EXHIBIT 10.16
Lease
between
Blue Lake, Ltd.
and
HIWAY TECHNOLOGIES, INC.
Dated September 23, 1997
INDEX TO
BLUE LAKE CORPORATE CENTER
STANDARD LEASE
LEASE Page No.
--------
BASIC LEASE INFORMATION RIDER ....................................................................... I
1. PREMISES; BUILDING; AND COMMON AREAS............................................................ 1
2. LEASE TERM; LEASE DATE.......................................................................... 1
3. RENT............................................................................................ 1
4. SECURITY DEPOSIT; SECURITY INTEREST............................................................. 3
5. USE............................................................................................. 4
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK......................................................... 4
7. PARKING......................................................................................... 5
8. BUILDING SERVICES............................................................................... 5
10. REPAIRS, MAINTENANCE AND UTILITIES.............................................................. 7
11. TENANT'S ALTERATIONS............................................................................ 8
12. LANDLORD'S ADDITIONS AND ALTERATIONS............................................................ 8
13. ASSIGNMENT AND SUBLETTING....................................................................... 9
14. TENANT'S INSURANCE COVERAGE..................................................................... 10
15. LANDLORD'S INSURANCE COVERAGE................................................................... 10
16. WAIVER OF RIGHT OF RECOVERY..................................................................... 11
17. DAMAGE OR DESTRUCTION BY CASUALTY............................................................... 11
18. CONDEMNATION AND EMINENT DOMAIN................................................................. 11
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION............................................. 12
20. RELOCATION OF TENANT............................................................................ 12
21. COMPLIANCE WITH LAWS AND PROCEDURES............................................................. 12
22. RIGHT OF ENTRY.................................................................................. 13
23. DEFAULT......................................................................................... 13
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT........................................................ 14
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT................................................ 14
26. LIENS........................................................................................... 14
27. NOTICES......................................................................................... 14
28. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION .................................................. 14
29. ATTORNMENT AND MORTGAGEE'S REQUEST.............................................................. 15
30. TRANSFER BY LANDLORD............................................................................ 15
31. SURRENDER OF PREMISES; HOLDING OVER............................................................. 15
32. NO WAIVER; CUMULATIVE REMEDIES.................................................................. 16
33. WAIVER.......................................................................................... 16
34. CONSENTS AND APPROVALS.......................................................................... 16
35. RULES AND REGULATIONS........................................................................... 16
36. SUCCESSORS AND ASSIGNS.......................................................................... 16
37. QUIET ENJOYMENT................................................................................. 16
38. ENTIRE AGREEMENT................................................................................ 17
39. HAZARDOUS MATERIALS............................................................................. 17
40. BANKRUPTCY PROVISIONS........................................................................... 18
41. FIRE PREVENTION SYSTEMS......................................................................... 19
42. MISCELLANEOUS................................................................................... 19
43. DELIVERY OF GUARANTY............................................................................ 20
44. CONFIDENTIALITY................................................................................. 20
45. SIGNAGE/ENTRY WAY FEATURE....................................................................... 21
46. CARPOOLING, MASS TRANSIT AND TRAFFIC CONTROL.................................................... 21
47. UTILITY PROVIDERS............................................................................... 21
48. ASSOCIATION..................................................................................... 21
49. VENDING MACHINES................................................................................ 21
EXHIBIT(S)
Exhibit "A" Floor Plan
Exhibit "B" Work Letter
Exhibit "C" Rules and Regulations
Basic Lease Information Rider
Blue Lake Corporate Center
Standard Lease
PREAMBLE Date of Lease: September 23, 1997
PREAMBLE Landlord: BLUE LAKE, LTD., a Florida limited partnership.
PREAMBLE Tenant: HIWAY TECHNOLOGIES, INC., a Florida corporation. Landlord
acknowledges that Rapidsite, Inc., a Florida corporation, which is a
wholly owned subsidiary of the Tenant, will occupy the Premises with
Tenant.
SECTION 1 Premises: _____________________________________, being a portion of
Northeast Quadrant of Building 12, as shown on EXHIBIT "A", of Blue
Lake Corporate Center, 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000.
SECTION 1 Net Rentable Area of Premises: approximately 44,000 usable square
feet, multiplied by an add-on factor of fifteen (15%) percent, which
equates, prior to possible subsequent enlargement of the usable
square footage as hereinafter provided, to approximately 50,600
rentable square feet. The Net Rentable Area set forth above is
stipulated and agreed by the parties; provided, however, that within
ten (10) days after substantial completion of the Improvements to
the Premises, either Landlord or Tenant shall be entitled to have
the Premises measured in accordance with BOMA Standards (ANSI Z65.1-
1996). Following such measurement, if it is determined that in fact
the Premises contain other than the Net Rentable Area set forth
above, Base Rent, Tenant's Share, and any other provision which is
based on the amount of square footage leased by Tenant shall be
ratably modified. The Net Rentable Area of the Premises leased by
the Tenant shall be hereinafter enlarged, as applicable, to include
the square footage of restrooms, electrical and mechanical rooms and
space on which the Tenant places generators and fuel tanks or to
which Tenant has been granted exclusive use, all as further
identified and reflected on Exhibit "A" attached hereto which is
subject to further modification in the event additional square
footage is allocated to Tenant. In the event that additional square
footage is allocated to Tenant, such square footage shall be
multiplied by the add-on factor of 15% in each instance. The parties
hereto agree to execute an Addendum reflecting any increase in the
usable square footage of the Premises for Tenant's utilization of
restrooms, mechanical rooms, electrical rooms and generator space.
SECTION 2 Commencement Date: The Commencement Date of this Lease shall be the
date of execution date of this Lease. Upon execution of this Lease
and all addenda thereto, and the delivery of appropriate lien
waivers and insurance certificates by Landlord and Tenant, Tenant
shall be provided access to the Premises by Landlord in order to
prepare the Premises for their use as provided hereunder. However,
the Tenant's obligation to make rent payments shall initiate on
February 1, 1998 which is, from time-to-time hereinafter referred to
as the "Rent Commencement Date." The delivery of the Premises to the
Tenant prior to February 1, 1998 shall not, however, constitute a
change of the Rent Commencement Date of February 1, 1998. In
addition, Landlord will be provided such access as needed for
purposes of erecting demising walls and installation of separate
meters.
SECTION 2 Expiration Date: Seven (7) years following the Rent Commencement
Date of February 1, 1998; being January 31, 2005.
SECTION 2 Lease Term: Seven (7) years
SECTION 3 Base Rent in the First Lease Year shall be Seven and No/100ths
Dollars ($7.00) per square foot of Rentable Area or Three Hundred
Fifty Four Thousand Two Hundred and 00/100 Dollars ($354,200.00) per
annum (based upon the stipulated approximate Rentable Area set forth
above, subject; however, to adjustment in the instance of a change
in the Rentable Square Footage as provided in Section 1 above) per
year, payable monthly, in advance, without deduction or offset, on
the first day of each calendar month together with applicable sales
tax and applicable local taxes, in equal installments of Twenty Nine
Thousand Five Hundred Sixteen and 66/100ths Dollars ($29,516.66)
(subject, however, to adjustment in the instance of a change in the
Rentable Square Footage as provided in Section 1 above) each
together with applicable sales tax and applicable local taxes,
beginning on the Commencement Date, EXCEPT THAT SO LONG AS TENANT
FULLY COMPLIES WITH ALL TERMS OF THIS LEASE FOR THE ENTIRE TERM
THEREOF, LANDLORD WILL DEFER AND THEN WAIVE BASE RENT FOR THE PERIOD
OF TWELVE (12) MONTHS FROM THE COMMENCEMENT DATE ("RENT DEFERRAL").
Notwithstanding the foregoing, the first payment of Base Rent due
hereunder shall be paid by Tenant on the earliest date on which this
Lease has been signed by Landlord and Tenant. Each year commencing
on the Commencement Date (or commencing on the first day of the
first month following the Commencement Date if the Commencement Date
is other than the first day of the month, in which event the First
Lease Year shall include the period between the Commencement Date
and the first month thereafter) or anniversary thereof is hereafter
referred to as a "Lease Year."
Base Year Overhead Rent shall be Four and 50/100ths Dollars ($4.50)
per square foot of Rentable Area or Two Hundred Twenty Seven
Thousand Seven Hundred and 00/100ths Dollars ($227,700.00) per annum
(based upon the stipulated approximate Rentable Area set forth
above, subject, however, to adjustment in the instance of a change
in the rentable square footage as provided in Section 1 above) per
year, payable monthly, in advance, without deduction or offset, on
the first day of each calendar month together with applicable sales
tax and applicable local taxes, in equal installments of Eighteen
Thousand Nine Hundred Seventy Five and
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BLUE LAKE STANDARD LEASE
No/100ths Dollars ($18,975.00), subject, however, to adjustment in
the instance of a change in the Rentable Square Footage as provided
in Section 1 above, each together with applicable sales tax and
applicable local taxes, beginning on the Commencement Date.
Increases in "Controllable" Operating Expenses are subject to year-
to-year maximum increases as more specifically provided in Paragraph
3B of this Lease. However, notwithstanding the foregoing, provided
that so long as Tenant fully complies with all terms of this Lease
for the entire Term thereof, Landlord will defer and then waive Base
Overhead Rent in months one (1) through twenty-four (24), inclusive,
as to 10,350 Rentable Square Feet and Base Overhead Rent shall, in
months one (1) through twenty-four (24), be paid only on 40,250,
subject, however, to adjustment in the instance of a change in the
Rentable Square Footage as provided in Section 1 above, Rentable
Square Feet or One Hundred Eighty One Thousand One Hundred Twenty
Five and 00/100ths Dollars ($181,125.00) per annum, subject,
however, to adjustment in the instance of a change in the Rentable
Square Footage as provided in Section 1 above, payable monthly, in
advance without deduction or offset, on the first day of each
calendar month together with applicable sales tax and applicable
local taxes, in equal installments of Fifteen Thousand Ninety Three
and 75/100ths Dollars ($15,093.75), subject, however, to adjustment
in the instance of a change in the Rentable Square Footage as
provided in Section 1 above, each together with applicable sales tax
and applicable local taxes, beginning on the first day of the First
Lease Year.
Base Year Rent in the Second Lease Year shall be Seven and No/100ths
Dollars ($7.00) per square foot of Rentable Area or Three Hundred
Fifty Four Thousand Two Hundred and 00/100 Dollars ($354,200.00) per
annum (based upon the approximated Rentable Area set forth above,
subject, however, to adjustment in the instance of a change in the
Rentable Square Footage as provided in Section 1 above ) per year,
payable monthly, in advance, without deduction or offset, on the
first day of each calendar month together with applicable sales tax
and applicable local taxes, in equal installments of Twenty Nine
Thousand Five Hundred Sixteen and 66/100ths Dollars ($29,516.66),
subject, however, to adjustment in the instance of a change in the
Rentable Square Footage as provided in Section 1 above, each
together with applicable sales tax and applicable local taxes,
beginning on the first day of the Second Lease Year. However,
notwithstanding the foregoing, provided that so long as Tenant fully
complies with all terms of this Lease for the entire Term hereof,
Landlord will defer and then waive Base Rent during the Second Lease
Year as to 15,600 Rentable Square Feet, and Base Rent shall be
applied against only 35,000 Rentable Square Feet, subject, however,
to adjustment in the instance of a change in the Rentable Square
Footage as provided in Section 1 above, so as to provide that in the
Second Lease Year, based upon the foregoing accommodation, the
annual Base Rent during the Second Lease Year shall be the sum of
Two Hundred Forty Five Thousand and No/100ths Dollars ($245,000.00)
per year payable monthly in advance, without deduction or offset,
subject, however, to adjustment in the instance of a change in the
Rentable Square Footage as provided in Section 1 above, on the first
day of each calendar month together with applicable sales tax and
applicable local taxes, in equal installments of Twenty Thousand
Four Hundred Sixteen and 66/100ths Dollars ($20,416.66), subject,
however, to adjustment in the instance of a change in the Rentable
Square Footage as provided in Section 1 above, each together with
applicable sales tax and applicable local taxes, beginning on the
Second Lease Year.
Base Rent in the Third Lease Year shall be Seven and 35/100ths
Dollars ($7.35) per square foot of Rentable Area or Three Hundred
Seventy One Thousand Nine Hundred Ten and 00/100ths Dollars
($371,910.00) per annum (based upon the stipulated approximate
Rentable Area set forth above, subject, however, to adjustment in
the instance of a change in the Rentable Square Footage as provided
in Section 1 above) per year, payable monthly, in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Thirty Thousand Nine Hundred Ninety Two and
50/100 Dollars ($30,992.50), subject, however, to adjustment in the
instance of a change in the Rentable Square Footage as provided in
Section 1 above, each together with applicable sales tax and
applicable local taxes, beginning on the Third Lease Year.
Base Rent in the Fourth Lease Year shall be Seven and 72/100ths
Dollars ($7.72) per square foot of Rentable Area or Three Hundred
Ninety Thousand Six Hundred Thirty Two and 50/100ths Dollars
($390,632.50) per annum (based upon the stipulated approximate
Rentable Area set forth above, subject, however, to adjustment in
the instance of a change in the Rentable Square Footage as provided
in Section 1 above) per year, payable monthly, in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Thirty Two Thousand Five Hundred Fifty Two and
67/100 Dollars ($32,552.67), subject, however, to adjustment in the
instance of a change in the Rentable Square Footage as provided in
Section 1 above, each together with applicable sales tax and
applicable local taxes, beginning on the first day of the Fourth
Lease Year.
Base Rent in the Fifth Lease Year shall be Eight and 11/100ths
Dollars ($8.11) per square foot of Rentable Area or Four Hundred Ten
Thousand Three Hundred Sixty Six and 06/100ths Dollars ($410,366.00)
per annum (based upon the stipulated approximate Rentable Area set
forth above, subject, however, to adjustment in the instance of a
change in the Rentable Square Footage as provided in Section 1
above) per year, payable monthly, in advance, without deduction or
offset, on the first day of each calendar month together with
applicable sales tax and applicable local taxes, in equal
installments of Thirty Four Thousand One Hundred Ninety Seven and
17/100ths Dollars ($34,197.17), subject, however, to adjustment in
the instance of a change in the Rentable Square Footage as provided
in Section 1 above, each together with applicable sales tax and
applicable local taxes, beginning on the first day of the Fifth
Lease Year.
Base Rent in the Sixth Lease Year shall be Eight and 52/100ths
Dollars ($8.52) per square foot of Rentable Area or Four Hundred
Thirty Thousand One Hundred Twelve and 00/100ths Dollars
($431,112.00) per annum (based upon the stipulated approximate
Rentable Area set forth above, subject, however, to adjustment in
the instance of a change in the rentable square footage as provided
in Section 1 above) per year, payable monthly,
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BLUE LAKE STANDARD LEASE
in advance, without deduction or offset, on the first day of each
calendar month together with applicable sales tax and applicable
local taxes, in equal installments of Thirty Five Thousand Nine
Hundred Twenty Six and 00/100ths Dollars ($35,926.00), subject,
however, to adjustment in the instance of a change in the Rentable
Square Footage as provided in Section 1 above, each together with
applicable sales tax and applicable local taxes, beginning on the
first day of the Sixth Lease Year.
Base Rent in the Seventh Lease Year shall be Eight and 95/100ths
Dollars ($8.95) per square foot of Rentable Area or Four Hundred
Fifty Two Thousand Eight Hundred Seventy and 00/100ths Dollars
($452,870.00) per annum (based upon the stipulated approximate
Rentable Area set forth above, subject, however, to adjustment in
the instance of a change in the rentable square footage as provided
in Section 1 above) per year, payable monthly, in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Thirty Seven Thousand Seven Hundred Thirty
Nine and 17/100ths Dollars ($37,739.17), subject, however, to
adjustment in the instance of a change in the Rentable Square
Footage as provided in Section 1 above, each together with
applicable sales tax and applicable local taxes, beginning on the
first day of the Seventh Lease Year.
SECTION 3 Tenant's Share: 2.8375%. Landlord and Tenant acknowledge that
Tenant's Share has been obtained by taking the Net Rentable Area of
the Premises and dividing such number by 1,783,240 square feet, and
multiplying such quotient by 100. In the event Tenant's Share is
changed during a calendar year by reason of a change in the Net
Rentable Area of the Premises, Tenant's Share shall thereafter mean
the result obtained by dividing the new Net Rentable Area of the
Premises by 1,783,240 and multiplying such quotient by 100.
Section 4 Security Deposit Received: Waived, based on financial information
provided by Tenant
Date Received: N/A
Prepaid First Month's Rent: $ As provided in Lease.
--------------------
Prepaid First Month's Overhead Rent (together with Florida sales tax
computed at 6%): $15,999.38
Prepaid Last Month's Rent: WAIVED
SECTION 5 Use of Premises: Corporate headquarters, administrative offices and
data center.
Tenant's Address for Notices Prior to Commencement Date:
HIWAY TECHNOLOGIES, INC.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Tenant's Address for Notices After Commencement Date:
HIWAY TECHNOLOGIES, INC.
As provided above
-------------------------
-------------------------
Xxxx Xxxxx, Xxxxxxx 00000
Tenant
The Premises
Landlord's Address for Notices:
c/o Blue Lake, Ltd.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
With copies to:
Xxxxxx, Simowitz, Weisman, Xxxxxxxxx & Xxxx, P.A.
0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxx, Esquire
SECTION 15 Amount of General Comprehensive Liability Insurance: $1,000,000.00
per occurrence - $3,000,000.00 in the aggregate, together with an
environmental pollution policy in the sum of not less than
$3,000,000.00, to be delivered to the Landlord in the event the
Tenant elects to place fuel storage tanks on or about the Premises.
SECTION 39 Tenant's Real Estate Broker: CB Commercial Real Estate Group, Inc.,
Attn: Xxxxxxx X. Xxxxx
Landlord's Real Estate Broker: Blue Lake Realty, Inc.
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BLUE LAKE STANDARD LEASE
SECTION 40 Guarantor(s): None
WORK LETTER:
PARAGRAPH 1.7 Tenant's Construction Agent: Xxxxx Xxxxx
Certain of the information relating to the Lease, including many of
the principal economic terms, are set forth in the foregoing Basic Lease
Information Rider (the "BLI Rider"). The BLI Rider and the Lease are, by this
reference, hereby incorporated into one another. In the event of any direct
conflict between the terms of the BLI Rider and the terms of the Lease, the BLI
Rider shall control. Where the Lease simply supplements the BLI Rider and does
not conflict directly therewith, the Lease shall control.
THIS SPACE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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BLUE LAKE STANDARD LEASE
IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI Rider as
of this 23 day of September, 1997.
--
WITNESSES: "TENANT"
/s/ Xxxxxxx Xxxxxxxx HIWAY TECHNOLOGIES, INC.
----------------------------- a Florida corporation
/s/ Xxxxx X. Xxxxxx
-----------------------------
(As to Tenant) By: /s/ Xxxxx X. Xxxxx
------------------------
Xxxxx Xxxxx, President
WITNESSES: "LANDLORD"
/s/ Xxxxxxx Xxxxxxxx BLUE LAKE, LTD., a Florida limited
----------------------------- partnership
/s/ Xxxxx X. Xxxxxx
----------------------------- By: Blue Lake, Inc., a Florida
corporation, its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxxx E.V.P.
-------------------------------
Its Executive Vice President
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BLUE LAKE STANDARD LEASE
Blue Lake Corporate Center
Standard Lease
This Lease ("Lease") is made as of the 23 day of September, 1997, by and
between BLUE LAKE, LTD., a Florida limited partnership ("Landlord") and HIWAY
TECHNOLOGIES, INC. a Florida corporation, ("Tenant").
W I T N E S S E T H:
1. PREMISES; BUILDING; AND COMMON AREAS PREMISES; BUILDING; AND COMMON
AREAS
Landlord leases to Tenant and Tenant leases from Landlord the Premises
described in the Basic Lease Information Rider (the "BLI Rider") attached to the
front of this Lease and incorporated into this Lease by this reference, and as
more particularly shown on the floor plan attached hereto as Exhibit "A" and by
this reference incorporated herein ("Premises") . The parties hereby agree that
the Premises contain the number of Net Rentable Area set forth in the BLI Rider.
The Premises constitute a portion of the office building campus, including
parking spaces, driveways, walkways, drainage systems, utility systems,
greenspace areas, and other elements of the Blue Lake Corporate Center
(collectively the "Building"). In addition to the Premises, Tenant has the right
to use, in common with others, the lobby, public entrances, public stairways,
public areas and public elevators of the Building (the "Common Areas"). The
Common Areas serving the Building, will at all times be subject to Landlord's
exclusive control and management in accordance with the terms and provisions of
this Lease.
2. LEASE TERM; LEASE DATE
A. General. The lease term ("Lease Term") is for the period of time
set forth in the BLI Rider, commencing on the Lease commencement date set forth
in the BLI Rider ("Commencement Date") and ending on the Lease expiration date
set forth in the BLI Rider ("Expiration Date"). Tenant's obligation to pay all
rent, including Base Rent, Overhead Rent and Additional Rent, (collectively,
"Rent"), as such terms are hereafter defined, will commence on the Commencement
Date.
