, including, to the extent
required, the furnishing of temporary guard rails and barricades. Landlord for
good cause shall have the right to require Tenant to terminate any construction
work at any time being performed by or on behalf of Tenant in the Premises, and
to require that any contractor or subcontractor, or any employee of same, leave
the Building. Upon written notification, setting forth in reasonable detail such
good cause, from Landlord to Tenant to cease any work, Tenant shall forthwith
remove from the Premises all agents, employees and contractors of Tenant
performing such work until such time as Landlord shall have given its written
consent for the resumption of such construction work (such consent not to be
unreasonably withheld or delayed), and Tenant shall have no claim for damages of
any nature whatsoever against Tenant in connection therewith.
B. CHANCE ORDERS. Landlord's written approval shall be obtained by
Tenant prior to the undertaking of any construction work which deviates from or
modifies in a substantial manner from the Final Plans. Should Tenant or Tenant's
contractor request or desire to make any substantial changes to the Final Plans,
Tenant shall submit same to Landlord for its approval which shall not be
unreasonably withheld or delayed.
C. INSURANCE. During the course of construction, Tenant or Contractor
shall provide builder's risk insurance equal to the replacement cost of any
improvements being constructed, naming Landlord as an additional insured as its
interests may appears, and owners and contractors protective liability insurance
in an amount of not less than $3,000,000. In addition, Tenant shall maintain the
insurance required pursuant to the Lease.
D. BUILDING RULES AND REGULATIONS. During the course of construction,
Tenant and Contractor shall comply the with Building rules and regulations
relating to construction within the Building. Attached hereto as Exhibit "C are
such rules and regulations, which Tenant and Contractor shall initial and cause
to be posted during the course of construction.
E. NOTICE OF COMMENCEMENT. Tenant agrees not to cause or permit the
Contractor to commence construction and shall not disburse any funds to
Contractor, any subcontractors, sub-
Page 35
------------------
Blue Lake Standard Lease
subcontractors, materialmen and laborers until a Notice of Commencement is
recorded pursuant to Chapter 713.13 of the Florida Statutes, a certified copy of
such Notice of Commencement has been posted on the construction site, and an
Affidavit of such posting is furnished to Landlord. Such Notice of Commencement
shall not be recorded without Landlord's prior written consent to the form and
content of same which shall not be unreasonably withheld or delayed. The form of
the Notice of Commencement shall be in accordance with Exhibit "B-2" attached
hereto. Landlord shall be named on the Notice of Commencement to receive copies
of Notices to Owner. Landlord may desire to inquire and communicate directly
with various parties named in statements provided to Landlord by Tenant and
Contractor or those parties who give a Notice to Owner. Tenant hereby authorizes
Landlord to make such inquiries and authorize those parties to furnish the
information required by Landlord.
F. LIENS. Pursuant to the provisions of the Florida Construction Lien
Law (Chapter 713) and this Lease, the interest of the Landlord shall not be
subject to the liens for improvements made by the Tenant, Contractor, any
subcontractor, sub-subcontractor, materialman, supplier or laborer, and the
Lease is hereby deemed to expressly prohibit such liability. Tenant agrees to
notify Contractor, any subcontractors, sub-subcontractors, materialmen, laborers
and suppliers doing Work for Tenant on the Premises of this provision.
G. LANDLORD'S CONTRIBUTION. Notwithstanding anything to the contrary
contained herein, Tenant acknowledges that Landlord is merely providing the
Landlord's Contribution as an incentive for Tenant to enter into this Lease and
Landlord is not in any way acting as a contractor or as any other party with
respect to construction of the Work, and further, that neither the Landlord nor
the Building are liable for, nor stand as security for the claims or liens of
any Contractor, subcontractors, sub- subcontractors, materialmen, laborers and
other third parties, hired by or on behalf of the Tenant, except to the extent
caused by the negligence or willful misconduct of Landlord, its agents,
employees, or contractors.
H. PAYMENT OF LANDLORD'S CONTRIBUTION. Payment of Landlord's
Contribution ("Payment"), shall be made by Landlord (at its election in a check
payable jointly to Tenant and Contractor), monthly, within thirty (30) days
after satisfaction of the following conditions:
(1) The Construction Contract has been fully performed by the
Contractor to date; and
(2) Tenant submits verifiable receipts that it has paid in full the
Contractor on the Construction Contract through the date of the particular
payment; and
(3) As to final payment, all punchlist relating to the Work has been
completed; and
(4) Tenant's architect has certified to Landlord, in form reasonably
acceptable to Landlord, that all of the Work has been performed (as to monthly
payments) or completed (as to final payment) substantially in accordance with
the Final Plans, except as modified by change orders approved in writing by
Landlord; and
(5) The Contractor has furnished to both the Landlord and Landlord's
Architect, a duly and properly executed Contractor's Progress Payment Affidavit
or Final Affidavit, as applicable, complying in all respects to the provisions
of Chapter 713 of Florida Statutes (the "Construction Lien Law"), a duly and
properly executed Contractor's Partial Release of Lien or Final Release of Lien,
as applicable, all in such form and having such content as is satisfactory to
Landlord in its reasonable discretion, duly and properly executed Partial
Releases of Lien or Final Releases of Lien, as applicable, from each and every
subcontractor, sub-subcontractor, materialman, supplier and laborer and such
other documents as Landlord shall be entitled to under the Construction Lien
Law, all in such form and having such content as is satisfactory to Landlord in
its reasonable discretion. In the event Contractor does not furnish to Landlord
all of the aforesaid final releases of lien, then Landlord shall be entitled to
subtract from the amount that Landlord determines is necessary to transfer to
bond or to pay in full any subcontractor, sub-subcontractor, materialman,
laborer who has not furnished a Release of Lien (but no reduction in the Payment
shall be made if the Contractor posts a cash bond or other surety accessible to
Landlord covering such amounts). Landlord shall have the right to pay directly
any subcontractor, sub-subcontractor, materialman, supplier and laborer listed
on the Contractor's Affidavit given in connection with the Contractor's
Application for Payment, and any such other subcontractor, sub-subcontractor,
materialman, supplier and laborer who has given a Notice to Owner; and
(6) As to final payment, certification by Tenant in form
satisfactory to Landlord that Tenant accepts the Premises, and that all Work has
been substantially completed in accordance with the Final Plans; and
(7) As to final payment, receipt by Landlord of two (2) sets of
detailed and complete As-Built Final Plans of the Work, including all
architectural, structural, mechanical, plumbing and electrical work done in the
Premises; and
(8) As to final payment, evidence reasonably satisfactory to
Landlord that the Work is substantially complete in accordance with the Final
Plans and evidence of approval of such completion by local governmental
authorities; and
Page 36
------------------
Blue Lake Standard Lease
(9) As to final payment, Tenant is in occupancy of the Premises and
has made its first monthly installment of Base Rent, and is not otherwise in
default of the Lease beyond applicable notice and cure periods; and
(10) As to final payment, Landlord receives a copy of the
Certificate of Occupancy.
All progress payments shall be subject to a ten (10%) percent retainage
held by Landlord until final payment of Landlord's Contribution.
