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EXHIBIT 10.24
CRESCENT CENTER AT INTERNATIONAL PLAZA OFFICE BUILDING
LEASE AGREEMENT
LEASE DATE: _____________________, 19___.
LANDLORD: Crescent Resources, Inc., a South Carolina corporation.
NOTICE Post Office Box 1003 [zip code 28201-1003] (If delivered by mail)
ADDRESS OF 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 [zip code 28202] (If personally
LANDLORD:delivery or overnight service or telegram)
Charlotte, North Carolina
Attention: Xxxxxx X. Xxxxxx, Xx. Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT: Outback Steakhouse, Inc., a Florida
corporation
NOTICE
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ADDRESS OF
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TENANT: Prior to occupancy:
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000
After occupancy:
Notices shall be sent to Premises address
Attention: Xxx Xxxxxxx
TENANT'S
CONTACT
PERSON: Xxx Xxxxxxx Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BUILDING: Six (6) story office building known as Crescent Center At
International Plaza located on the Land at the Northwest corner of the
intersection of North Westshore and Spruce Boulevard, Tampa, Florida
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LAND: That certain tract or parcel of land located in Tampa, Florida,
and described on Exhibit A attached hereto and incorporated
herein by reference.
PREMISES: Suite 500 in the Building, as more particularly described on
Exhibit B-1 attached hereto and incorporated herein by reference.
PREMISES NET
RENTABLE
AREA: Approximately 66,860 square feet located on the fifth (5th) floor
of the Building.
BUILDING NET
RENTABLE
AREA: 389,000 square feet.
LEASE TERM: Ten (10) years and six (6) months, beginning on the Commencement
Date. Provided, however, if the Commencement Date is any day
other than the first day of a calendar month, the Lease Term
shall be extended automatically until midnight on the last day
of the calendar month in which the Lease Term otherwise would
expire.
COMMENCEMENT
DATE: August 27, 1999
BASE RENTAL: Annual Rate
Per Square Foot
Of Premises
Lease Term Net Rentable Area
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Months 1-6 $0.00
Months 7-30 $22.00
Months 31-42 $22.50
Months 43-54 $23.00
Months 55-66 $23.50
Months 67-78 $24.00
Months 79-90 $24.50
Months 91-102 $25.00
Months 103-114 $25.50
Months 115-126 $26.00
ADJUSTMENT
DATE: [Intentionally deleted]
BASIC COSTS
EXPENSE STOP: The Basic Costs (excluding ad valorem real estate taxes) paid or
incurred by Landlord during the calendar year 2000, grossed up to
reflect occupancy of 95% of the
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Building Net Rentable Area or Four and 75/100 Dollars ($4.75)
multiplied by the Building Net Rentable Area; whichever is greater.
PREMISES ELECTRICAL
EXPENSE STOP: Seventy cents ($.70) multiplied by the Building Net Rentable Area.
REAL ESTATE TAX
EXPENSE STOP: Two and 25/100 Dollars ($2.25) multiplied by the Building Net
Rentable Area.
ADVANCE
BASE RENTAL
PAYMENT: One Hundred Thirty-Thousand Eight Hundred Fifty and 59/100 Dollars
($130,850.59), which includes sales tax, for the seventh month of the
Lease Term.
SECURITY
DEPOSIT: [Intentionally Deleted].
TENANT
IMPROVEMENTS
ALLOWANCE: Twenty-Three and 50/100 Dollars ($23.50) per square foot of
Premises Net Rentable Area.
BROKER: CLW Realty Group, Inc.
The foregoing summary (the "Lease Summary") is hereby incorporated into and made
a part of the Lease Agreement. In the event, however, of a conflict between the
terms of the Lease Summary and the terms of the Lease Agreement, the latter
shall control.
Initial: (For Landlord)
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Initial: (For Tenant)
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TABLE OF CONTENTS
PARAGRAPH DESCRIPTION
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. Definitions
. Lease Grant
. Lease Term
. Use
. Base Rental
. Adjustments to Base Rental
. Adjustments for Increase in Basic Costs
. Services to Be Furnished by Landlord
. Construction of Improvements
. Maintenance and Repair by Landlord
. Maintenance and Repair by Tenant
. Alterations by Tenant
. Use of Electrical Services by Tenant
. Graphics and Signage
. Parking
. Compliance with Laws
. Building Rules
. Entry by Landlord
. Assignment and Subletting
. Liens
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. Property Insurance
. Liability Insurance
. Indemnities
. Waiver and Waiver of Subrogation Rights
. Casualty Damage
. Condemnation
. Damages from Certain Causes
. Events of Default/Remedies
. Security Deposit
. Peaceful Enjoyment
. Holding Over
. Subordination to Mortgage
. Estoppel Certificate
. Attorneys' Fees
. No Implied Waiver
. Personal Liability
. Notices
. Severability
. Recordation
. Governing Law
. Force Majeure
. Time of Performance
. Transfers by Landlord
. Commissions
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. Effect of Delivery of this Lease
. Real Estate Investment Trust
. Hazardous Materials
. Landlord's Right of Relocation
. Evidence of Authority
. Survival of Obligations
. Confidentiality
. Contractual Landlord's Lien
. Rent a Separate Covenant
. Radon
. Miscellaneous Provisions
. Special Stipulations
. Waiver of Jury Trial
EXHIBITS
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A Description of Land
B Designation of Premises
C Construction of Improvements
D Cleaning and Janitorial Services
E Rules and Regulations
F Special Stipulations
G Commencement Date Stipulation
HReo Street Hold Over Provision
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into on the
date and between the Landlord and Tenant identified in the Lease Summary.
WITNESSETH:
. Definitions.
Capitalized terms appearing in this Lease, unless defined elsewhere in this
Lease or in the Lease Summary, shall have these definitions:
() "Additional Rent" shall mean all sums of money in addition to Base
Rental which shall become due from Tenant under this Lease, including, without
limitation, Tenant's Proportionate Share of Basic Costs in excess of the Basic
Costs Expense Stop, as set forth in Paragraph 7 herein.
() "Adjustment Date" shall have the meaning set forth in the Lease
Summary.
() "Advance Base Rental Payment" shall have the meaning set forth in
the Lease Summary.
() "Base Rental" during the Lease Term shall be the amount so
designated in the Lease Summary, as same may be adjusted pursuant to the terms
of this Lease, together with all taxes (excise, sales, use or other) levied or
assessed by any governmental entity on Basic Rent, Additional Rent or any other
sums payable by Tenant under this Lease.
() "Basic Costs" shall mean and include: all expenses relating to the
Building and the Building Exterior Common Areas, including all costs of
operation, maintenance and management thereof and assessments for public
betterments or improvements or charged by any owner's association, ad valorem
real estate taxes and any other tax on real estate as such, ad valorem taxes on
furniture, fixtures, equipment or other property used in connection with the
operation, maintenance or management of the Building and the Building Exterior
Common Areas and the costs, including, without limitation, of legal and
consulting fees of contesting or attempting to reduce any of the aforesaid
taxes, reasonable amortization of capital improvements which are required by
applicable law that come into effect after the Commencement Date or which will
improve the efficiency of operating, managing or maintaining the Building or
which will reduce Landlord's operating expenses or the rate of increase thereof,
the cost of labor, materials, repairs, insurance, utilities and services and
such other expenses with respect to the operation, maintenance and management of
the Building and the Building Exterior Common Areas, all of which expenses
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shall be incurred or paid by or on behalf of Landlord or are properly chargeable
to Landlord's operating expenses in accordance with generally accepted
accounting principles as applied to the operation, maintenance and management of
a first class office building.
Notwithstanding the foregoing, it is agreed that the Basic Costs shall
not include: any leasing or marketing or brokerage costs, fees, or commissions;
any cost of upfitting space for occupancy by tenants; any amortization of
principal or interest on account of any indebtedness; any legal expenses arising
out of any misconduct or negligence of Landlord or any person for which Landlord
is responsible or arising out of dealings between any principals constituting
Landlord or arising out of any leasing, sale or financing of the Building or the
Land or any part of either of them; or, except as expressly permitted above, any
amortization or depreciation.
() "Basic Costs Expense Stop" shall be the amount so designated in the
Lease Summary.
() "Broker" shall be the party or parties so designated in the Lease
Summary.
() "Building" shall have the meaning set forth in the Lease Summary.
() "Building Exterior Common Areas" shall mean the exterior of the
Building and all of the improvements and real property on the Land, including,
without limitation, all parking areas, enclosed or otherwise, and all streets,
sidewalks, signs, drainage and detention ponds and landscaped areas located on
or within the Land.
() "Building Net Rentable Area" shall have the meaning set forth in the
Lease Summary.
() "Building Shell Improvements" shall mean the Building improvements
constructed or to be constructed by Landlord, at Landlord's sole cost and
expense and without applying any of the Tenant Improvements Allowance. The
Building Shell Improvements are more particularly described in Exhibit C
attached hereto and incorporated herein by reference.
() "Commencement Date" shall mean that date set forth in the Lease
Summary, as same may be adjusted pursuant to the provisions of Paragraph 3
herein.
() "Common Areas" shall mean those areas within the Building devoted to
corridors, elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally and/or the public,
including any columns and/or projections located within said areas.
() "Force Majeure Matters" is defined in Paragraph 41 herein.
() "Land" shall mean the real property upon which the Building is
situated as more particularly described on Exhibit A hereto.
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() "Lease Term" shall mean the term of this Lease as set forth in the
Lease Summary.
() "Premises" shall have the meaning set forth in the Lease Summary.
() "Premises Electrical Expense Stop" shall have the meaning set forth
in the Lease Summary. The Premises Electrical Expense Stop is the component of
the Basic Cost Expense Stop which covers the cost of electricity to be supplied
to premises in the Building to be occupied by tenants (including the Premises)
(i) to operate lights and light fixtures; therein, (ii) to operate equipment and
fixtures that are connected to electrical outlets therein and (iii) to operate
any HVAC system or unit that exclusively serves such tenant premises (or any
portion thereof) [the base Building HVAC for a single tenant floor shall not be
deemed exclusively serving tenant premises].
() "Premises Net Rentable Area" shall have the meaning set forth in the
Lease Summary. The Premises Net Rentable Area is determined using a common area
load factor of 1.09% for a single tenant floor and 1.13% for a multi-tenant
floor.
() "Real Estate Tax Expense Stop" shall have the meaning set forth in
the Lease Summary.
() "Tenant Delay Factors" shall mean delays caused by Tenant or
Tenant's agents, employees, contractors, subcontractors or licensees, including,
without limitation, change orders to the Tenant Improvements Plans and
Specifications.
() "Tenant Improvements" shall mean the improvements to be constructed
and installed in the Premises (beyond the Building Shell Improvements) in
accordance with the Tenant Improvements Plans and Specifications, the terms of
Paragraph 9 herein and Exhibit C attached hereto.
() "Tenant Improvements Allowance" shall mean the allowance to be
provided by Landlord to Tenant for the design, space planning and construction
of the Tenant Improvements. The amount of the Tenant Improvements Allowance is
set forth in the Lease Summary.
() "Tenant Improvements Plans and Specifications" shall mean the plans
and Specifications" for the construction of the Tenant Improvements, which plans
and specifications shall be prepared pursuant to Exhibit C attached hereto.
() "Tenant's Proportionate Share" means that fraction, the numerator of
which is the Premises Net Rentable Area and the denominator of which is the
Building Net Rentable Area.
. Lease Grant.
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon and subject to the covenants, agreements, provisions and
conditions of this Lease, the Premises located in the Building.
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. Lease Term.
This Lease shall continue in force during a period beginning on the
Commencement Date and continuing until the expiration of the Lease Term, unless
this Lease is sooner terminated or extended to a later date under any other term
or provision herein. Subject to delays resulting from Construction Force Majeure
Matters (as hereinafter defined) or delays caused by Tenant or Tenant's agents,
employees, contractors, subcontractors or licensees, including, without
limitation, change orders to the Tenant Improvements Plans and Specifications
("Tenant Delay Factors"), Landlord will do its best efforts to deliver the
Premises to Tenant not later than the Commencement Date set forth in the Lease
Summary (the "Target Commencement Date"), with the Tenant Improvements
substantially completed in accordance with the Tenant Improvements Plans and
Specifications, as evidenced, if requested by Tenant, by a certificate of
substantial completion issued by Landlord's architect or other designated
architectural representative. If Landlord for any reason whatsoever cannot
deliver possession of the Premises to Tenant (with the Tenant Improvements
substantially completed in accordance with the Tenant Improvements Plans and
Specifications) not later than the Target Commencement Date, this Lease shall
not be void or voidable nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom; but in that event, Landlord shall act diligently and
in good faith to complete the work that is necessary to allow Landlord to
deliver the Premises to Tenant as specified above.