B. RENEWAL OPTION. LANDLORD GRANTS TO TENANT AN OPTION (THE
"OPTION") TO EXTEND THE TERM OF THIS LEASE FOR ONE ADDITIONAL PERIOD OF FIVE (5)
YEARS (THE "RENEWAL TERM") UNDER THE TERMS SET FORTH BELOW. TENANT SHALL NOT BE
ENTITLED TO EXERCISE THE OPTION UNLESS EACH OF THE FOLLOWING CONDITIONS SHALL BE
FULLY SATISFIED AT THE TIME OF ITS EXERCISE: (i) THE LEASE SHALL BE IN FULL
FORCE AND EFFECT; (ii) THE SAME ENTITY ORIGINALLY NAMED IN THIS LEASE SHALL BE
IN POSSESSION OF THE ENTIRE PREMISES, NOTWITHSTANDING AN AMENDMENT TO THE
ENTITY'S NAME AS REFLECTED IN ARTICLES OF AMENDMENT FILED WITH THE FLORIDA
SECRETARY OF STATE; AND (iii) TENANT SHALL NOT THEN BE IN DEFAULT UNDER ANY OF
THE MATERIAL TERMS, PROVISIONS, COVENANTS OR CONDITIONS OF THE LEASE. IN ORDER
TO EXERCISE THE OPTION, TENANT MUST FIRST MAKE WRITTEN DEMAND UPON LANDLORD NOT
LESS THAN SIX (6) MONTHS PRIOR TO THE EXPIRATION DATE OF THE INITIAL LEASE TERM
OR THE RENEWAL TERM FOR DELIVERY OF LANDLORD'S DETERMINATION OF MARKET RENT, AS
DEFINED BELOW. BASE RENT FOR THE RENEWAL TERM SHALL BE EQUAL TO THEN MARKET
RENT, AS DETERMINED IN ACCORDANCE WITH THIS SECTION ("MARKET RENT"). WITHIN
THIRTY (30) DAYS FOLLOWING ITS RECEIPT OF TENANT'S DEMAND, LANDLORD SHALL ADVISE
TENANT OF MARKET RENT FOR EACH YEAR OF THE RENEWAL TERM. MARKET RENT (INCLUDING
ESCALATIONS FOR SUCCESSIVE YEARS OF THE RENEWAL TERM) SHALL BE DETERMINED BY
LANDLORD IN ITS REASONABLE JUDGMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE BASE YEAR (DEFINED BELOW) FOR THE PERTINENT RENEWAL TERM SHALL BE
THE FIRST YEAR OF THE RENEWAL TERM. LANDLORD'S DETERMINATION SHALL BE BASED, AS
LANDLORD REASONABLY DEEMS APPROPRIATE, UPON THEN CURRENT AND PROJECTED RENTS FOR
SPACE IN THE BUILDING, ADJUSTED FOR ANY SPECIAL CONDITIONS APPLICABLE TO SUCH
SPACE AND LEASES, FOR LOCATION, LENGTH OF TERM, AMOUNT OF SPACE AND OTHER
FACTORS LANDLORD DEEMS RELEVANT IN COMPUTING RENTS FOR SPACE IN THE BUILDING,
INCLUDING ADJUSTMENTS FOR ANTICIPATED INFLATION. IF TENANT DISPUTES LANDLORD'S
DETERMINATION OF MARKET RENT, LANDLORD SHALL DISCLOSE TO TENANT ALL OF THE DATA,
FACTORS AND OTHER INFORMATION UPON WHICH LANDLORD'S DETERMINATION WAS BASED, AND
LANDLORD SHALL IN GOOD FAITH NEGOTIATE WITH TENANT IN ORDER TO ARRIVE AT A
MARKET RENT WHICH IS ACCEPTABLE TO BOTH OF THEM. ANY AGREEMENT OF LANDLORD AND
TENANT REGARDING THE AMOUNT OF MARKET RENT SHALL BE IN WRITING SIGNED BY THEM
WITHIN THIRTY (30) DAYS AFTER THE DATE TENANT WAS FIRST ADVISED BY LANDLORD OF
ITS INITIAL DETERMINATION OF MARKET RENT, IN WHICH EVENT TENANT SHALL BE DEEMED
TO HAVE EXERCISED THE OPTION. IF LANDLORD AND TENANT ARE UNABLE TO AGREE UPON
MARKET RENT IN WRITING WITHIN SUCH THIRTY (30) DAY PERIOD, TENANT MAY
NEVERTHELESS EXERCISE ITS OPTION BY NOTIFYING LANDLORD, WITHIN 30 DAYS FROM THE
DATE ON WHICH TENANT WAS FIRST ADVISED BY LANDLORD OF ITS INITIAL DETERMINATION
OF MARKET RENT, THAT TENANT HAS ELECTED TO EXERCISE THE OPTION AT THE MARKET
RENT DETERMINED BY LANDLORD SUBJECT TO A RESERVATION OF TENANT'S RIGHT TO
ARBITRATE LANDLORD'S DETERMINATION OF MARKET RENT IN ACCORDANCE WITH THIS
SECTION. IF TENANT EXERCISES THE OPTION AS PROVIDED, THE TERMINATION DATE OF THE
LEASE SHALL BE EXTENDED FOR A PERIOD OF FIVE (5) YEARS AND BASE RENT SHALL BE
ADJUSTED TO MARKET RENT. IF TENANT SHALL FAIL TO TIMELY EXERCISE THE OPTION AS
PROVIDED, TENANT SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO EXERCISE THE OPTION
AND TO OCCUPY THE PREMISES BEYOND THE INITIAL TERM OF THE LEASE. IF THE PARTIES
CANNOT AGREE IN WRITING ON MARKET RENT AND TENANT TIMELY EXERCISES THE OPTION,
THEN WITHIN THIRTY (30) DAYS AFTER TENANT'S EXERCISE OF THE OPTION, TENANT AND
LANDLORD SHALL EACH SELECT A LICENSED REAL ESTATE BROKER WITH AT LEAST TEN (10)
YEARS SUBSTANTIAL COMMERCIAL LEASING EXPERTISE PARTICULARLY IN THE THIS AREA OF
PALM BEACH COUNTY, FLORIDA AND NOTIFY THE OTHER PARTY OF SUCH SELECTION, AND THE
SELECTED BROKERS SHALL IN TURN SELECT A SIMILAR THIRD BROKER WHO WILL DETERMINE
MARKET RENT. IF THE BROKERS ARE UNABLE TO AGREE ON A THIRD BROKER WITHIN SIXTY
(60) DAYS AFTER TENANT'S EXERCISE OF THE OPTION, MARKET RENT SHALL BE DETERMINED
BY SUIT FOR DECLARATORY RELIEF. THE COST OF THE THIRD BROKER AND ANY COURT COSTS
SHALL BE SHARED EQUALLY BY THE PARTIES. IF EITHER PARTY FAILS TO TIMELY SELECT A
BROKER AND NOTIFY THE OTHER PARTY OF SUCH SELECTION, THE OTHER PARTY'S TIMELY
SELECTED BROKER SHALL UNILATERALLY DETERMINE MARKET RENT. IF TENANT ELECTS TO
EXERCISE THE OPTION SUBJECT TO ITS RESERVATION TO CONTEST MARKET RENT, TENANT
SHALL NONETHELESS ON THE COMMENCEMENT OF THE RENEWAL TERM BEGIN PAYING BASE RENT
AT THE MARKET RATE DETERMINED BY LANDLORD. IF MARKET RENT IS ULTIMATELY
DETERMINED TO BE OTHER THAN THE AMOUNT INITIALLY DETERMINED BY LANDLORD, THE
NEXT DUE PAYMENT OR PAYMENTS OF RENT SHALL BE APPROPRIATELY ADJUSTED TO REFLECT
SUCH OVERPAYMENT OR UNDERPAYMENT RETROACTIVE TO COMMENCEMENT OF THE RENEWAL
TERM.]
3. RENT
A. Base Rent. During the Lease Term, Tenant will pay as the base
rent for the Premises ("Base Rent") the amounts set forth in the BLI Rider, with
same being payable without demand, setoff or deduction, in advance, on or before
the
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BLUE LAKE STANDARD LEASE
first day of each month, in equal monthly installments of the amounts set forth
in the BLI Rider plus applicable sales and other such taxes as are now or later
enacted. All payments of Base Rent, Overhead Rent, Security Deposits, and any
other sums due from Tenant under this Lease shall be made by Federal wire
transfer to such account as may be designated (or re-designated from time to
time) by Landlord's written notice.
B. Overhead Rent. Beginning on the Commencement Date, Tenant shall
pay Tenant's Share, as defined in the BLI Rider, of (i) the total amount of the
annual Operating Expenses (as hereafter defined) and (ii) the total amount of
Taxes (as hereafter defined). As used herein, "Overhead Rent" means the total of
Tenant's allocated Share of Operating Expenses and Taxes. The Overhead Rent for
the Base Year shall be set at Four and 50/100ths Dollars ($4.50) per square foot
of Rentable Area ("Base Year Overhead Rent"). In no event shall the Overhead
Rent to be paid by Tenant in any calendar year be less than the Base Year
Overhead Rent. However, in no event shall the Tenant's Share of the Controllable
Operating Expenses be increased more than ten (10%) percent from that charged to
the Tenant as part of Overhead Rent for the immediately preceding calendar year.
Increases in Operating Expenses that are not deemed controllable as defined
hereunder shall not be limited by the foregoing sentence. Controllable Operating
Expenses do not include (i) Taxes, (ii) utility charges and fees (including but
not limited to water, sewer, electrical, telephone, chilled water and heating,
ventilating and air conditioning charges, cable communications and the like),
(iii) service, vendor and other third-party contracts, including but not limited
to maintenance, landscaping, security and similar contracts, and (iv) premiums
for insurance. Prior to each subsequent calendar year, beginning with the
calendar year immediately following the Base Year, Landlord shall, in advance,
reasonably estimate for each such calendar year the total amount of the Overhead
Rent. In no event shall the Overhead Rent to be paid by the Tenant in any
calendar year be less than the Base Year Overhead Rent. One-twelfth (1/12) of
the estimated Overhead Rent shall be payable monthly, along with the monthly
payment of the Base Rent. On or before March 31 following a calendar year for
which Overhead Rent is payable hereunder, Landlord shall use reasonable efforts
to provide Tenant with a reconciliation statement showing the amount of the
actual components of Overhead Rent for the previous calendar year. If the
reconciliation statement reflects an underpayment in either component of
Overhead Rent, Landlord shall also deliver to Tenant an invoice which Tenant
shall pay within thirty (30) days following receipt of such invoice or with the
due date of its next monthly payment of Rent, whichever shall first occur. If
the reconciliation statement reflects an overpayment in either component of
Overhead Rent, Tenant shall be entitled to either, at Landlord's option, a
credit against the next payment(s) of Rent in an amount equal to the
overpayment, or a refund check from Landlord for such overpayment. For a period
of thirty (30) days after receipt of the reconciliation statement, Tenant shall
have the right, upon reasonable advance notice, to visit Landlord's office in
the Building during Business Hours, as hereafter defined, to inspect its books
and records concerning the Overhead Rent, and within such thirty (30) day period
to deliver any specific written objections to Landlord with respect to any
actual overpayment. If Tenant fails to deliver a specific written objection
within such thirty (30) day period, Tenant shall have waived Tenant's right to
object to or make any claim for return of any overpayment and shall have waived
its right to perform any further inspection of the Landlord's book and records.
When calculating annual Taxes, such calculation shall, with respect to ad
valorem taxes, be calculated with reference to the gross amount set forth in the
official tax xxxx issued by the appropriate taxing authorities, irrespective of
the amount actually paid by Landlord for such calendar year in light of a
protest or dispute over the amount of such Taxes. In the event the Taxes for any
calendar year are in fact contested by Landlord, however, ultimately the amount
payable for that calendar year shall be the amount found to be payable in a
final determination, whether such final determination is in the form of a
pronouncement from the appropriate tribunal or a settlement, together with
attorneys' fees and costs, appraisal costs and other fees and costs incurred by
the Landlord in protesting or contesting the amount of such Taxes. The delivery
of the aforedescribed projection statement after January 1 and/or the
reconciliation after March 31 shall not be deemed a waiver of any of Landlord's
rights to collect monies and/or a waiver of any of the duties and obligations of
Tenant as described in this section or as provided elsewhere in the Lease. As
used in this paragraph 3., the following terms shall have the following
meanings:
(1) The term "Operating Expenses" shall mean (i) any and all
costs of ownership, management, operation, repair and maintenance of the
Building, including, without limitation, wages, salaries, professionals' fees,
taxes, insurance, benefits and other payroll burdens of all employees, Building
Management fee, Common Area janitorial, maintenance, guard and other services,
building management office rent or rental value, power, fuel, water, waste
disposal, chilled water and hearing, ventilating and air conditioning charges,
landscaping care, lighting, garbage removal, window cleaning, system
maintenance, parking area care, fees and assessments paid to or on behalf of the
"Association" (as later defined herein), and any and all other utilities not
separately metered for the Premises or a portion thereof, materials, supplies,
maintenance, repairs, insurance applicable to the Building and Landlord's
personal property and depreciation on personal property, and (ii) the cost
(amortized over such reasonable period as Landlord shall determine together with
interest at the rate of fifteen percent (15%) per annum on the unamortized
balance) of any capital improvements made to the Building by Landlord after the
date of this Lease that reduce Operating Expenses or made to the Building by
Landlord after the date of this Lease that are required under any governmental
law or regulation; provided, however, that Operating Expenses shall not include
real property taxes, depreciation on the Building other than depreciation on
carpeting and wallcovering in public corridors and Common Areas, costs of
tenants' improvements, real estate broker's commissions, interest and capital
items other than those referred to in subsection (ii) above. Landlord shall
maintain accounting books and records in accordance with sound accounting
principles. In determining the amount of Operating Expenses for any calendar
year, (i) if less than one-hundred percent (100%) of the Building shall have
been occupied by tenants and fully used by them, Operating Expenses shall be
increased to an amount equal to the like operating expenses which would normally
be expected to be incurred had such occupancy been one-hundred percent (100%)
and had such full utilization been made during the entire period or (ii) if
Landlord is not furnishing particular work or services (the cost of which if
performed by Landlord would constitute an Operating Expense) to a tenant who has
undertaken to perform such work or service in lieu of the performance thereof by
Landlord, Operating Expenses shall be deemed to be increased by an amount equal
to the additional expense which would reasonably have been incurred during such
period by Landlord had Landlord furnished such work or service to such tenant.
Landlord hereby agrees to deduct each calendar year from the amount of the
Operating Expenses the total amount of any and all sums, amounts or charges paid
by Tenant or other tenants of the Building directly to Landlord or its agent for
specific tenant requested services or specific utility charges, if applicable.
(2) The term "Taxes" shall mean the gross amount of all
impositions, taxes, assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by Landlord as a separate tax-
paying entity without regard to Landlord's income source as arising from or out
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BLUE LAKE STANDARD LEASE
of the Building and/or the land on which it is located) attributable in any
manner to the Building, the land on which the Building is located or the rents
(however the term may be defined) receivable therefrom, or any part thereof, or
any use thereon, or any facility located therein or used in conjunction
therewith or any charge or other amount required to be paid to any governmental
authority, whether or not any of the foregoing shall be designated "real estate
tax", "sales tax", "rental tax", "excise tax", "business tax", or designated in
any other manner.
Tenant hereby agrees that the Overhead Rent from time to time computed by
Landlord shall be final and binding for all purposes of this Lease unless,
within thirty (30) days after Landlord provides Tenant with written notice of
the amount thereof, Tenant provides Landlord with written notice (i) disputing
the mathematical accuracy of such amount (the "Disputed Amount"), (ii)
designating an attorney or accountant, reasonably acceptable to Landlord, and
appointed by Tenant, at its sole cost and expense, to review the mathematical
accuracy of the Disputed Amount with Landlord and/or its designated
representatives and (iii) confirming that the Disputed Amount shall not be
subject to adjustment, and agreeing to pay all of Landlord's costs and expenses
in connection with such review, including attorneys' fees and accountants' fees,
unless as a result thereof the Disputed Amount is demonstrated to reflect a
mathematical error in excess of five percent (5%) of the amount actually due
from Tenant. Landlord hereby agrees, in the event it receives such notice from
Tenant, to cooperate in promptly completing such review and promptly refunding
any portion of the Disputed Amount which exceeds the amount actually due from
Tenant. Tenant shall have no right to audit Overhead Rent unless such is in
excess of Base Year Overhead Rent. Such an audit shall be at Tenant's expense,
at any time within ninety (90) days after Landlord's annual statement is
delivered to Tenant for such calendar year, provided, that Tenant shall give
Landlord not less than thirty (30) days prior written notice of any such audit
AND SIGN A CONFIDENTIAL NON-DISCLOSURE AGREEMENT PRIOR TO THE AUDIT.
C. Late Charge. Except as specifically provided in this subsection
C, Tenant covenants and agrees to pay a late charge in the amount of Five (5.0%)
percent of any payment of Rent not received by Landlord on or before the date
when same is due. Tenant shall also pay Landlord interest at a rate equal to
eighteen percent (18%) per annum accruing on any Rent(s) outstanding. Tenant
shall pay Landlord any such late charge(s) or interest within five (5) days
after Landlord notifies Tenant of same. However, notwithstanding the foregoing,
Tenant shall not be required to pay the late charge for the first two (2) late
payments in any twelve (12) month period during the Lease Term provided that the
Tenant shall cause any late payments to be delivered to the Landlord within two
(2) business days after Tenant's receipt of notice from Landlord that Landlord
has not received same.
D. Definition of Rent. The term "Rent" shall refer collectively to
Base Rent, Overhead Rent and Additional Rent. The term "Additional Rent" is
sometimes used herein to refer to any and all other sums payable by Tenant
hereunder, including, but not limited to, parking charges and sums payable on
account of default by Tenant. All Rent shall be paid by Tenant without offset,
demand or other credit, and shall be payable only in lawful money of the United
States of America which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment. All sums payable by Tenant
hereunder by check shall be obtained against a financial institution located in
the United States of America. The Rent shall be paid by Tenant at the Building
management office located in the Building or elsewhere as designated by Landlord
in writing to Tenant. Any Rent payable for a portion of a month shall be
prorated based upon the number of days in the applicable calendar month.
E. Rent Taxes. In addition to Base Rent and Overhead Rent, Tenant
shall and hereby agrees to pay to Landlord each month a sum equal to any sales
tax, tax on rentals and any other similar charges now existing or hereafter
imposed, based upon the privilege of leasing the space leased hereunder or based
upon the amount of rent collected therefor.
F. Commencement other than First Day. If Tenant's possession of the
Premises commences on any day other than the first day of the month, Tenant
shall occupy the Premises under the terms of this Lease and the pro rata portion
of the Rent shall be paid by Tenant; provided, however, that in such an event
the Commencement Date, for the purposes of this Lease, shall be deemed to be the
first day of the month immediately following the month in which possession is
given.
G. Overhead Rent after Expiration Date. Overhead Rent for the final
months of this Lease is due and payable even though it may not be calculated
until subsequent to the Expiration Date of the Lease. Tenant expressly agrees
that Landlord, at Landlord's sole discretion, may apply the Security Deposit, as
defined in the BLI Rider, in full or partial satisfaction of any Overhead Rent
due for the final months of this Lease. If said Security Deposit is greater
than the amount of any such Overhead Rent and there are no other sums or amounts
owed Landlord by Tenant by reason of any other terms, provisions, covenants or
conditions of this Lease, then Landlord shall refund the balance of said
Security Deposit to Tenant as provided herein. Nothing herein contained shall
be construed to relieve Tenant, or imply that Tenant is relieved, of the
liability for or the obligation to pay any Overhead Rent due for the final
months of this Lease by reason of the provisions of this paragraph, nor shall
Landlord be required first to apply said Security Deposit to such Overhead Rent
if there are any other sums or amounts owed Landlord by Tenant by reason of any
other terms, provisions, covenants or conditions of this Lease.
4. SECURITY DEPOSIT; SECURITY INTEREST
A. Security Deposit. No Security Deposit is initially required by
the Landlord to be funded by the Tenant in consideration and reliance of
financial documentation submitted by the Tenant. If a Security Deposit is
later required to be provided by Tenant, such will be retained by Landlord as
security for the payment by Tenant of the Rent and Additional Rent and for the
faithful performance by Tenant of all the other terms and conditions of this
Lease. In the event Tenant fails to faithfully perform the terms and conditions
of this Lease, Landlord, at Landlord's option, may at any time apply the
Security Deposit or any part thereof toward the payment of the Rent and/or
Additional Rent and/or toward the performance of Tenant's obligations under this
Lease; in such event, within five (5) days after notice, Tenant will deposit
with Landlord funds sufficient to restore the Security Deposit to its original
amount. The Security Deposit is not liquidated damages. Landlord will return
the unused portion of the Security Deposit to Tenant within sixty (60) days
after the Expiration Date if Tenant is not in violation of any of the provisions
of this Lease. Landlord may (but is not obligated to) exhaust any or all rights
and remedies against Tenant before resorting to the Security Deposit. Landlord
will not be required to pay Tenant any interest on the Security Deposit nor hold
same in a separate account. If Landlord sells or otherwise conveys the
Building, Landlord will deliver the Security Deposit or the unapplied portion
thereof to the new owner. Tenant agrees that if Landlord turns over the
Security Deposit or the unapplied portion thereof to the new owner Tenant will
look to the new owner only and not to Landlord for its return upon expiration of
the Lease Term. If Tenant assigns this Lease with the consent of Landlord, the
Security Deposit will remain with Landlord for the benefit of the new tenant and
will be returned to such tenant upon the same conditions as would have entitled
Tenant to its return.