4. Tenant shall have the right to make Revisions from time to time after Final
Plans have been prepared. Ail Revisions, of a substantial nature (i.e., those
that are material, structural or mechanical in nature) shall be subject to
Landlord's prior written approval, which shall not be unreasonably withheld or
delayed. Landlord shall either approve or disapprove such Revisions within five
(5) business days after submission thereof by Tenant. Without limiting the
generality of the foregoing, no Revision will be approved unless (a) all changes
to and modifications from the Final Plans are circled or highlighted as per
standard practices and (b) said Revisions conform with the requirements of this
Work Letter. The cost of any Revisions shall be home solely by Tenant and the
Revisions shall not delay the Commencement Date hereunder.
5. Tenant shall use due diligence to complete the Work as soon as may be
practicable.
6. Tenant shall notify Landlord of the date of Substantial Completion at least
five (5) days prior thereto. As used herein, "Substantial Completion" shall mean
that, with the exception of punch-list items, the Work shall have been completed
in accordance with the Final Plans. Landlord and Tenant shall thereupon set a
mutually convenient time for Tenant's Construction Agent and Landlord or
Landlord's Consultant to inspect the Premises. Upon completion of the
inspection, Tenant's construction Agent shall acknowledge in writing that
substantial completion has occurred.
Page 37
------------------
Blue Lake Standard Lease
EXHIBIT "B-1"
TO WORK LETTER AGREEMENT
1. PARTITIONS
(A) Demising Walls:
One hour fire rated construction (unless otherwise required by code due
to existing conditions), full height from floor slab to underside of
upper deck, 3-5/8" 25 gauge (or as structurally required for height to
underside of upper deck) steel studs spaced per code requirements, 3-1/2"
fiberglass batt insulation for sound attenuation full height of wall,
Type "X" 5/8" gypsum board, taped and finished 2" above ceiling height
ready to receive finishes, and fire taped to the underside of the upper
deck. Construction to include both sides of wall.
(B) Interior Partitions:
Non-rated wall construction, framed above ceiling height 2", or to
ceiling height (with zip bead), 3-5/8" 25 gauge steel studs spaced per
code requirements, minimum 5/8" gypsum board, taped and finished ready to
receive finishes.
(C) Interior Face of Concrete/Masonry Walls:
Non-rated wall construction, furred above ceiling height 2", furring
strips spaced per applicable code, minimum Liz'' gypsum board, taped and
finished ready to receive finishes. No alterations or changes to exterior
wall without the written consent of the Landlord
2. DOORS
(A) Interior Entry Doors:
(i). Main Entry: C-Label fire rated door, 3'-0" X 8'-0" X 1-3/4", two
flush solid core wood, paint grade, steel frame.
(ii). Secondary Entry: same as above. Landlord to review for access to
mechanical systems and door requirements. Doors to be recessed
within the tenant space.
(B) Exterior Entry Doors:
Two flush glass and aluminum non-label doors, 3'-0" X B'-0", with
aluminum frame.
(C) Interior Doors:
Solid core wood, 3'-0" X 8'-0", paint grade, hollow metal frame. Match
existing for spaces re-using existing doors.
3. HARDWARE
(A) Interior Entry Doors:
Three (3) pair Xxxxx BB1279 4.5" X 4.5" US 26D finish hinges, Lever
lockset Schlage "D"! series Athens model with US 26D finish and to have
top and bottom flush bolts with threshold and weatherstrips, two door
closers LCN Smooth Series with US 26D finish, two door stoppers model
IVES 435/436 and eight door silencers model IVES 20.
(B) Exterior Entry Doors:
Three (3) pair Xxxxx BB1279 4.5" X 4.5" US 26D finish hinges, Lever
lockset Schlage "D" series Athens model with US 26D finish and to have
top and bottom flush bolts with threshold and weatherstrips, two door
closers LCN Smooth Series with US 26D finish, two door stoppers model
IVES 435/436 and eight door silencers model IVES 20.
(C) Interior Doors:
Three (3) Xxxxx BB1279 4.5" X 4.5" US 26D finish hinges, Lever latchset
Schlage "D" series Athens model with US 26D finish, one door stopper
model IVES 435/436 and four door silencers model IVES 20.
(D) Tenant shall provide one entry keyed to the Landlord's building master
key (see building engineer) that entry shall be the closest door to the
fire alarm control panel.
4. CEILINGS
(A) For new construction: 2' X 2' Xxxxxxxxx Xxxxxxx #000 ceiling tile with
15" X 16" white metal grid at 9'-0" above finish floor.
(B) Existing construction: Match existing.
5. FLOORING
(A) Carpet:
Xxxx, Lotus or equivalent 26 ounce commercial grade textured loop pile
direct glue down carpet in work areas and offices. Vinyl base.
(B) Vinyl (VCT) tiles in kitchen areas.
(C) Ceramic tiles (4" X 4") in bathrooms.
6. FINISHES
(A) Paint - Walls primed first coat, latex based paint single color.
Page 38
------------------
Blue Lake Standard Lease
(B) Window Treatments are to be mini-blinds, white, Levelor, to match
existing. The Y-buildings (001, 002, 031, 032, 003, 005) shall be
vertical blinds Satique-off white/3522.
(C) No wallcoverings to be used on exterior masonry/concrete walls.
7. MECHANICAL
(A) Controls
All thermostats and other controls to match existing controls (Xxxxxxx
Controls, Xxxxxx-Xxxx, see Building Engineer).
(B) Variable Air Volume Box:
Match existing VAV (Trane, Carrier)
(C) Registers, Grills:
MetalAire white perforated air diffuser series 7000 Model PCS-CB-5
(4-way) all 24" X 24"
(D) Ductor:
Ducting shall be 24 gauge sheet metal construction with appropriate
connections and hangers as per code. Match existing shall be code
compliant.
8. ELECTRICAL
(A) Light Fixtures:
2' X 4' four tube recessed fluorescent fixture with electronic ballast
and T-8 lamps or match/re-use existing lighting.
(B) Light Switches:
Toggle type single pole single throw switch.
(C) Exit Lights:
Battery backup and/or emergency lighting circuit direct wired. Installed
per code.
(D) Receptacles:
Wall mounted duplex at 110 volts 20 amp rating at 16" above finish floor
as per code.
(E) Telephone:
Modular wall mounted outlets with pull string conduit stubbed above
ceiling with pull-string. 3/4" inch conduit supplied from telephone room
to leased space.
(F) Power:
Electric to be individually metered.
9. PLUMBING
Common area restrooms as per existing. New bathrooms and/or renovation of
existing bathrooms as below and are to be ADA compliant:
(A) Toilet Partitions:
Formica laminate or equal solid color with 1-1/4" thick panels and 5'-10"
high mounted with stainless steel hardware.
(B) Vanity Top:
Formica laminate or equivalent solid color with ADA compliant design.
(C) Water Closet:
Wall mounted, American Standard
(D) Per applicable code for ADA and density requirements.
10. LIFE SAFETY SYSTEMS
(A) Fire alarm panel to be Thorn AutoCall AL-1 500.
(B) Approved fire alarm contractor is WSA Systems, Inc., contact Xxxx Xxxxx
(000) 000-0000.