In such case, (a) if Landlord's failure to deliver possession of the
Premises to Tenant (with the Tenant Improvements substantially completed in
accordance with the Tenant Improvements Plans and Specifications) by the Target
Commencement Date is not the result, in whole or in part, of one or more Tenant
Delay Factors, the Commencement Date shall be adjusted to be the date when
Landlord does in fact deliver possession of the Premises to Tenant as described
above and (b) if Landlord's failure to deliver possession of the Premises to
Tenant (with the Tenant Improvements substantially completed in accordance with
the Tenant Improvements Plans and Specifications) by the Target Commencement
Date is the result, in whole or in part, of one or more Tenant Delay Factors,
the Commencement Date shall be the later of (i) the Target Commencement Date or
(ii) the date that the Building Exterior Common Areas and the Building Shell
Improvements have been substantially completed. Notwithstanding any term or
provision herein to the contrary, if, for any reason other than Construction
Force Majeure Matters or Tenant Delay Factors, Landlord cannot deliver
possession of the Premises (with the Tenant Improvements substantially completed
in accordance with the Tenant Improvements Plans and Specifications) to Tenant
by November 30, 1999, Tenant shall be entitled to terminate this Lease by so
notifying Landlord in writing not later than December 10, 1999. Time is of the
essence relative to Tenant's right to terminate this Lease pursuant to this
Paragraph 3 and in the event that Tenant fails to deliver the notice of
termination by December 10, 1999, Tenant shall have no further right to
terminate this Lease.
If, for any reason other than Construction Force Majeure Matters or
Tenant Delay Factors, Landlord cannot deliver possession of the Premises (with
the Tenant Improvements substantially completed in accordance with the Tenant
Improvements Plans and Specifications) to Tenant by the Commencement Date,
Landlord shall be obligated to pay Tenant a penalty equal to One Hundred Fifty
Thousand and No/100 Dollars ($150,000.00). Additionally, subject to
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delays caused by Construction Force Majeure Matters and Tenant Delay Factors,
Landlord shall pay a per day penalty of Four Thousand Five Hundred and No/100
Dollars ($4,500.00) for each day after September 3, 1999 that the Landlord
cannot deliver possession of the Premises (with the Tenant Improvements
substantially competed in accordance with the Tenant Improvements Plans and
Specifications). Also, subject to delays caused by Construction Force Majeure
Matters and Tenant Delay Factors, Landlord shall pay to Tenant the per day
amount of the "Liquidated Damage Amount" (as hereinafter defined) that may be
charged by Tenant's current landlord under Tenant's current lease of space at
000 Xxx Xxxxxx, Xxxxx, Xxxxxxx (the "Reo Street Lease") for September 1, 1999
and for each day thereafter that Landlord cannot deliver possession of the
Premises (with the Tenant Improvements substantially completed in accordance
with the Tenant Improvements Plans and Specifications) and, in the event that
Tenant's current landlord elects not to assess a claim for the Liquidated Damage
Amount and elects to pursue a damage claim as a result of such holding over, the
Landlord agrees to indemnify and hold Tenant harmless against a damage award
that Tenant's landlord may obtain in connection with any litigation against
Tenant as a result of such holding over. Tenant agrees to assign its interest in
such litigation to Landlord and agrees that Landlord may retain counsel and
defend such action as Landlord may direct. In the event a Construction Force
Majeure Matter or Tenant Delay Factor affects Landlord's construction and
delivery obligation(s) relative to the Premises under this Lease, the
Commencement Date and each date that Landlord is obligated to pay any penalties
or damages as provided for in this paragraph shall be extended by the same
number of days as the number of days of delay caused by such Construction Force
Majeure Matter or Tenant Delay Factor on the critical path of completing such
construction and delivery obligation(s). Tenant hereby acknowledges that the
term of the Reo Street Lease expires on August 31, 1999 and that the Tenant's
current landlord may charge Tenant the market rate rental for such space during
any period of hold-over plus the "Liquidated Damage Amount". The "Liquidated
Damage Amount" is fifty percent (50%) of the per day market rate rental due
under the Reo Street Lease during any hold over period. The hold over provision
in the Reo Street Lease is attached hereto as Exhibit H.
Within five (5) days following Tenant's occupancy of the Premises,
Tenant shall execute and deliver to Landlord duplicate originals of a
stipulation in the form attached to this Lease as Exhibit G (with the blanks
properly completed). Subject to Landlord's approval of the information inserted
by Tenant in the blanks, Landlord shall execute the duplicate originals of the
stipulation and shall promptly return one (1) fully executed original to Tenant.
At any time prior to January 1, 1999, Landlord shall be entitled, at
Landlord's sole option and by written notice to Tenant, to relocate the Premises
to the sixth (6th) floor of the Building, containing approximately 66,135 square
feet of Premises Net Rentable Areas., as more particularly described on Exhibit
B-2 attached hereto and incorporated herein by reference. Other than a change in
the Premises from the fifth (5th) to the sixth (6th) floor, all other terms and
conditions of this Lease shall remain the same. If Landlord does not designate
the sixth (6th) floor as the Premises, Landlord agrees that either the
contiguous fourth (4th) or sixth (6th) floor will be leased by Landlord on a
multi-tenant basis and if Landlord designates the sixth (6th) floor as the
Premises, the contiguous fifth (5th) floor will be leased by Landlord on a
multi-tenant basis. The multi-tenant floor as designated by Landlord as provided
above is hereinafter referred to as the "Contiguous Multi-Tenant Floor".
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At any time between January 1, 1999 and January 15, 1999 (the "Notice
Period"), Tenant shall be entitled to request an expansion of the Premises by no
more than five percent (5%) of the Premises Net Rentable Area on the same terms
and conditions as contained in this Lease. The area of expansion shall be on the
Contiguous Multi-Tenant Floor of the Building. In the event of such expansion,
the Base Rental and Tenant Improvements Allowance shall be adjusted accordingly.
Tenant hereby agrees to execute an amendment to this Lease reflecting the above
modifications. In the event that Tenant fails to request such expansion prior to
the expiration of the Notice Period, Tenant shall have no further right to
expand or reduce the size of the Premises.
. Use.
The Premises shall be used for office purposes and for no other
purposes. Tenant agrees not to use or permit the use of the Premises for any
purpose that is illegal or is in violation of any applicable legal,
governmental, quasi-governmental or owner association requirement, ordinance or
rule, or that, in Landlord's opinion, creates a nuisance, disturbs any other
tenant of the Building or injures the reputation of the Building.
. Base Rental.
() Tenant agrees to pay during the Lease Term to Landlord, without any
setoff or deduction, except as provided herein, the Base Rental, and all such
other sums of money as shall become due hereunder as Additional Rent, all of
which are sometimes herein collectively called "rent" or "Rent." Base Rental for
each calendar year or portion thereof during the Lease Term, together with any
applicable adjustment thereto pursuant to Paragraph 6 herein, shall be due and
payable in advance, in twelve (12) equal installments on the first day of each
calendar month during the Lease Term; provided, however, (i) Base Rental from
the Commencement Date through the sixth (6th) full calendar month of the Lease
Term shall be abated by Landlord and (ii) as set forth in the Lease Summary and
Paragraph 5(b) herein, Base Rental for the seventh (7th) full calendar month
during the Lease Term (i.e., the Advance Base Rental Payment) shall be due and
payable upon the full execution of this Lease. Tenant hereby agrees to pay such
Base Rental and any adjustments thereto to Landlord at Landlord's address
provided herein (or such other address as may be designated by Landlord in
writing from time to time) monthly, in advance, and without demand. If the Lease
Term commences on a day other than the first day of a month or terminates on a
day other than the last day of a month, then the installments of Base Rental and
any adjustments thereto for such month or months shall be prorated, based on the
number of days in such month or months.
() Upon the execution of this Lease, Tenant has paid to Landlord the
Advance Base Rental Payment as additional security for Tenant's performance of
its obligations under this Lease. If Tenant is not then in default under this
Lease, Landlord shall apply the Advance Base Rental Payment to the payment of
the monthly installment of Base Rental due relative to the seventh (7th) full
calendar month during the Lease Term. If Tenant is then in default under this
Lease, Landlord may, at its option, apply all or any part of the Advance Base
Rental Payment to cure the default. With regard to the first full calendar month
during the Lease Term and with
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regard to any partial calendar month (if any) preceding the first full calendar
month during the Lease Term, Tenant shall pay its monthly installment of Base
Rental (or the prorate portion thereof) in a timely manner pursuant to Paragraph
5(a) herein.
. Adjustments to Base Rental. [Intentionally deleted].
. Adjustments for Increases in Basic Costs.
With respect to each calendar year or portion thereof during the Lease
Term (and any renewal or extension thereof), Tenant shall pay Landlord as
Additional Rent, in the manner hereafter provided, Tenant's Proportionate Share
of the amount by which Basic Costs (excluding ad valorem real estate taxes) paid
or incurred by Landlord during such period (grossed up, if necessary, to reflect
occupancy of ninety-five percent (95%) of the Building Net Rentable Area)
exceeded the Basic Costs Expense Stop and Tenant's Proportionate Share of the ad
valorem real estate taxes that exceeds the Real Estate Tax Expense Stop
(collectively, the "Excess Basic Costs"). References in this Paragraph 7 to
"Basic Costs" shall be deemed and construed to refer to Basic Costs as grossed
up pursuant to the immediately preceding sentence. If Tenant shall be obligated
to make payments as aforesaid with regard to any partial calendar year during
the Lease Term, the Excess Basic Costs shall be prorated on the basis of the
number of days during such calendar year for which Tenant is obligated to make
such payments.
It is acknowledged and agreed that it will not be possible to determine
the actual amount of the Excess Basic Costs (if any) for a given calendar year
until after the end of such calendar year. Therefore, until Tenant's liability
for Tenant's Excess Basic Costs shall have been finally determined for a
particular calendar year, Tenant shall make payment on account of Excess Basic
Costs as follows:
() Commencing as of the Commencement Date and continuing throughout the
Lease Term (and any renewal or extension thereof), and subject to the limitation
expressed above, Landlord shall make a good faith estimate of Basic Costs for
such calendar year and Tenant's Proportionate Share thereof (hereinafter
"Estimated Basic Costs" and "Tenant's Estimated Excess Basic Costs"), and Tenant
shall pay to Landlord, as Additional Rent with each monthly installment of Base
Rental, an amount equal to one-twelfth (1/12) of Tenant's Estimated Excess Basic
Costs. Such payments for any partial month shall be paid in advance at the daily
rate equal to the monthly payment divided by the number of days in the month for
which the same is due. On or about January 1 of each calendar year in respect of
which Tenant shall be obligated to make payments on account of Excess Basic
Costs during the Lease Term (and any renewal or extension thereof), Landlord
shall furnish to Tenant a statement for such calendar year of Tenant's Estimated
Excess Basic Costs and thereupon, subject to the limitations expressed above, as
of such January 1, Tenant shall make payments under this Paragraph 7(a) in
accordance with such statement.
() On or before April 1 in the year following the year in which the
Commencement Date occurs and each April 1 thereafter during the Lease Term (and
any renewal or extension thereof), Landlord shall furnish Tenant with a
statement setting forth the total amount of Excess Basic Costs for the preceding
calendar year. If any such statement shall show an overpayment or
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underpayment of the Excess Basic Costs for the preceding calendar year, any
overpayment shall be refunded to Tenant or credited against payments due from
Tenant under this Lease, and the full amount of any underpayment shall be paid
to Landlord by Tenant not later than the first day of the first calendar month
after such statement shall have been delivered to Tenant.
() In the event Tenant is required to pay Excess Basic Costs pursuant
to this Paragraph 7, Tenant shall have the right, at Tenant's expense and no
more frequently than once per calendar year, to inspect Landlord's books and
records showing Basic Costs of the Building for the calendar year in question;
provided, however, Tenant shall not have the right to withhold any payments of
Excess Basic Costs due and payable hereunder the amount of which may be in
dispute, and Tenant must pay the entire amount due and payable hereunder prior
to reviewing Landlord's books and records. In the event Tenant's inspection of
Landlord's books and records reveals a verifiable error in Landlord's
computation of Excess Basic Costs resulting in an overpayment by Tenant of
Excess Basic Costs (after allowing for any adjustment pursuant to Paragraph 7(b)
herein), Landlord shall promptly reimburse the amount of such overpayment to
Tenant, together with interest thereon from the date of overpayment until the
date of reimbursement at a rate per annum equal to one percent (1%) plus the
Prime Rate (as defined herein) in effect as of the date of overpayment. As used
in this Lease, the "Prime Rate" shall be deemed to be that rate of interest
announced by NationsBank, N.A., or any successor thereto, from time to time as
its "prime rate," and Landlord and Tenant acknowledge and understand that
NationsBank, N.A., lends at rates of interest both above and below the Prime
Rate. Landlord's statement setting forth the total amount of Excess Basic Costs
furnished to Tenant in accordance with the provisions of this Paragraph 7 shall
be deemed to have been approved by Tenant unless protested by Tenant in writing
within ninety (90) days after delivery of such statement to Tenant at the
Premises.
Notwithstanding the foregoing provisions of this Paragraph 7, the
Excess Costs (excluding taxes, insurance premiums and utilities) for the
calendar year 2001 shall not exceed four percent (4%) of the Basic Costs Expense
Stop (excluding taxes, insurance premiums and utilities). For each calendar year
thereafter, the Excess Costs payable by Tenant (excluding taxes, insurance
premiums and utilities) shall not exceed one hundred four percent (104%) of the
Excess Costs paid by Tenant (excluding taxes, insurance premiums and utilities)
for the previous calendar year.
. Services to Be Furnished by Landlord.
Landlord agrees to furnish Tenant the following services:
() Hot and cold water at those points of supply provided for general
use of other tenants in the Building.