B. Security Interest. In addition to any statutory lien granted to
landlords under the laws of Florida, Landlord shall have, at all times, and
Tenant hereby grants and
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BLUE LAKE STANDARD LEASE
agrees to grant Landlord a valid security interest to secure payment of all Base
Rent, Overhead Rent and Additional Rent and all other sums payable under this
Lease as Rent becoming due hereunder from Tenant, and to secure payment of any
damages or loss which Landlord may suffer by reason of the breach by Tenant of
any covenant, agreement or condition contained herein, upon all goods,
equipment, fixtures, furniture, improvements, inventory, chattel, and other
personal property of Tenant presently, or which may hereafter be situated within
the Premises whether now owned or hereafter acquired, and all proceeds
therefrom, including, without limitation, insurance proceeds (collectively
"Personal Property"), and such Personal Property shall not, during any period a
default exists, be removed from the Premises without the prior consent of
Landlord, which consent may be withheld in Landlord's sole discretion, until all
arrearages in Rent, as well as any and all other sums of money then due to
Landlord hereunder, shall first have been paid and discharged and all the
covenants, agreements and conditions hereof have been fully complied with and
performed by Tenant. In the event of a default by Tenant hereunder, Landlord
may, in addition to any other remedies provided elsewhere herein or allowed by
law, all of which are cumulative, enter upon the Premises and take possession of
any and all Personal Property of Tenant situated within the Premises, without
liability for trespass or conversion, and sell the same at public or private
sale, with or without having such property at the sale, after giving Tenant
reasonable notice of the time and place of any public sale or of the time after
which any private sale is to be made, at which sale the Landlord or its assigns
may purchase such Personal Property unless otherwise prohibited by law. Unless
otherwise provided by law, and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable notice shall be
met if such notice is given in the manner prescribed in this Lease at least five
(5) days before the time of sale. The proceeds from any such disposition, less
any and all expenses connected with the taking of possession, holding and
selling of the Personal Property (including, without limitation, reasonable
attorneys' fees and legal expenses) shall be applied as a credit against the
indebtedness secured by the security interest granted in this Section. Any
surplus shall be paid to Tenant or as otherwise required by law, and Tenant
shall pay any deficiencies forthwith. Contemporaneous with the execution of this
Lease, and, at any other time during the Lease Term if requested by Landlord,
Tenant shall execute and deliver to Landlord Uniform Commercial Code financing
statements in sufficient form so that when properly filed, the security interest
hereby given shall thereupon be perfected. If requested hereafter by Landlord,
Tenant shall also execute and deliver to Landlord Uniform Commercial Code
financing statement change instruments in sufficient form to reflect any proper
amendment or modification in or extension of the aforesaid contract lien and
security interest hereby granted. Landlord shall, in addition to all of its
rights hereunder, also have all of the rights and remedies of a secured party
under the Uniform Commercial Code as applicable in Florida.
5. USE
A. General. Tenant will use and occupy the Premises solely for the
operation of the business set forth in the BLI Rider and for no other use
whatsoever. Tenant acknowledges that its type of business, as above specified,
is a material consideration for Landlord's execution of this Lease. Tenant will
not commit waste upon the Premises nor suffer or permit the Premises or any part
of them to be used in any manner, or suffer or permit anything to be done in or
brought into or kept in the Premises or the Building, which would: (i) violate
any law or requirement of public authorities, (ii) cause injury to the Building
or any part thereof, (iii) annoy or offend other tenants or their patrons or
interfere with the normal operations of HVAC, plumbing or other mechanical or
electrical systems of the Building or the elevators installed therein, (iv)
constitute a public or private nuisance, or (v) alter the appearance of the
exterior of the Building or of any portion of the interior other than the
Premises pursuant to the provisions of this Lease. Tenant agrees and
acknowledges that Tenant shall be responsible for obtaining, and for any and all
costs of obtaining, any special amendments to the certificate of occupancy for
the Premises and/or the Building and any other governmental permits,
authorizations or consents required solely on account of Tenant's use of the
Premises.
B. Prohibited Uses. Notwithstanding anything to the contrary in this
Lease or the BLI Rider, including but not limited to, the "Use of Premises"
Section of the BLI Rider, Tenant hereby represents, warrants and agrees that
Tenant's business is not and shall not be, and that Tenant shall not use the
Premises or any part thereof, or permit the Premises or any part thereof to be
used, [(i) FOR THE BUSINESS OF PHOTOGRAPHIC, MULTILITH OR MULTIGRAPH
REPRODUCTIONS OR OFFSET PRINTING; (ii) FOR A RETAIL BANKING, TRUST COMPANY,
DEPOSITORY, GUARANTEE OR SAFE DEPOSIT BUSINESS OPEN TO THE GENERAL PUBLIC, OR
INDOOR AUTOMATED TELLER MACHINES, (iii) AS A SAVINGS BANK, A SAVINGS AND LOAN
COMPANY OPEN TO THE GENERAL PUBLIC, (iv) FOR THE SALE TO THE GENERAL PUBLIC OF
TRAVELERS CHECKS, MONEY ORDERS, DRAFTS, FOREIGN EXCHANGE OR LETTERS OF CREDIT OR
FOR THE RECEIPT OF MONEY FOR TRANSMISSION, (v) AS A STOCK BROKER'S OR DEALER'S
OFFICE OR FOR THE UNDERWRITING OR SALE OF SECURITIES OPEN TO THE GENERAL PUBLIC,
(vi) AS A RESTAURANT, CAFETERIA, BAR, OR AN ESTABLISHMENT FOR THE SALE OF
CONFECTIONERY, SODA, BEVERAGES, SANDWICHES, ICE CREAM OR BAKED GOODS OR FOR THE
PREPARATION, DISPENSING OR CONSUMPTION OF FOOD OR BEVERAGES IN ANY MANNER
WHATSOEVER, (vii) AS A NEWS OR CIGAR STAND, (viii) AS AN EMPLOYMENT AGENCY,
LABOR UNION OFFICE, PHYSICIAN'S OR DENTIST'S OFFICE, DANCE OR MUSIC STUDIO,
SCHOOL (EXCEPT FOR THE TRAINING OF EMPLOYEES OF TENANT), (ix) AS A XXXXXX SHOP
OR BEAUTY SALON, (x) FOR THE BUSINESS OF (A) OPERATING A SHARED OFFICE FACILITY,
THAT IS, A BUSINESS WHICH SUBLEASES SPACE AND/OR OFFERS CENTRALIZED SERVICES TO
SUBTENANTS OR CUSTOMERS ON A SHARED BASIS, SUCH AS SECRETARIAL, RECEPTIONIST,
TELEPHONE, ETC., OR (B) FOR A FEE TO PERSONS INSIDE OR OUTSIDE OF THE BUILDING,
PROVIDING AS A SERVICE WORD PROCESSING, SECRETARIAL, VIDEO CONFERENCING,
CONFERENCE SERVICES, TELEPHONE ANSWERING, RECEPTIONIST OR MAIL RECEIPT SERVICES,
(xi) FOR ANY SERVICES OR USES TO THE GENERAL PUBLIC TO BE CONDUCTED ON THE
PREMISES, (xii) AMATEUR RECREATIONAL USES OR MOVIE THEATERS, (xiii) RETAIL
SALES, INCLUDING BUT NOT LIMITED TO DRUG STORES OR FLORISTS, OR (xiv)
WAREHOUSING, SHOWROOM AND WHOLESALE USES. Nothing in this Section shall preclude
Tenant from using any part of the Premises for photographic, multilith or
multigraph reproductions to the extent that such uses are incidental to Tenant's
own business or activities.
6. ACCEPTANCE OF PREMISES; LANDLORD'S WORK. ACCEPTANCE OF PREMISES;
LANDLORD'S WORK
Tenant has examined the Premises and accepts delivery of the Premises
in an "As-Is" condition. However, notwithstanding the foregoing, the Landlord
shall, prior to occupancy by Tenant, and at Landlord's cost, erect demising
walls and confirm to Tenant that mechanical service, electrical service,
plumbing service are available to the Premises and that the roof and structure
of the Premises are in good working order and exhibit no signs of any material
defects. In addition thereto, the Landlord shall allow Tenant to utilize,
without expense to Tenant, except for the costs incurred by Tenant in relocating
the items to follow, as applicable, to the Premises from their situs at the
Project, the following: (a) sufficient raised flooring to accommodate a 10,000
square foot raised floor computer floor, and (b) four (4) Liebert air handling
units. Notwithstanding the foregoing, the Tenant hereby acknowledges that the
items contained in subparagraphs (a) and (b) shall remain the property of the
Landlord and, at the termination of this Lease, be returned to the Landlord in
working condition, normal wear and tear excepted. All existing ceiling system
and demountable partitions are to remain in the Premises at the time of the
delivery of the Premises and may be utilized by Tenant without charge.
Improvements, if any, to be made to the Premises by Tenant shall be made in
accordance with the Work Letter. Landlord's
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BLUE LAKE STANDARD LEASE
published list of pre-approved general contractors for The Blue Lake Project
shall have the exclusive right to bid for Tenant's construction contracts.
Improvements, if any, to be made to the Premises by Landlord are specifically
set forth in the Work Letter and there are no others. All leasehold improvements
(as distinguished from trade fixtures and apparatus) installed in the Premises
at any time, whether by or on behalf of Tenant or by or on behalf of Landlord,
shall not be removed from the Premises at any time, unless such removal is
consented to in advance by Landlord; and at the expiration of this Lease (either
on the Termination Date or upon such earlier termination as provided in this
Lease), all such leasehold improvements shall be deemed to be part of the
Premises, shall not be removed by Tenant when it vacates the Premises, and title
thereto shall vest solely in Landlord without payment of any nature to Tenant.
All trade fixtures and apparatus (as distinguished from leasehold improvements)
owned by Tenant and installed in the Premises shall remain the property of
Tenant and shall be removable at any time, including upon the expiration of the
Term; provided Tenant shall not at such time be in default of any terms or
covenants of this Lease, and provided further, that Tenant shall repair any
damage to the Premises caused by the removal of said trade fixtures and
apparatus and shall restore the Premises to substantially the same condition as
existed prior to the installation of said trade fixtures and apparatus. The
taking of possession by Tenant (or any permitted assignee or subtenant of
Tenant) of all or any portion of the Premises for the conduct of business will
be deemed conclusive evidence that Tenant has found the Premises, and all of
their fixtures and equipment, acceptable.
7. PARKING. PARKING
A. Reservations. Landlord has and reserves the right to alter the
methods used to control parking and the right to establish such controls and
rules and regulations (such as parking stickers to be affixed to vehicles)
regarding parking that Landlord may deem desirable. Without liability, Landlord
will have the right to tow or otherwise remove vehicles improperly parked,
blocking ingress or egress lanes, or violating parking rules, at the expense of
the offending tenant and/or owner of the vehicle. Tenant shall be afforded, on
a non-exclusive basis, the use of five (5) parking spaces for each one thousand
(1,000) square feet of Usable Square Feet leased, as located in the area shown
in Exhibit "A-1".
B. Conditions. Except as specifically provided in Paragraph 7(A)
above, Tenant's right to use, and its right to permit its principals and guests
to use, the parking facilities pursuant to this Lease are subject to the
following conditions: (i) Landlord has made no representations or warranties
with respect to the parking area, the number of spaces located therein or access
thereto; (ii) Landlord reserves the right to reduce the number of spaces in the
parking area by not more than ten percent (10%) of the then number of parking
area spaces in the parking area and/or change access thereto; and none of the
foregoing shall entitle Tenant to any claim against Landlord or to any abatement
of Rent (or any part thereof); (iii) Landlord has no obligation to provide a
parking lot attendant and Landlord shall have no liability on account of any
loss or damage to any vehicle or the contents thereof, Tenant hereby agreeing to
bear the risk of loss for same; (iv) Tenant, its agents, employees and invitees,
shall park their automobiles and other vehicles only where and as designated
from time to time by Landlord within the parking area; and (v) if and when so
requested by Landlord, Tenant shall furnish Landlord with the license numbers of
any vehicles of Tenant, its agents and employees.
8. BUILDING SERVICES.
A. General. In general, the services set forth below will be
provided by Landlord at a service level set, defined and regulated by Landlord
consistent with office buildings of similar quality to and in the same immediate
geographic area as the Building. During the Lease Term, the regular business
hours ("Business Hours") of the Building will be 8:00 a.m. to 6:00 p.m., Monday
through Friday, except holidays generally recognized by state and federal
governments or as may be shortened in accordance with applicable policies or
regulations adopted by any utility company servicing the Building or government.
Landlord reserves the right to increase the Business Hours. However,
notwithstanding the foregoing, in consideration of the nature of the Tenant's
business, the Landlord acknowledges that the regular Business Hours of the
Premises, as defined above, will be 7:00 a.m. to 7:00 p.m. The Building will
be accessible to Tenant, its subtenants, agents, servants, employees,
contractors, invitees or licensees (collectively, "Tenant's Agents") twenty-four
hours per day, seven days per week except in the case of temporary closure due
to emergencies, repairs, casualty, governmental or quasi-governmental
requirements or as Landlord reasonably deems necessary in order to prevent
damage or injury to person or property.
(1) Electricity:
(a) Landlord shall, as the exclusive party authorized to
contract with providers of electrical utility services for the Project, install
separate metering to the Premises, for electrical usage, excluding HVAC, except
as otherwise provided in Paragraph 3B herein. During the Lease Term, the
Premises shall be separately metered for electrical power. The Tenant
acknowledges that the Building's Standard mechanical and electrical systems are
designed to accommodate standard loads generated by lights and office equipment.
Tenant will not, without written consent of Landlord, use any apparatus or
device in the Premises which will, in any way, increase the amount of the
standard electricity load consumption of the Premises; nor connect with electric
current except through existing electrical outlets in the Premises. If Tenant
shall require electric current in excess of the standard for the use of the
Premises as general office space, Tenant is hereby granted the option, at its
sole cost and provided Tenant reimburses Landlord for any costs incurred, to
contract with Florida Power & Light, to have installed in the electric room
adjacent to the Tenant's Premises or such other reasonably designated situs in
the Building (which space shall thereupon be exclusively utilized by Tenant and
which shall be included in the Net Rentable Square Footage allocated to Tenant)
a transformer or other instrumentality so as avail the Premises of 2,400 amps of
480 volt 3 Phase Electrical Service to the Premises, which use shall be
exclusive to the Tenant from said source. For purposes of security, Landlord
shall provide Tenant, at its request, and at Tenant's cost, the exclusive use of
the electrical room where the electrical power for the Premises is located.
Tenant shall be solely responsible at Tenant's cost for maintaining and
repairing the electrical room utilized by it in accordance with reasonable
standards prescribed by the Landlord. The parties shall attach hereto a
certification reflecting the amperage available to the Premises.
(b) Tenant acknowledges that Tenant's intended use of the
Premises excludes material use of the Premises beyond Business Hours. Material
use shall be deemed to mean the operation of an additional "shift", either full
or part time, or use of the Premises after Business Hours in any way that may
preclude or interfere with the providing of janitorial services to the Premises.
In the event Tenant's use of the Premises requires more electrical power than
set forth above, whether by intensity of use, load or type of equipment, Tenant
may then be billed for such additional use and such xxxxxxxx will be billed to
Tenant as Additional Rent. Landlord will utilize Landlord's customary method of
billing Tenant for excess electrical power consumption. At Landlord's option,
Landlord, at Tenant's expense, may have an engineer estimate Tenant's usage, and
xxxx Tenant at standard utility rates for the excess usage or install a submeter
for the purposes of
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BLUE LAKE STANDARD LEASE
monitoring Tenant's excess power consumption. Landlord and Tenant agree that
Landlord's implementation of the electrical monitoring and billing procedures
set forth herein shall in no way be construed so as to deem Landlord a private
or public utility company.
(c) Subject to the limitations and restrictions herein contained,
Tenant may install a generator for back-up electricity service together with
ancillary and reasonably related equipment at or on an interior portion of the
Building, to the extent practical, or an exterior location on the grounds of the
Project. The emplacement of a generator, whether within the interior of the
Building or upon the exterior of the Project, shall be within strict
prescriptions and subject to the approval of the Landlord (which approval shall
not be unreasonably withheld) and the City of Boca Raton or such other agencies
having jurisdiction. The Tenant shall be responsible for all costs incurred by
the Tenant, or the Landlord, in the administrative overseeing of the emplacement
of the generator and licensing of the generator, fuel tanks and other
components. Approval for the emplacement of the generator shall likewise be
subject to the approval of the Landlord (which approval shall not be
unreasonably withheld) and the City of Boca Raton, or other agencies having
jurisdiction, for matters relating to the aesthetic screening of the generator,
noise abatement and fuel tank placement, fuel storage and maintenance. Tenant
shall be charged, as Additional Rent, any costs incurred by the Landlord if, at
Landlord's option, Landlord shall elect to repair, or maintain the generator and
fuel tanks in the absence of the Tenant's failure to repair and maintain the
generator, fuel tanks and other ancillary equipment. The Tenant shall deliver to
the Landlord an insurance policy naming the Landlord as loss/payee as to any
claim or damages caused by the generator or fuel tanks, all of which insurance
shall conform with the provisions of Paragraph 14 herein. The Tenant shall fully
comply with the provisions of Paragraph 39 in complying with all Hazardous
Substance laws relating, but not limited, to the placement and operation of the
generator, fuel tanks, together with fuel handling and discharge. The
installation of the generator shall be, at the election of the Landlord,
accomplished by a contractor designated by the Landlord, the sole expense of
which shall be borne by the Tenant who shall contract for same in conformance
with the provisions of Article 26 of this Lease. The Tenant acknowledges advice
of the Landlord that the Landlord may, during the term of the Lease, designate a
centralized location for all generators serving tenants in the Building or the
Project, or, alternatively, the Landlord may contract or cause the Tenant to
contract with Florida Power & Light, or an affiliate thereof, for the providing
of generators to tenants of the Building or the Project. In the event that the
Landlord shall designate a specified or centralized location for the relocation
of the generator or, alternatively, require that any tenants requesting service
by back-up generators utilize a contracted-for-generator from Florida Power &
Light or such other supplier as the Landlord shall designate, the Tenant's
generator shall be relocated or the Tenant shall utilize the designated
generator source. The cost to relocate the Tenant's generator or to connect the
Tenant to a designated generator shall be borne by the Landlord, provided,
however, that Landlord shall receive the benefit of any savings incurred thereby
such as, but not limited to, the Tenant's sale of the previously used generator.
(d) Landlord reserves the right, after Business Hours, to turn
off all unnecessary lighting in the unoccupied areas of the Building and the
Premises to minimize the energy consumption of the Building in both the Common
Areas and the Premises.
(2) HVAC Services:
Landlord agrees to provide, during Business Hours, heating,
ventilating, chilled water and air conditioning services for the purposes of
comfort control. Landlord and Tenant agree that Landlord's HVAC system is not
designed nor required to cool machinery and equipment. Tenant shall not re-
direct, or in any manner modify, the HVAC duct distribution to accommodate
Tenant's build-out unless any such modifications are first approved in writing
by the Landlord, which modifications shall be designed only by an engineer pre-
approved by the Landlord. If Tenant requires additional HVAC services for
comfort control at times other than during Business Hours which, for purposes of
this Lease, are 7:00 A.M. through 7:00 P.M., Monday through Saturday
(inclusive), Landlord will xxxx Tenant as Additional Rent for the number of
hours used at Landlord's then standard prevailing rate for after-hours use of
HVAC services. At the execution of this Lease, the standard prevailing rate for
after-hours use of HVAC services is the greater of (i) .0006 per square foot per
-------
hour, or (ii) $30.00 per hour. This rate will be subject to increase during the
Lease Term based upon operational costs and expenses, including wear and tear on
the system and its components. The HVAC air distribution system and control
system will remain under the control of Landlord, who will regulate the systems'
setting and adjustment. At Landlord's option, Landlord may secure HVAC controls
(thermostats) in lockable metal boxes to regulate the efficiency and use of the
system. In the event that heat generating machines or equipment are used in the
Premises which affect the temperature otherwise maintained by the air
conditioning system, whether during regular business hours or during non-regular
business hours, Landlord reserves the right to separately meter, and xxxx as
Additional Rent, HVAC service to the Premises which metering shall include
related electric, power and chilled water services to the Premises. If Tenant
requires additional HVAC services for comfort control at times during or other
than during Business Hours, or in capacities beyond the Building Standard,
Tenant may, at its election, install an independent air-to-air unit to be
installed at Tenant's sole cost and expense in any portion of the Premises in
which Tenant requires air conditioning in excess of the standard consumption or
on a twenty-four (24) hour basis. Tenant shall submit all plans for any such
installation with the Landlord, who shall not unreasonably withhold approval of
any such plans, as well as to the City of Boca Raton or any other authority
having jurisdiction relating to said installation. The Tenant shall deliver a
mechanic's lien waiver from all materialmen, laborers or other potential lienors
pursuant to F.S. Chapter 713 and Paragraph 26(A) of this Lease. The HVAC air
distribution system, water chilling system, and the respective controlling
systems therefor, will remain under the control of Landlord, who will regulate
the system's setting and adjustment. At Landlord's option, Landlord may secure
HVAC controls (thermostats) in lockable metal boxes to regulate the efficiency
and use of the system. The Landlord may, at its option during the term of this
Lease, contract with FPL Services, or such other provider of chilled-water
distribution system sources as the Landlord may elect.