(C) Fire Sprinkler system per code
11. EXTERIOR ENTRIES
All exterior entries to be per approved style as attached. Landlord to
review.
(A) Y-building entries.
(B) Flex building entries.
(C) Building 021/022/023/042 west face entries.
12. ARCHITECTURAL STANDARDS
(A) Drawing standards.
(B) CAD storage maintenance standards
13. SIGNAGE
(A) Exterior signage to be submitted by tenant and approved in writing by
Landlord.
(B) Interior signage package to be submitted by tenant and approved in
writing by Landlord.
(C) Temporary directional signage: tenant to submit to Landlord a signage
package. Landlord to review and approve in writing.
14. OTHER
(A) Any exterior details, modifications, temporary signage, posters,
banners, etc.., to be reviewed and approved in writing by Landlord
prior to installation.
Page 39
------------------
Blue Lake Standard Lease
EXHIBIT I
FORM OF NOTICE OF COMMENCEMENT
Permit No.______________________________
Tax Folio No.___________________________
NOTICE OF COMMENCEMENT
STATE OF FLORIDA
COUNTY OF PALM BEACH
The undersigned hereby gives notice that improvement will be made to
certain real property, and in accordance with Chapter 713, Florida Statutes, the
following information is provided in this Notice of Commencement.
1. Description of property: (legal description of the property, and
street address if available)
See Exhibit "A" attached hereto and made a part hereof.
2. General description of improvement:
Tenant's build-out of leasehold improvements to a portion of 0000
Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx, pursuant to Work Letter
Exhibit to Lease between Owner and Cybear, Inc..
3. Owner information
a. Name and address:
Cybear, Inc.
c/o Andrx Corporation
000 X. X. 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
b. Interest in property:
Leasehold
c. Name and address of fee simple titleholder (if other than
Owner): N/A
Blue Lake, Ltd.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Exec. Vice President
4. Contractor (name and address):
a. Name and address:
b. Fax Number:
5. Surety
a. Name and address: N/A
b. Phone Number:
c. Fax Number: (optional, if service by fax is acceptable).
d. Amount of bond: $
Page 40
------------------
Blue Lake Standard Lease
6. Lender: (name end address)
a. Name and address:
b. Fax Number: (optional, if service by fax is acceptable).
7. Persons within the State of Florida designated by Owner upon whom
notices or other documents may be served as provided by Section 713.13(1)(a)7.,
Florida Statutes. (name and address)
Blue Lake, Ltd.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Att: Xxxxxxx X. Xxxxxxxx, Executive Vice President
8. In addition to himself, Owner designates___________________ (name)
___________________(address) to receive a copy of the Lienor's Notice as
provided in Section 713.13(1)(b), Florida Statutes.
9. Expiration date of notice of commencement: Six (6) months from the
date of recordation.
CYBEAR, INC., a Florida Corporation
By: /s/ XXXXX XXXXX
----------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President/General Counsel
Sworn to and subscribed before me this 14th day of September, 1998, by
Xxxxx Xxxxxx as V.P./General Counsel of CYBEAR, INC., a Florida corporation, who
is personally known to me.
/s/ XXXXXXX X. XXXXXXX
-----------------------------
Notary Public
My Commission Expires: 3/14/00
NOTARY PUBLIC
STATE OF FLORIDA
XXXXXXX X. XXXXXXX
COMMISSION # CC 540391
EXPIRES MAR 14, 2000
BONDED THRU
ATLANTIC BONDING CO., INC.
Page 41
------------------
Blue Lake Standard Lease
EXHIBIT "B-2"
LIST OF PRE-APPROVED BLUE LAKE CORPORATE CENTER CONTRACTORS
Page 42
------------------
Blue Lake Standard Lease
EXHIBIT "B-2"
BLCC APPROVED GENERAL CONTRACTORS AND ARCHITECHTS
(AS OF JUNE 1, 1998)
CONTRACTORS
SHAKMAN CONSTRUCTION
XXXXXXX XXXXXXX
BOCA RATON, FLORIDA
TELEPHONE: 000-000-0000
XXXXXXX BUILDERS
XXXXXX XXXX
DEERFIELD BEACH, FLORIDA
TELEPHONE: 000-000-0000
BOCA CONTRACTING CORP.
XXXXXXX XXXXXXX
BOCA RATON, FLORIDA
TELEPHONE: 561 -998-3311
ARCHITECTS
PGAC ARCHITECTS
XXX XXXXXXX
BOCA RATON, FLORIDA
TELEPHONE: 000-000-0000
XXXXXX X. XXXXX & ASSOCIATES
XXXX FAICMAN
BOCA RATON, FLORIDA
TELEPHONE: 000-000-0000
XXXXXXXX & ROOT ARCHITECTS
XXXX XXXXXXXX
BOCA RATON, FLORIDA
TELEPHONE: 000-000-0000
EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, and halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than ingress and ingress to and from the
Premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of Landlord. No
curtains, blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior written
consent of Landlord. Tenant shall be required to use only Landlord's standard
blinds and Tenant shall comply with any and all energy conservation measures
instituted by Landlord. Such awnings, projections, curtains, blinds, shades,
screens or other fixtures must be of a quality, type, design, and color, and
attached in the manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the Premises or Building or on the inside of the Premises if the same
can be seen from the outside of the Premises without the prior written consent
of Landlord except that the name of Tenant may appear on the entrance door of
the Premises. In the event of a violation of the foregoing by Tenant, Landlord
may remove same without any liability and may charge the expense incurred by
such removal to the Tenant or Tenants violating this rule. Interior signs on
doors and the directory shall be inscribed, painted or affixed for each Tenant
by Landlord at the expense of such Tenant and shall be of a size and style
acceptable to the Landlord. Tenant must furnish Landlord with evidence of
compliance with applicable legal requirements including Florida's Fictitious
Name Law if Tenant desires to identify itself by a name other than its legal
name.
4. Tenant shall not occupy or permit any portion of the Premises
demised to it to be occupied as an office for a public stenographer or typist,
or as a xxxxxx or manicure shop, or as an employment bureau. Tenant shall not
engage or pay any employees on the Premises, except those actually working for
Tenant at the Premises, nor advertise for labor giving an address at the
Premises. The Premises shall not be used for gambling, lodging, or sleeping or
for any immoral or illegal purposes.
5. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageway or other public places in the
Building shall not be covered or obstructed by any Tenant nor shall any bottles,
parcels or other articles be placed on the window xxxxx. No materials shall be
placed in the corridors or vestibules nor shall any articles obstruct any air
conditioning supply or exhaust vent.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures by Tenant, its servants,
employees, agents, or licensees shall be borne by Tenant.
7. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the Premises or the Building of which they form a part. No boring,
cutting, or stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as it may direct. Should a Tenant require telegraphic,
telephonic, annunciator or other communication service, Landlord will direct the
electricians where and how wires are to be introduced and placed, and none shall
be introduced or placed except as Landlord shall direct. Electric current shall
not be used for power or heating without Landlord's prior written permission.
Neither Tenant nor Tenant's Agents including, but not limited to, electrical
repairmen and telephone installers, shall lift, remove or in any way alter or
disturb any of the interior ceiling materials of the Premises or building, nor
shall any of same have any access whatsoever to the area above the interior
ceiling of the Premises or the Building except with the prior written consent of
Landlord and in accordance with guidelines established by Landlord. No antennas
shall be permitted.