() Except with regard to any HVAC system or unit that exclusively
serves the Premises (or any portion thereof) [the base Building HVAC for a
single tenant floor shall not be deemed exclusively serving tenant premises],
which shall be Tenant's responsibility pursuant to Paragraph 11(b) herein,
Landlord shall furnish central heat and air conditioning sufficient for the
comfortable occupancy of the Premises. Provided, however, central heating and
air conditioning
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service at times other than for "Normal Business Hours" for the Building (which
are 8:00 a.m. to 6:00 p.m. on Mondays through Fridays and 8:00 a.m. to 1:00 p.m.
on Saturdays, exclusive of normal business holidays), shall be furnished only on
the written request of Tenant delivered to Landlord on the following schedule:
() For evenings Monday through Friday - prior to 3:00 p.m. on the day
when such service is required;
() For Saturday afternoon, Saturday evening and Sunday - prior to 3:00
p.m. on Friday; and
() For normal business holidays - prior to the times set forth above
for the last day prior to such holiday.
Tenant shall bear the entire cost (as Additional Rent) of such additional
heating and air conditioning used by Tenant at times other than Normal Business
Hours, and Tenant shall pay such costs within ten (10) days following demand by
Landlord. Any such costs paid by Tenant or any other tenant shall not be
included in Basic Costs. The cost to be charged by Landlord to Tenant hereunder
for heating and air conditioning service used by Tenant during times other than
Normal Business Hours shall be $30.00 per hour, per floor, subject to reasonable
increases in such hourly rate from time to time during the Lease Term to
reimburse Landlord for increases in the cost to Landlord of electricity consumed
in providing the heating and air conditioning service.
If heat-generating machines or equipment shall be used in the Premises
by Tenant which affect the temperature otherwise maintained by the Building HVAC
system verified by a certified mechanical contractor in writing and upon thirty
(30) days prior written notice to Tenant to allow for time by Tenant to mitigate
the affect of such heat-generating machines, Landlord shall have the right (at
Landlord's option) to install (or to require Tenant to install) one or more HVAC
systems or units that exclusively serve the Premises (or the portion thereof
where such heat-generating machines or equipment are located). As set forth in
Paragraph 11(b) herein, the cost of any such separate HVAC systems or units that
exclusively serve the Premises, including the cost of installation and the cost
of operation and maintenance thereof, shall be borne by Tenant.
() Electrical service to serve the Common Areas and the Premises,
subject to the terms of Paragraph 13 herein.
() Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to be
standard.
() Janitorial service, in accordance with the schedule attached hereto
as Exhibit D, Mondays through Fridays, exclusive of normal business holidays;
provided, however, if Tenant's floor covering or other improvements require
special treatment, Tenant shall pay the additional cleaning cost attributable
thereto as Additional Rent upon presentation of a statement therefor by
Landlord.
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() All Building standard fluorescent and incandescent light bulb
replacement in the Common Areas and all light bulb replacement in the Premises.
Provided, however, Tenant shall promptly pay to Landlord, as Additional Rent,
costs incurred by Landlord in replacing light bulbs in the Premises (including
the cost of purchasing such light bulbs) if and to the extent such replacement
cost exceeds the replacement cost for Building standard light bulbs. As used
herein, "Building standard light bulbs" shall be deemed to refer to 2' x 4', 3
lamp F40/CW with energy saving ballasts.
() Tenant, its employees, and its invitees who have been registered
with Landlord shall have access to the Premises (including elevator service) by
a code or card access system seven (7) days a week, twenty-four (24) hours a
day. Tenant shall receive an allotment of codes or cards for all of its
employees and for its invitees who are registered with Landlord. Landlord shall
bear the cost of each such code or card initially issued, provided Tenant shall
pay to Landlord (as Additional Rent, within thirty (30) days after Tenant
receives an invoice therefor) the actual costs incurred by Landlord in obtaining
and issuing replacement codes or cards for codes or cards previously issued.
Landlord, however, shall have no liability to Tenant, its employees, agents,
invitees or licensees for losses due to theft or burglary or for damages done by
unauthorized persons on the Premises, and Landlord shall not be required to
insure against any such losses. Tenant shall cooperate fully with Landlord's
efforts to maintain security in the Building during times other than Normal
Business Hours and shall follow all regulations promulgated by Landlord with
respect thereto.
The failure by Landlord to any extent to furnish, or the interruption
or termination of these defined services in whole or in part, resulting from any
Force Majeure Matters or from any other causes shall not (i) render Landlord
liable in any respect, (ii) be construed as an eviction of Tenant, (iii) work an
abatement of rent, or (iv) relieve Tenant from the obligation to fulfill any
covenant or agreement in this Lease. Should any of the equipment or machinery
used in the provision of such services for any cause cease to function properly,
Tenant shall have no claim for offset or abatement of rent or damages on account
of an interruption in service resulting therefrom. Amounts payable pursuant to
this Paragraph 8 shall be deemed to be Additional Rent due from Tenant to
Landlord, and any default in the payment thereof shall entitle Landlord to all
remedies provided for herein at law or in equity on account of Tenant's failure
to pay Base Rental.
Notwithstanding the foregoing, in the event that there is a failure of
services for which Landlord is responsible to perform which is not the result of
Force Majeure Matters and which renders the Premises untenantable for five (5)
consecutive days, Tenant shall be entitled to give Landlord written notice of
such event. In the event that Landlord fails to cure such failure within five
(5) days from receipt of such written notice, Tenant shall be entitled to cure
such failure and xxxx Landlord for the reasonable out-of-pocket costs of Tenant
in effecting such cure.
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. Construction of Improvements.
() Subject to Construction Force Majeure Matters and consistent with
the terms of Paragraph 3 herein and Exhibit C hereto, Landlord shall pursue
diligently and in good faith the completion of the Building Shell Improvements
and the Tenant Improvements.
() The Tenant Improvements Allowance shall be applied by Landlord
against the costs of designing, planning and constructing the Tenant
Improvements. In the event the costs incurred in connection with the design,
planning and construction of the Tenant Improvements exceed the Tenant
Improvements Allowance, Tenant shall be responsible for bearing and paying such
excess costs (the "Excess Costs") as soon as the final accounting is prepared
and submitted by Landlord to Tenant.
The failure to make any such payment of Excess Costs (if any) when due shall
constitute a default of Tenant under Paragraph 28(a)(i) herein. In the event the
cost to complete the Tenant Improvements is less than the Tenant Improvements
Allowance, Landlord will contribute such savings toward the payment of Tenant's
actual reasonable moving expenses, including but not limited to actual costs for
moving, cabling, telephone switches, furniture and security system.
() Except as otherwise provided above in this Paragraph 9, all
installations and improvements now or hereafter placed on or in the Premises
shall be for Tenant's account and at Tenant's cost. Tenant shall also pay ad
valorem taxes and increased insurance on or attributable to the Tenant
Improvements (to the extent of the cost of the Tenant Improvements is in excess
of the Tenant Improvements Allowance), which cost shall be payable by Tenant to
Landlord as Additional Rent.
() At the beginning of the sixth (6th) calendar year of the Lease Term,
Landlord will provide Tenant with a refurbishment allowance of Three and No/100
Dollars ($3.00) multiplied by the Premises Net Rentable Area to be used solely
by Tenant to paint, recarpet and otherwise improve the Premises with comparable
materials as provided in the initial Tenant Improvements. Landlord shall be
entitled to request reasonable documentation from Tenant to confirm that the
refurbishment allowance is being used for the above purposes prior to disbursing
all or a portion of the refurbishment allowance to Tenant.
. Maintenance and Repair by Landlord.
Except to the extent any such repairs or replacements are the
responsibility of Tenant pursuant to the terms of Paragraph 11 or Paragraph 12
herein or any other provision in this Lease, Landlord shall be responsible for
maintaining, repairing and replacing:
() the roof, foundations, exterior walls, and all structural parts of
the Building;
() all portions of the Premises affected by structural conditions whose
source lies outside the Premises;
() all Common Areas and Building Exterior Common Areas;
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() all utility, sprinkler service, electrical and plumbing lines and
HVAC systems outside the Premises but which serve the Premises on a
non-exclusive basis; and
() all utility, sprinkler service, electrical and plumbing lines and
HVAC systems within the Premises but which serve other space within the
Building.
Except as expressly provided herein, Landlord shall not be required to
make any repairs to the Premises or the Building.
. Maintenance and Repair by Tenant.
In addition to any other provisions in this Lease which obligate Tenant
to perform maintenance, repair and replacement duties relative to the Premises
and/or the Building, Tenant shall be responsible for the following maintenance,
repair and replacement responsibilities:
() Tenant shall, at its expense, keep and maintain the Premises in good
order and repair and not commit or allow any waste to be committed on any
portion of the Premises; and at the termination of this Lease, Tenant agrees to
deliver up the Premises to Landlord in as good of a condition as existed on the
Commencement Date, excepting only ordinary wear and tear, acts of God and
repairs required to be made by Landlord pursuant to the terms of this Lease.
() Tenant shall, at its expense, keep and maintain all HVAC systems and
units, appliances and equipment that exclusively serve the Premises (or any
portion thereof) [the base Building HVAC for a single tenant floor shall not be
deemed exclusively serving tenant premises]. In the event the Premises (or any
portion thereof) is exclusively served by an HVAC system or unit, Tenant shall
contract with a qualified heating and air conditioning service company approved
by Landlord for the monthly maintenance and the repair and replacement, as
necessary, of such HVAC system or unit. Tenant shall provide Landlord with a
copy of any contract required under this Paragraph 11(b) within ten (10) days
after the Commencement Date and a copy of any subsequent contracts (or any
renewal contracts) within ten (10) days after their execution. The cost of all
contracts which Tenant is required to maintain under this Paragraph 11(b) shall
be borne by Tenant.
() Tenant shall, at Tenant's own cost and expense, repair or replace
any damage done to the Common Areas, the Building Exterior Common Areas, the
Building, or any part thereof (including the Premises), caused by Tenant or
Tenant's agents, or employees, and such repairs shall restore the damaged area
to as good of a condition as existed prior to such damage and shall be effected
in compliance with all applicable laws; provided, however, if, within a
reasonable period following written notice from Landlord of the need for such
repairs or replacements, Tenant fails to make such repairs or replacements
promptly, Landlord may, at its option, make the repairs or replacements, and
Tenant shall pay the cost thereof to Landlord on demand as Additional Rent.
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. Alterations by Tenant.
Tenant shall not make or allow to be made any alterations to the
Premises or install any vending machines in the Premises, without first
obtaining the written consent of Landlord in each such instance. Tenant shall
not be obligated to obtain Landlord consent to non-structural alterations that
do not exceed a cost of $10,000.00. Any and all alterations to the Premises
shall become the property of Landlord upon the termination of this Lease (except
for movable equipment or furniture owned by Tenant). Landlord may, by written
notice to Tenant not later than sixty (60) days prior to termination, require
Tenant, upon the expiration or earlier termination of this Lease, to remove any
and all fixtures, equipment and other improvements installed in the Premises by
Tenant for which Landlord advised Tenant upon installation thereof that they
must be removed upon Lease termination. In the event that Landlord so elects and
Tenant fails to remove such improvements, Landlord may remove such improvements
at Tenant's cost, and Tenant shall pay Landlord on demand the cost of restoring
any damage to the Premises resulting from such removal, excepting only ordinary
wear and tear and acts of God.
. Use of Electrical Services by Tenant.
Landlord will install, at Landlord's sole cost and expense, an
electrical check meter (a "Check Meter ") for the Premises as part of the Tenant
Improvements. It is anticipated that the Check Meter will measure all
electricity supplied to the Premises (i) to operate lights and light fixtures
therein, (ii) to operate equipment and fixtures that are connected to electrical
outlets therein and (iii) to operate any HVAC system or unit that exclusively
serves the Premises (or any portion thereof) [the base Building HVAC for a
single tenant floor shall not be deemed exclusively serving tenant premises]. As
contemplated in Paragraph 8(c) herein, Landlord shall pay the local electrical
utility company prior to delinquency for the electricity supplied to the
Premises through the Check Meter. Provided, however, in the event the amount
paid by Landlord to the local electrical utility company for electricity
supplied to the Premises (as measured by the Check Meter) for any given period
of time is greater than the allocable portion of the Premises Electrical Expense
Stop (allocated to the Premises for the relevant period of time), Landlord may
submit an invoice to Tenant periodically for the cost of such excess electricity
supplied to the Premises and Tenant shall pay the full invoiced amount (as
Additional Rent) to Landlord within ten (10) days after Tenant's receipt of each
such invoice. The following formula shall be used to determine the invoice
amount for Tenant's excess electrical usage in the Premises:
Invoice Amount = Total Electrical Costs Per Check Meter - [(Tenant's
Proportionate Share x Premises Electrical Expense
Stop) x (Number of Days in Period a Number of Days in Year)]
For example, presuming (for purposes of this illustration only) that the
Premises Net Rentable Area is 10,000 square feet, that the Check Meter indicates
$2,000.00 of electricity was supplied to the Premises during a given 90-day
period and that the calendar year in which such 90-day period falls contains 365
days, Landlord shall be entitled hereunder to send an invoice to Tenant in the
amount of $321.28 for excess electrical usage in the Premises during such 90-day
period, computed as follows:
Invoice Amount = $2,000.00 - [.025 x $272,300.00) x (90/365)]
= $2,000.00 -[$6,807.50 x .2466]
20
= $2,000.00 - $1,628.72
= $321.28
In computing invoices to be sent to Tenant for electricity supplied to the
Premises through the Check Meter, Landlord shall use the same billing rate and
structure as used by the local electrical utility company. Additionally, with
regard to any period of time that Landlord elects to use a Check Meter to xxxx
Tenant for excess electricity supplied to the Premises, Landlord also shall use
a Check Meter to xxxx other tenants in the Building for excess electricity
supplied to their respective premises; and in such case, the cost of electricity
supplied to the Premises and to other premises in the Building for which
Landlord separately bills Tenant and other tenants in the Building (i.e. such
electrical costs that exceed the Electrical Expense Stop) shall not be included
in Basic Costs hereunder, Landlord shall be entitled to xxxx Tenant pursuant to
this Paragraph 13 for excess electrical usage in the Premises quarterly or
annually, as determined by Landlord from time to time during the Lease Term.