(3) Water and Sewer:
Landlord agrees to provide municipally supplied cold water and
sewer services to the Common Areas for lavatory purposes.
(4) Elevator Service:
If applicable, Landlord will provide elevator service during
Business Hours and, at Landlord's sole discretion, Landlord may provide
restricted elevator service during non-Business Hours.
B. Interruption of Services. It is understood and agreed that
Landlord does not warrant that any of the services referred to above, or any
other services which Landlord may supply, will be free from interruption.
Tenant acknowledges that any one or more of such services may be suspended by
reason of accident or repairs, alterations or improvements necessary to be made,
or by strikes or lockouts, or
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Blue Lake Standard Lease
by reason of operation of law, or other causes beyond the control of Landlord.
No such interruption or discontinuance of service will be deemed an eviction or
a disturbance of Tenant's use and possession of the Premises or any part
thereof, or render Landlord liable to Tenant for damages or abatement of Rent or
relieve Tenant from the responsibility of performing any of Tenant's obligations
under this Lease.
C. Fiber Optics. Tenant may contract with BellSouth, which has
been provided exclusive access through the underlying property by Landlord for
telecommunication service wiring and installation and which has been designated
by the Landlord as the vendor of choice at the Blue Lake Project, for voice and
data telecommunication wiring and services, and installing any telecommunication
products and, specifically, dual access points for Tenant's fiber optic lines,
at Tenant's sole expense. To the extent that such installation requires the
digging of a trench through the Property in order to gain dual access points,
the Tenant shall provide the Landlord with plans and schematics for the
referenced installation which plans and schematics shall be subject to the
reasonable satisfaction of the Landlord and which installation shall be further
subject to the approval, as necessary, of the City of Boca Raton or other
agencies having jurisdiction thereon.
9. SECURITY
With respect to security for the Building and the parking lot,
Landlord and Tenant hereby agree as follows: Security of the Premises is the
sole responsibility of the Tenant and that the Landlord has no liability for
breach of security to the Premises. Tenant may at Tenant's expense install a
security system to the Premises; provided, however, that Tenant, in addition to
access otherwise required hereunder, will provide Landlord adequate access to
the Premises in case of emergencies particularly regarding Premises that contain
fire sprinkler risers and equipment. All repairs required to the Premises
caused by security breaches are] the responsibility of the Tenant, however,
Landlord may elect to effect such repairs, if appropriate to insure continued
security, protection of property, or safety of life. The cost of such repairs
shall be Additional Rent.
A. Tenant's Responsibility. Tenant shall: (1) abide by all policies,
procedures and rules and regulations for use of the access system, (2) report
promptly the loss or theft of all keys which would permit unauthorized entrance
to the Premises, Building or parking lot, (3) report to Landlord the employment
or discharge of employees and their vehicle's make, model, and license number,
(4) promptly report to Landlord door-to-door solicitation or other unauthorized
activity in the Building or parking lot, and (5) promptly inform the Landlord's
security contractor in the event of a break-in or other emergency. In addition,
Tenant may, at its option and sole cost and expense, install its own interior
security system pursuant to plans to be submitted to Landlord for Landlord's
approval, which approval shall not be unreasonably withheld. The Tenant shall
deliver mechanic's lien releases prior to the initiation of the work.
B. Interruption of Security. Tenant acknowledges that the above
security provisions may be suspended or modified at Landlord's sole discretion
or as a result of causes beyond the reasonable control of Landlord. No such
interruption, discontinuance or modification of security service will constitute
an eviction, constructive eviction, or a disturbance of Tenant's use and
possession of the Premises, and further, no interruption, discontinuance or
modification of security service will render Landlord liable to Tenant or third-
parties for damages, abatement of Rent, or otherwise, or relieve Tenant of the
responsibility of performing Tenant's obligations under this Lease.
C. Hurricane Shutters. Tenant may, at Tenant sole cost and
expense, install protective hurricane shutters on the interior of the windows of
the Premises. Any such installation of hurricane shutters shall be subject to
the prior approval of the Landlord, which approval shall not be unreasonably
withheld, as to size, color, type of shutter and mode of attachment. The Tenant
must also receive the approval of the City of Boca Raton, Florida prior to the
installation of hurricane shutters. The Tenant shall reimburse Landlord for all
reasonable and verifiable costs incurred by the Landlord in reviewing the plans
of the Tenant and providing written approval for the installation of the
hurricane shutters, unless approved by Landlord as part of the original
construction documents. The Tenant agrees not to employ the hurricane shutters
except in instances where hurricane warnings have been issued and are
outstanding and for one (1) business day thereafter.
10. REPAIRS, MAINTENANCE AND UTILITIES
A. Landlord's Responsibilities. During the Lease Term, Landlord
shall define, set, and maintain the level of repairs and maintenance for the
Building, the Common Areas, and all other areas serving the Building, in a
manner comparable to office buildings of similar quality to and in the immediate
geographic area of the Building. Landlord's responsibilities with respect to
this paragraph are as follows: (1) the structural and roof systems of the
Building and parking lot, (2) the Building standard electrical and mechanical
systems, (3) the primary water and sewer systems of the Building, (4) the
Building Common Areas and the common area furniture, fixtures, and equipment,
(5) the landscaped areas in and about the Building, (6) the parking lot, and (7)
replacement of Building standard fluorescent light bulbs in the Common Areas.
B. Tenant's Responsibilities. During the Lease Term, Tenant will
repair and maintain the following at Tenant's expense:
(1) The interior portion of the demising walls, the interior
partition walls of the Premises and their wall-covering, and the entry door to
the Premises.
(2) The electrical, plumbing, HVAC and mechanical systems which
have been installed by either Landlord or Tenant, for the exclusive use and
benefit of Tenant, whether installed in the interior of the Building or exterior
grounds of the Building.. The following examples are for clarification and are
not all inclusive: (a) electrical services for computers or similar items, (b)
projection room equipment such as dimmers, curtains, or similar items, (c) water
closet plumbing, kitchen plumbing or similar items, (d) HVAC for other than
comfort cooling in the Premises, and (e) other similar systems and related
items, (f) plumbing, plumbing fixtures and related equipment, (f) heating,
ventilating and air conditioning equipment, (g) security systems for the
Premises, (h) telephone system for the Premises, (i) fire sprinkler alterations
made exclusively for the Premises and under the Tenant's control, and (j) all
fire extinguishers, including inspection of same. Notwithstanding anything
herein to the contrary, any and all mechanical and electrical systems serving
the Premises (including without limitation compressors, feeds, meters, conduit
and related equipment and facilities) shall be maintained by Tenant at its
expense regardless whether the same are located outside of the Premises.
(3) Except for the janitorial services to be provided by
Landlord, if any, as set forth in this Lease, the repair and maintenance of the
floor covering of the Premises, including carpeting, VAT flooring, ceramic
tiles, marble, wood flooring, or similar coverings, shall be performed by
Tenant.
(4) The removal and clean-up of any environmentally hazardous
situation caused by Tenant or tenant's agents in a manner satisfactory to
Landlord and in
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Blue Lake Standard Lease
compliance with the rules, regulations, ordinances, statutes, laws, and codes of
any local, state or federal government or quasi-governmental authority.
(5) All cabinets and millwork (regardless of ownership) so long
as said cabinets and millwork are for the exclusive use and benefit of Tenant.
(6) All other personal property, improvements or fixtures,
except any of same expressly designated in this Lease as those which Landlord
shall maintain. Those items to be repaired and maintained by Tenant include, but
are not limited to, the following: (a) ceiling tiles and ceiling grid, (b)
molding or other woodwork and paneling, (c) light fixtures and bulbs, (d)
draperies, blinds or wallhangings, (e) glass partition walls, (f) water closets
and kitchen areas, (g) doors and locksets, and (h) vaults, safes, or secured
areas. For the aforesaid items, Landlord may elect, with Tenant's approval
(which approval will not be unreasonably withheld) to maintain and repair same
at Tenant's expense and Tenant will be billed for same as Additional Rent.
C. Repairs and Maintenance; Miscellaneous. Notwithstanding anything
to the contrary in this Lease, Landlord shall have no responsibility to repair
or maintain the Building, any of its components, the Common Areas, the Premises,
or any fixture, improvement, trade fixture, or any item of personal property
contained in the Building, the Common Areas, and/or the Premises if such repairs
or maintenance are required because of the occurrence of any of the following:
(i) the acts, misuse, improper conduct, omission or neglect of Tenant or
Tenant's Agents, or (ii) the conduct of business in the Premises. Should
Landlord elect to make repairs or maintenance occasioned by the occurrence of
any of the foregoing, Tenant shall pay as Additional Rent all such costs and
expenses incurred by Landlord. Landlord shall have the right to approve in
advance all work, repair, maintenance or otherwise, to be performed under this
Lease by Tenant and all of Tenant's repairmen, contractors, subcontractors and
suppliers performing work or supplying materials. Tenant shall be responsible
for all permits, inspections and certificates for accomplishing the above.
Tenant shall obtain lien waivers for all work done in or to the Premises.
11. TENANT'S ALTERATIONS
A. General. During the Lease Term, Tenant will make no alterations,
additions or improvements in or to the Premises or the Building, of any kind or
nature, including, but not limited to, alterations, additions or improvements
in, to, or on, telephone or computer installations (any and all of such
alterations, additions or improvements other than those set forth in the work
letter attached hereto are collectively referred to in this Lease as the
"Alteration(s)"), without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Tenant shall submit to Landlord detailed
drawings and plans of the proposed alterations at the time Landlord's consent is
sought. Should Landlord consent to any proposed Alterations by Tenant, such
consent will be conditioned upon Tenant's agreement to comply with all
requirements established by Landlord, including safety requirements and the
matters referenced in Section 22 of this Lease. As stated herein, all
Alterations made hereunder will become Landlord's property when incorporated
into or affixed to the Building. However, at Landlord's option Landlord may, at
the expiration of the Lease Term, require Tenant, at Tenant's expense, to remove
Alterations made by or on behalf of Tenant and to restore the Premises to their
original condition.
B. Alteration Fee
(1) Tenant shall pay to Landlord as Additional Rent (or to its
nominee or designated contractor, as Landlord may direct) in connection with all
Alterations a fee (the "Alteration Fee") for overhead and administrative costs
in connection with each such Alteration, for Landlord's review and approval of
all plans and specifications for such Alteration, for Landlord's construction
coordination and monitoring of such Alteration, and for all other reasonable
costs and expenses incurred by Landlord as a result of or in connection with
each such Alteration, a fee equal to three and one-half percent (3.5%) of the
total construction cost of each such Alteration; provided, however, Tenant shall
receive a one-time waiver of the Alteration Fee in the amount of $875.00. There
shall be excluded from the computation of the construction cost of each
Alteration the cost of furniture, removable furnishings, draperies, office
equipment, painting, carpeting, removable cabinetry, items of special decoration
and telephone installation and engineer's, architects', space planners' and
other professionals' fees.
(2) Prior to making any Alteration, Tenant shall submit to
Landlord a statement of Tenant's independent architect, if one is employed, or
Tenant's contractor, estimating the total cost of such Alteration and the
estimated time required to complete such Alteration. The Alteration Fee shall be
calculated on the basis of such estimate and paid in equal monthly installments
during the course of the performance of the Alteration, together with the
monthly installments of Base Rent thereafter coming due. Within ten business
days after completion of the Alteration, Tenant shall pay to Landlord the entire
balance of the Alteration Fee if not theretofore paid in full.
(3) Within ten business days after completion of any Alteration,
Tenant shall submit to Landlord a statement of Tenant's independent architect,
if one is employed, or Tenant's contractor, certifying the total cost of such
Alteration. The Alteration Fee shall be adjusted, if necessary, based on the
certification. If the Alteration Fee, as adjusted, shall be greater than the
amount theretofore paid to Landlord by Tenant on account of such Alteration Fee,
Tenant shall pay such deficiency simultaneously with the delivery to Landlord of
the certification, which deficiency shall bear interest at the annual rate (the
"Applicable Rate") equal to two percent (2%) in excess of the publicly announced
prime (or corporate base) rate of interest then in effect at Citibank, N.A. (or
its successors) until paid if not paid within the time required for the payment
thereof. If such Alteration Fee, as adjusted, is less than the amount
theretofore paid to Landlord by Tenant on account of such Alteration Fee,
Landlord, within 30 days after Landlord's receipt of the certification, shall
pay to Tenant the amount of such overpayment. If Landlord shall dispute the
statement certifying the total costs of such Alteration, Landlord shall have the
right, within 30 days after receipt of the certification, to employ an
independent certified public accountant to review Tenant's books and records
relating to such Alteration. The determination of such accountant shall be
conclusively binding upon the parties, and, if necessary, the Alteration Fee
shall be adjusted accordingly based upon such determination. If such
determination shall reveal that the Alteration Fee paid on account of such
Alteration shall have been understated by more than five percent (5%), then
Tenant shall pay the fees of the accountant in connection with such review, and
the payment to be made to Landlord as a result of such understatement shall bear
interest at the Applicable Rate. Any adjustment in the Alteration Fee, together
with interest thereon at the Applicable Rate, as well as any payment of the fees
of such accountant, shall be paid by Tenant to Landlord as additional rent
within ten business days after such accountant's determination.
12. LANDLORD'S ADDITIONS AND ALTERATIONS
Landlord has the right to make changes in and about the Building and
parking areas, including, but not limited to, signs, entrances, address or name
of Building. Such changes may include, but not be limited to, rehabilitation,
redecoration, refurbishment and refixturing of the Building and expansion of or
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Blue Lake Standard Lease
structural changes to the Building. The right of Tenant to quiet enjoyment and
peaceful possession given under the Lease will not be deemed breached or
interfered with by reason of Landlord's actions pursuant to this paragraph so
long as such actions do not materially deprive Tenant of its use and enjoyment
of the Premises.
13. ASSIGNMENT AND SUBLETTING
A. Landlord's Consent Required. Except as provided below with
respect to assignment of this Lease following Tenant's bankruptcy, Tenant will
not effect a transfer without first obtaining the consent of Landlord, which
consent Landlord shall not unreasonably withhold provided that all of the
requirements of paragraph B. of this Section 13 are satisfied. As used in this
Section 13, any of the following shall be deemed to be a transfer: assignment
of this Lease, in whole or in part; sublet of all or any part of the Premises;
any license allowing anyone other than Tenant to use or occupy all or any part
of the Premises; a pledge or encumbrance by mortgage or other instrument of
Tenant's interest in this Lease; any transfer of corporate shares as described
in paragraph C. of this Section 13; or any transfer of partnership interest as
described in paragraph D. of this Section 13. Notwithstanding the foregoing,
(i) Landlord's consent shall not be required for the occupancy right or sublease
of space within the Premises to Rapidsite, Inc., the wholly-owned subsidiary of
the Tenant, provided; however, that Tenant shall provide Landlord with a true
copy of any that occupancy agreement or sublease upon execution of same and (ii)
Tenant shall not be required to pay Landlord a Transfer Fee in connection with
such occupancy or sublease. Consent by Landlord to any transfer shall not
constitute a waiver of the requirement for such consent to any subsequent
transfer. In lieu of approving any transfer, Landlord may elect to terminate
this Lease as to the portion of the Premises affected by such transfer (together
with such additional portion of the Premises needed by Landlord to render the
terminated portion marketable) by giving Tenant notice of such election, in
which event this Lease and the rights and obligations of the parties hereunder
shall cease as of a date set forth in such notice which date shall not be less
than sixty (60) days after the date of such notice. If any improvements and
expenditures are needed to the space so recaptured by Landlord to separate it
from the remaining Premises, Tenant shall pay all cost to recapture the space.
In the event of any such termination, all Rent (other than any Additional Rent
due Landlord by reason of Tenant's failure to perform any of its obligations
hereunder) shall be adjusted as of the date of such termination.
B. Conditions for Transfer Approval. The parties recognize that this
Lease and the Premises are unique, and that the nature and character of the
operations within and management of the Premises are important to the success of
the Building. Accordingly, Landlord shall be entitled to arbitrarily withhold
its consent to any transfer, unless all of the following conditions are
satisfied, in which event, Landlord agrees that it shall not unreasonably
withhold its consent to the transfer in question:
(1) In Landlord's reasonable judgment, the proposed assignee or
subtenant or occupant is engaged in a business or activity, which (a) is in
keeping with the then standards of the Building and zoning requirements, (b) is
limited to the use of the Premises as set forth in the BLI Rider, and (c) will
not violate any negative covenant as to use contained in any other lease of
office space in the Building;
(2) The proposed assignee or subtenant or occupant is a reputable
person of good character and with financial worth equal to or greater than (as
Landlord shall determine) that of Tenant, and Landlord has been furnished with
reasonable proof thereof;
(3) The form of the proposed sublease or instrument of assignment
or occupancy shall be reasonably satisfactory to Landlord, and shall comply with
the applicable provisions of this Paragraph;
(4) There shall not be more than a total of two (2) occupants of
the Premises; and
(5) The proposed subtenant or assignee or occupant shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity and shall
be subject to the service of process in, and the jurisdiction of the courts of
the State of Florida.
(6) Such transferee shall assume in writing, in a form acceptable
to Landlord, all of Tenant's obligations hereunder and Tenant shall provide
Landlord with a copy of such assumption/ transfer document;
(7) Tenant shall pay to Landlord a transfer fee, reimbursing the
Landlord for Landlord's reasonable and verified out-of-pocket expenditures
related to the transfer not to exceed, however, the sum of Five Thousand Dollars
($5,000.00) prior to the effective date of the transfer in order to reimburse
Landlord for all of its internal costs and expenses incurred with respect to the
transfer, including, without limitation, costs incurred in connection with the
review of financial materials, meetings with representative of transferor and/or
transferee and preparation, review, approval and execution of the required
transfer documentation, and, in addition, Tenant shall reimburse Landlord for
any out-of-pocket costs and expenses incurred with respect to such transfer;
(8) As of the effective date of the transfer and continuing
throughout the remainder of the Term, the Base Rent shall not be less than the
Base Rent set forth in the BLI Rider;
(9) Tenant to which the Premises were initially leased shall
continue to remain liable under this Lease for the performance of all terms,
including but not limited to, payment of Rental due under this Lease;
(10) It being acknowledged that as of the date of this Lease the
Landlord has waived a guaranty, however, if during the term of this Lease a
guaranty is delivered by or on behalf of the Tenant, Tenant's guarantor shall
continue to remain liable under the terms of the Guaranty of this Lease and, if
Landlord deems it necessary, such guarantor shall execute such documents
necessary to insure the continuation of its guaranty;
(11) Each of Landlord's Mortgagees shall have consented in
writing to such transfer.
(12) Tenant shall give notice of a requested transfer to Landlord,
which notice shall be accompanied by (a) a conformed or photostatic copy of the
proposed assignment or sublease, the effective or commencement date of which
shall be at least 60 days after the giving of such notice, (b) a statement
setting forth in reasonable detail the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, (c)
current financial information with respect to the proposed assignee or
subtenant, including, without limitation, its most recent financial report and
(d) such other information as Landlord may reasonably request.
C. Transfer of Corporate Shares. If Tenant is a corporation other
than a corporation the outstanding voting stock of which is listed on a
"national securities exchange," as defined in the Securities Exchange Act of
1934) and if at any time after execution of this Lease any part or all of the
corporate shares shall be transferred by sale, assignment, bequest, inheritance,
operation of law or other disposition (including, but
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BLUE LAKE STANDARD LEASE
not limited to, such a transfer to or by a receiver or trustee in federal or
state bankruptcy, insolvency, or other proceedings) so as to result in a change
in the present control of said corporation by the person(s) now owning a
majority of said corporate shares, a transfer shall be deemed to have occurred.
Tenant shall give Landlord notice that such transfer is imminent at least
fifteen (15) days prior to the date of such transfer. If any such transfer is
made (and regardless of whether Tenant has given notice of same), Landlord may
elect to terminate this Lease at any time thereafter by giving Tenant notice of
such election, in which event this Lease and the rights and obligations of the
parties hereunder shall cease as of a date set forth in such notice which date
shall not be less than sixty (60) days after the date of such notice. In the
event of any such termination, all Rent (other than any Additional Rent due
Landlord by reason of Tenant's failure to perform any of its obligations
hereunder) shall be adjusted as of the date of such termination.