8. No bicycles, vehicles, or animals of any kind shall be brought into
or kept in or about the Premises, and no cooling shall be done or permitted by
any Tenant on said Premises. Bicycles shall be locked in the racks provided
therefor. No Tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from the Premises.
9. Landlord shall have the right to retain a passkey and to enter the
Premises at any time, to examine same or to make such alterations and repairs as
may be deemed necessary, or to exhibit same to prospective Tenants during normal
business hours.
10. No Tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. No Tenant shall throw anything out of doors,
windows, skylights, or down the passageways.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in existing
locks or the mechanism thereof. Each Tenant must, upon the termination of his
tenancy restore to the Landlord all keys of offices and toilet rooms, either
Page 43
------------------
Blue Lake Standard Lease
furnished to, or otherwise procured by, such Tenant. Tenant shall pay to the
Landlord the cost of any lost keys.
12. Tenant will refer all contractors, contractors' representatives and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
building, including installations of telephones, telegraph equipment, electrical
devices and attachments, and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical
portion of the Building.
13. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the Landlord or its agent may determine from time to time. All such
movement shall be under supervision of Landlord and in the manner agreed between
Tenant and Landlord by pre-arrangement before performance. Such pre-arrangements
initiated by Tenant will include determination by Landlord, subject to his
decision and control, of the time, method, and routing of movement and
limitations imposed by safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the building. Landlord
reserves the right to prescribe the weight and position of all safes, which must
be placed upon 2-inch thick plank strips to distribute the weight. Any damage
done to the Building or to other Tenants or to other persons in bringing in or
removing safes, furniture or other bulky or heavy articles shall be paid for by
the Tenant.
14. Tenant agrees that all machines or machinery placed in the Premises
by Tenant will be erected and placed so as to prevent any vibration or annoyance
to any other Tenants in the Building of which the Premises are a part, and it is
agreed that upon written request of Landlord, Tenant will, within ten (10) days
after the mailing of such notice, provide approved settings for the absorbing,
preventing, or decreasing of noise from any or all machines or machinery placed
in the Premises.
15. Each Tenant shall, at its expense, provide artificial light for the
employees of the Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in said Premises.
16. The requirements of Tenant will be attended to only upon written
application at the office of the Building. Employees of Landlord shall not
receive or carry messages for or to any Tenant or other person nor contract with
or render free or paid services to any Tenant or Tenant's agent, employees, or
invitees.
17. Canvassing, soliciting, and peddling in the Building is prohibited
and each Tenant shall cooperate to prevent the same.
18. Landlord will not be responsible for lost, stolen, or damaged
property, equipment, money, or jewelry from Tenant's area or public rooms
regardless of whether such loss occurs when area is locked against entry or not,
except due to the negligence or willful misconduct of the Landlord, its agents,
employees or contractors.
19. Landlord specifically reserves the right to refuse admittance to
the Building from 6 p.m. to 8 a.m. daily, or on Saturdays, Sundays or legal
holidays, to any person or persons who cannot furnish satisfactory
identification, or to any person or persons who, for any other reason in the
Landlord's judgment, should be denied access to the Premises. Landlord, for the
protection of the Tenant and Tenant's effects may prescribe hours and intervals
during the night and on Saturdays, Sundays and holidays, when all persons
entering and departing the Building shall be required to enter their names, the
offices to which they are going or from which they are leaving, and the time of
entrance and departure in a register provided for the purpose by the Landlord.
20. Tenant shall remit the sum of TEN and NO/100 DOLLARS ($10.00) per
key/card to Landlord as security for any and all replacement buildings access
keys/cards provided to Tenant by Landlord, if Landlord elects, in its sole
discretion to install such system.
21. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to Landlord or Landlord's agent in charge
or not having a pass issued by Landlord or not property identified, and may
require all persons admitted to or leaving the Building outside of ordinary
business hours to register. Tenants, employees, agents and visitors shall be
permitted to enter and leave the Building whenever appropriate arrangements have
been previously made between Landlord and Tenant with respect thereto. Each
tenant shall be responsible for all persons for whom he requests such permission
and shall be liable to Landlord for all acts of such persons. Any person whose
presence in the Building at any time shall, in the judgment of Landlord, be
prejudicial to the safety, character, reputation and interests of the Building
or its tenants may be denied access to the Building or may be ejected therefrom.
In case of invasion, riot, public excitement or other commotion, Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property in the Building. Landlord may require any person leaving the Building
with any package or other object to exhibit a pass from the Tenant from whose
leased premises the package or object is being removed, but the establishment
and enforcement of such requirements shall not impose any responsibility on the
Landlord for the protection of any Tenant against the removal of property from
the leased premises of Tenant. Landlord shall in no way be liable to any Tenant
for damages or loss arising from the admission, exclusion or ejection of any
person to or from Tenant's leased premises or the Building under the provision
of this rule, except due to
Page 44
------------------
Blue Lake Standard Lease
the negligence or willful misconduct of the Landlord, its agents, employees or
contractors.
22. Tenant shall not obtain or accept for use in its leased premises
ice, drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by Landlord in writing to furnish such services.
23. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
24. Tenant shall not permit its employees, licensees and invitees to
loiter around the hallways, plazas, lobbies, stairways, elevators, front, roof
or any other part of the Building used in common by the occupants thereof nor
permit them to use the same for purposes of lunches, coffee breaks or other
similar activities.
25. Tenant shall not advertise or permit any advertising which, in
Landlord's reasonable opinion, tends to impair the reputation of the Building or
its desirability as a building for offices or for financial, insurance and other
institutions and businesses of like nature; and upon written notice from the
Landlord, Tenant shall refrain from or discontinue any such advertising.
26. Each tenant, before closing and leaving the said leased premises at
any time, shall see that all windows are closed. All tenants must observe strict
care not to leave their windows open when it rains, and for any default or
carelessness in these respects, or any of them, shall make good any injury
sustained by other tenants, and to Landlord for damage to paint, plastering, or
other parts of the Buildings, resulting from default or carelessness.
27. Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
needed for the safety, care and cleanliness of the Premises, and for the
preservation of good order therein and any such other or further rules and
regulations shall be binding upon the parties hereto with the same force and
effect as if they had been inserted herein at the time of the execution hereof.
28. Tenant covenants and agrees, at its sole cost and expense, to
comply with all present and future laws, orders and regulations of all state,
federal, municipal, and local governments, departments, commissions and boards
regarding the collection, sorting, separation, and recycling of waste products,
garbage, refuse, and trash. Tenant shall, as required, sort and separate such
waste products, garbage, refuse and trash into such categories as provided by
law. Each separately sorted category of waste products, garbage, refuse, and
trash shall be placed in separate receptacles reasonably approved by Landlord.
Such separate receptacles may, at the Landlord's option be removed from the
Premises in accordance with a collection schedule prescribed by law. Landlord
reserves the right to refuse to collect or accept from Tenant any waste
products, garbage, refuse or trash that is not separated and sorted and required
by law and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor reasonably satisfactory to Landlord.