. Graphics and Signage.
All letters and numerals on doors or other signs on the Premises shall
be in the standard form of graphics for the Building, and no others shall be
used or permitted without Landlord's prior written consent. Furthermore, Tenant
shall not place signs on or in the Premises which are visible from outside the
Premises. Tenant's name and suite number shall be included by Landlord on the
lobby directory for the Building. Additionally, Landlord will provide Tenant's
name in the top position on the Buildings ground monument sign immediately
adjacent to the Premises on a non-exclusive basis with other tenants in the
Building. The size and style of lettering and location of the monument sign
immediately adjacent to the Premises shall be approved by Landlord. The
corporate logo of Tenant is deemed approved by Landlord. Tenant acknowledges
that the monument sign shall comply design standards applicable to International
Plaza and applicable City of Tampa codes, rules and regulations.
. Parking.
During the Lease Term, Tenant shall have, without charge, the
non-exclusive right to use, in common with Landlord, other tenants of the
Building, and their respective guests and invitees, the automobile parking
areas, driveways, and footways located on the Land. Notwithstanding the terms
and provisions in the immediately preceding sentence, (i) Tenant and Tenant's
guests and invitees shall not, at any given time, be entitled to use more than
five (5) parking spaces for each 1,000 square feet of Premises Net Rentable
Area, and (ii) Landlord shall have the right during the Lease Term to reserve
parking spaces on the Land for the exclusive use of other tenants in the
Building, provided the reservation of such spaces for the exclusive use of other
tenants in the Building does not have the effect of denying Tenant the
non-exclusive use of five (5) parking spaces for each 1,000 square feet of
Premises Net Rentable Area. As part of the five (5) parking spaces per 1,000
square feet of Premises Net Rentable Area, Landlord will provide Tenant with
fifteen (15) covered, reserved parking spaces at no additional cost in an area
closest to the Premises as mutually agreed upon by Landlord and Tenant.
21
. Compliance with Laws.
Tenant agrees to comply with all applicable laws, ordinances, rules and
regulations of the Association or any governmental entity or agency having
jurisdiction over the Premises. Without limiting the generality of the
foregoing, in the event the Premises must be modified or any other action
relating to the Premises must be undertaken in the future to comply with the
Americans With Disabilities Act or any similar federal, state or local statute,
law, or ordinance, the responsibility for such modification or action (including
the payment of all costs incurred in connection therewith) shall belong to
Tenant. If the Common Areas or the Building Exterior Common Areas must be
modified or any other action relating to the Common Areas or the Building
Exterior Common Areas must be undertaken in the future to comply with the
Americans With Disabilities Act or any similar federal, state or local statute,
law, or ordinance and if such modification or action is required because of (i)
any special or unique use or activity in the Premises or (ii) the performance of
any alterations within the Premises, the responsibility for such modification or
action (including the payment of all costs incurred in connection therewith)
shall belong to Tenant. Except as provided in the immediately preceding
sentence, in the event the Common Areas or the Building Exterior Common Areas
must be modified or any other action relating to the Common Areas or the
Building Exterior Common Areas must be undertaken in the future to comply with
the Americans With Disabilities Act or any similar federal, state or local
statute, law, or ordinance, the responsibility for such modification or action
(including the payment of all costs incurred in connection therewith, subject to
the terms and provisions of this Lease relating to the pass-through of Basic
Costs) shall belong to Landlord.
. Building Rules and Regulations.
Tenant shall comply with the rules and regulations applicable to the
Building and the Building Exterior Common Areas (the "Rules and Regulations")
adopted and altered by Landlord from time to time and shall cause all of its
agents, employees, invitees and visitors to do so; all changes to the Rules and
Regulations will be sent by Landlord to Tenant in writing. Landlord shall apply
the Rules and Regulations uniformly to all tenants in the Building. The initial
Rules and Regulations, which have been reviewed and approved by Tenant, are
attached hereto as Exhibit E.
. Entry by Landlord.
Tenant agrees to permit Landlord and Landlord's agents and
representatives to enter into and upon any part of the Premises at all
reasonable hours (and in emergencies at all times) to inspect the same, to show
the Premises to prospective purchasers, mortgagees, tenants or insurers, to
install or maintain Check Meters and other devices to determine if Tenant's
electrical usage is in excess of design loads and capacities, and to clean or
make repairs, alterations or additions thereto, and Tenant shall not be entitled
to any abatement or reduction of rent by reason thereof.
. Assignment and Subletting.
() Tenant shall not assign this Lease or sublet all or any part of the
Premises or make any other transfer of its interest in the whole or any portion
thereof, directly or indirectly, at any
22
time during the Lease Term without the prior written consent of Landlord, which
such consent shall not be unreasonably withheld. Any attempted assignments,
subleases or other transfers by Tenant in violation of the terms and conditions
of this Paragraph 19(a) shall be null and void. In the event that Tenant desires
at any time to assign this Lease or sublet all or any part of the Premises,
Tenant shall submit to Landlord at least thirty (30) days prior to the proposed
effective date of the assignment or sublease, in writing, (i) a request for
permission to assign or sublet setting forth the proposed effective date which
shall be no less than thirty days after the sending of such notice; (ii) the
name of the proposed subtenant or assignee or other party; (iii) the nature of
the business to be carried on in the Premises after the assignment or sublet;
(iv) the terms and provisions of the proposed assignment or sublet; and (v)
current financial statements of the proposed subtenant or assignee; and such
additional information that Landlord may reasonably request in order to make a
reasoned judgment. Notwithstanding the foregoing, Landlord consent shall not be
required for an assignment of sublease to a successor of Tenant resulting from a
merger, consolidation, sale or acquisition of all of the stock of Tenant,
provided that such resulting entity is of equal or better creditworthiness as
Tenant and Tenant continues to be primarily liable under the Lease, or a
sublease to a wholly-owned affiliate or subsidiary of Tenant and Tenant
continues to be primarily liable under the Lease.
() If Tenant requests Landlord's consent to an assignment of this Lease
or subletting of all of the Premises, or any other transfer of its interest(s),
Landlord shall have the option (without limiting Landlord's other rights
hereunder) of terminating this Lease with respect to the entire Premises subject
to the proposed assignment, subletting or transfer upon fifteen (15) days'
notice and of dealing directly with the proposed assignee, subtenant or
transferee. If Landlord should fail to notify Tenant in writing of its decision
within a fifteen (15) day period after Landlord is notified in writing of the
proposed assignment, sublease or other transfer, Tenant shall give a second
notice to Landlord, and in the event that Landlord should fail to notify Tenant
of it decision within ten (10) days after receipt of the second notice, Landlord
shall be deemed to have elected to keep this Lease in full force and effect.
() Any assignee, subtenant or purchaser of Tenant's interest in this
Lease (all such assignees, subtenants and purchasers being hereinafter referred
to as "Successors"), by assuming Tenant's obligations hereunder, shall assume
liability to Landlord for all rental or other amounts paid to persons other than
Landlord by such Successor in consideration of any such sale, assignment or
subletting, in violation of the provisions herein. Landlord hereby reserves the
right to condition Landlord's consent to any assignment or sublet upon
Landlord's receipt from Tenant of a written agreement, in form and substance
acceptable to Landlord, pursuant to which Tenant shall pay over to Landlord
fifty percent (50%) of all rent or other consideration received by Tenant from
any such subtenant or assignee, over the term of the assignment or sublease, in
excess of the Base Rental called for hereunder, or, in case of the sublease of a
portion of the Premises, in excess of such rent fairly allocable to such
portion, after appropriate adjustments to assure that all other payments called
for hereunder are taken into account, and after taking into account Tenant's
reasonable expenses incurred in connection with such subletting or assignment,
including, but not limited to, commissions, retrofit, marketing and legal fees.
() If Tenant assigns, sublets or makes any other transfer of all or any
portion of its interest(s) hereunder, Tenant named in this Lease shall remain
directly and primarily responsible
23
for the faithful performance and observance of all of the covenants and
obligations on Tenant's part to be performed in this Lease. No assignment or
subletting shall affect the continuing primary liability of Tenant hereunder
(which, following any assignment or sublet, shall be joint and several with the
assignee or subtenant), and Tenant shall not be released from performing any of
the terms, covenants and conditions of this Lease.
() Any assignee or subtenant hereunder shall be bound by and shall
comply with all of the terms and provisions in this Lease, including, without
limitation, the use restriction set forth in Paragraph 4 herein. As a condition
to the effectiveness of any assignment that is permitted hereunder, the assignee
shall, by an instrument in writing, assume and agree to perform (for the express
benefit of Landlord) the terms hereof; and as a condition to the effectiveness
of any sublease that is permitted hereunder, the subtenant shall acknowledge in
writing (for the express benefit of Landlord) the existence of this Lease and
shall covenant not to do or permit to be done anything that would constitute a
breach hereof.
() Landlord's consent to any one assignment, sublease or other transfer
hereunder shall not waive the requirement of its consent to any subsequent
assignment, sublease or other transfer as required herein.
() Tenant shall not advertise (except to real estate brokers) its space
for assignment or subletting at a rental rate lower than the rental schedule
established from time to time by Landlord for comparable space in International
Plaza for a comparable term in the Building or in any other building owned by
Landlord in International Plaza. Further, no assignment or subletting shall be
made: (i) to any person or entity which shall at that time be a tenant,
subtenant or other occupant of any part of the Building or any other building
owned by Landlord in International Plaza when Landlord has other comparable
space in the Building or in another building in International Plaza available
for leasing by Landlord; (ii) to any one who has expressed an interest in
leasing space from Landlord or Landlord's agent (directly or through a broker)
with respect to space in the Building or in another building in International
Plaza during the two (2) months immediately preceding Tenant's request for
Landlord's consent; or (iii) to any person or entity for the conduct of business
which is not in keeping with the standards and general character of the
Building. All rights and options of Tenant hereunder, if any, to expand the
Premises, contract the Premises, extend or renew the Term, shorten the Term, and
any right of first refusal shall automatically terminate upon the assignment of
this Lease or upon sublet of all or any part of the Premises unless Landlord
specifically agrees in writing that such rights and options shall continue.
Tenant acknowledges that the restrictions on assignments and subleases described
herein are a material inducement for Landlord entering into this Lease and shall
be enforceable by Landlord against Tenant and against any assignee or subtenant
or any other party acquiring an interest in this Lease.
. Liens.
Tenant will not permit any mechanic's lien(s) or other liens to be
placed upon the Premises, the Building or the Land and nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by inference or otherwise, to any person for
the performance of any labor or the furnishing of any materials to
24
the Premises, or any part thereof, nor as giving Tenant any right, power or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to any mechanics' or other
liens against the Premises, the Building or the Land. In the event any such lien
is attached to the Premises, the Building or the Land, then, in addition to any
other right or remedy of Landlord, Landlord may, but shall not be obliged to,
discharge the same. Any amount paid by Landlord for any of the aforesaid
purposes shall be reimbursed by Tenant to Landlord on demand as Additional Rent.
The interest of Landlord shall not be subject to liens for improvements
made by Tenant in and to the Premises. Tenant shall notify every contractor
making such improvements of the provisions set forth in the preceding sentence
of this paragraph. The parties agree, should Landlord so request, to execute,
acknowledge and deliver without charge to Tenant, a Short Form Lease in
recordable form in accordance with Chapter 713, Florida Statutes containing a
confirmation that the interest of Landlord shall not be subject to liens for
improvements made by Tenant to the Premises.
. Property Insurance.
Landlord shall maintain fire and extended coverage insurance on the
Building and the Premises, such policy(ies) to cover Landlord's interest in the
Building and Premises for not less than the full replacement value thereof. Such
insurance shall be maintained at the expense of Landlord (as a part of Basic
Costs), and payments for losses thereunder shall be made solely to Landlord or
the mortgagees of Landlord relative to the Land and the Building (collectively,
"Mortgagees"; each, a "Mortgagee"), as their respective interests shall appear.
Tenant shall maintain, at its expense, in an amount equal to full replacement
cost, fire and extended coverage insurance on all of its personal property,
including removable trade fixtures, located in the Premises. Tenant shall, at
Landlord's request from time to time, provide Landlord with current certificates
of insurance evidencing Tenant's compliance with the terms and requirements of
this Paragraph 21 and Paragraph 22 herein. All policies required to be
maintained by Tenant under this Paragraph 21 and Paragraph 22 herein shall
contain a provision whereby the insurer is not allowed to cancel, fail to renew
or change materially the coverage without first giving thirty (30) days prior
written notice to Landlord. Tenant shall also obtain the agreement of Tenant's
insurers to notify Landlord that a policy is due to expire at least thirty (30)
days prior to such expiration.
. Liability Insurance.