D. Transfer of Partnership Interests. If Tenant is a general or
limited partnership and if at any time after execution of this Lease any part or
all of the interests in the capital or profits of such partnership or any voting
or other interests therein shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other disposition (including, but not limited
to, such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings, and also including, but not limited
to, any adjustment in such partnership interests) so as to result in a change in
the present control of said partnership by the person or persons now having
control of same, a transfer shall be deemed to have occurred. Tenant shall give
Landlord notice that such transfer is imminent at least fifteen (15) days prior
to the date of such transfer. If any such transfer is made (and regardless of
whether Tenant has given notice of same), Landlord may elect to terminate this
Lease at any time thereafter by giving Tenant notice of such election, in which
event this Lease and the rights and obligations of the parties hereunder shall
cease as of a date set forth in such notice which date shall be not less than
sixty (60) days after the date of such notice. In the event of any such
termination, all Rent (other than any Additional Rent due Landlord by reason of
Tenant's failure to perform any of its obligations hereunder) shall be adjusted
as of the date of such termination.
E. Acceptance of Rent from Transferee. The acceptance by Landlord of
the payment of Rent following any assignment or other transfer prohibited by
this Article shall not be deemed to be a consent by Landlord to any such
assignment or other transfer nor shall the same be deemed to be a waiver of any
right or remedy of Landlord hereunder.
F. Additional Provisions Respecting Transfers. Without limiting
Landlord's right to withhold its consent to any transfer by Tenant, and
regardless of whether Landlord shall have consented to any such transfer,
neither Tenant nor any other person having an interest in the possession, use or
occupancy of the Premises or any part thereof shall enter into any lease,
sublease, license, concession, assignment or other transfer or agreement for
possession, use or occupancy of all or any portion of the Premises, which
provides for rental or other payment for such use, occupancy or utilization
based, in whole or in part, on the net income or profits derived by any person
or entity from the space so leased, used or occupied, and any such purported
lease, sublease, license, concession, assignment or other transfer or agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use or occupancy of all or any part of the Premises.
There shall be no deduction from the rental payable under any sublease or other
transfer from the amount thereof passed on to any person or entity, for any
expenses or costs related in any way to the subleasing or transfer of such
place.
If Landlord shall consent to any Transfer, Tenant shall in consideration
therefor, pay to Landlord as Additional Rent an amount equal to seventy-five
(75%) percent of the Transfer Consideration, or Landlord may elect to recapture
the Transferred portion of the Premises and terminate this Lease with respect to
that portion only. For purposes of this paragraph, the term Transfer
Consideration shall mean in any Lease Year (i) any rents, additional charges or
other consideration payable to Tenant by the transferee of the Transfer which is
in excess of the Base Rent and Overhead Rent accruing during such Lease Year,
(ii) all sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture or other personal property in excess of the
fair market sale or rental value thereof as of the date of the Transfer and
(iii) all sums paid for services provided by Tenant to the transferee
(including, without limitation, secretarial, word processing, receptionist,
conference rooms, and library) in excess of the fair market value of such
services. Landlord shall have the right to audit Tenant's books and records
upon reasonable notice to determine the amount of Transfer Consideration payable
to Landlord. In the event such audit reveals an understatement of Transfer
Consideration in excess of five percent (5%) of the actual Transfer
Consideration due Landlord, Tenant shall pay for the cost of such audit within
ten (10) days after Landlord's written demand for same.
14. TENANT'S INSURANCE COVERAGE
A. General. Tenant agrees that, at all times during the Lease Term
(as well as prior and subsequent thereto if Tenant or any of Tenant's Agents
should then use or occupy any portion of the Premises), it will keep in force,
with an insurance company licensed to do business in the State of Florida, and
at least A+IX-rated in the most current edition of Best's Insurance Reports and
acceptable to Landlord, (i) without deductible in excess of $5,000.00,
comprehensive general liability insurance, including coverage for bodily injury
and death, property damage and personal injury and contractual liability as
referred to below, in the amount of not less than the amount set forth in the
BLI Rider, combined single limit per occurrence for injury (or death) and
damages to property, (ii) with deductible of not more than Five Thousand Dollars
($5,000.00), insurance on an "All Risk or Physical Loss" basis, including
sprinkler leakage, vandalism, malicious mischief, fire and extended coverage,
covering all improvements to the Premises, fixtures, furnishings, removable
floor coverings, equipment, signs and all other decoration or stock in trade, in
the amounts of not less than the full replacement value thereof, and (iii)
workmen's compensation and employer's liability insurance, if required by
statute. Such policies will: (i) include Landlord and such other parties as
Landlord may reasonably designate as additional insured's, (ii) be considered
primary insurance, (iii) include within the terms of the policy or by
contractual liability endorsement coverage insuring Tenant's indemnity
obligations under paragraph 19, and (v) provide that it may not be canceled or
changed without at least thirty (30) days prior written notice from the company
providing such insurance to each party insured thereunder. Tenant will also
maintain throughout the Lease Term worker's compensation insurance with not less
than the maximum statutory limits of coverage.
B. Evidence. The insurance coverages to be provided by Tenant will
be for a period of not less than one year. At least thirty (30) days prior to
the Commencement Date, Tenant will deliver to Landlord original certificates of
all such paid-up insurance; thereafter, at least thirty (30) days prior to the
expiration of any policy Tenant will deliver to Landlord such original
certificates as will evidence a paid-up renewal or new policy to take the place
of the one expiring.
15. LANDLORD'S INSURANCE COVERAGE
A. General. Landlord will at all times during the Lease Term
maintain a policy or policies of insurance insuring the Building against loss or
damage by fire, explosion or
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BLUE LAKE STANDARD LEASE
other hazards and contingencies typically covered by insurance for an amount
acceptable to the mortgagees encumbering the Building. Landlord reserves the
right to self insure in lieu of maintaining such policies.
B. Tenant's Acts. Tenant will not do or permit anything to be done
upon or bring or keep or permit anything to be brought or kept upon the Premises
which will increase Landlord's rate of insurance on the Building. If by reason
of the failure of Tenant to comply with the terms of this Lease, or by reason of
Tenant's occupancy (even though permitted or contemplated by this Lease), the
insurance rate shall at any time be higher than it would otherwise be, Tenant
will reimburse Landlord for that part of all insurance premiums charged because
of such violation or occupancy by Tenant. Tenant agrees to comply with any
requests or recommendation made by Landlord's insurance underwriter inspectors.
16. WAIVER OF RIGHT OF RECOVERY
A. General. Except as provided in Section 39, neither Landlord nor
Tenant shall be liable to the other for any damage to any building, structure or
other tangible property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, even though such loss or damage might
have been occasioned by the negligence of such party, its agents or employees.
The provisions of this Section shall not limit the indemnification for liability
to third parties pursuant to Section 19. As used in this Section 16.A.,
"damage" refers to any loss, destruction or other damage.
B. Exclusions. Tenant acknowledges that Landlord will not carry
insurance on improvements, furniture, furnishings, trade fixtures, equipment
installed in or made to the Premises by or for Tenant, and Tenant agrees that
Tenant, and not Landlord, will be obligated to promptly repair any damage
thereto or replace the same.
17. DAMAGE OR DESTRUCTION BY CASUALTY
A. Absolute Right to Terminate. If by fire or other casualty the
Premises are damaged or destroyed to the extent of twenty five-percent (25%) or
more of the insurable value thereof, or the Building is damaged or destroyed to
the extent of twenty-five per cent (25%) or more of the insurable value thereof,
Landlord will have the option of terminating this Lease or any renewal thereof
by serving written notice upon Tenant within one hundred and eighty (180) days
from the date of the casualty and any prepaid Rent or Additional Rent will be
prorated as of the date of destruction and the unearned portion of such Rent
will be refunded to Tenant without interest.
B. Qualified Right to Terminate. If by fire or other casualty either
the Premises or the Building is damaged or destroyed to the extent of less than
twenty-five per cent (25%) but more than ten percent (10%) of the insurable
value of the Premises or the Building (as applicable) (or the Premises or
Building are damaged to a lesser degree but Section 17C does not apply because
of the number of years remaining in the Lease Term), then Landlord may, so long
as it treats Tenant and similarly situated tenants in a nondiscriminatory
manner, either terminate this Lease by serving written notice upon Tenant within
one hundred and eighty (180) days of the date of destruction or Landlord may
restore the Premises.
C. Obligation to Restore. If by fire or other casualty either the
Premises or the Building is destroyed or damaged, but only to the extent of ten
percent (10%) or less of the insurable value of the Premises or the Building (as
applicable), and, also, the unexpired Lease Term, including any previously
exercised renewal option, is more than two (2) years, then Landlord will restore
the Premises.
D. Rent Adjustments. In the event of restoration by Landlord, all
Base Rent and Additional Rent paid in advance shall be apportioned as of the
date of damage or destruction and all such Base Rent and Additional Rent as
above described thereafter accruing shall be equitably and proportionately
adjusted according to the nature and extent of the destruction or damage,
pending substantial completion of rebuilding, restoration or repair. In the
event the destruction or damage is so extensive as to make it unfeasible for
Tenant to conduct any of Tenant's business in the Premises, Rent and Additional
Rent under this Lease will be abated until the Premises are substantially
restored by Landlord or until Tenant resumes use and occupancy of the Premises,
whichever shall first occur. In lieu of abating Rent and Additional Rent as
provided above, Landlord shall have the right to temporarily or permanently
relocate Tenant to other space. Landlord will not be liable for any damage to
or any inconvenience or interruption of business of Tenant or any of Tenant's
Agents occasioned by fire or other casualty.
E. Qualifications. Said restoration, rebuilding or repairing will
exist and will be at Landlord's sole cost and expense, subject to the
availability of applicable insurance proceeds. Landlord shall have no duty to
restore, rebuild or replace Tenant's personal property and trade fixtures.
Notwithstanding anything to the contrary in this Lease, including, but not
limited to this Section 17A, Landlord's obligation(s) to repair, rebuild or
restore the Building or the Premises shall exist (i) only to the extent of
insurance proceeds received by Landlord in connection with the condition or
event which gave rise to Landlord's obligation to repair, rebuild or restore
and/or (ii) only so long as the area unaffected by the casualty may, as
determined by Landlord using reasonable business judgment, be restored as a
profitable, self functioning unit.
18. CONDEMNATION AND EMINENT DOMAIN
A. Absolute Right to Terminate. If all or a material part of the
Premises or the Building or the parking spaces is taken for any public or quasi-
public use under any governmental law, ordinance or regulation or by right of
eminent domain or by purchase in lieu thereof, and the taking would prevent or
materially interfere with the use of the Premises for the purpose for which they
are then being used, this Lease will terminate and the Rent and Additional Rent
will be abated during the unexpired portion of this Lease effective on the date
physical possession is taken by the condemning authority. Tenant will have no
claim to the condemnation award.
B. Obligation to Restore. In the event an immaterial part of the
Premises or the Building or the parking spaces is taken for any public or quasi-
public use under any governmental law, ordinance or regulation, or by right of
eminent domain or by purchase in lieu thereof, and this Lease is not terminated
as provided in subsection A above, then Landlord shall, subject to the remaining
provisions of this Section, at Landlord's expense, restore the Premises to the
extent necessary to make them reasonably tenantable. The Rent and Additional
Rent payable under this Lease during the unexpired portion of the Lease Term
shall be adjusted to such an extent as may be fair and reasonable under the
circumstances. Tenant shall have no claim to the condemnation award with
respect to the leasehold estate but, in a subsequent, separate proceeding, may
make a separate claim for trade fixtures installed in the Premises by and at the
expense of Tenant and Tenant's moving expense. In no event will Tenant have any
claim for the value of the unexpired Lease Term.
C. Qualifications. Notwithstanding the foregoing, Landlord's
obligation to restore exists (i) only if and/or to the extent, that the
condemnation or similar award received by Landlord is sufficient to compensate
Landlord for its loss and its restoration costs and/or (ii) the area unaffected
by the
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BLUE LAKE STANDARD LEASE
condemnation or similar proceeding may, as determined by Landlord's reasonable
business judgment, be restored as a profitable, and self functioning unit.
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION
A. Personal Property. All personal property placed or moved into the
Building will be at the sole risk of Tenant or other owner. Landlord will not
be liable to Tenant or others for any damage to person or property arising from
environmental concerns, as hereafter defined, theft, vandalism, HVAC
malfunction, the bursting or leaking of water pipes, any act or omission of any
cotenant or occupant of the Building or of any other person, or otherwise.
B. Limitations. Notwithstanding any contrary provision of this
Lease: (i) Tenant will look solely (to the extent insurance coverage is not
applicable or available) to the interest of Landlord (or its successor as
Landlord hereunder) in the Premises for the satisfaction of any judgment or
other judicial process requiring the payment of money as a result of any
negligence or breach of this Lease by Landlord or its successor or of Landlord's
managing agent (including any beneficial owners, partners, corporations and/or
others affiliated or in any way related to Landlord or such successor or
managing agent) and Landlord has no personal liability hereunder of any kind,
and (ii) Tenant's sole right and remedy in any action or proceeding concerning
Landlord's reasonableness (where the same is required under this Lease) will be
an action for declaratory judgment and/or specific performance.
C. Indemnity. Tenant agrees to indemnify, defend and hold harmless
Landlord and its agents from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs, including appellate proceedings and
bankruptcy proceedings, incurred or suffered by Landlord and arising from or in
any way connected with the Premises or the use thereof or any acts, omissions,
neglect or fault of Tenant or any of Tenant's Agents, including, but not limited
to, any breach of this Lease or any death, personal injury or property damage
occurring in or about the Premises or the Building or arising from Environmental
concerns, as hereafter defined. Tenant will reimburse Landlord upon request for
all costs incurred by Landlord in the interpretation and enforcement of any
provisions of this Lease and/or the collection of any sums due to Landlord under
this Lease, including collection of agency fees, and reasonable attorneys' fees
and costs, regardless of whether litigation is commenced, and through all
appellate actions and proceedings, including bankruptcy proceedings, if
litigation is commenced. The foregoing claims, causes of actions, liabilities,
judgments, damages, losses, costs and expenses shall include but not be limited
to any of same arising from Tenant's failure to comply with any of the
requirements of Americans with Disabilities Act ("ADA") or Florida Accessibility
Code ("FAC") within the Premises.
20. RELOCATION OF TENANT
A. General. Recognizing that the Building is large and the needs of
tenants as to space may vary from time to time, and in order for Landlord to
accommodate Tenant and prospective tenants, Landlord expressly reserves the
right, prior to and/or during the Lease Term, at Landlord's sole expense, to
move Tenant from the Premises and relocate Tenant in other space of Landlord's
choosing of approximately the same dimensions and size within the Building (or
additions to the Building or new construction related to the Building or the
campus in which Building is located), which other space will be decorated by
Landlord at its expense. Landlord shall, in exercising its right to relocate the
Tenant, make said decision in full consideration and deference to the nature of
Tenant's business which business operates on a twenty-four (24) hour basis,
seven (7) days per week. Landlord acknowledges that because of the nature of
Tenant's business it is in, it is of the utmost important that Tenant be on-line
100% of the time and if not, Tenant would sustain substantial and detrimental
losses. Accordingly, if the Landlord elects to relocate the Tenant, as
provided in this Article 20, the Landlord shall, at its expenses, cooperate
with the Tenant in effectuating a plan or program so as to ensure that the
business of the Tenant will not be interrupted during the course of the
relocation. Landlord may use decorations and materials from the existing
Premises, or other materials, so that the space in which Tenant is relocated
will be comparable in its interior design and decoration to the space from which
Tenant is removed.
B. No Interference. During the relocation period Landlord will use
reasonable efforts not to unduly interfere with Tenant's business activities and
Landlord agrees to substantially complete the relocation within a reasonable
time under all then existing circumstances.
C. Premises. This Lease and each of its terms and conditions will
remain in full force and effect and be applicable to any such new space and such
new space will be deemed to be the Premises demised hereunder; upon request
Tenant will execute such documents which may be requested to evidence,
acknowledge and confirm the relocation (but it will be effective even in the
absence of such confirmation).
D. Costs. Landlord's obligation for expenses of removal and
relocation will be the actual cost of relocating and decorating Tenant's new
space, and Tenant agrees that Landlord's exercise of its election to remove and
relocate Tenant will not release Tenant in whole or in part from its obligations
hereunder for the full Lease Term. No rights granted in this Lease to Tenant,
including the right of peaceful possession and quiet enjoyment, will be deemed
breached or interfered with by reason of Landlord's exercise of the relocation
right reserved herein.
E. Notice. If Landlord exercises its relocation right under this
paragraph, (i) Tenant will be given ninety (90) days prior notice in writing and
(ii) Landlord will reimburse Tenant for the reasonable cost of telephone
relocation necessitated by the exercise of said right of relocation.
21. COMPLIANCE WITH LAWS AND PROCEDURES
A. Compliance. Tenant, at its sole cost, will promptly comply with
all applicable laws, guidelines, rules, regulations and requirements, whether of
federal, state, or local origin, applicable to the Premises and the Building,
including, but not limited to, the Americans with Disabilities Act, 42 U.S.C.
(S) 12101 et seq, the FAC, and those for the correction, prevention and
abatement of nuisance, unsafe conditions, or other grievances arising from or
pertaining to the use or occupancy of the Premises. Tenant acknowledges that
(i) the Premises and the parking facilities may contain potentially hazardous
substances, including, but not limited to, asbestos containing materials, radon
gas, mineral fibers, and other like materials (all of such materials are
referred to herein as "Environmental Concerns") and (ii) Tenant has been advised
that the Premises and the Building do contain asbestos containing materials.
Accordingly, Tenant agrees that Tenant and Tenant's Agents shall comply with all
operation and maintenance programs and guidelines implemented or promulgated
from time to time by Landlord or its consultants, including, but not limited to,
those matters set forth in subsections B and C below, in order to reduce the
risk to Tenant, Tenant's Agents or any other tenants of the Building of injury
from Environmental Concerns. Tenant at its sole cost and expense shall be
solely responsible for taking any and all measures which are required to comply
with the requirements of the ADA and the FAC within the Premises. Any
Alterations to the Premises made by or on behalf of Tenant for the purpose of
complying with the
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BLUE LAKE STANDARD LEASE
ADA and FAC or which otherwise require compliance with the ADA and FAC shall be
done in accordance with this Lease; provided, that Landlord's consent to such
Alterations shall not constitute either Landlord's assumption, in whole or in
part, of Tenant's responsibility for compliance with the ADA and FAC, or
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA and FAC.
B. Notice Prior to Work. Tenant shall provide thirty (30) days
notice to Landlord prior to the performance by Tenant, Tenant's Agents or
contractors of any repairs, renovation and/or major structural or mechanical
systems maintenance, to the Premises. Such notice shall include a detailed
description of the work contemplated. Tenant shall not perform, or cause to be
performed, any such repair, renovation and/or maintenance without the written
consent of Landlord, and, if such consent is granted, the repair, renovation
and/or maintenance must be performed in accordance with the terms of Landlord's
consent.
C. Indemnification. Tenant shall indemnify, defend, and hold
harmless Landlord from and against any and all claims or liability arising from
the performance of the repair, renovation, and/or maintenance described above.
This indemnity shall include, but not be limited to, claims or liabilities
asserted against Landlord based upon negligence, strict liability or other
liability by operation of law to any third party or government entity, and all
costs, attorney's fees, expenses, and liabilities incurred by Landlord in the
defense of any such claim. Landlord shall defend any such claim at Tenant's
expense by counsel selected by Landlord. Furthermore, as a material part of the
consideration to Landlord for the entering into of this Lease, Tenant assumes
all risk of damages to property or injury to persons in, upon, or about the
Premises arising from any act or omission of Tenant, Tenant's Agents, employees,
contractors, and invitees, resulting in the release or threatened release of
friable asbestos, or causing nonfriable asbestos to become friable. Tenant
agrees to bear the expense of whatever preventive or abatement measures are
required by Landlord's consent with respect to friable asbestos or any other
material. Further, Tenant shall be liable for the entire cost of abating and
remediating any such release or threatened release, and Tenant shall indemnify,
defend, and hold harmless Landlord from and against any and all claims or
liability arising therefrom.
D. Radon. In accordance with Florida Law, the following disclosure
is hereby made:
RADON GAS: Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health
risk to persons who are exposed to it over time. Levels of radon that
exceed Federal and State Guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
22. RIGHT OF ENTRY
Landlord and its agents will have the right to enter the Premises
during all reasonable hours to make necessary repairs to the Premises. In the
event of an emergency, Landlord or its agents may enter the Premises at any
time, without notice, to appraise and correct the emergency condition. Said
right of entry will, after reasonable notice, likewise exist for the purpose of
removing placards, signs, fixtures, alterations, or additions which do not
conform to this Lease. Landlord or its agents will have the right to exhibit
the Premises at any time, upon reasonable prior notice to Tenant, to
prospective tenants within one hundred and twenty days (120) before the
Expiration Date of the Lease.