Tenant shall pay all costs, expenses, fines, penalties or damages that may be
imposed on Landlord or Tenant by reason of Tenant's failure to comply with the
provisions of this Section, and, at Tenant's sole cost and expense shall
indemnify, defend, and hold Landlord harmless (including legal fees and
expenses) from and against any actions, claims and suits arising from such
non-compliance, utilizing counsel reasonable satisfactory to Landlord.
Page 45
------------------
Blue Lake Standard Lease
EXHIBIT "D-1"
CORPORATE RESOLUTIONS
The undersigned Officer of CYBEAR, INC., a Florida corporation
authorized to transact business in Florida (the "Corporation") hereby certifies
that the following is a true and correct copy of the Resolutions adopted at a
duly called meeting of the Directors of the Corporation held on September 13,
1998, at which a quorum of Directors were present and voting throughout:
"BE IT RESOLVED, that this Corporation enter into a Lease with BLUE
LAKE, LTD., (the "Landlord") for space in The Blue Lake Corporate
Center, Boca Raton, Florida.
"BE IF FURTHER RESOLVED, that the President or any other officer of
this Corporation, acting singly or together, be and hereby is and are
authorized and directed to negotiate the specific terms and conditions
of the Lease and the rent and charges in connection therewith and to
execute and deliver on behalf of this Corporation such Lease and such
other documents as may be necessary or required by Landlord with
respect to the Lease.
"BE IT FURTHER RESOLVED, that the foregoing Resolutions are in
conformity with the Articles of Incorporation and the By-Laws of the
Corporation, and are within its corporate powers. The authority given
hereunder shall be deemed retroactive to the extent necessary or
convenient for the full effectuation of these Resolutions. In such
event, all acts performed prior to the adoption of these Resolutions,
but which are necessary or convenient for the full effectuation of
these Resolutions, are hereby ratified, adopted and affirmed. The
authority conferred by these Resolutions shall continue in full force
and effect until actual written notice of revocation of these
Resolutions shall have been received by the Landlord."
I FURTHER CERTIFY (i) that the above Resolutions were duly enacted by
the Board of Directors called for that purpose and held in accordance with the
Articles of Incorporation and By-Laws of the Corporation and the statutes of the
State of the incorporation of the Corporation; (ii) that the Directors of the
Corporation have full power and authority to bind the Corporation pursuant
thereto; and (iii) that the Resolutions are in full force and effect and have
not been altered, modified, rescinded or revoked in any way.
IN WITNESS WHEREOF, I have affixed my name as Vice President General
Counsel of the Corporation, and have affixed the corporate seal of the
Corporation this 13th day of September, 1998.
CYBEAR, INC.
By: /s/ XXXXX XXXXX
----------------------------------
Print Name: Xxxxx Xxxxx
Title: Vice President/General Counsel
Page 46
------------------
Blue Lake Standard Lease
EXHIBIT "F"
CAMPUS SKETCH
Page 47
------------------
Blue Lake Standard Lease
EXHIBIT "F"
CAMPUS SKETCH
EXHIBIT "G"
STAND-BY ELECTRIC GENERATOR RIDER SUBSCRIPTION AGREEMENT
BLUE LAKE CORPORATE CENTER
SUPPLEMENT TO LEASE
FOR SUBSCRIPTION TO
STANDBY POWER FACILITIES
This Supplement to Lease for Subscription to Standby Power Facilities
Program ("Supplement") is made as of Able , 199t ("Agreement Date") between BLUE
LAKE, LTD., a Florida limited partnership, Suite 100, 0000 Xxxx Xxxx Xxxxx, Xxxx
Xxxxx, Xxxxxxx 00000 ("Landlord") and ________________ ("Tenant"), 0000 Xxxx
Xxxx Xxxxx Xxx. 000, Xxxx Xxxxx Xxxxx, Xxxxxxx, 00000.
WHEREAS, Tenant has entered into a lease with Landlord dated 9/14/98
("Lease") for the premises described on Exhibit "A" attached hereto and made a
part hereof ("Premises").
WHEREAS, Landlord has elected to install standby electric power
generators ("Generator(s)") to provide for standby power service ("Standby
Power") to subscribing tenants of the Blue Lake Corporate Center ("Center") as
part of Landlord's Standby Power Facilities Program ("Power Program"). Tenants
of the Center may subscribe ("Subscribing Tenants") until the Generator(s)
capacity available to tenants has been fully subscribed or otherwise reserved by
Landlord.
WHEREAS, the Tenant has elected to subscribe to the Power Program, and
Landlord has agreed to such subscription, as provided in this Supplement to the
Lease for its Premises.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Landlord and the Tenant hereby agree as follows:
TERMS
1. RELATIONSHIP TO LEASE. This Supplement modifies and amends the Lease
as specifically provided herein. In all other respects the Lease is ratified,
remains in full force and effect without change, and the terms of the Lease
shall be deemed incorporated herein. Capitalized terms not defined herein shall
have the meanings set forth in the Lease. In the event of any inconsistencies
between the Lease and this Supplement, as it relates or applies to the Power
Program, the terms of this Supplement shall control.
2. TERM. The term of this Supplement shall commence on the date hereof
and continue for the balance of the Lease Term and any renewals thereof.
3. CAPACITY RESERVATION AND RESERVATION CHARGE. Tenant hereby
subscribed the Power 7 Program, and Landlord hereby accepts such subscription,
for the reservation of______________________________ megawatts of Generator
capacity ("Capacity Reservation") for the Premises. Tenant's,Capacity
Reservation is expressly conditioned on Tenant paying to Landlord on or before
___________________ 199_ ("Due Date"), the sum of $_______________ (Capacity
Reservation Charge"), in federal wire transfer funds. If the Tenant fails to pay
the Capacity Reservation Charge on or before the Due Date, the Capacity
Reservation shall be canceled, and this Supplement shall automatically terminate
without the requirement of further notice or demand by Landlord, in which event
Landlord may sell to, and/or reserve for the Capacity Reservation to other
Subscribing Tenant(s). To the extent that the Generators have been placed in
service prior to the Agreement Date, the Tenant's Capacity Reservation shall not
become effective and the Tenant shall have no right to Standby Power, unless and
until the Capacity Reservation Charge is paid to Landlord, on or before the Due
Date. The Capacity Reservation Charge is neither refundable nor subject to
proration or abatement.