Tenant and Landlord shall, each at its own expense, maintain a policy
or policies of comprehensive general liability insurance (occurrence coverage)
with respect to the respective activities of each on the Land and in the
Building with the premiums thereon fully paid on or before the due date, issued
by and binding upon an insurance company authorized to conduct such business in
the State of Florida. Such comprehensive general liability insurance to be
maintained by Tenant and Landlord under this Paragraph 22 shall afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof; and such comprehensive general
liability insurance to be maintained by Tenant shall name Landlord as an
additional insured. Such insurance coverage maintained by Tenant also shall
include, without limitation, personal injury and contractual liability coverage
25
for the performance by Tenant of the indemnity agreements set forth in this
Lease. Landlord shall not be required to maintain insurance against thefts
within the Premises or the Building or on the Land.
. Indemnities.
Landlord shall not be liable to Tenant, or to Tenant's agents,
servants, employees, customers, or invitees for any injury to person or damage
to property caused by any act, omission, or neglect of Tenant, its agents,
servants, employees, invitees, licensees or any other person entering the Land,
the Building Exterior Common Areas, the Building or the Premises under the
invitation of Tenant or arising out of a default by Tenant in the performance of
its obligations hereunder or arising out of the use and occupancy of the
Premises by Tenant. Tenant hereby indemnifies and holds Landlord harmless from
all liability and claims for any such damage or injury. Landlord hereby
indemnifies and holds Tenant harmless from all liability and claims for damage
to property of Tenant incurred or suffered by Tenant or its employees to the
extent arising from the negligent acts or omissions of Landlord or any agent or
employee of Landlord in or about the Building Exterior Common Areas.
. Waiver and Waiver of Subrogation Rights.
Anything in this Lease to the contrary notwithstanding (including,
without limitation, Paragraph 23 herein), Landlord and Tenant each hereby waive
any and all rights of recovery, claim, action, or cause of action, against the
other, its agents, officers, or employees, for any loss or damage that may occur
to the Premises or a part thereof, or any improvements thereto, or any personal
property of such party therein, by reason of fire, the elements, or any other
cause(s) which are insured against under the terms of the standard fire and
extended coverage insurance policies referred to in Paragraph 21 herein,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers, or employees. All insurance policies carried with respect
to Paragraph 21 herein, if permitted under applicable law, shall contain a
provision whereby the insurer waives, prior to loss, all rights of subrogation
against Landlord and Tenant.
. Casualty Damage.
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged that substantial alteration or reconstruction
of the Building shall be required (whether or not the Premises shall have been
damaged by such casualty) or in the event any Mortgagee should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within ninety (90) days after the date of such
casualty. If, by reason of such casualty, the Premises are rendered untenantable
in some material portion, and the amount of time required to repair the damage
is reasonably determined by Landlord, by written notice to Tenant within such
ninety (90) day period, to be in excess of one hundred eighty (180) days from
the date upon which Landlord is required to determine whether to terminate this
Lease, then Tenant shall have the right to terminate this Lease by giving
Landlord written notice of termination within thirty (30)
26
days after the date Landlord delivers Tenant notice that the amount of time
required to repair the damage has been determined by Landlord to be in excess of
one hundred eighty (180) days. If Landlord fails to give such notice within such
ninety (90) day period, as provided for in the immediately preceding sentence,
Tenant shall be entitled to assume that the Landlord believes that the amount of
time to complete such repairs will not be in excess of such one hundred eighty
(180) day period and Tenant shall have no rights to terminate this Lease. If
Landlord (or Tenant, if applicable) does not thus elect to terminate this Lease,
Landlord shall commence and proceed with reasonable diligence to restore the
Building to substantially the same condition as existed immediately prior to the
occurrence of the casualty, except that Landlord's obligation to restore shall
not exceed the scope of the work required to be done by Landlord in originally
constructing the Building Shell Improvements and installing the Tenant
Improvements in the Premises, nor shall Landlord be obligated to restore the
Building Shell Improvements or the Premises if the cost of the restoration work
required under this Lease and all other leases of space in the Building exceeds
the insurance proceeds actually received by Landlord as a result of the
casualty. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof, except that, subject to the provisions of the next
sentence, Landlord shall allow Tenant a fair diminution of rent during the time
and to the extent the Premises are untenantable. If the Premises or any other
portion of the Building is damaged by fire or other casualty resulting from the
fault or negligence of Tenant or any of Tenant's agents or employees, the rent
hereunder shall not be diminished during the repair of such damage and Tenant
shall be liable to Landlord for the cost of the repair and restoration of the
Building caused thereby to the extent such cost and expense are not covered by
insurance proceeds.
. Condemnation.
If the whole or substantially the whole of the Building or the Premises
should be taken for any public or quasi-public use, by right of eminent domain
or otherwise or should be sold in lieu of condemnation, then this Lease shall
terminate as of the date when physical possession of the Building or the
Premises is taken by the condemning authority. If less than the whole or
substantially the whole of the Building or Premises is thus taken or sold and
the remaining portion of the Building can no longer be operated as a
multi-tenant office building on a financially sound basis, in Landlord's sole
opinion, or if any Mortgagee should require that the condemnation proceeds
payable as a result of such taking or sale be applied to the payment of the
mortgage debt, Landlord (whether or not the Premises are affected by the taking
or sale) may terminate this Lease by giving written notice thereof to Tenant, in
which event this Lease shall terminate as of the date when physical possession
of such portion of the Building or Premises is taken by the condemning
authority. If this Lease is not so terminated upon any such taking or sale and
if a portion of the Premises is affected thereby, the Base Rental payable
hereunder shall be diminished by an equitable amount, and Landlord shall, to the
extent Landlord deems feasible, restore the Building and the Premises to
substantially their former condition, except Landlord's obligation to restore
shall not exceed the scope of the work required to be done by Landlord in
originally constructing the Building Shell Improvements and installing the
Tenant Improvements, nor shall Landlord in any event be obligated to restore the
Building Shell Improvements or the Tenant Improvements if the cost of the
restoration work required under this Lease and all other leases of space in the
Building exceeds the amount received by Landlord for
27
such taking. All amounts awarded upon a taking of any part or all of the
Building or the Premises shall belong to Landlord, and Tenant shall not be
entitled to and expressly waives all claims to any such compensation. Tenant
shall be entitled to make a separate claim against the condemning authority for
its personal property and moving expenses provided that such claim does not
diminish Landlord's award.
. Damages from Certain Causes.
Landlord shall not be liable to Tenant for any loss or damage to any
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, or order
of governmental body or authority or by any other Force Majeure Matter. Nor
shall Landlord be liable for any damage or inconvenience which may arise through
repair or alteration of any part of the Building or premises. The preceding
sentence shall not limit Tenant's rights for the failure of Landlord to complete
the Tenant Improvements as provided for in Paragraph 3 of this Lease.
. Events of Default/Remedies.
() The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant fails to pay any installment of Base Rental
or Additional Rent when due and such failure continues for more than ten (10)
days after Tenant is given written notice of such failure (provided, however,
Tenant shall not be entitled to such notice and cure period more than twice in
any calendar year during the Lease Term); (ii) Tenant fails to comply with any
provision of this Lease (other than clauses (iii), (iv), (v), (vi) and (vii) in
this Paragraph 28(a)), all of which terms, provisions and covenants shall be
deemed material and such failure continues for more than thirty (30) days after
Tenant is given written notice of such failure (provided such 30-day notice and
cure period for non-monetary defaults shall be decreased or dispensed with, as
reasonably required, in cases of emergency or in circumstances where such
failure will result in a default by Landlord under other leases of space in the
Building); (iii) the leasehold hereunder demised is taken on execution or other
process of law in any action against Tenant; (iv)Tenant becomes insolvent or
unable to pay its debts as they become due; (v) Tenant takes any action to or
notifies Landlord that Tenant intends to file a petition under any section or
chapter of the United States Bankruptcy Code, as amended from time to time, or
under any similar law or statute of the United States or any State thereof; or a
petition shall be filed against Tenant under any such statute or Tenant or any
creditor of Tenant's notifies Landlord that it knows such a petition will be
filed or Tenant notifies Landlord that it expects such a petition to be filed;
or (vi) a receiver or trustee is appointed for Tenant's leasehold interest in
the Premises or for all or a substantial part of the assets of Tenant. Provided,
however, and notwithstanding the foregoing provisions in this Paragraph 28(a),
Tenant shall not be entitled to any notice and cure period in connection with
Tenant's obligation to vacate the Premises at the end of the Lease Term.
() Upon the occurrence under this Lease of any event or events of
default which are not cured within any applicable grace period by Tenant,
whether enumerated in Paragraph 28(a) herein or not, Landlord shall have the
option to pursue any one or more of the following remedies: (i) terminate this
Lease, in which event Tenant shall immediately surrender the Premises to
Landlord; (ii) terminate Tenant's right to occupy the Premises and re-enter and
take
28
possession of the Premises (without terminating this Lease) and relet or attempt
to relet the Premises for the account of Tenant and Landlord shall not be deemed
to have thereby accepted a surrender of the Premises, and Tenant shall remain
liable for all Basic Rent, Additional Rent or other sums due under this Lease
and for all damages suffered by Landlord because of Tenant's breach of any
provision of this Lease; (iii) enter upon the Premises and do whatever Tenant is
obligated to do under the terms of this Lease, and Tenant agrees to reimburse
Landlord on demand for any expense which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease, and Tenant further agrees
that Landlord shall not be liable for any damages resulting to Tenant from such
action; (iv) accelerate and declare the entire remaining unpaid Basic Rent and
Additional Rent for the balance of the Lease Term to be immediately due and
payable forthwith, and may, at once, take legal action to recover and collect
the same, provided that Tenant shall be entitled to an offset of any rentals
received by Landlord from another tenant that occupies the Premises during the
term of this Lease for which rental has been accelerated; and (v) exercise all
other remedies and seek all damages available to Landlord at law or in equity,
including, without limitation, injunctive relief of all varieties.
In the event Landlord elects to re-enter or take possession of the
Premises after Tenant's default, Tenant hereby waives notice of such re-entry or
repossession and of Landlord's intent to re-enter or take possession. Landlord
may, without prejudice to any other remedy which it may have for possession or
arrearages in rent, expel or remove Tenant and any other person who may be
occupying said Premises or any part thereof. In addition, the provisions of
Paragraph 31 herein shall apply with respect to the period from and after the
giving of notice of such termination to Tenant. All of Landlord's remedies under
this Lease shall be cumulative and not exclusive. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such default or an
election of remedies.
() Any installment of Base Rental and any Additional Rent not paid
within ten (10) days following the date when due and payable shall bear interest
from the date due until paid at the lesser of (i) eighteen percent (18%) per
annum or (ii) the maximum lawful contract rate per annum.
() This Paragraph 28 shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability of any portion thereof
shall not thereby render unenforceable any other portion. To the extent any
provision of applicable law requires some action by Landlord to evidence or
effect the termination of this Lease or to evidence the termination of Tenant's
right of occupancy, Tenant and Landlord hereby agree that notice, in writing
only and delivered in accordance with Paragraph 37 herein, shall be sufficient
to evidence and effect the termination therein provided for.
(e) Landlord shall be in default hereunder in the event Landlord has
not begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within fifteen (15) days of receipt
by Landlord of written notice from Tenant of the alleged failure to perform.
Except as otherwise provided in Paragraph 3 herein, in no event shall Tenant
have the right to terminate or rescind this Lease or otherwise withhold or xxxxx
Basic
29
Rent or Additional Rent as a result of Landlord's default as to any
covenant or agreement contained in this Lease or as a result of the breach of
any promise or inducement hereof, whether in this Lease or elsewhere. Tenant
hereby waives such remedies for default hereunder and Tenant's remedies for
default by Landlord hereunder shall be limited to action for damages and/or
injunction.
. Security Deposit. [Intentionally deleted].
. Peaceful Enjoyment.
Tenant shall, and may peacefully have, hold, and enjoy the Premises
against Landlord and all persons claiming by and through or under Landlord for
the Lease Term, subject to the other terms hereof, provided Tenant pays the rent
and other sums herein recited to be paid by Tenant and performs all of Tenant's
covenants and agreements herein contained. This covenant and any and all other
covenants of Landlord shall be binding upon Landlord and its successors only
with respect to breaches occurring during its or their respective periods of
ownership of Landlord's interest hereunder.
. Holding Over.
If Tenant remains in possession of the Premises or any part thereof
after the expiration or earlier termination of this Lease, whether with or
without Landlord's acquiescence, Tenant shall be deemed a tenant at will. In the
event of any such holding over by Tenant after the expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Paragraph 28(b) herein, Tenant shall, throughout the entire holdover period, pay
Base Rental equal to greater of one hundred twenty-five percent (125%) of the
Base Rental in effect immediately before the holdover period began or the
"Prevailing Market Rate" (to be determined in the same manner as provided for in
Paragraph 2 of the Special Stipulations set forth on Exhibit F attached hereto),
together with all applicable Additional Rent which would have been applicable
had the Lease Term continued through the period of such holding over by Tenant.
Tenant shall also remain liable for any and all damages, direct and
consequential, suffered by Landlord as a result of any holdover without
Landlord's unequivocal written acquiescence. No holding over by Tenant after the
expiration of the Lease Term shall be construed to extend the Lease Term.
. Subordination to Mortgage.