23. DEFAULT
A. Events of Default By Tenant. If (1) Tenant vacates, abandons or
surrenders all or any part of the Premises prior to the Expiration Date, or (2)
Tenant fails to fulfill any of the terms or conditions of this Lease or any
other lease heretofore made by Tenant for space in the Building or (3) the
appointment of a trustee or a receiver to take possession of all or
substantially all of Tenant's assets occurs, or if the attachment, execution or
other judicial seizure of all or substantially all of Tenant's assets located at
the Premises, or of Tenant's interest in this Lease, occurs, or (4) Tenant or
any of its successors or assigns or any guarantor of this Lease ("Guarantor")
should file any voluntary petition in bankruptcy, reorganization or arrangement,
or an assignment for the benefit of creditors or for similar relief under any
present or future statute, law or regulation relating to relief of debtors, or
(5) Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy,
reorganization or arrangement filed against it, or (6) Tenant shall permit,
allow or suffer to exist any lien, judgment, writ, assessment, charge,
attachment or execution upon Landlord's or Tenant's interest in this Lease or to
the Premises, and/or the fixtures, improvements and furnishings located thereon,
or (7) Tenant's net worth decreases by more than ten (10%) percent from that as
existed at the Effective Date hereof (based on Tenant's 1996 financial
statement) or other material adverse change occurs in Tenant's financial
condition; and Tenant shall not have cured such default and restored Tenant to
the required condition within thirty (30) days of written notice from the
Landlord, then Tenant shall be in default hereunder.
B. Tenant's Grace Periods. If (1) Tenant fails to pay Rent or
Additional Rent on the date due or (2) Tenant fails to cure any other default
within twenty (20) days after notice from Landlord specifying the nature of such
default (unless such default is of a nature that it cannot be completely cured
within said twenty (20) day period and steps have been diligently commenced to
cure or remedy it within such twenty (20) day period and are thereafter pursued
with reasonable diligence and in good faith), then Landlord shall have such
remedies as are provided under this Lease and/or under the laws of the State of
Florida.
C. Repeated Late Payment. Regardless of the number of times of
Landlord's prior acceptance of late payments and/or late charges, (i) if
Landlord notifies Tenant twice in any 12-month period that Base Rent or any
Additional Rent has not been paid when due, then any other late payment within
such 12-month period shall automatically constitute a default hereunder and (ii)
the mere acceptance by Landlord of late payments in the past shall not,
regardless of any applicable laws to the contrary, thereafter be deemed to waive
Landlord's right to strictly enforce this Lease, including Tenant's obligation
to make payment of Rent on the exact day same is due, against Tenant.
D. Landlord's Default. If Tenant asserts that Landlord has failed to
meet any of its obligations under this Lease, Tenant shall provide written
notice ("Notice of Default") to Landlord specifying the alleged failure to
perform, and Tenant shall send by certified mail, return receipt requested, a
copy of such Notice of Default to any and all mortgage holders, provided that
Tenant has been previously advised of the address(es) of such mortgage
holder(s). Landlord shall have a thirty (30) day period after receipt of the
Notice of Default in which to commence curing any non-performance by Landlord,
and Landlord shall have as much time thereafter to complete such cure as is
necessary so long as Landlord's cure efforts are diligent and continuous. If
Landlord has not begun the cure within thirty (30) days of receipt of the Notice
of Default, or Landlord does not thereafter diligently and continuously attempt
to cure, then Landlord shall be in default under this Lease. If Landlord is in
default under this Lease, then the mortgage holder(s) shall have an additional
thirty (30) days, after receipt of a second written notice from Tenant, within
which to cure such default or, if such
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BLUE LAKE STANDARD LEASE
default cannot be cured within that time, then such additional time as may be
necessary so long as their efforts are diligent and continuous.
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT
A. Landlord's Options. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(1) terminate this Lease and Tenant's right of possession; or
(2) terminate Tenant's right to possession but not the Lease
and/or proceed in accordance with any and all provisions of paragraph B below.
B. Landlord's Remedies.
(1) Landlord may without further notice reenter the Premises
either by force or otherwise and dispossess Tenant by summary proceedings or
otherwise, as well as the legal representative(s) of Tenant and/or other
occupant(s) of the Premises, and remove their effects and hold the Premises as
if this Lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end; and/or
at Landlord's option,
(2) All Rent and all Additional Rent for the balance of the Term
will, at the election of Landlord, be accelerated and the present worth of same
for the balance of the Lease Term, net of amounts actually collected by
Landlord, shall become immediately due thereupon and be paid, together with all
expenses of every nature which Landlord may incur such as (by way of
illustration and not limitation) those for attorneys' fees, brokerage,
advertising, and refurbishing the Premises in good order or preparing them for
re-rental. For purposes of this clause (2), "present worth" shall be computed
by discounting such amount to present worth at a discount rate equal to one
percentage point above the discount rate then in effect at the Federal Reserve
Bank nearest to the location of the Building; and/or at Landlord's option,
(3) Landlord may re-let the Premises or any part thereof, either
in the name of Landlord or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Lease Term, and may grant concessions or free
rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option,
(4) Tenant or its legal representative(s) will also pay to
Landlord as liquidated damages any deficiency between the Rent and all
Additional Rent hereby reserved and/or agreed to be paid and the net amount, if
any, of the rents collected on account of the lease or leases of the Premises
for each month of the period which would otherwise have constituted the balance
of the Lease Term.
25. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT
If Tenant fails to observe or perform any term or condition of this
Lease within the grace period, if any, applicable thereto, then Landlord may
immediately or at any time thereafter perform the same for the account of
Tenant. If Landlord makes any expenditure or incurs any obligation for the
payment of money in connection with such performance for Tenant's account
(including reasonable attorneys' fees and costs in instituting, prosecuting
and/or defending any action or proceeding through appeal), the sums paid or
obligations incurred, with interest at eighteen percent (18%) per annum, will be
paid by Tenant to Landlord within ten (10) days after rendition of a xxxx or
statement to Tenant. In the event Tenant in the performance or non-performance
of any term or condition of this Lease should cause an emergency situation to
occur or arise within the Premises or in the Building, Landlord will have all
rights set forth in this paragraph immediately without the necessity of
providing Tenant any advance notice.
26. LIENS
A. General. In accordance with the applicable provisions of the
Florida Construction Lien Act and specifically Florida Statutes, Section 713.10,
no interest of Landlord whether personally or in the Premises, or in the
underlying land or Building of which the Premises are a part or the leasehold
interest aforesaid shall be subject to liens for improvements made by Tenant or
caused to be made by Tenant hereunder. Further, Tenant acknowledges that
Tenant, with respect to improvements or alterations made by Tenant or caused to
be made by Tenant hereunder, shall promptly notify the contractor making such
improvements to the Premises of this provision exculpating Landlord's liability
for such liens.
B. Default. Notwithstanding the foregoing, if any construction lien
or other lien, attachment, judgment, execution, writ, charge or encumbrance is
filed against the Building or the Premises or this leasehold, or any
alterations, fixtures or improvements therein or thereto, as a result of any
work action or inaction done by or at the direction of Tenant or any of Tenant's
Agents, Tenant will discharge same of record within ten (10) days after the
filing thereof, failing which Tenant will be in default under this Lease.
Further, in the event, that the Tenant shall fail to discharge same of record
within twenty (20) days after the filing thereof, without waiving Tenant's
default, Landlord, in addition to all other available rights and remedies,
without further notice, may discharge the same of record by payment, bonding or
otherwise, as Landlord may elect, and upon request Tenant will reimburse
Landlord for all costs and expenses so incurred by Landlord plus interest
thereon at the rate of eighteen percent (18%) per annum, together with an
administrative fee of $2,500.00.
27. NOTICES
Notices to Tenant under this Lease will be addressed to Tenant and
mailed or delivered to the address set forth for Tenant in the BLI Rider.
Notices to Landlord under this Lease (as well as the required copies thereof)
will be addressed to Landlord (and its agents) and mailed or delivered to the
address set forth in the BLI Rider. Notices will be personally delivered or
given by registered or certified mail, return receipt requested. As used herein,
personal delivery includes delivery by overnight courier. Notices delivered
personally will be deemed to have been given as of the date of delivery and
notices given by mail will be deemed to have been given forty-eight (48) hours
after the time said properly addressed notice is placed in the mail. Each party
may change its address from time to time by written notice given to the other as
specified above.
28. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION
Landlord has the unrestricted right to convey, mortgage and refinance
the Building, or any part thereof. Tenant agrees, within seven (7) days after
notice, to execute and deliver to Landlord or its mortgagee or designee such
instruments as Landlord or its mortgagee may require, certifying the amount of
the Security Deposit and whether this Lease is in full force and effect, and
listing any modifications. This estoppel certificate is intended to be for the
benefit of Landlord, any purchaser or mortgagee of Landlord, or any purchaser or
assignee of Landlord's mortgage. The estoppel certificate will also contain
such other information as Landlord or its designee may request. This Lease is
and at all times will be subject and subordinate to all
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BLUE LAKE STANDARD LEASE
present and future mortgages or ground leases which may affect the Building
and/or the parking lot, and to all recastings, renewals, modifications,
consolidations, replacements, and extensions of any such mortgage(s), and to all
increases and voluntary and involuntary advances made thereunder. The foregoing
will be self-operative and no further instrument of subordination will be
required. In the event that the holder ("Lender") of any encumbrance
("Mortgage") on the Building or any other person acquires title to the Building
pursuant to the exercise of any remedy provided for in the Mortgage or by reason
of the acceptance of a deed in lieu of foreclosure (the Lender, any other such
person and their participants, successors and assigns being referred to herein
as the "Purchaser"), Tenant covenants and agrees to attorn to and recognize and
be bound to Purchaser as its new Landlord, and except as provided below, this
Lease shall continue in full force and effect as a direct Lease between Tenant
and Purchaser, except that, notwithstanding anything to the contrary herein or
in the Lease, the provisions of the Mortgage will govern with respect to the
disposition of proceeds of insurance policies or condemnation or eminent domain
awards. So long as the Lease is in full force and effect and Tenant is not in
default under any provision of this Lease, and no event has occurred that has
continued to exist for a period of time (after notice, if any, required by this
Lease) as would entitle Landlord to terminate this Lease or would cause without
further action by Landlord, the termination of this Lease or would entitle
Landlord to dispossess the Tenant thereunder:
A. The right of possession of Tenant to the Premises shall not be
terminated or disturbed by any steps or proceedings taken by Lender in the
exercise of any of its rights under the Mortgage or the indebtedness secured
thereby;
B. This Lease shall not be terminated or affected by said exercise of
any remedy provided for in the Mortgage, and any sale by Lender of the Building
pursuant to the exercise of any rights and remedies under the Mortgage or
otherwise, shall be made subject to this Lease and the rights of Tenant
hereunder.
C. In no event shall Lender or any other Purchaser be:
(1) liable for any act or omission of Landlord or any prior
landlord;
(2) liable for the return of any security deposit;
(3) subject to any offsets or defenses that the Tenant might have
against Landlord or any prior landlord;
(4) bound by any payment or rent or additional rent that Tenant
might have paid to Landlord or any prior landlord for more than the current
month; or
(5) bound by any amendment or modifications of the Lease made
without Lender's or such other Purchaser's prior written consent.
D. Provided that Landlord has previously notified Tenant of Lender's
address for notice, Tenant agrees to give prompt written notice to Lender of any
default by Landlord that would entitle Tenant to cancel this Lease, and agrees
that notwithstanding any provision of this Lease, no notice of cancellation
thereof given on behalf of Tenant shall be effective unless Lender has received
said notice and has failed within 30 days of the date of receipt thereof to cure
Landlord's default, or if the default cannot be cured within 30 days, has failed
to commence and to diligently pursue the cure of Landlord's default which gave
rise to such right of cancellation. Tenant further agrees to give such notices
to any successor of Lender, provided that such successor shall have given
written notice of Tenant of its acquisition of Lender's interest in the Mortgage
and designated the address to which such notices are to be sent.
E. Tenant acknowledges that Landlord may execute and deliver to
Lender an Assignment of Leases and Rents conveying the rentals under this Lease
as additional security for the loan secured by the Mortgage, and Tenant hereby
expressly consents to such Assignment.
F. Tenant agrees to certify in writing to Lender, upon request,
whether or not any default on the part of Landlord exists and the nature of any
such default.
G. The foregoing provisions shall be self-operative and effective
without the execution of any further instruments on the part of Lender or
Tenant. However, Tenant agrees to execute and deliver to Lender or to any
person to whom Tenant herein agrees to attorn such other instruments as either
shall request in order to effectuate said provisions.
29. ATTORNMENT AND MORTGAGEE'S REQUEST
A. Attornment. If any mortgagee of the Building comes into
possession or ownership of the Premises, or acquires Landlord's interest by
foreclosure of the mortgage or otherwise, upon the mortgagee's request Tenant
will attorn to the mortgagee.
B. Mortgage Modification. If a mortgagee of the Building requests
modifications to this Lease as a condition to disbursing any monies to be
secured by the mortgage, Tenant agrees that within seven (7) days after request
by the mortgagee Tenant will execute, acknowledge and deliver to the mortgagee
an agreement, in form and substance satisfactory to the mortgagee, evidencing
such modifications, provided they do not increase Tenant's obligations under
this Lease or materially adversely affect the leasehold interest created by this
Lease.
C. Estoppel Letter. Tenant agrees that within seven (7) days after
request by any mortgagee of the Building, Tenant will execute, acknowledge and
deliver to the mortgagee a notice in form and substance satisfactory to the
mortgagee (as prepared by Landlord), setting forth such information as the
mortgagee may require with respect to this Lease and/or the Premises. If for
any reason Tenant does not timely comply with the provisions of this paragraph,
Tenant will be deemed to have confirmed that this Lease is in full force and
effect with no defaults on the part of either party and without any right of
Tenant to offset, deduct or withhold any Rent or Additional Rent.
30. TRANSFER BY LANDLORD
If Landlord's interest in the Building terminates by reason of a bona
fide sale or other transfer, Landlord will, upon transfer of the Security
Deposit to the new owner, thereupon be released from all further liability to
Tenant under this Lease. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the Premises and make known to
Landlord the location and combination of all safes, locks and similar items.
31. SURRENDER OF PREMISES; HOLDING OVER
A. Surrender. Tenant agrees to surrender the Premises to Landlord on
the Expiration Date (or sooner termination of the Lease Term pursuant to other
applicable provisions hereof) in as good condition as they were at the
commencement of Tenant's occupancy, ordinary wear and tear, and damage by fire
and windstorm excepted.
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BLUE LAKE STANDARD LEASE
B. Restoration. In all events, Tenant will promptly restore all
damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession, including claims of any succeeding tenant.
C. Removal. Upon expiration of the Lease Term, at Landlord's option,
Tenant may not be required to remove from the Premises Building Standard Items
(as defined in the Work Letter), all of such Building Standard Items are the
property of Landlord.
D. Holdover. If Tenant shall be in possession of the Premises after
the expiration of the Term, in the absence of any agreement extending the Term,
the tenancy under this Lease shall become one from month to month, terminable by
either party on thirty (30) days' prior notice, and shall be subject to all of
the terms and conditions of this Lease as though the Term had been extended from
month to month, except that (i) the Base Rent payable hereunder for each month
during said holdover period shall be equal to one and one-half times (1-1/2) the
monthly installment of Base Rent payable during the last month of the Term and
(ii) all Overhead Rent payable hereunder shall be prorated for each month during
such holdover period.
E. No Surrender. No offer of surrender of the Premises, by delivery
to Landlord or its agent of keys to the Premises or otherwise, will be binding
on Landlord unless accepted by Landlord, in writing, specifying the effective
surrender of the Premises. At the expiration or termination of the Lease Term,
Tenant shall deliver to Landlord all keys to the Premises and make known to
Landlord the location and combinations of all locks, safes and similar items.
No receipt of money by Landlord from Tenant after the Expiration Date (or sooner
termination) shall reinstate, continue or extend the Lease Term, unless Landlord
specifically agrees to same in writing signed by Landlord at the time such
payment is made by Tenant.
32. NO WAIVER; CUMULATIVE REMEDIES
A. No Waiver. No waiver of any provision of this Lease by either
party will be deemed to imply or constitute a further waiver by such party of
the same or any other provision hereof. The rights and remedies of Landlord
under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida. Landlord, in
addition to all other rights which it may have under this Lease, hereby
expressly reserves all rights in connection with the Building or the Premises
not expressly and specifically granted to Tenant under this Lease and Tenant
hereby waives all claims for damages, loss, expense, liability, eviction or
abatement it has or may have against Landlord on account of Landlord's exercise
of its reserved rights, including, but not limited to, Landlord's right to alter
the existing name, address, style or configuration of the Building or the Common
Areas, signage, suite identifications, parking facilities, lobbies, entrances
and exits, elevators and stairwells.
B. Rent Payments. No receipt of money by Landlord from Tenant at any
time, or any act, or thing done by, Landlord or its agent shall be deemed a
release of Tenant from any liability whatsoever to pay Rent, Additional Rent, or
any other sums due hereunder, unless such release is in writing, subscribed by a
duly authorized officer or agent of Landlord and refers expressly to this
Section. Any payment by Tenant or receipt by Landlord of less than the entire
amount due at such time shall be deemed to be on account of the earliest sum
due. No endorsement or statement on any check or any letter accompanying any
check or payment shall be deemed an accord and satisfaction. In the case of
such a partial payment or endorsement, Landlord may accept such payment, check
or letter without prejudice to its right to collect all remaining sums due and
pursue all of its remedies under the Lease.
33. WAIVER
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATER WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH (i) THIS LEASE, (ii) THE PREMISES, (iii) TENANT'S USE OR
OCCUPANCY OF THE PREMISES, OR (iv) THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY.
TENANT FURTHER WAIVES THE RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY
NATURE IN ANY ACTION OR PROCEEDING COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF
THE PREMISES. IF TENANT VIOLATES THIS PROVISION BY FILING A PERMISSIVE
COUNTERCLAIM, WITHOUT PREJUDICE TO LANDLORD'S RIGHT TO HAVE SUCH COUNTERCLAIM
DISMISSED, THE PARTIES STIPULATE THAT SHOULD THE COURT PERMIT TENANT TO MAINTAIN
THE COUNTERCLAIM, THE COUNTERCLAIM SHALL BE SEVERED AND TRIED SEPARATELY FROM
THE ACTION FOR POSSESSION PURSUANT TO RULE 1.270(b) OF THE FLORIDA RULES OF
CIVIL PROCEDURE OR OTHER SUMMARY PROCEDURES SET FORTH IN SECTION 51.011, FLORIDA
STATUTES (1993). THE WAIVERS SET FORTH IN THIS SECTION ARE MADE KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY BY TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THESE WAIVERS WITH COUNSEL. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD
IN AGREEING TO ENTER INTO THIS LEASE. In the event of any dispute hereunder, or
any default in the performance of any term or condition of this Lease, the
prevailing party in litigation shall be entitled to recover all costs and
expenses associated therewith, including reasonable attorneys' fees.
34. CONSENTS AND APPROVALS
Intentionally not used.
35. RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations attached hereto as
Exhibit "C" and incorporated herein by this reference, as reasonably amended and
supplemented from time to time by Landlord. Landlord will not be liable to
Tenant for violation of the same or any other act or omission by any other
tenant.
36. SUCCESSORS AND ASSIGNS
This Lease will be binding upon and inure to the benefit of the
respective heirs, personal and legal representatives, successors and permitted
assigns of the parties hereto.
37. QUIET ENJOYMENT
In accordance with and subject to the terms and provisions of this
Lease, Landlord warrants that it has full right to execute and to perform under
this Lease and to grant the estate demised and that Tenant, upon Tenant's
payment of the required
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BLUE LAKE STANDARD LEASE
Rent and Additional Rent and performing of all of the terms, conditions,
covenants, and agreements contained in this Lease, shall peaceably and quietly
have, hold and enjoy the Premises during the full Lease Term.
38. ENTIRE AGREEMENT.
This Lease, together with the BLI Rider, exhibits, schedules, addenda
and guaranties (as the case may be) fully incorporated into this Lease by this
reference, contains the entire agreement between the parties hereto regarding
the subject matters referenced herein and supersedes all prior oral and written
agreements between them regarding such matters. This Lease may be modified only
by an agreement in writing dated and signed by Landlord and Tenant after the
date hereof.
39. HAZARDOUS MATERIALS.
A. Representation. Tenant represents, warrants and covenants that
(1) the Premises will not be used for any dangerous, noxious or offensive trade
or business and that it will not cause or maintain a nuisance there, (2) it will
not bring, generate, treat, store, use or dispose of Hazardous Substances at the
Premises, (3) it shall at all times comply with all Environmental Laws (as
hereinafter defined) and shall cause the Premises to comply, and (4) Tenant will
keep the Premises free of any lien imposed pursuant to any Environmental Laws.
Only for purposes of this paragraph entitled "Representation", the term
"Premises" shall mean the Building including Common Areas, parking areas,
greenspace and all other elements thereof.