4. SERVED SYSTEMS.
a. Tenant acknowledges that the Standby Power for Tenant's Capacity
Reservation shall be limited to serving the equipment and systems described on
EXHIBIT "B" attached hereto and made a part hereof ("Served Systems"). Tenant
acknowledges and agrees that, the Capacity Reservation
Page 48
------------------
Blue Lake Standard Lease
includes Standby Power for Center air conditioning services ("Center AC") to the
Premises, which represents forty (40%) percent ("Center AC Capacity") of the
Capacity Reservation (except if, and only to the extent that, Tenant has
installed, pursuant to the Lease, a separate or supplemental air conditioning
system for any portion of the Premises.) All Served Systems shall be connected
to electrical panels and/or breakers separate from the main panels and breakers
for the Premises, so as to permit the disconnection of all electrical systems
and equipment, other than Served Systems, from the Standby Power.
b. In the event that Center AC is not supplied to the Premises
because Tenant, under the Lease, has installed a separate or supplemental air
conditioning system ("Premises AC"), then Tenant's Capacity Reservation may be
applied to the Premises AC to the extent that Center AC Capacity is not used for
the Premises.
c. Tenant shall solely be responsible for the compatibility with the
Generators, of the Served Systems, including but not limited to, electrical
systems, wire, conduit, panels, transformers, switchgear, and breakers in the
Premises, and Tenant's equipment (including but not limited to trade equipment,
office equipment, and other electrically-powered equipment) to be connected to
the Standby Power, Tenant, prior to the Served Systems being connected to the
Generator, shall make, at Xxxx sole cost and expense, any and all modifications
and enhancements to the Served Systems necessary for such to be compatible with
the Generators. Landlord shall have no liability or responsibility for damage or
injury to Served Systems or any of Tenant's Equipment or personnel, due to such
incompatibility, or for any resulting business interruption (and any direct,
indirect, consequential, or special damages related thereto), such being
expressly waived by Tenant.
5. GENERATOR OPERATION.
a. SERVICE COMMENCEMENT DATE. The Landlord shall place the
Generators in operation on or before December 31, 1998 ("Service Commencement
Date"), subject to Force Majeure (as hereinafter defined).
b. TENANT'S TEMPORARY GENERATORS. If Landlord has, under separate
agreement, permitted Tenant to operate a mobile, temporary backup generator for
its Premises, Tenant shall, within ten (10) days after the Generators have been
placed in operation, disconnect such mobile, temporary backup generator and
remove such from Landlord's property, and shall restore the Landlord's property
to the condition existing prior to the installation of such mobile temporary
backup generators. Tenant indemnifies Landlord from and against any and all
claims, demands, responsibility, liability, damages, fines, penalties, costs and
expenses; including but not limited to reasonable attorney's fees and costs,
arising from or related to Tenant's installation, use, operation or removal of
the Tenant's mobile, temporary backup generators, including but not limited to
any violations of environmental law or the contamination of Landlord's property
with hazardous or toxic materials or with petroleum products.
c. EMERGENCY SERVICE USE. The Generators are only intended for
limited emergency backup use and are not designed for, nor does the Generators'
fuel storage tank have sufficient capacity for, more than temporary, limited use
of the Generators.
d. STARTUP DELAY. In the event of a power failure ("Outage"), the
Generators are designed to start up over la period of one to thirty minutes].
The Tenant acknowledges and agrees that the Landlord shall not be liable or
responsible for any resulting direct, indirect, consequential, or special
damages that may occur due to an interruption of Tenant's business or business
operations, or to Tenant's Equipment, or to Served Systems or any of the
Premises due to any delay in the startup of Generators. Tenant shall be
responsible to provide for its own backup uniform power supply) to its Premises
and the Served Systems to address any startup delay of the Generators.
e. EMERGENCY REPRESENTATIVE: Tenant designates ______________ and
____________________ as its "Emergency Representative(s)" for contact by
Landlord in the event of an Outage. The Emergency Representative(s) shall have
full authority to act on behalf of Tenant in the event of an Outage or other
emergency and shall be required to be available to Landlord in the event of an
emergency or an Outage. Tenant shall provide to Landlord in writing after- hours
contact information for its Emergen Representatives, including but not limited
to home addresses and telephone numbers, cellular telephone numbers and pager
numbers. Notices to Tenant under this Supplement shall be deemed made to Tenant
if delivered or made to the Emergency Representative. Tenant shall notify the
Page 49
------------------
Blue Lake Standard Lease
Landlord in writing of any changes in the after-hours contact information of the
Emergency Representative. Tenant shall provide written notice to Landlord of any
changes in its Emergency Representative(s) or in the appointment of temporary
Emergency Representative(s) in the absence of those otherwise identified by the
Tenant pursuant hereto, together with their contact information as provided
above. The Emergency Representative(s) shall participate in emergency drills
and, in the event of an emergency or an Outage, shall be available to meet with
Landlord and the emergency representatives of other tenants to address emergency
procedures implemented by Landlord as a result thereof.
e. GENERATOR OPERATION DURING EXTENDED OUTAGE. For the purposes
hereof, any Outage lasting more than one hour shall be referred to as an
"Extended Outage". Tenant acknowledges and agrees that, at the contemplated
total capacity of the Generators, the Generators' fuel storage capacity for the
Blue Lake Corporate Center is not sufficient for continuous or extended use of
the Generators at the capacity of the Power Program (as may be increased as
Generator capacity is increased from time time) for all potential Subscribing
Tenants. In the event of an Extended Outage or a series of Outages, Landlord
shall have the right, but not the obligation, to regulate, reduce, and limit the
availability of Standby Power to Subscribing Tenants, including but not limited
to Tenant in Landlord's sole and absolute discretion, to essential needs in
order to meet the Federal Emergency Management Agency's ("FEMA") [seven (7)] day
generator recommendations, the safety of tenants of the Center, the availability
of fuel, or the operating conditions and requirements of the Generators.
In order to manage the Power Program in the best interests of the
Center, the Landlord has established the following rules, procedures and
protocols for responding to an Extended Outage:
(1) DEFINITIONS:
LEVEL ONE OUTAGE: An Extended Outage lasting more than one hour, but
anticipated by Landlord, in Landlord's sole judgement and
discretion, to last less than three (3) hours.
LEVEL TWO OUTAGE: An Extended Outage lasting or anticipated by
Landlord, in Landlord's sole judgement and discretion, to last more
than, three (3) hours, but less than 24 hours.
LEVEL THREE OUTAGE: An Extended Outage lasting or anticipated by
Landlord, in Landlord's sole judgement and discretion, to last more
than 24 hours.
(2) EXTENDED OUTAGE PROTOCOLS:
In the event of an Extended Outage, the Landlord has established the
following emergency protocols ("Protocols") for each level of
Extended Outage. Tenant shall comply with the Protocols as invoked
by Landlord from time to time.
LEVEL ONE OUTAGE: Tenant's Served Systems may operate as anticipated
under this Supplement. The Landlord shall notify the Tenant of the
occurrence of a Level One Outage.
LEVEL TWO OUTAGE: Tenant's Served Systems may operate as anticipated
under this Supplement. Tenant shall turn off or disconnect all
non-Served Systems within one (1) hour from Landlord's notice of
Level Two Outage. Tenant's personnel not required in the operation
of the Served Systems may be required by the Landlord to immediately
leave the Premises and the Center, and Tenant shall comply with
Landlord's emergency procedures and rules promulgated from time to
time in accordance with the Lease. The Landlord may, in Landlord's
sole discretion, (i) reduce or eliminate Center AC, (ii) reduce or
eliminate non-emergency Common Area systems and services (including
but not limited to operation of the Food Court, conference centers,
and other services provided by the Landlord to the Center), and
(iii) require that Tenant turn off or disconnect non-essential
Served Systems, which shall be accomplished within one (1) to three
(3) hours from Landlord's request to Tenant. The Landlord shall
regularly update the Tenant's Emergency Representative on the
changes in status and anticipated duration of the Level Two Outage.