Provided that Tenant receives an agreement of non-disturbance, Tenant
accepts this Lease subject and subordinate to any mortgage, deed of trust, or
other lien presently existing or hereafter arising upon the Premises, the
Building and/or the Land, and to any renewals, modifications, refinancings and
extensions thereof, but Tenant agrees that any such Mortgagee shall have the
right (without seeking or obtaining Tenant's consent) at any time to subordinate
such mortgage, deed of trust or other lien to this Lease. Tenant agrees to
cooperate and execute and deliver such further instruments subordinating this
Lease or attorning to the holder of any such liens as Landlord may request
within fifteen (15) days of the date of such request.
30
. Estoppel Certificate.
Tenant agrees that it will, from time to time upon request by Landlord
and within fifteen ( 15) days of such request, cooperate and execute and deliver
to such persons as Landlord shall request an estoppel certificate in recordable
form certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that this Lease is in full force and effect as
so modified), stating the dates to which rent and other charges payable under
this Lease have been paid, stating that, to the best knowledge of Tenant,
Landlord is not in default hereunder (or if Tenant alleges a default, stating
the nature of such alleged default) and further stating such other matters as
Landlord shall reasonably require. In the event that Tenant should fail to
execute any such estoppel certificate promptly as requested, Tenant hereby
irrevocably constitutes Landlord as its attorney-in-fact to execute such
estoppel certificate in Tenant's name, place and stead, it being agreed that
such power is one coupled with an interest.
. Attorneys' Fees.
In the event either party defaults in the performance of any of the
terms of this Lease and the other party employs attorney(s) in connection
therewith, the defaulting party agrees to pay the prevailing party's reasonable
attorneys' and paralegals' fees (calculated at such attorneys' reasonable and
customary hourly rates and without regard to the amount in controversy) and
costs of litigation, whether at the trial level, on appeal or in any bankruptcy
or administrative proceedings.
. No Implied Waiver.
The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement herein or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or to pursue any other
remedy in this Lease provided.
. Personal Liability.
The liability of Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the equity of Landlord in the
Building and the Land, and Tenant agrees to look solely to Landlord's equity in
the Building and the Land for recovery of any judgment from Landlord, it being
intended that neither Landlord nor the shareholders, parents, affiliates,
partners, members, or owners of Landlord shall be personally liable for any
judgment or deficiency.
31
. Notices.
Any notice in this Lease provided for must, unless otherwise expressly
provided herein, be in writing, and may, unless otherwise in this Lease
expressly provided, be served by depositing the same in the United States mail,
postpaid and certified or registered and addressed to the party to be notified,
with return receipt requested, or by delivering the same in person to an officer
of such party, or by prepaid telegram or overnight delivery service (e.g.,
Federal Express), addressed to the party to be notified at the applicable
address stated in the Lease Summary or such other address, notice of which has
been given to the other party pursuant to this Paragraph 37. Notice deposited in
the mail in the manner hereinabove described shall be effective from and after
the expiration of five (5) calendar days after it is so deposited. Notice by
prepaid telegram or overnight delivery service shall be effective on the first
business day after said notice is sent. Notice by facsimile shall be effective
on the day sent by facsimile (provided the original is sent by one of the other
permitted means).
. Severability.
If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law,
notwithstanding the invalidity of any other term or provision hereof.
. Recordation.
Tenant agrees not to record this Lease; provided, however, Landlord
shall execute and deliver a memorandum of this Lease, in recordable form, and
suitable to provide record notice of this Lease, if so requested by Tenant.
. Governing Law and Venue.
This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed, and enforced in accordance with the laws of the State
of Florida and venue for any actions initiated by Landlord or Tenant shall be in
Hillsborough County.
. Force Majeure.
Whenever a period of time is herein prescribed for the taking of any
action by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays
(except for delays in Landlord's construction and delivery obligation(s)
relative to the Premises discussed in the following paragraph) due to any
condition, matter or circumstance beyond the reasonable control of Landlord
(collectively, "Force Majeure Matters"; each, a "Force Majeure Matter"),
including, without limitation, the following: strikes; defaults or failures to
perform by contractors or subcontractors; unavailability of materials; lockouts;
acts of God; governmental restrictions, war or enemy action or invasion; civil
commotion; insurrection; riot; mob violence; malicious mischief or sabotage;
fire or any other casualty; adverse weather conditions or unusual inclement
weather; a condemnation; failure of a
32
governmental instrumentality to act in a timely fashion; any litigation or other
legal proceeding which delays the approval of plans or the issuance of any
grading or building permit for construction, including, without limitation, the
issuance of an injunction enjoining such approval and/or issuance, as the case
may be; any law, order or regulation of any governmental, quasi-governmental,
judicial or military authority; or other similar cause.
Any reasonable delays due to acts of God, war or enemy action or
invasion; civil commotion; insurrection; riot, mob violence; malicious mischief
or sabotage (provided that reasonably adequate security is in place); fire,
earthquake, lightning, tropical storms or hurricanes shall be referred to in
this Lease as "Construction Force Majeure Matters." Landlord shall provide
written notice to Tenant at the time that a Construction Force Majeure Matter(s)
has occurred for which a delay will be claimed by Landlord.
. Time of Performance.
Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
. Transfers by Landlord.
Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations hereunder and in the Building and property
referred to herein, and in such event and upon such transfer Landlord shall be
released from any further obligations hereunder, and Tenant agrees to look
solely to such successor in interest of Landlord for the performance of such
obligations, except those obligations of Landlord with respect to which a
default exists as of the effective date of such transfer or assignment.
. Commissions.
Landlord warrants and represents to Tenant that Landlord has not
engaged or contracted with any person, firm or entity to serve or act as a
broker, agent or finder, other than Broker (if any), for the purpose of leasing
the Premises or in regard to this Lease. Tenant warrants and represents to
Landlord that Tenant has not engaged, contracted with or dealt with any person,
firm or entity (other than Broker, if any) to serve or act as a broker, agent or
finder, for the purpose of leasing the Premises or in regard to this Lease.
Landlord agrees to be solely responsible for the payment of any commission to
Broker (if any) relating to this Lease pursuant to a separate agreement between
Landlord and Broker (if any). Tenant shall and does hereby indemnify and hold
harmless Landlord from and against any claim for any consulting fee, finder's
fee, commission, or like compensation, including reasonable attorneys' fees in
defense thereof, payable in connection with this Lease and asserted by any party
arising out of any act or agreement by Tenant, excluding the commission payable
by Landlord to Broker (if any) as described above.
33
. Effect of Delivery of this Lease.
Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and such delivery does not constitute an offer to Tenant or an
option in favor of Tenant. This Lease shall not be effective until an original
executed by both Landlord and Tenant is delivered to and accepted by Landlord.
. Real Estate Investment Trust.
During the Lease Term, should a real estate investment trust become
Landlord hereunder, all provisions of this Lease shall remain in full force and
effect except as modified by this Paragraph 46. If Landlord in good faith
determines that its status as a real estate investment trust under the
provisions of the Internal Revenue Code of 1986, as heretofore or hereafter
amended, will be jeopardized because of any provision of this Lease, Landlord
may request reasonable amendments to this Lease and Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such amendments do
not (a) increase the monetary obligations of Tenant pursuant to this Lease or
(b) in any other manner adversely affect Tenant's interest in the Premises.
. Hazardous Materials.
() Throughout the Lease Term, Tenant shall not knowingly cause, permit
or allow any chemical substances, asbestos or asbestos-containing materials,
formaldehyde, polychlorinated biphenyls, and toxic, carcinogenic, radioactive,
dangerous or hazardous material, substance, waste, contaminant, or pollutant
regulated now or hereafter by any governmental entity or agency (collectively,
"Hazardous Materials") to be placed, stored, dumped, dispensed, released,
discharged, used, sold, transported, or located on or within any portion of the
Premises, the Building or the Land by itself or its servants, agents, employees,
contractors, subcontractors, licensees, assignees or subtenants; provided,
however, minor quantities of Hazardous Materials may be used or stored in the
Premises for cleaning purposes only or in connection with the use of office
equipment and the normal operation of Tenant's office only, so long as such
quantities and the use thereof are permitted by or are exempt from applicable
governmental regulation. Tenant agrees to give Landlord prompt written notice of
any discovery, discharge, release or threatened discharge or threatened release
of any Hazardous Materials on or about the Premises, the Building or the Land.
Tenant agrees to promptly clean up any Hazardous Materials which are placed in
the Premises or on the Land by Tenant or its servants, agents, employees,
contractors, subcontractors, licensees, assignees or subtenants and to remediate
and remove any such contamination relating to the Premises, the Building and/or
the Land, as appropriate, at Tenant's cost and expense, in compliance with all
applicable laws, ordinances, rules and regulations then in effect and to
Landlord's satisfaction, at no cost or expense to Landlord. Additionally, Tenant
hereby agrees to indemnify and hold harmless Landlord and Landlord's partners,
officers, directors, members, affiliates, employees and agents from and against
all loss, cost, damage, liability and expense (including attorneys' fees and
expenses) arising from or relating to any Hazardous Materials (other than those
permitted above) which are placed in the Premises or the Building or on the Land
by Tenant or its servants, agents, employees, contractors, subcontractors,
licensees, assignees or subtenants.
34
() The terms and provisions in this Paragraph 47 shall survive the
termination or earlier expiration of this Lease.
. Landlord's Right of Relocation. [Intentionally deleted].
. Evidence of Authority.
If requested by Landlord, Tenant shall furnish appropriate legal
documentation evidencing the valid existence and good standing of Tenant and the
authority of any parties signing this Lease to act for Tenant. By signing this
Lease on Tenant's behalf, the signatory for Tenant hereby represents the truth
of such facts to Landlord.
. Survival of Obligations.
Notwithstanding any term or provision in this Lease to the contrary,
any liability or obligation of Landlord or Tenant arising during or accruing
with respect to the Lease Term shall survive the expiration or earlier
termination of this Lease, including, without limitation, obligations and
liabilities relating to (i) rent payments, (ii) the condition of the Premises
and the removal of Tenant's property, and (ii) indemnity and hold harmless
provisions in this Lease.
. Confidentiality.
Tenant agrees, on behalf of Tenant and Tenant's employees, agents,
contractors, consultants, partners, affiliates, assignees and subtenants, not to
disclose the terms of this Lease or the results of any audit of Landlord's books
and records under this Lease to any third party except (i) legal counsel to
Tenant, (ii) any assignee of Tenant's interest in this Lease or any subtenant of
Tenant relative to the Premises (or any portion thereof), (iii) as required by
applicable law or by subpoena or other similar legal process, or (iv) for
financial reporting purposes.
. Contractual Landlord's Lien. [Intentionally deleted].
. Rent a Separate Covenant. Tenant shall not for any reason withhold or
reduce Tenant's required payments of Basic Rent and other charges provided in
this Lease, it being expressly understood and agreed contractually by the
parties that the payment of Basic Rent, Additional Rent, and other charges
provided under this Lease is a contractual covenant by Tenant that is
independent of the other covenants of the parties under this Lease.
. Radon.
As required by Florida Statutes, 404.056(6) 1995, Landlord notifies
Tenant as follows:
"RADON GAS: Radon is a naturally occurring radioactive gas, that when
it has accumulated in a building in sufficient quantities, it 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."
35
. Miscellaneous Provisions.
The entire agreement, intent and understanding between Landlord and
Tenant is contained in the provisions of this Lease and the exhibits attached
hereto and any stipulations, representations, promises or agreements, written or
oral, made prior to or contemporaneously with this Lease shall have no legal or
equitable effect or consequence unless reduced to writing herein or in the
exhibits attached hereto. This Lease may not be modified except by a written
instrument by the parties hereto. The terms "Landlord" and "Tenant" and all
pronouns relating thereto shall be deemed to mean and include corporations,
partnerships and individuals as may fit the context, and the masculine gender
shall be deemed to include the feminine and the neuter, and the singular number,
the plural.
. Special Stipulations.
The special stipulations, if any, set forth on Exhibit F attached to
this Lease are incorporated herein by reference. If there is no Exhibit F
attached to this Lease, there are no such special stipulations. Such special
stipulations shall control if in conflict with any of the foregoing provisions
of this Lease.
. WAIVER OF JURY TRIAL.
THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES AND/OR BUILDING AND/OR CLAIM OR INJURY OR
DAMAGE. IN THE EVENT LANDLORD COMMENCES ANY PROCEEDINGS TO ENFORCE THIS LEASE OR
THE LANDLORD/TENANT RELATIONSHIP BETWEEN THE PARTIES OR FOR NON-PAYMENT OF BASIC
RENT OF ANY NATURE WHATSOEVER, OR ADDITIONAL MONIES DUE LANDLORD FROM TENANT
UNDER THIS LEASE, TENANT WILL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE
OR DESCRIPTION IN ANY SUCH PROCEEDINGS. IN THE EVENT TENANT MUST, BECAUSE OF
APPLICABLE COURT RULES, INTERPOSE ANY COUNTERCLAIM OR OTHER CLAIM AGAINST SUCH
PROCEEDING THE LANDLORD AND TENANT COVENANT AND AGREE THAT, IN ADDITION TO ANY
OTHER LAWFUL REMEDY OF LANDLORD UPON MOTION OF LANDLORD, SUCH COUNTERCLAIM OR
OTHER CLAIM ASSERTED BY TENANT SHALL BE SEVERED OUT OF THE PROCEEDINGS
INSTITUTED BY LANDLORD AND, IF NECESSARY, TRANSFERRED TO A COURT OF DIFFERENT
JURISDICTION, AND THE PROCEEDINGS INSTITUTED BY LANDLORD MAY PROCEED TO FINAL
JUDGMENT SEPARATELY AND APART FROM AND WITHOUT CONSOLIDATION WITH OR REFERENCE
TO THE STATUS OF EACH COUNTERCLAIM OR ANY CLAIM ASSERTED BY TENANT.