B. Reporting Requirements. Tenant warrants that it will promptly
deliver to the Landlord, (i) copies of any documents received from the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning the Tenant's operations upon the
Premises; (ii) copies of any documents submitted by the Tenant to the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning its operations on the Premises,
including but not limited to copies of permits, licenses, annual filings,
registration forms and, (iii) upon the request of Landlord, Tenant shall provide
Landlord with evidence of compliance with Environmental Laws.
C. Termination, Cancellation, Surrender. At the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord free of any and all Hazardous Substances and in compliance with all
Environmental Laws and to the complete satisfaction of Landlord. Landlord may
require, at Tenant's sole expense at the end of the term, a clean-site
certification, environmental audit or site assessment.
D. Access and Inspection. Landlord shall have the right but not
the obligation, at all times during the term of this Lease to (i) enter upon and
inspect the Premises, (ii) conduct tests and investigations and take samples to
determine whether Tenant is in compliance with the provisions of this Article,
and (ii) request lists of all Hazardous Substances used, stored or located on
the Premises; the cost of all such inspections, tests and investigations to be
borne by Tenant. Promptly upon the written request of Landlord, from time to
time, Tenant shall provide Landlord, at Tenant's expense, with an environmental
site assessment or environmental audit report prepared by an environmental
engineering firm acceptable to Landlord to assess with a reasonable degree of
certainty the presence or absence of any Hazardous Substances and the potential
costs in connection with abatement, cleanup, or removal of any Hazardous
Substances found on, under, at, or within the Premises. Tenant will cooperate
with Landlord and allow Landlord and Landlord's representatives access to any
and all parts of the Premises and to the records of Tenant with respect to the
Premises for environmental inspection purposes at any time. In connection
therewith, Tenant hereby agrees that Landlord or Landlord's representatives may
perform any testing upon or of the Premises that Landlord deems reasonably
necessary for the evaluation of environmental risks, costs, or procedures,
including soils or other sampling or coring.
E. Violations - Environmental Defaults. Tenant shall give to
Landlord immediate verbal and follow-up written notice of any actual or
threatened spills, releases or discharges of Hazardous Substances on the
Premises, caused by the acts or omissions of Tenant or its agents, employees,
representatives, invitees, licensees, subtenants, customers or contractors.
Tenant covenants to promptly investigate, clean up and otherwise remediate any
spill, release or discharge of Hazardous Substances in or about the Premises or
the Building, including but not limited to those caused by the acts or omissions
of Tenant or its agents, employees, representatives, invitees, licensees,
subtenants, customers or contractors at Tenant's sole cost and expense; such
investigation, clean up and remediation to be performed in accordance with all
Environmental Laws and to the satisfaction of Landlord and after Tenant has
obtained Landlord's written consent. Tenant shall return the Premises to the
condition existing prior to the introduction of any such Hazardous Substances.
(1) In the event of (1) a violation of an Environmental Law, (2) a
release, spill or discharge of a Hazardous Substance on or from the Premises, or
(3) the discovery of an environmental condition requiring response which
violation, release, or condition is attributable to the acts or omissions of
Tenant, its agents, employees, representatives, invitees, licensees, subtenants,
customers, or contractors, or (4) an emergency environmental condition
(collectively "Environmental Defaults"), Landlord shall have the right, but not
the obligation, to immediately enter the Premises, to supervise and approve any
actions taken by Tenant to address the violation, release or environmental
condition; and in the event Tenant fails to immediately address such violation,
release, or environmental condition, or if the Landlord deems it necessary, then
Landlord may perform, at Tenant's expense, any lawful actions necessary to
address the violation, release, or environmental condition.
(2) Landlord has the right, but not the obligation to cure any
Environmental Defaults, has the right to suspend some or all of the operations
of the Tenant until it has determined to its sole satisfaction that appropriate
measures have been taken, and has the right to terminate this Lease upon the
occurrence of an Environmental Default.
F. Additional Rent. Any expenses which the Landlord incurs, which
are to be at Tenant's expense pursuant to this Article, will be considered
Additional Rent under this Lease and shall be paid by Tenant on demand by
Landlord.
G. Assignment and Subletting. Notwithstanding anything to the
contrary in this Lease, the Landlord may condition its approval of any
assignment or subletting by Tenant to an Assignee or Subtenant that in the sole
judgment of the Landlord does not create any additional environmental exposure.
H. Indemnification. Tenant shall indemnify, defend (with counsel
approved by Landlord) and hold Landlord and Landlord's affiliates, shareholders,
directors, officers, employees and agents harmless from and against any and all
claims, judgments, damages (including consequential damages), penalties, fines,
liabilities, losses, suits, administrative proceedings, costs and expenses of
any kind or nature, known or unknown, contingent or otherwise, which arise out
of or in anyway related to the acts or omissions of Tenant, its agents,
employees, representatives, invitees, licensees, subtenants, customers or
contractors during or after the term of this Lease (including, but not limited
to, attorneys', consultant, laboratory and expert fees expert fees and including
without limitation,
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BLUE LAKE STANDARD LEASE
diminution in the value of the Premises, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises and damages
arising from any adverse impact on marketing of space), arising from or related
to the use, presence, transportation, storage, disposal, spill, release or
discharge of hazardous Substances on or about the Premises. However,
notwithstanding the foregoing, Tenant shall have no responsibility for any
Hazardous Substances, if any, located in the Premises as of the date of the
execution of this Lease.
I. Definitions.
(1) "Hazardous Substance" means, (i) asbestos and any asbestos
containing material and any substance that is then defined or listed in, or
otherwise classified pursuant to, any Environmental Laws or any applicable laws
or regulations as a "hazardous substance", "hazardous material", "hazardous
waste", "infectious waste", "toxic substance", "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (ii) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration, development
or production of crude oil, natural gas, or geothermal resources and (iii)
petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive material (including any source, special nuclear, or by-product
material), and medical waste.
(2) "Environmental Laws" collectively means and includes all
present and future laws and any amendments (whether common law, statute, rule,
order, regulation or otherwise), permits, and other requirements or guidelines
of governmental authorities applicable to the Premises and relating to the
environment and environmental conditions or to any Hazardous Substance
(including, without limitation, CERCLA, 42 U.S.C. (S) 9601, et. seq.; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. (S) 6901, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. (S) 1801, et seq., the Federal
Water Pollution Control Act, 33 U.S.C. (S)1251, et seq., the Clean Air Act, 33
U.S.C. (S) 7401, et seq., the Clear Air Act, 42 U.S.C. (S)741, et seq., the
Toxic Substances Control Act, 15 U.S.C. (S) 2601-2629, the Safe Drinking Water
Act, 42 U.S.C. (S) 300f-300j, the Emergency Planning and Community Right-To-Know
Act, 42 U.S.C. (S) 1101, et seq., and any so-called "Super Fund" or "Super Lien"
law, any law requiring the filing of reports and notices relating to hazardous
substances, environmental laws administered by the Environmental Protection
Agency, and any similar state and local laws and regulations, all amendments
thereto and all regulations, orders, decisions, and decrees now or hereafter
promulgated thereunder concerning the environment, industrial hygiene or public
health or safety.)
J. Radon. RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risk to persons who are exposed to it over time. Levels of radon
that exceed Federal and State Guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
40. BANKRUPTCY PROVISIONS.
A. Event of Bankruptcy. If this Lease is assigned to any person or
entity pursuant to the provisions of the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq. (the "Bankruptcy Code"), any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord, and shall not constitute the property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and
all monies or other considerations constituting Landlord's property under this
Section not paid or delivered to Landlord shall be held in trust for the benefit
of Landlord and shall be promptly paid or delivered to Landlord. Any person or
entity to which this Lease is assigned pursuant to the provisions of the
Bankruptcy Code shall be deemed without further act or deed to have assumed all
of the obligations arising under this Lease on and after the date of such
assignment.
B. Additional Remedies. In addition to any rights or remedies
hereinbefore or hereinafter conferred upon Landlord under the terms of this
Lease, the following remedies and provisions shall specifically apply in the
event Tenant is in default of this Lease:
(1) In all events, any receiver or trustee in bankruptcy shall
either expressly assume or reject this Lease within sixty (60) days following
the entry of an "Order for Relief" or within such earlier time as may be
provided by applicable law.
(2) In the event of an assumption of this Lease by a debtor or by
a trustee, such debtor or trustee shall within fifteen (15) days after such
assumption (i) cure any default or provide adequate assurance that defaults will
be promptly cured; (ii) compensate Landlord for actual pecuniary loss or provide
adequate assurance that compensation will be made for actual monetary loss,
including, but not limited to, all attorneys' fees and costs incurred by
Landlord resulting from any such proceedings; and (iii) provide adequate
assurance of future performance.
(3) Where a default exists under this Lease, the trustee or debtor
assuming this Lease may not require Landlord to provide services or supplies
incidental to this Lease before its assumption by such trustee or debtor, unless
Landlord is compensated under the terms of this Lease for such services and
supplies provided before the assumption of such Lease.
(4) The debtor or trustee may only assign this Lease if (i) it is
assumed and the assignee agrees to be bound by this Lease, (ii) adequate
assurance of future performance by the assignee is provided, whether or not
there has been a default under this Lease, and (iii) the debtor or trustee has
received Landlord's prior written consent pursuant to the provisions of this
Lease. Any consideration paid by any assignee in excess of the rental reserved
in this Lease shall be the sole property of, and paid to, Landlord.
(5) Landlord shall be entitled to the fair market value for the
Premises and the services provided by Landlord (but in no event less than the
rental reserved in this Lease) subsequent to the commencement of a bankruptcy
event.
(6) Any security deposit given by Tenant to Landlord to secure the
future performance by Tenant of all or any of the terms and conditions of this
Lease shall be automatically transferred to Landlord upon the entry of an "Order
of Relief", such being deemed a material part of the consideration for
Landlord's agreement to enter into this Lease.
(7) The parties agree that Landlord is entitled to adequate
assurance of future performance of the terms and provisions of this Lease in the
event of an assignment under the provisions of the Bankruptcy Code. For purposes
of any such assumption or assignment of this Lease, the parties agree that the
term "adequate assurance" shall include, without limitation, at least the
following: (i) any proposed assignee must have, as demonstrated to Landlord's
satisfaction, a net worth (as defined in accordance with generally accepted
accounting principles consistently applied) in an amount sufficient to assure
that the proposed assignee will have the
PAGE 18
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BLUE LAKE STANDARD LEASE
resources to meet the financial responsibilities under this Lease, including the
payment of all Rent; the financial condition and resources of Tenant are
material inducements to Landlord entering into this Lease; (ii) any proposed
assignee must have engaged in the permitted use described in the BLI Rider for
at least five (5) years prior to any such proposed assignment, the parties
hereby acknowledging that in entering into this Lease, Landlord considered
extensively Tenant's permitted use and determined that such permitted business
would add substantially to the tenant balance in the Building, and were it not
for Tenant's agreement to operate only Tenant's permitted business on the
Premises, Landlord would not have entered into this Lease, and that Landlord's
operation of the Building will be materially impaired if a trustee in bankruptcy
or any assignee of this Lease operates any business other than Tenant's
permitted business; (iii) any assumption of this Lease by a proposed assignee
shall not adversely affect Landlord's relationship with any of the remaining
tenants in the Building taking into consideration any and all other "use"
clauses and/or "exclusivity" clauses which may then exist under their leases
with Landlord; and (iv) any proposed assignee must not be engaged in any
business or activity which it will conduct on the Premises and which will
subject the Premises to contamination by any Hazardous Materials.
41. FIRE PREVENTION SYSTEMS.
Except as otherwise provided in subparagraph (D) herein, Landlord
shall be responsible for the cost of any change, modification, alteration or
installation of any new or existing sprinkler system, fire extinguishing system
and/or fire detection system which may now or hereafter be required as follows:
A. If the National Board of Fire Underwriters or any local Board of
Fire Underwriters or Insurance Exchange (or other bodies hereafter exercising
similar functions) shall require or recommend the installation of fire
extinguishers, a "sprinkler system," fire detection and prevention equipment
(including, but not limited to, smoke detectors and heat sensors), or any
changes, modifications, alterations, or the installation of additional sprinkler
heads or other equipment for any existing sprinkler, fire extinguishing system,
and/or fire detection system for any reason, whether or not attributable to
Tenant's use of the Premises or Alterations performed by Tenant; OR
B. If any law, regulation, or order or if any bureau, department, or
official of the Federal, State, and/or Municipal Governments shall require or
recommend the installation of fire extinguishers, a "sprinkler system," fire
detection and prevention equipment (including, but not limited to, smoke
detectors and heat sensors), or any changes, modifications, alterations, or the
installation of additional sprinkler heads or other equipment for any existing
sprinkler system, fire extinguishing system, and/or fire detection system for
any reason, whether or not attributable to Tenant's use of the Premises or
Alterations performed by Tenant; OR
C. If any such installations, changes, modifications, alterations,
sprinkler heads, or other equipment become necessary to prevent the imposition
of a penalty, an additional charge, or an increase in the fire insurance rate as
fixed by said Board or Exchange, from time to time, or by any fire insurance
company as a result of the use of the Premises whether or not the same is a
Permitted Use under this Lease.
D. Notwithstanding the foregoing, the Tenant shall be responsible for
the cost of any change, modification, alteration or installation of any new or
existing sprinkler system, fire extinguishing system and/or fire detection
system which may or hereafter be required by virtue of a condition of abuse or
disrepair brought about by the actions or failure to act of the Tenant or by
virtue of the election of the Tenant to make such change, modification, or
alteration in the absence of any other requirements contained in subparagraphs
(A), (B) and (C) herein. In the event that the Tenant shall elect or be
required to make any changes, modification, or alteration, the Landlord may, at
its sole option, elect to perform the work and charge the cost thereof to Tenant
as Additional Rent. The Tenant shall pay to Landlord the full cost of such work
within fifteen (15) days after Landlord has presented invoices and/or paid
receipts for the same. If the Landlord does not elect to perform such work, the
Tenant shall immediately proceed, at its sole cost, to perform the work upon the
following conditions:
A. a general contractor licensed in Florida and approved by Landlord
shall be utilized
B. all laws, ordinances and regulations governing such work shall be
complied with
C. a payment and performance bond in Landlord's favor and with a
surety acceptable to Landlord shall be obtained
D. the construction contract and all plans and specifications for the
work shall be subject to Landlord's approval.
42. MISCELLANEOUS.
A. If Tenant has a lease for other space in the Building, any default
by Tenant under such lease will constitute a default hereunder.
B. If any term or condition of this Lease or the application thereof
to any person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Lease, or the application of such term or condition to persons
or circumstances other than those as to which it is held invalid or
unenforceable, is not to be affected thereby and each term and condition of this
Lease is to be valid and enforceable to the fullest extent permitted by law.
This Lease will be construed in accordance with the laws of the State of
Florida.
C. Submission of this Lease to Tenant does not constitute an offer,
and this Lease becomes effective only upon execution and delivery by both
Landlord and Tenant.
D. Tenant acknowledges that it has not relied upon any statement,
representation, prior or contemporaneous written or oral promises, agreements or
warranties, except such as are expressed herein.
E. Tenant will pay before delinquency all taxes assessed during the
Lease Term against any occupancy interest in the Premises or personal property
of any kind owned by or placed in, upon or about the Premises by Tenant.
F. If Tenant, with Landlord's consent, occupies the Premises or any
part thereof prior to the beginning of the Lease Term, all provisions of this
Lease will be in full force and effect commencing upon such occupancy, except
that Base Rent and Additional Rent shall not be required to be paid until
February 1, 1998.
G. Each party represents and warrants that it has not dealt with any
agent or broker in connection with this transaction except for Blue Lake Realty,
Inc. and the agents or brokers specifically set forth in the BLI Rider with
respect to each Landlord and Tenant. If either party's representation and
warranty proves to be untrue, such party will indemnify the other party against
all resulting liabilities, costs, expenses, claims, demands and causes of
action, including reasonable attorneys' fees and costs through all appellate
actions and proceedings, if any. The foregoing will survive the end of the
Lease Term.
PAGE 19
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BLUE LAKE STANDARD LEASE
H. Neither this Lease nor any memorandum hereof will be recorded by
Tenant.
I. Nothing contained in this Lease shall be deemed by the parties
hereto or by any third party to create the relationship of principal and agent,
partnership, joint venturer or any association between Landlord and Tenant, it
being expressly understood and agreed that neither the method of computation of
Rent nor any other provisions contained in this Lease nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
J. Whenever in this Lease the context allows, the word "including"
will be deemed to mean "including without limitation". The headings of
articles, sections or paragraphs are for convenience only and shall not be
relevant for purposes of interpretation of the provisions of this Lease.
K. This Lease does not create, nor will Tenant have, any express or
implied easement for or other rights to air, light or view over or about the
Building or any part thereof.
L. Landlord reserves the right to use, install, monitor, and repair
pipes, ducts and conduits within the walls, columns, and ceilings of the
Premises.
M. Any acts to be performed by Landlord under or in connection with
this Lease may be delegated by Landlord to its managing agent or other
authorized person or firm.
N. It is acknowledged that each of the parties hereto has been fully
represented by legal counsel and that each of such legal counsel has contributed
substantially to the content of this Lease. Accordingly, this Lease shall not
be more strictly construed against either party hereto by reason of the fact
that one party may have drafted or prepared any or all of the terms and
provisions hereof.
O. Landlord and Tenant acknowledge that the terms and provisions of
this Lease have been negotiated based upon a variety of factors, occurring at a
coincident point in time, including, but not limited to: (i) the individual
principals involved and the financial strength of Tenant, (ii) the nature of
Tenant's business and use of the Premises, (iii) the current leasing market
place and the economic conditions affecting rental rates, (iv) the present and
projected tenant mix of the Building, and (v) the projected juxtaposition of
tenants on the floor(s) upon which the Premises are located and the floors
within the Building. Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned factors, the Tenant agrees to
use its best efforts not to disseminate in any manner whatsoever, and shall
cause its brokers, agents and representatives, by written agreement not to
disseminate (whether by word of mouth, mechanical reproduction, physical tender
or by any manner of visual or aural transmission or review) the terms and
conditions of this Lease to third parties who could in any way be considered
presently or in the future as prospective tenants for this or any other
leasehold property with which Landlord may be involved.
P. If more than one person or entity is named herein as Tenant, their
liability hereunder will be joint and several. In case Tenant is a corporation,
Tenant (a) represents and warrants that this Lease has been duly authorized,
executed and delivered by and on behalf of Tenant and constitutes the valid and
binding agreement of Tenant in accordance with the terms hereof, and (b) Tenant
shall deliver to Landlord or its agent, concurrently with the delivery of this
Lease, executed by Tenant, certified resolutions of the board of directors (and
shareholders, if required) authorizing Tenant's execution and delivery of this
Lease and the performance of Tenant's obligations hereunder. In case Tenant is
a partnership, Tenant represents and warrants that all of the persons who are
general or managing partners in said partnership have executed this Lease on
behalf of Tenant, or that this Lease has been executed and delivered pursuant to
and in conformity with a valid and effective authorization therefor by all of
the general or managing partners of such partnership, and is and constitutes the
valid and binding agreement of the partnership and every partner therein in
accordance with its terms. It is agreed that each and every present and future
partner in Tenant shall be and remain at all times jointly and severally liable
hereunder and that neither the death, resignation or withdrawal of any partner,
nor the subsequent modification or waiver of any of the terms and provisions of
this Lease, shall release the liability of such partner under the terms of this
Lease unless and until Landlord shall have consented in writing to such release.
Q. Landlord has made no inquiries about and makes no representations
(express or implied) concerning whether Tenant's proposed use of the Premises is
permitted under applicable law, including applicable zoning law; should Tenant's
proposed use be prohibited, Tenant shall be obligated to comply with applicable
law and this Lease shall nevertheless remain in full force and effect.
R. Notwithstanding anything to the contrary in this Lease, if
Landlord cannot perform any of its obligations due to events beyond Landlord's
control, the time provided for performing such obligations shall be extended by
a period of time equal to the duration of such events. Events beyond Landlord's
control include, but are not limited to, hurricanes and floods and other acts of
God, war, civil commotion, labor disputes, strikes, fire, flood or other
casualty, shortages of labor or material, government regulation or restriction
and weather conditions.
S. Tenant agrees to pay, before delinquency, all taxes assessed
during the Lease Term agreement (i) all personal property, trade fixtures, and
improvements located in or upon the Premises and (ii) any occupancy interest of
Tenant in the Premises.
T. The Tenant shall submit to Landlord annually, not later than one
hundred twenty (120) days after its fiscal year end, annual audited financial
statements and accountant-prepared compilation-quality combined statement on all
affiliated entities, all in form and content satisfactory to Landlord.
43. DELIVERY OF GUARANTY.
Intentionally not used.
44. CONFIDENTIALITY.
Tenant agrees that information concerning Landlord and the Blue Lake
project, and the financial terms of this Lease, are confidential and proprietary
information and Tenant agrees that it will not permit the duplication or
disclosure of any such information to any person, unless such duplication, use,
or disclosure is specifically authorized by Landlord in writing. Confidential
and proprietary information is not meant to include any information that is in
the public domain. In addition, Tenant agrees to keep the terms and conditions
as contained herein confidential, with the following exceptions:
A. Tenant may disclose the contents of this Lease to its advisors in
the contemplated transaction, so long as the advisor agrees in writing to
maintain confidentiality; and
B. Tenant may disclose such information as required by court order.
PAGE 20
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BLUE LAKE STANDARD LEASE
C. Tenant may disclose such information as required by the securities
laws and regulations of the United States of America.