LEVEL THREE OUTAGE: Only essential Served Systems may operate as
anticipated under this Supplement. Tenant shall turn off or
disconnect all non-essential Served
Page 50
------------------
Blue Lake Standard Lease
Systems and non-Served Systems within one (1) hour from Landlord's
notice of a Level Three Outage. Tenant's personnel not required in
the operation of the Served Systems shall immediately leave the
Premises and the Center, and Tenant shall comply with Landlord's
emergency procedures and rules promulgated from time to time in
accordance with the Lease. The Landlord may, in Landlord's sole
discretion, (i) reduce or eliminate Center AC, (ii) reduce or
eliminate non-emergency Common Area systems and services (including
but not limited to operation of the Food Court, conference centers,
and other services provided by the Landlord to the Center), and
(iii) require that Tenant turn off, reduce, or disconnect all Served
Systems as the availability of necessary fuel supply may require.
During a Level Three Outage, the Landlord shall regularly report to
Tenant as to the status of the Extended Outage, anticipated actions
by Landlord, and the availability of fuel supplies, and shall use
all reasonable efforts to notify Tenant of an impending shut down of
Standby Power at least sixty (60) minutes prior to such shut down.
The Tenant acknowledges and agrees that, upon Landlord's request, the
Tenant will immediately disconnect all non-essential Served Systems from the
Standby Power. Further, Tenant acknowledges and agrees that, in the event of a
Level Three Outage, fuel may become exhausted and additional fuel unavailable,
and, therefore, the Generators will be shut down and Standby Power discontinued
to the Premises, Served Systems and all Tenant Equipment. Tenant agrees to
cooperate with Landlord in maximizing the fuel supplies and in obtaining
deliveries of additional fuel supplies.
Tenant hereby waives, releases and holds harmless the Landlord, its
partners, affiliates, subsidiaries, officers, employees, and agents from all
claims, demands, damages, liability, costs and expenses with respect to the
Landlord's regulation, reduction, limitation, and discontinuation of the Standby
Power, Landlord's decisions, acts and omissions relating thereto, or the
inability to deliver the Standby Power hereunder.
f. GENERATOR MAINTENANCE PROGRAM. Landlord intends to enter into a
service agreement for the maintenance of the Generators with a generator
maintenance company selected by Landlord in its sole and absolute discretion.
The service agreement shall provide for maintenance of the Generators in
accordance with the National Fire Protection Agency Level 2 standards for
emergency generators. Copies of the maintenance and repair records for the
Generators shall be kept at the offices of Blue Lake Management, Inc.
("Management") for inspection by the Tenant upon reasonable written notice
during business normal hours.
6. EXCESS DEMAND LOAD. Tenant acknowledges and agrees that the Landlord
is providing Standby Power to other Subscribing Tenants and that Tenant may not
exceed its Capacity Reservation during any Outage. If the Tenant exceeds its
Capacity Reservation during an Outage ("Excess Demand"), Landlord may, in
Landlord's sole and absolute discretion: (i) require that Tenant immediately
disconnect non-essential Served Equipment and reduce the actual load to the
Capacity Reservation, (ii) if Tenant fails to do so immediately, Landlord may
reduce Standby Power to the Premises so that the actual load is at the Capacity
Reservation, or (iii) if there is sufficient Generator capacity for other
Subscribing Tenants, as Landlord shall determine in its sole and absolute
discretion, charge the Tenant an additional fee for the Excess Demand equal to
200% of the then current Capacity Reservation Fee prorated for the actual load
in excess of the Capacity Reservation ("Excess Demand Fee"). All of the
foregoing are in addition to Landlord's other rights and remedies under this
Supplement and at law or in equity, and, further, are in addition to Protocols
implemented by Landlord in the event of an Extended Outage. Such Excess Demand
Fee shall be billed by Landlord and paid by Tenant as Additional Rent under the
Lease.
7. USE CHARGES.
a. The Tenant shall pay for fuel consumed by the Generators during
an Extended Outage in proportion of its Capacity Reservation to the total of all
Capacity Reservations of Subscribing Tenants. The cost of fuel for non-Extended
Outages shall be charged as an Operating Expense under the Lease.
b. All other costs of maintaining, repairing, testing and servicing
the Generators shall be treated, budgeted and invoiced as Operating Expenses
under the Lease; however, such costs shall not be limited by any provisions of
the Lease limiting Operating Expenses or Overhead Rent.
Page 51
------------------
Blue Lake Standard Lease
8. COVENANTS OF TENANT. The Tenant covenants that:
a. The Tenant shall not cause or voluntarily permit any modification
or alteration to any of the Served Systems or the Premises which would have the
effect of increasing the level of electrical demand for the Premises or which
would adversely affect the Generators or Landlord's ability to provide the
Standby Power.
b. The Tenant shall maintain, repair and replace the Served Systems
as necessary and appropriate in accordance with prudent and sound engineering
practices so that the Served Systems is in proper condition to receive,
distribute, and or utilize the Standby Power without damage to Served Systems or
the Generators.
9. DEFAULT BY TENANT; TERMINATION BY LANDLORD. Landlord may terminate
this Supplement, discontinue the delivery of Standby Power to Tenant, and remove
the any and all equipment connecting the Premises to the Generators, upon the
occurrence of any one of the following events:
a. Failure of Tenant to pay any charges, including but not limited
to the Capacity Reservation Charge, due hereunder, as and when due.
b. Default by Tenant under the Lease, which is not cured within any
applicable cure periods (so ling as the Lease is also terminated).
c. Tenant's actual electric load connected to the Generators
increases in excess of the Capacity Reservation and Tenant fails to immediately
disconnect such of Tenant's Equipment so as to reduce the actual load below the
Capacity Reservation or enter into an agreement with Landlord in Landlord's sole
and absolute discretion and providing for an increase in Tenant's Capacity
Reservation, subject to availability and price.
10. NO WAIVER. The failure of a party to enforce any term of this
Supplement or a party's waiver of the nonperformance of a term by the other
party shall not be construed as a general waiver or amendment of that term, but
the term shall remain in effect and enforceable in the future. This Supplement
can only be amended by written agreement of the Parties.
11. INTERRUPTION OF BACKUP SERVICE. Landlord shall have the right to
temporarily interrupt the delivery of Standby Power to the Premises for purposes
of inspection, maintenance, repair, replacement, construction, installation,
removal or alteration of the Generators and related equipment or to prevent and
emergency situation from arising. Landlord shall give twenty-four (24) hours
notice to Tenant of any planned interruption of more than seven (7) days in
delivery of Standby Power reasonably in advance of such planned interruption.
12. PERMITTED ASSIGNMENT.
a. This Supplement, and the Capacity Reservation, shall not be
transferred, assigned, subcontracted, or sold by Tenant, in whole or part, other
than in connection with a permitted Transfer of Lease to a permitted Transferee,
so long as the permitted Transferee does not require or present a Demand Load
greater than that of the Tenant.
b. The Landlord may assign its obligations, rights and duties under
this Supplement, separate and apart from the Lease, without the consent of the
Tenant. In such event, the Lease shall continue in full force and effect without
change, abatement or offset, and Landlord shall be automatically relieved of all
liability and obligations under this Supplement so long as such are expressly
assumed in writing by the assignee.