36
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
Signed, sealed and delivered LANDLORD
in the presence of:
CRESCENT RESOURCES, INC.,
a South Carolina corporation
------------------------------ By:
Print Name: --------------------------
Name:
------------------------------ ------------------------
Title: President
------------------------------ --------------------------
Print Name:
------------------- [CORPORATE SEAL]
TENANT:
OUTBACK STEAKHOUSE, INC.,
a Florida corporation
------------------------------ By:
Print Name: --------------------------
Name:
------------------------------ ------------------------
Title: President
------------------------------ --------------------------
Print Name:
------------------- [CORPORATE SEAL]
37
EXHIBIT A
Description of Land
All that certain tract or parcel of land lying and being in the City of
Tampa, Hillsborough County, Florida, and being more particularly described as
follows:
38
EXHIBIT B
Designation of Premises
See attached Exhibit B-1 and Exhibit B-2.
39
EXHIBIT C
Construction of Improvements
. Building Shell Improvements. Landlord, at Landlord's sole cost, shall
complete or has completed the following as part of the Building Shell
Improvements:
- 2' x 2' ceiling grid installed at 9' above the
finished floor
- 2' x 2' tegular acoustical ceiling tile installed
- columns wrapped with drywall
- high efficiency 2' x 4, 3 lamp fixtures with 18-cell
parabolic lenses and lights at a ratio of one fixture per 75
square feet of Premises Net Usable Area installed
- low pressure and medium pressure duct work
- interior VAV boxes installed with thermostats at the
rate of approximately one (1) per 1,115 usable square feet
- perimeter VAV boxes installed to perimeter slot
diffusers at the rate of approximately one (1) per 1,115
usable square feet
- Building standard fire sprinkler system (in
accordance with applicable code requirements), with heads
turned up
- demising walls: Landlord shall pay for the cost of
the demising walls
- blinds for exterior windows
- base building electrical sufficient to accommodate at least 6
xxxxx per foot below ceiling, excluding lighting and HVAC
and electrical
. Construction Supervision. Landlord shall co-ordinate the design and
construction of the Tenant Improvements for Tenant as outlined below in
sections 3 through 8 of this Exhibit C. Landlord shall not receive a
fee for this construction administration/management service.
. Architect. Hellmuth Obata & Kassabaum, Inc. is hereby approved by
Tenant and Landlord as the architect for the Tenant Improvements and
shall hereinafter be referred to as "Tenant Architect". Landlord shall
enter into a contract with the Tenant Architect to prepare the Tenant
Improvements Plans and Specifications. Landlord shall have the right to
use any mechanical, electrical and plumbing architects/engineers
required to complete the Tenant Improvement Plans and Specifications.
. Preliminary Plans. Tenant shall work with Tenant Architect to prepare a
set of design development plans (the "Preliminary Plans") acceptable to
Tenant for the interior build out of the Premises by November 1, 1998.
Tenant shall submit a signed set of the Preliminary Plans to Landlord
for review and approval which shall not be unreasonably withheld or
denied. Landlord shall have five (5) business days from receipt of the
Preliminary Plans to review and request any changes. In the event that
Landlord fails to respond within such five (5) business day period,
Tenant shall notify Landlord, in writing, that Landlord has failed to
reply. In the event that Landlord fails to respond to this second
notice within five (5) business days from receipt of the second notice,
Landlord shall be deemed to have approved the Preliminary Plans. If
changes are requested during the review period, Tenant shall have
fifteen (15) days to work with Landlord and Tenant Architect to modify
the Preliminary Plans so they are acceptable to both Landlord and
40
Tenant. If Tenant does not approve the Preliminary Plans within this
fifteen (15) day period, it shall be considered a Tenant Delay Factor
for each day thereafter that the Preliminary Plans have not been
approved.
. Preliminary Budget. Once the Preliminary Plans have been approved by
both Tenant and Landlord, Landlord shall co-ordinate having a
construction budget prepared with a detailed line item breakdown of all
costs and contractor fees. Such budget shall hereinafter be referred to
as "Preliminary Budget". Landlord shall have the Preliminary Budget
completed for review by Tenant within fifteen (15) days after the
Preliminary Plans have been approved. Tenant shall have fifteen (15)
days upon receipt of the Preliminary Budget to review and approve the
Preliminary Budget. If Tenant does not respond within the fifteen (15)
day review period, the Preliminary Budget shall be considered approved
by Tenant. If Tenant does not approve the budget, in writing, Landlord
and Tenant shall have thirty (30) days from the date that Tenant
informs Landlord of its disapproval to work with Landlord and Tenant
Architect to approve the Preliminary Plans accordingly. If Tenant does
not approve the Preliminary Budget within this thirty (30) day period,
it shall be considered a Tenant Delay Factor for each day thereafter
that the Preliminary Budget is not approved.
. Tenant Improvement Plans and Specifications. Immediately after the
Preliminary Plans and Preliminary Budget have been approved by both
Tenant and Landlord, Landlord shall direct the Tenant Architect to
prepare Tenant Improvements Plans and Specifications. Landlord shall
have forty-five (45) days to complete the Tenant Improvement Plans and
Specifications complete with finishes and mechanical, electrical and
plumbing engineered drawings.
. Construction Bid. Landlord shall deliver the completed Tenant
Improvement Plans and Specifications to three (3) general contractors
to obtain bids from each contractor for the construction of the Tenant
Improvements in accordance with the Tenant Improvements Plans and
Specifications and shall obtain such bids on or before thirty (30) days
from the approval of the Tenant Improvements Plans and Specifications.
After receipt of such bids, Landlord shall select the contractor that
Landlord reasonably believes to be the best for the job, taking into
consideration prior experience, price and financial stability. Landlord
shall not be obligated to accept the lowest bid. The selected
contractor shall hereinafter be referred to as the "Contractor" and the
bid submitted by the Contractor shall hereinafter be referred to as the
"Final Construction Budget". If the Final Construction Budget is not
more than five percent (5%) over the Preliminary Budget, the Final
Construction Budget and the Tenant Improvement Plans and Specifications
shall be considered approved and Landlord shall be released to submit
the Tenant Improvement Plans and Specifications to the Contractor for
the construction of the Tenant Improvements. If the Final Construction
Budget is six percent (6%) or more than the Preliminary Budget, then
Tenant shall have ten (10) days from receipt of such to review the
Final Construction Budget to approve or disapprove. If Tenant does not
respond within the ten (10) day review period, the Final Construction
Budget and Tenant Improvement Plans and Specifications shall be
considered approved. If Tenant disapproves the Final Construction
Budget, then Tenant shall have thirty (30 ) days to work with
Contractor, Tenant Architect and Landlord to modify the Tenant
Improvement Plans and Specifications and Final Construction Budget so
they are acceptable to Tenant and Landlord. If Tenant does not approve
the Final Construction Budget and the Tenant Improvements Plans and
Specifications within this
41
thirty (30) day period, it shall be considered a Tenant Delay Factor
for each day thereafter that they are not approved.
. Change Order. After the approval of the Final Construction Budget and
the Tenant Improvement Plans and Specifications, any changes to the
Tenant Improvement Plans and Specifications shall be deemed a Change
Order. In the event Tenant desires a Change Order, Tenant shall deliver
written notice to Landlord. Upon receipt of such written notice,
Landlord shall, within four (4) business days, notify Tenant's Contact
Person as to the cost of such Change Order and whether such Change
Order will cause a Tenant Delay Factor. Upon notice to Tenant's Contact
Person, Tenant shall have five (5) days to advise Landlord of either
going forward with the Change Order or withdrawing the request for the
Change Order. In the event that Tenant fails to respond within such
five (5) day period, Tenant shall be deemed to have withdrawn such
Change Order request.
42
EXHIBIT D
Cleaning and Janitorial Services
LANDLORD SHALL FURNISH CLEANING AND JANITORIAL SERVICES TO THE PREMISES AS
DESCRIBED BELOW:
DAILY (Monday - Friday):
- Sweep, dry mop or vacuum, as appropriate, all floor
areas; remove material such as gum and tar which has adhered
to the floor.
- Empty and damp wipe all ash trays, waste baskets and
containers, remove all trash from the leased premises.
- Dust all cleared horizontal surfaces with treated dust cloth,
including furniture, files, telephones, equipment that can be
reached without a ladder.
- Spot wash to remove smudges, marks and fingerprints from such
areas that can be reached without a ladder.
- Clean water fountains, cafeteria tables and chairs.
Damp mop all non-resilient floors such as terrazzo and ceramic
tile.
- Clean freight and passenger elevator cabs and landing doors.
- Clean mirrors, soap dispensers, shelves, wash basins,
exposed plumbing, dispenser and disposal container exteriors,
damp wipe all ledges, toilet stalls and toilet doors.
- Clean toilets and urinals with detergent disinfectants.
- Furnish and refill all soap, toilet, sanitary napkin
and towel dispensers.
- Spot clean carpet stains.
- Wash glass in Building directory, entrance doors and
frames. Remove all litter from the parking lot and grounds.
WEEKLY:
- Dust vertical blinds and louvers.
- Spot wash interior partition glass and door glass to
remove smudge marks.
- Sweep all stairs areas.
- Dust all baseboards.
43
- Vacuum or brush all fabric covered chairs.
MONTHLY:
- Scrub and recondition resilient floor areas.
- Wash all stairwell landings and treads.
- Wash all interior glass both sides.
QUARTERLY:
- High dust all horizontal and vertical surfaces not reached by
nightly cleaning.
- Vacuum all ceiling and wall air supply and exhaust diffusers
and grills.
- Wash and polish vertical terrazzo and marble surfaces.
- Spot clean carpeted areas.
SEMI-ANNUALLY:
- Vacuum drapes, cornices and wall hangings.
- Dust all storage areas and shelves and contents.
- Damp wash diffusers, grills, and other such items.
ANNUALLY:
- Strip and refinish all resilient floors.
- Wash all building exterior glass both sides.
- Clean light fixtures, reflectors, globes, diffusers and trim.
- Wash walls in corridors, lounges, classrooms, demonstration
areas, cafeterias, break rooms, washrooms.
- Clean all vertical surfaces not attended to during nightly,
weekly, quarterly or semi-annually cleaning.
Landlord will provide a day xxxxxx for use throughout the Building on
business days, Monday through Friday.
44
EXHIBIT E
Rules and Regulations
. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed nor shall refuse, furniture, boxes or other items be
placed therein by any tenant or its officers, agents, servants, and employees,
or be used for any purpose other than ingress and egress to and from premises in
the Building, or for going from one part of the Building to another part of the
Building. Canvassing, soliciting and peddling in the Building are prohibited.
. Plumbing, fixtures and appliances shall be used only for the purposes
for which constructed, and no unsuitable material shall be placed therein.
. No signs, directories, posters, advertisements, or notices shall be
painted or affixed on or to any of the windows or doors, or in corridors or
other parts of the Building, except in such color, size, and style, and in such
places, as shall be first approved in writing by Landlord in its discretion.
However, the prohibition in the immediately preceding sentence shall not limit
or restrict any tenant's right to maintain within the premises occupied by such
tenant any signs, directories, posters, advertisements, or notices so long as
such items are not visible from the exterior of the premises occupied by such
tenant or from the Common Areas of the Building. Landlord shall have the right
to remove all unapproved signs without notice to any tenant, at the expense of
the responsible tenant.
. No tenant shall do, or permit anything to be done, in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
. Landlord shall have the power to prescribe the weight and position of
heavy equipment or objects which may overstress any portion of the floor. All
damage done to the Building by the improper placing of such heavy items will be
repaired at the sole expense of the responsible tenant.
. Each tenant shall notify the Building manager when safes or other
heavy equipment are to be taken in or out of the Building, and the moving shall
be done after written permission is obtained from Landlord on such conditions as
Landlord shall require.
. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Landlord's written
approval must be obtained for any delivery after normal working hours.
. Each tenant shall cooperate with Landlord's employees in keeping such
tenant's premises neat and clean.
45
. Each tenant shall not cause or permit any improper noises in the
Building, allow any unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any way other tenants or persons having business
with them. However, Landlord acknowledges that, if permitted by the applicable
lease, a tenant may operate a food services facility within the premises of such
tenant for the sole use and benefit of the occupants of such premises and that
such food services facility may emit odors normally associated with the
operation of such on-site food services facilities.
. No animals shall be brought into or kept in or about the Building.
. When conditions are such that a tenant must dispose of crates, boxes,
etc. on the sidewalk, it will be the responsibility of such tenant to dispose of
same prior to 7:30 a.m. or after 5:30 p.m.
. No machinery of any kind, other than ordinary office machines such as
typewriters, information processing systems, copy machines, communications
equipment and calculators, shall be operated in any premises in the Building
without the prior written consent of Landlord, nor shall any tenant use or keep
in the Building any inflammable or explosive fluid or substance (including
Christmas trees and ornaments), or any illuminating materials. No space heaters
or fans shall be operated in the Building.
. No motorcycles or similar vehicles will be allowed in the Building.
. No nails, hooks, or screws shall be driven into or inserted in any
part of the Building, except as approved by Building maintenance personnel.