Landlord and Tenant shall cooperate in the issuance of press releases or
statements to the media regarding this Lease.
45. SIGNAGE/ENTRY WAY FEATURE.
Tenant shall have the option to erect, at its sole cost and expense,
subject to the approval of the appropriate governmental agencies, and the
approval of Landlord as to size, image and location, in the Landlord's sole
discretion, one (1) pylon sign at the entrance to the Premises, bearing the name
of the Tenant only.
Landlord shall consult with Tenant in the design, size and color
specification of the exterior entry way feature to the Premises, however, the
Landlord's decision as to the design and specifications shall be final.
46. CARPOOLING, MASS TRANSIT AND TRAFFIC CONTROL.
Tenant acknowledges that, due to the nature and size of the Building,
Landlord may be required by applicable governmental authorities to participate
in, and require tenants to participate in, carpool programs, mass transit
programs, flexible shift and other flexible time programs, and other traffic
reduction programs and measures. Tenant agrees to participate in and comply with
such programs and measures required by applicable governmental authorities.
47. UTILITY PROVIDERS.
Any reference in this Lease to Florida Power & Light, or any affiliate
thereof, as a utility provider chosen by the Landlord shall mean any such
provider of utility services as from time-to-time may be designated by the
Landlord as the utility provider for the Project.
48. ASSOCIATION.
The Blue Lake Project, including the Building, in which the Premises are
located shall be subject to a Declaration of Restrictive Covenants, Easements
and Conditions (the "Declaration") which shall govern certain matters with
respect to the development, management and maintenance of the Blue Lake project,
and to satisfy requirements with respect to surface water management, drainage
and other aspects of the Blue Lake project. The Declaration shall provide for
the creation of a property owner's association ("Association") to perform
certain management, operational and maintenance obligations pursuant thereto.
The Association will have the authority to levy fees and assessments against the
Project, including the Building, to pay for the obligations of the Association.
This Lease is subject to the Declaration, upon the recordation of the
Declaration, and to the rights of the Association pursuant thereto.
Additionally, fees and assessments of the Association paid by the Landlord shall
be deemed Operating Expenses for the purpose of determining Overhead Rent.
49. VENDING MACHINES.
No Tenant shall obtain, or accept for use in the Premises, vending
machines or pay telephones, or other similar services from any persons other
than those specifically designated by Landlord to offer or distribute such
services.
[SIGNATURE PAGE FOLLOWS]
PAGE 21
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BLUE LAKE STANDARD LEASE
IN WITNESS WHEREOF, the parties have signed and delivered this Lease
as of the day and year first above written.
WITNESSES: "TENANT"
/s/ Xxxxxxx Xxxxxxxx
--------------------------- HIWAY TECHNOLOGIES, INC.
/s/ Xxxxx X. Xxxxxx a Florida corporation
---------------------------
(As to Tenant)
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, President
WITNESSES: "LANDLORD"
/s/ Xxxxxxx Xxxxxxxx
--------------------------- BLUE LAKE, LTD., a Florida limited
/s/ Xxxxx X. Xxxxxx partnership
---------------------------
By: Blue Lake, Inc., a Florida
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx E.V.P.
----------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: EXECUTIVE VICE PRESIDENT
------------------------------
PAGE 22
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BLUE LAKE STANDARD LEASE
Exhibit "B"
Work Letter Agreement
In the event of any inconsistencies between this Agreement and the Lease
dated concurrently herewith to which this Agreement is attached as EXHIBIT "B",
this Agreement shall control. Capitalized terms used in this Agreement shall,
unless otherwise specifically set forth herein, have the same meanings as in the
Lease.
1. Landlord's sole obligation as relates to the initial build-out of the
Premises shall be to construct the demising walls and to install a separate
electrical meter, and, as necessary, at the sole discretion of the Landlord, a
separate HVAC submeter for the Premises. Tenant shall complete or cause the
completion of the initial build-out of the Premises as shown on the Final Plans
(defined in Paragraph 2.) and as more fully described in this Section ("Tenant's
Initial Improvements"). Tenant shall retain an architect and/or engineer
licensed in the State of Florida to prepare complete and detailed demolition,
architectural, structural, mechanical and engineering plans and specifications
prepared by and stamped and certified by such architect or engineer, showing
Tenant's Initial Improvements ("Construction Plans"). The Landlord's published
list of pre-approved general contractors for The Blue Lake Project shall have
the exclusive right to bid for Tenant's construction contract. The cost of the
Construction Plans shall be the responsibility of Tenant. The Construction
Plans shall be acceptable to Landlord in its reasonable discretion. Tenant's
Initial Improvements shall meet or exceed the minimum standards for Tenant's
Initial Improvements ("Minimum Building Materials and Construction") attached
hereto as Exhibit "B-1" and otherwise as determined by Landlord in its
reasonable discretion. If applicable, Tenant's Construction Plans shall include
all information necessary to reflect Tenant's requirements for the installation
of any supplemental air conditioning system and ductwork, heating, electrical,
plumbing and other mechanical systems and all work necessary to connect any
special or non-standard facilities to the Building's base mechanical, electrical
and structural systems. Tenant deliver to Landlord not less than thirty (30)
business days prior to commencing construction not less than three (3) signed
and sealed sets of the Construction Plans. Tenant's Construction Plans shall
include, but not be limited to, indication or identification of the following:
A. locations and structural design of all floor area requiring live
load capacities in excess of 75 pounds per square foot;
B. the density of occupancy in large work areas;
C. the location of any food service areas or vending equipment rooms
if permitted by Landlord;
D. areas requiring 24-hour air conditioning, Tenant's supplemental
HVAC units (if any), and electrical consumption submeters if required by
Landlord;
E. location of rooms for telephone equipment;
F. locations and types of plumbing, if any, required for toilets
(other than core facilities), sinks, drinking fountains, etc.;
G. light switching of offices, conference rooms, etc.;
H. layouts for specially installed equipment, including computers,
size and capacity of mechanical and electrical services required and heat
projection of equipment;
I. dimensioned location of: (a) electrical receptacles (120 volts),
including receptacles for wall clocks, and telephone outlets and their
respective locations (wall or floor), (b) electrical receptacles for use in
the operation of Tenant's business equipment which requires 208 volts or
separate electrical circuits, (c) electronic calculating, CRT systems,
etc., and (d) special audio-visual requirements;
J. special fire protection equipment and raised flooring where
permitted by Building systems and otherwise approved by Landlord;
K. reflected ceiling plan;
L. information concerning air conditioning loads, including, but not
limited to, air volume amounts at all supply vents;
M. non-building standard ceiling heights and/or materials;
N. materials, colors and designs of wall coverings and finishes;
O. painting and decorative treatment required to complete all
construction;
P. swing of each door;
Q. a schedule for doors (including dimensions for undercutting of
doors to clear carpeting) and frames complete with hardware; and
R. all other information necessary to make the work complete and in
all respects ready for operation.
PAGE B-1
----------------
BLUE LAKE STANDARD LEASE
2. As used herein, "Final Plans" refers to the Construction Plans after
the same have been approved in writing by Landlord. The Landlord Contribution
to cost of construction is set forth in the BLI Rider. Tenant shall be
responsible for the entire cost of Tenant's Initial Improvements including any
revisions to the Final Plans ("Revisions").
3. Promptly following Landlord's approval of the Final Plans, Tenant shall
cause the Final Plans to be submitted for bids to not fewer than three (3)
qualified contractors, including Blue Lake Construction of Boca Raton, Inc.,
reasonably acceptable to Landlord. Tenant shall engage the most qualified
bidder as the contractor for the Tenant's Initial Improvements ("Contractor")
under a separate agreement for construction. Landlord shall not be liable for
the work of or payment to the Contractor.
4. Landlord shall not be responsible or liable for any delay in
substantially completing Tenant's Initial Improvements as a result of any act,
neglect, failure or omission of Tenant, its agents, servants, employees, the
Contractors, or subcontractors ("Tenant Delay"). Tenant Delay includes without
limitation any of the following:
A. Tenant's failure to furnish plans, drawings, and specifications in
accordance with and at the times required by this Work Letter; or
B. any delays resulting from the disapproval by Landlord or
Landlord's Consultant of all or a portion of Tenant's revised plans and
specifications as resubmitted after initial submission; or
C. any delays resulting from Tenant's disapproval of the cost of
Tenant's Extra Cost, which delay shall be deemed to commence upon the date
of Tenant's disapproval of the cost of Tenant's Extra Cost and end on the
date of Tenant's final approval of such cost; or
D. Tenant's request for materials, finishes or installations which
are not readily available at the time Landlord is ready to install same; or
E. Any change(s) to or revision(s) of the Final Plans ("Revisions");
or
F. the performance of work by a person, firm or corporation employed
by Tenant and delays in the completion of the said work by said person,
firm, or corporation.
5. Except as hereinafter provided, neither Tenant nor its agents,
employees, invitees or independent contractors shall enter the Premises during
construction of Tenant's Initial Improvements. Tenant hereby designates
Tenant's Construction Agent as set forth in the BLI Rider for the purposes of
submitting to Landlord or Landlord's Consultant and authorizing Revisions to the
Final Plans. Tenant's Construction Agent shall have the right from time to time
to inspect the Premises during the course of Tenant's Initial Improvements
provided Tenant's Construction Agent shall make a prior appointment with
Landlord and/or its contractor at a mutually convenient time.
6. Tenant shall have the right to make Revisions from time to time after
Final Plans have been prepared. All Revisions shall be subject to Landlord's
prior written approval, which shall not be unreasonably withheld provided the
Revisions are non-structural in nature. Landlord shall either approve or
disapprove the Revisions within five (5) business days after submission thereof
by Tenant. Without limiting the generality of the foregoing, no Revision will
be approved unless (a) all changes to and modifications from the Final Plans are
circled or highlighted as per standard practices and (b) said Revisions conform
with the requirements of this Work Letter. Landlord or Landlord's Consultant
shall notify Tenant in writing of the cost of the Revisions, and any Tenant
Delay that the performance of the same may entail. If Tenant agrees with the
cost and delay of such Revisions, Tenant shall acknowledge Tenant's approval in
writing within three (3) business days after Landlord's notice thereof to
Tenant. If Tenant fails to approve of the cost of such Revisions (and, if
requested by Landlord, the amount of any Tenant Delay that Landlord estimates
will occur as a result of such Revisions) within three (3) business days,
Landlord or Landlord's Consultant shall not approve such Revisions in their sole
and absolute discretion. The cost of any Revisions shall be borne solely by
Tenant and the Revisions shall not delay the Commencement Date hereunder.
7. Tenant shall use due diligence to complete Tenant's Initial
Improvements as soon as may be practicable. Landlord shall not be liable in any
manner whatsoever for its failure to do so by any particular date.
8. Tenant shall notify Landlord of the date of Substantial Completion at
least five (5) days prior thereto. As used herein, "Substantial Completion"
shall mean that, with the exception of punch-list items, Tenant's Initial
Improvements shall have been completed in accordance with the Final Plans and
all mechanical systems serving or affecting the Premises shall then be in
working order. Landlord and Tenant shall thereupon set a mutually convenient
time for Tenant's Construction Agent and Landlord or Landlord's Consultant to
inspect the Premises. Upon completion of the inspection, Tenant's Construction
Agent shall acknowledge in writing that substantial completion has occurred.
PAGE B-2
----------------
BLUE LAKE STANDARD LEASE
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made effective as of
the 2nd day of January, 1998, by and between BLUE LAKE, LTD., (the "Landlord")
and HIWAY TECHNOLOGIES, INC., (the "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are bound under that certain Blue Lake
Corporate Center Standard Lease dated September 23, 1997 (the "Lease") regarding
certain leased premises (the "Existing Premises") described in the Lease, being
located in Blue Lake Corporate Center, Boca Raton, Florida; and
WHEREAS, Tenant wishes to lease from Landlord certain additional space in
Blue Lake Corporate Center as more particularly described below (the "Additional
Premises"), and Landlord has agreed to lease the Additional Premises to Tenant
subject to and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the sum of TEN and NO/100 DOLLARS
($10.00) paid by Tenant to Landlord, the mutual promises contained herein, and
other good and valuable considerations, the receipt and adequacy of which are
hereby acknowledged, Landlord and Tenant do hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby
--------
incorporated by this reference as if set forth in their entirety.
2. Defined Terms. Terms in this Amendment shall have the same meaning as
-------------
ascribed to said terms in the Lease, unless otherwise provided in this
Amendment. As hereby amended, the Lease and this Amendment shall hereinafter be
referred to as the "Lease".
3. Additional Premises. Attached hereto as Exhibit "A" is a floor plan of
-------------------
the Additional Premises which the parties hereto stipulate contains
approximately 21,000 usable square feet, which, when multiplied by an add-on
factor of fifteen (15%) percent, yields a Net Rentable Area of 24,150 square
feet. Commencing on the Additional Premises Commencement Date (as hereinafter
defined), (i) the Premises shall be deemed and defined to include the Existing
Premises together with the Additional Premises for a stipulated combined
aggregate total of approximately 74,750 Rentable Square Feet; and (ii) Tenant's
Share with respect to the Additional Premises is 1.3542% for a combined Tenant's
Share of 4.19% for the entire Premises. The Additional Premises Commencement
Date shall be the earlier to occur of: (i) February 1, 1998, or (ii) the date on
which Tenant takes occupancy of the Additional Premises.
4. Lease Term for Additional Premises. The Lease Term with regard to the
----------------------------------
Additional Premises shall be seven (7) years and run coterminously with the
Lease Term with respect to the Existing Premises in accordance with the Lease.
5. Base Rent. Base Rent for each Lease Year for the Additional Premises
---------
shall conform and be the same as the Base Rent designated for each Lease Year as
detailed in the Lease. Accordingly, by way of example, the Base Rent for the
First Lease Year for the Additional Premises shall be Seven and NO/100 Dollars
($7.00) per Rentable Square Foot. The schedule of increases in Base Rent for
the Existing Premises shall be in accordance with the terms of the Lease.
However, provided that the Tenant fully complies with all terms of this Lease,
for the entire term thereof, Landlord will defer and then waive Base Rent and
Overhead Rent, applicable to the Additional Premises, for months one (1) through
twenty-four (24), inclusive, following the Additional Premises
1
Commencement Date.
6. Ratification. Except as herein specifically amended, the terms of the
------------
Lease are incorporated herein by reference as if fully set forth herein and
shall apply to and bind the Additional Premises. In the event of any conflict
or ambiguity between this Amendment and the Lease, this Amendment shall pre-empt
and control. The parties hereby ratify and confirm their rights and obligations
under the Lease as modified by this Amendment. Landlord and Tenant each
represent and warrant to the other that (i) the execution and delivery of the
Amendment has been fully authorized by all necessary corporate action, and (ii)
this Amendment is valid, binding and legally enforceable in accordance with its
terms.
IN WITNESS WHEREOF, Landlord and Tenant have each executed this Amendment
on the dates written below their names.
Signed, sealed and delivered
in the presence of
Witnesses: TENANT:
HIWAY TECHNOLOGIES, INC. A FLORIDA
CORPORATION
/s/ Xxxxxxx Lowkowitz By: /s/ Xxxxx X. Xxxxx
------------------------------ -------------------------------
Print Name: Xxxxxxx Lowkowitz Print Name: Xxxxx X. Xxxxx
------------------ -----------------------
/s/ Xxxxxxx Xxxxxxxx Title: President
------------------------------ ----------------------------
Print Name: Xxxxxxx Xxxxxxxx
------------------
LANDLORD:
BLUE LAKE, LTD., A FLORIDA LIMITED
PARTNERSHIP
BY: BLUE LAKE, INC., A FLORIDA
CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx E.V.P.
------------------------------ -------------------------------
Print Name: Xxxxx X. Xxxxxx Print Name: Xxxxxxx X. Xxxxxxxx
------------------ -----------------------
/s/ Xxxxxx Good Title: Executive Vice President
------------------------------ ----------------------------
Print Name: Xxxxxx Good
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2
AMENDED AND RESTATED
FIRST AMENDMENT TO LEASE
THIS AMENDED AND RESTATED FIRST AMENDMENT TO LEASE (this "Amendment") is
made effective as of the 28th day of January, 1998, by and between BLUE LAKE,
LTD., (the "Landlord") and HIWAY TECHNOLOGIES, INC., (the "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are bound under that certain Blue Lake
Corporate Center Standard Lease dated September 23, 1997 (the "Lease") regarding
certain leased premises (the "Existing Premises") described in the Lease, being
located in Blue Lake Corporate Center, Boca Raton, Florida; and
WHEREAS, Tenant wishes to lease from Landlord certain additional space in
Blue Lake Corporate Center as more particularly described below (the "Additional
Premises"), and Landlord has agreed to lease the Additional Premises to Tenant
subject to and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the sum of TEN and NO/100 DOLLARS
($10.00) paid by Tenant to Landlord, the mutual promises contained herein, and
other good and valuable considerations, the receipt and adequacy of which are
hereby acknowledged, Landlord and Tenant do hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby
--------
incorporated by this reference as if set forth in their entirety.
2. Defined Terms. Terms in this Amendment shall have the same meaning as
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ascribed to said terms in the Lease, unless otherwise provided in this
Amendment. As hereby amended, the Lease and this Amendment shall hereinafter be
referred to as the "Lease".
3. Additional Premises. Attached hereto as Exhibit "A" is a floor plan of
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the Additional Premises which the parties hereto stipulate contains
approximately 24,670 usable square feet, which, when multiplied by an add-on
factor of fifteen (15%) percent, yields a Net Rentable Area of 28,371 rentable
square feet. Commencing on the Additional Premises Commencement Date (as
hereinafter defined), (i) the Premises shall be deemed and defined to include
the Existing Premises together with the Additional Premises for a stipulated
combined aggregate total of approximately 78,971 Rentable Square Feet; and (ii)
Tenant's Share with respect to the Additional Premises is 1.59% for a combined
Tenant's Share of 4.43% for the entire Premises. The Additional Premises
Commencement Date shall be the earlier to occur of: (i) February 1, 1998, or
(ii) the date on which Tenant takes occupancy of the Additional Premises.
4. Lease Term for Additional Premises. The Lease Term with regard to the
----------------------------------
Additional Premises shall run coterminously with the Lease Term with respect to
the Existing Premises in accordance with the Lease.
5. Base Rent. Base Rent for each Lease Year for the Additional Premises
---------
shall conform and be the same as the Base
1
Rent designated for each Lease Year as detailed in the Lease. Accordingly, by
way of example, the Base Rent for the First Lease Year for the Additional
Premises shall be Seven and NO/100 Dollars ($7.00) per Rentable Square Foot. The
schedule of increases in Base Rent for the Existing Premises shall be in
accordance with the terms of the Lease. However, provided that the Tenant fully
complies with all terms of this Lease, for the entire term thereof, Landlord
will defer and then waive Base Rent and Overhead Rent, applicable to the
Additional Premises, for months one (1) through twenty-four (24), inclusive,
following the Additional Premises Commencement Date.
6. Ratification. Except as herein specifically amended, the terms of the
------------
Lease are incorporated herein by reference as if fully set forth herein and
shall apply to and bind the Additional Premises. In the event of any conflict
or ambiguity between this Amendment and the Lease, this Amendment shall pre-empt
and control. The parties hereby ratify and confirm their rights and obligations
under the Lease as modified by this Amendment. Landlord and Tenant each
represent and warrant to the other that (i) the execution and delivery of the
Amendment has been fully authorized by all necessary corporate action, and (ii)
this Amendment is valid, binding and legally enforceable in accordance with its
terms.
7. THIS AMENDED AND RESTATED FIRST AMENDMENT TO LEASE SHALL REVISE AND
REPLACE THE FIRST AMENDMENT TO LEASE DATED 1/2/98.
IN WITNESS WHEREOF, Landlord and Tenant have each executed this Amendment
on the dates written below their names.
Signed, sealed and delivered
in the presence of
Witnesses: TENANT:
HIWAY TECHNOLOGIES, INC. A FLORIDA
CORPORATION
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
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Print Name: Xxxxxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxx
------------------ -----------------------
/s/ Xxxxxxx Lowkowitz Title: President
------------------------------ ----------------------------
Print Name: Xxxxxxx Lowkowitz
------------------
LANDLORD:
BLUE LAKE, LTD., A FLORIDA LIMITED
PARTNERSHIP
BY: BLUE LAKE, INC., A FLORIDA
CORPORATION
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx E.V.P.
------------------------------ -------------------------------
Print Name: Xxxxx Xxxxx Print Name: Xxxxxxx X. Xxxxxxxx
------------------ -----------------------
/s/ Xxxxxx Xxxxxxxxx Title: Executive Vice President
------------------------------ ----------------------------
Print Name: Xxxxxx Xxxxxxxxx
------------------
2