13. FORCE MAJEURE. The obligations of Landlord and Tenant hereunder,
and Landlord's ability to install, maintain, and operate the Generators and to
provide the Standby Power pursuant hereto are subject to the occurrence of
events or circumstances that are beyond the reasonable control of Landlord
and/or Tenant, as applicable, or their respective agents, employees or
contractors, including, without limitation, strikes, lockouts or picketing
(legal or illegal); governmental action and condemnation; riot, civil commotion,
insurrection, and war; fire or other casualty, accident, acts of God or the
enemy; adverse weather conditions; unavailability of fuel, power, supplies or
materials; the passage or reasonably
Page 52
------------------
Blue Lake Standard Lease
unexpected interpretation or application of any statute, law, regulation or
moratorium of any governmental restriction or order; or delays in issuance of
permits or approvals.
IN WITNESS WHEREOF, the parties hereto have executed this Supplement as
of the day and year first above written.
LANDLORD:
BLUE LAKE, LTD., a Florida limited partnership
By: BLUE LAKE, INC., a Florida corporation,
general partner.
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------------
Xxxxxxx Xxxxxxxx
Executive Vice President
Date: 9/14/98
TENANT:
By: /s/ XXXXX XXXXX
-----------------------------------------------
Name: Xxxxx Xxxxx
Its: Vice President/General Counsel
Date: 9/14/98
Page 53
------------------
Blue Lake Standard Lease
EXHIBIT "H"
SIGNAGE CRITERIA
To be submitted by Landlord as approved by all applicable governing bodies.
Page 54
------------------
Blue Lake Standard Lease
EXHIBIT "I"
RENT COMMENCEMENT/EXPIRATION CERTIFICATE
Page 55
------------------
Blue Lake Standard Lease
EXHIBIT "J"
SUBORDINATION NON-DISTURBANCE AGREEMENTS
Page 56
------------------
Blue Lake Standard Lease
EXHIBIT "K"
LEASE GUARANTY
Page 57
------------------
Blue Lake Standard Lease
LEASE GUARANTY
FOR VALUE RECEIVED, and in consideration for and as an inducement to
BLUE LAKE, LTD., as LANDLORD to lease the PREMISES referred to in the annexed
LEASE dated August __, 1998 (the "LEASE") to CYBEAR, INC., a Florida
corporation, as TENANT therein named, the undersigned does hereby, jointly and
severally if more than one, guaranty to LANDLORD the punctual payment of the
Base Rent, Overhead Rent and all Additional Rent and other charges (hereinafter
collectively called "RENTS") and the due performance of all the other terms,
covenants and conditions contained in said LEASE on the part of the TENANT to be
paid and/or to be performed thereunder, and if any default shall be made by the
TENANT under said LEASE, the undersigned does hereby covenant and agree to pay
to the LANDLORD in each and every instance such sum or sums of money as the
TENANT is and shall become liable for and/or obligated to pay under said LEASE
and/or fully to satisfy and perform such other terms, covenants and conditions
of said LEASE on the part of the TENANT to be performed thereunder and to pay
also any and all damages, expenses and attorneys fees (hereafter collectively
called "DAMAGES") that may be suffered or incurred by LANDLORD in consequence of
the nonpayment of said RENTS or the nonperformance of any such other terms,
covenants and conditions of said LEASE; such payments of RENTS to be made
monthly or at such other intervals as the same shall or may become payable under
said LEASE, including any accelerations thereof, such performance of said other
terms, covenants and conditions to be made when due under said LEASE and such
DAMAGES to be paid when incurred by LANDLORD, all without requiring any notice
from LANDLORD, all without requiring any notice from LANDLORD to the undersigned
of such non-payments, non-performance, or non-observance or proof of notice or
demand, all of which the undersigned hereby expressly waives, but without
limiting Tenant's right to receive notices required to be given to Tenant under
the Lease, and the maintenance of any action or proceeding by the LANDLORD to
recover any sum or sums that may be or become due under said LEASE, or to secure
the performance of any of the other terms, covenants and conditions of said
LEASE or to recover damages, shall not preclude the LANDLORD from thereafter
instituting and maintaining subsequent actions or proceedings for any subsequent
default or defaults of TENANT under said LEASE. The undersigned does hereby
consent that without affecting the liability of the undersigned under this
Guaranty and without notice to the undersigned, time may be given by LANDLORD to
TENANT for payment of RENTS and performance of said other terms, covenants and
conditions, or any of them, and such time extended and indulgences granted, from
time to time, or the TENANT may be dispossessed or the LANDLORD may avail itself
of or exercise any or all of the rights and/or remedies against the TENANT
provided by law or by said LEASE, and may proceed either against the TENANT
alone or jointly against the TENANT and the undersigned or against the
undersigned alone without proceeding against the TENANT. The undersigned does
hereby further consent to any subsequent change, modification and/or amendment
of said LEASE in any of its terms, covenants or conditions, or in the RENTS
payable thereunder, and/or to any assignment or assignments of said LEASE,
and/or to any renewals or extensions thereof ("OPTION PERIODS"), all of which
may be made without notice to or consent of the undersigned and without in any
manner releasing or relieving the undersigned from liability under this
Guaranty. The undersigned does hereby further agree that in respect of any
payments made by the undersigned hereunder, the undersigned shall not have any
rights based on surety ship or otherwise to stand in the place of LANDLORD so as
to compete with LANDLORD as a creditor of TENANT, unless and until all claims of
LANDLORD under said LEASE shall have been fully paid and satisfied. The
undersigned acknowledges receipt of valuable consideration received in its
undertaking of this GUARANTY and it is acknowledged by the undersigned that the
LEASE herein guaranteed by the undersigned is of benefit and value to the
undersigned and would not have been negotiated or consummated by LANDLORD
without this LEASE Guaranty being executed and delivered by the undersigned. As
a further inducement to LANDLORD to made said LEASE and in consideration
therefor, LANDLORD and the undersigned hereby agree that in any action,
proceeding or counterclaim brought by
either LANDLORD or the undersigned against the other on any matters whatsoever
arising out of or in any way connected with said LEASE or this Guaranty, that
LANDLORD and the undersigned shall and do hereby waive trial by jury. This
Guaranty or any of the provisions hereof cannot be modified, waived or
terminated, unless in writing, signed by the parties hereto. The provisions of
this Guaranty shall apply to and bind and inure to the benefit of the
undersigned and LANDLORD and their respective heirs, legal representatives,
successors and assigns. The prevailing party shall be entitled to payment of all
attorneys' fees incurred in connection with any litigation arising out of this
guaranty including, without limitation, fees at the trial and all appellate
levels.
IN WITNESS WHEREOF, the undersigned have executed, or caused to be
executed, this Guaranty on September 13, 1998.
WITNESSES: ANDRX CORPORATION, a Florida corporation
/s/ [ILLEGIBLE]
-----------------------------------
/s/ [ILLEGIBLE]
-----------------------------------
By: /s/ XXXXX XXXXX
-------------------------------------
Title: V.P. General Counsel
Address: 0000 XX 00xx Xxx
Xx. Xxxxxxxxxx, XX 3314