Notwithstanding the foregoing, a tenant may decorate the interior of such
tenant's premises at such tenant's sole discretion provided such decorations do
not impact the structural integrity of the Building and cannot be seen from the
exterior of the Building or from any Common Areas of the Building.
. Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe.
. No food and/or beverages shall be distributed from any tenant's
office without the prior written approval of the Building manager. But a tenant
may prepare coffee and similar beverages and warm typical luncheon items for the
consumption of such tenant's employees and invitees. Furthermore, Landlord
acknowledges that, if permitted by the applicable lease, a tenant may operate a
food services facility within the premises of such tenant for the sole use and
benefit of the occupants of such premises.
. No additional locks shall be placed upon any doors without the prior
written consent of Landlord. All necessary keys or access cards or codes shall
be furnished by Landlord, and the same shall be surrendered upon termination of
the applicable lease, and each tenant shall then give Landlord or Landlord's
agent an explanation of the combination of all locks on the doors or vaults.
Replacement keys or access cards or codes (i.e., replacements for keys or access
cards or codes previously issued by Landlord) shall be obtained only from
Landlord, and Tenant shall pay to Landlord (as Additional Rent, within thirty
(30) days after Tenant receives an invoice therefor) the actual costs incurred
by Landlord in obtaining and issuing replacement keys or access cards or codes
for keys or access cards or codes previously issued.
46
. Tenants will not locate furnishings or cabinets adjacent to
mechanical or electrical access panels or over air conditioning outlets so as to
prevent operating personnel from servicing such units as routine or emergency
access may require. Cost of moving such furnishings for Landlord's access will
be for the responsible tenant's account. The lighting and air conditioning
equipment of the Building will remain the exclusive charge of the Building
designated personnel.
. Each tenant shall comply with reasonable parking rules and
regulations as may be posted and distributed by Landlord from time to time.
. No portion of the Building shall be used for the purpose of lodging
rooms.
. Prior written approval, which shall be at Landlord's sole discretion,
must be obtained for installation of window shades, blinds, drapes, or any other
window treatment of any kind whatsoever. Landlord will control all internal
lighting that may be visible from the exterior of the Building and shall have
the right to change any unapproved lighting, without notice to the responsible
tenant, at the responsible tenant's expense.
. No tenant shall make any changes or alterations to any portion of the
Building without Landlord's prior written approval, which may be given on such
conditions as Landlord may elect. All such work shall be done by Landlord or by
licensed contractors and/or workmen.
. Tenant shall not employ any service or contractor for services or
work to be performed in the Building except as approved by Landlord.
. No tenant, employee or invitee shall go upon the roof of the
Building, without prior approval and consent by Landlord.
. Landlord reserves the right to waive any one of these rules or
regulations. With respect to any particular tenant and any such waiver shall not
constitute a waiver of any other rule or regulation or any subsequent
application thereof to the same or any other tenant. Notwithstanding the
foregoing, Landlord shall not selectively enforce the rules or act in a
discriminatory manner.
. Tenant assumes all risks from theft or vandalism and agrees to keep
its Premises locked.
. Landlord reserves the right to amend these rules and regulations or
make such additional reasonable rules and regulations it may from time to time
deem necessary for the appropriate operation and safety of the Building and
their occupants. Tenant agrees to abide by such additional or amended rules and
regulations.
. The following are established as reasonable and usual business for
access to the Building: 7:00 a.m. through 7:00 p.m. Monday through Friday,
except for January 1 (New Year's Day), the last Monday in May (Memorial Day),
July 4 (Independence Day), the first Monday in September (Labor Day), the last
Thursday in November (Thanksgiving) and December 25 (Christmas), or as may be
modified by Landlord pursuant to any law. Access to the building at any time
other than 7:00 a.m. through 7:00 p.m.; Monday through Friday (and on holidays
as described above) shall be through utilization of the building card reader
access system.
47
EXHIBIT F
Special Stipulations
. Right of First Refusal. Landlord and Tenant agree that, provided
Tenant in is possession of the Premises and is not in default of any of the
terms, covenants and conditions of this Lease, Tenant shall have an on-going
right of first refusal to lease from Landlord the last remaining 25,000 square
feet of space on a Contiguous Multi-Tenant Floor that has not been initially
leased by Landlord (the "Additional Premises") on the same terms and conditions
that Landlord shall have received and deemed acceptable in a bonafide offer from
a third party, except that the term shall be co-terminous with the Lease Term
(but in no event less than five (5) years) and the tenant improvement allowance
provided for in such offer shall be prorated based upon the term for the
Additional Premises. Upon the initial leasing of all space on the Contiguous
Multi-Tenant Floor, Tenant shall no longer have a right of first refusal as
provided for in this Paragraph 1.
Tenant shall exercise its right of first refusal by written notice to
Landlord within seven (7) business days following receipt of written notice from
Landlord containing the terms of the third party's offer, acceptable to the
Landlord, for the Additional Premises. In the event that Tenant exercises the
right granted herein, Landlord and Tenant shall enter into an amendment to this
Lease to incorporate the Additional Premises and to make the necessary
adjustments to the Basic Rent and similar provisions to this Lease. In the event
Tenant declines to exercise its rights as provided for, or fails to deliver or
fails to deliver notice thereof within the time period stipulated above, or
fails to execute the requisite amendment of this Lease; this right of first
refusal shall lapse and be of no further force and effect as to the instant
offer. In the event that the lease for which Tenant declined to exercise its
right of first refusal is not executed within six (6) months from the date of
written notice, Landlord agrees to again offer such lease to Tenant on the same
terms and conditions that have been agreed to by such tenant. This right of
first refusal shall not be severed from this Lease or separately sold, assigned,
or transferred.
. Renewal Option. Provided Tenant is in possession of the Premises and
is not in default of any term, covenant or condition of this Lease, Tenant shall
have the option to renew the term of this Lease for two (2) additional periods
of five (5) years each (the "Renewal Term(s)") to commence immediately upon the
expiration of the initial Lease Term or the expiration of the first Renewal
Term, as applicable, upon the same terms, covenants and conditions as contained
in this Lease except that (i) the Base Rental for the first five (5) year
Renewal Term shall be equal to one hundred and four percent (104%) of the Base
Rental due immediately prior to the first year of the first five (5) year
Renewal Term and Base Rental shall increase by four percent (4%) thereafter for
each year of the first five (5) year Renewal Term and the Base Rental during the
second five (5) year Renewal Term shall be the greater of (a) the Base Rental
received under this Lease for the rental year immediately preceding the second
five (5) year Renewal Term or (b) the "Prevailing Market Rate"; (ii) there shall
be no abatement of rent;(iii) Landlord shall not be obligated to construct, pay
for, or grant an allowance with respect to improvements to the premises unless
otherwise specifically provided for in this Lease, and (iv) there shall be no
further option to renew the Lease Term, except as specifically provided herein.
The Prevailing Market Rate shall mean the then current market renewal rental
activity for Class A office space in Westshore area of Tampa, Florida.
In order to exercise the options granted herein, Tenant shall notify
Landlord in writing, not less than twelve (12) months prior to the expiration of
the initial Lease Term or the first Renewal Term, if applicable, that it is
exercising its option to renew the Lease Term. On receipt of such notice for the
second five (5) year Renewal Term, Landlord will in writing, not less than
thirty (30) days after receipt of a notice from Tenant, notify Tenant what the
base rental will be for such Renewal Term. Tenant shall within fifteen (15) days
of Landlord of the notice of the Base Rental for such Renewal Term notify
Landlord if Tenant accepts or disputes such Base Rental. If Tenant notifies
Landlord within the aforesaid fifteen (15) day period that Tenant disputes the
Base Rental quoted by Landlord, the parties shall during the following thirty
(30)
48
days negotiate in good faith to determine the Base Rental for such Renewal Term.
If within said thirty (30) day period the parties are unable to agree on the
Base Rental, then within ten (10) days thereafter, each party shall select a
duly qualified licensed appraiser experienced in appraising commercial property
in the vicinity of the Building who will submit appraisals for the Premises
within thirty (30) days of their appointment. If the difference between the
appraisals is five percent (5%) or less, the Base Rental shall be determined by
the average of the two appraisals. If the difference is greater than five
percent (5%) then the two appraisers shall select a third qualified appraiser
who will submit an appraisal within thirty (30) days following the submission of
the first appraisal. The Base Rental shall then be the average of the two
closest appraisals. The fees of such appraiser shall be paid by the party
appointing the appraiser. The fees of the third appraiser, if any, shall be
shared equally by the parties. In the event the Tenant exercises the option,
Landlord and Tenant shall execute a modification of this Lease acknowledging
said renewal and setting forth the Base Rental.
Additionally, provided that Tenant is in possession of the Premises and
is not in default of any term, covenant or condition of this Lease, Tenant shall
have the option of extending the term of the Lease for six (6) months (the "6
Month Option") under the same terms and conditions of this Lease, except that
the Base Rental shall be equal to One Hundred Twenty-Five Percent (125%) of the
Base Rental immediately due and owing under the Lease at the expiration of the
Initial Lease term. In order to exercise the option granted herein, Tenant shall
notify Landlord in writing not less than twelve (12) months prior to expiration
of the Initial Lease Term that it is exercising the 6 Month Option. In the event
Tenant exercises the 6 Month Option and other options to renew the terms of the
Lease shall be deemed null and void.
The options granted in this Section 2 shall be void if at the time of
such option Tenant is not in possession of the Premises or is in default of this
Lease or Tenant fails to deliver the requisite notice thereof within the time
period specified. The options granted herein shall not be severed from the
Lease, separately sold, assigned or transferred.
3. Expansion Option. Subject to the provisions set forth hereinafter,
and subject to other tenant's superior rights, Tenant shall have the one time
option to lease from Landlord any unleased space on a Contiguous Multi-Tenant
Floor (the "Additional Expansion Premises"). In order to exercise this option to
lease the Additional Expansion Premises, Tenant must notify Landlord in writing
one hundred twenty (120) days prior to the date that such larger space is
required by Tenant. The notice from Tenant shall include the size of the
Additional Expansion Premises required by Tenant. If the Additional Expansion
Premises are available, Landlord shall notify Tenant within thirty (30) days
from Tenant's notice.
49
The foregoing right to lease the Additional Expansion Premises shall
not be severed from this Lease or separately sold, assign or transferred and
shall be subject to the following additional conditions, namely:
(a) the Lease Term for the Additional Expansion Premises shall run
currently with the Term of this Lease and shall be for a term
of not less than three (3) years;
(b) the Base Rental for the Additional Expansion Premises shall be
equal to the Base Rental provided for in the Lease provided,
however, there shall be no free rent and the Tenant
Improvement Allowance shall be prorated based upon the length
of the term for the Additional Expansion Premises compared to
the length of the Lease Term;
(c) if at the time Tenant exercises its option to lease the
Additional Expansion Premises, no event of default shall exist
under this Lease;
(d) that at the time Tenant exercises its option to lease the
Additional Expansion Premises, Tenant shall be in occupancy
and possession of the Premises;
(e) Landlord and Tenant shall enter into an amendment to this
Lease to incorporate the Additional Expansion Premises and
make corresponding modifications to the provisions of this
Lease regarding Base Rental and other required modifications;
and
(f) the Additional Expansion Premises are available and not
subject to any rights of other tenants.
4. Exclusive Provision. Landlord hereby agrees not to lease space in
the Building to a tenant with a permitted use as a full service, sit down
restaurant (not including any delis, sandwich shops, cafe, coffee shop) during
the Lease Term.
5. Interim Space Contribution. In the event that Tenant is forced to
move from any space that it is currently occupying, Landlord agrees to
contribute toward the actual out of pocket costs of Tenant in relocation to
additional space up to, but not in excess, of the sum of $25,000.00. Upon such
required relocation, Tenant shall provide documentation from Tenant's current
landlord that evidences that Tenant is required to vacate together with copies
of invoices documenting the expenses of Tenant in occupying additional space,
which such expense shall include rental associated with such additional space.
Upon receipt of such documentation acceptable to Landlord, the Landlord will
reimburse Tenant for its actual out of pocket expenses up to the sum of
$25,000.00 upon Tenant's occupancy of such additional premises.
50
EXHIBIT G
Commencement Date Stipulation
Pursuant to that certain Lease Agreement (the "Lease) between CRESCENT
RESOURCES, INC. (the "Landlord") and (the "Tenant") dated as of________________
199___, for certain premises in the____________________ Office Building located
at__________________________________________________, Landlord and Tenant hereby
stipulate and certify that:
. The Commencement Date under the Lease is expiration date of
the Lease Term is _______________, 199___, and the expiration
date of the Lease Term is ___________________, ______.
. Tenant's obligation to pay Rent under the Lease commenced on
the Commencement Date.
The terms and provisions of this Commencement Date Stipulation are
hereby incorporated into the Lease and modify any and all provisions to the
contrary contained therein.
Executed under seal as of the _____ day of _______________________,
199__.
TENANT:
a
-------------------------------
[CORPORATE SEAL]
ATTEST: By:
-----------------------------
Name:
------------------------------ ---------------------------
, Secretary Title: President
------------------- --------------------------
LANDLORD:
CRESCENT RESOURCES, INC., a South
Carolina corporation
[CORPORATE SEAL]
ATTEST: By:
-----------------------------
Name:
------------------------------ ---------------------------
, Secretary Title: President
------------------- --------------------------
