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EXHIBIT 10.69
AGREEMENT OF LEASE
BETWEEN
TAMPA CITY CENTER ASSOCIATES
LANDLORD,
AND
BRASSIE GOLF CORPORATION
TENANT
PREMISES:
SUITE 201
ONE TAMPA CITY CENTER BUILDING
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TABLE OF CONTENTS
PAGE
PREMISES ............................................................... 1
TERM ................................................................... 1
BASE RENT AND ADDITIONAL RENT .......................................... 1
IMPROVEMENTS BY LANDLORD ............................................... 4
USE .................................................................... 5
RELOCATION ............................................................. 6
REPAIRS BY LANDLORD .................................................... 6
SERVICES: ELEVATOR, AIR CONDITIONING, WATER, CLEANING AND ELECTRICITY .. 8
TENANT RISK ............................................................ 10
DESTRUCTION OR DAMAGE TO PREMISES ...................................... 11
SUBORDINATION AND ATTORNMENT ........................................... 11
RULES AND REGULATIONS .................................................. 12
FLOOR LOAD ............................................................. 12
DEFAULT ................................................................ 13
ASSIGNMENT AND SUBLETTING .............................................. 15
RIGHT OF ENTRY ......................................................... 17
EMINENT DOMAIN ......................................................... 18
QUIET ENJOYMENT ........................................................ 19
INDEMNITY AND HOLD HARMLESS ............................................ 19
TENANT'S FIRE AND EXTENDED COVERAGE AND WAIVER OF SUBROGATION
THEREUNDER..................................................... 19
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REMEDIES CUMULATIVE .................................................... 20
HOLDING OVER ........................................................... 20
NO WAIVER OR CHANGES ................................................... 21
TENANT'S ESTOPPEL ...................................................... 21
MARGINAL NOTATIONS ..................................................... 22
NOTICE ................................................................. 22
USE OF NAME ............................................................ 23
APPLICABLE LAWS ........................................................ 23
HEIRS AND ASSIGNS ...................................................... 23
LANDLORD'S EXCULPATION ................................................. 23
ENTIRE AGREEMENT AND OTHER AGREEMENTS .................................. 24
REASONABLE MODIFICATION ................................................ 24
LEGAL CONSTRUCTION ..................................................... 24
BROKER ................................................................. 24
SECURITY DEPOSIT ....................................................... 25
ATTORNEY'S FEES ........................................................ 26
LANDLORD'S LIEN ........................................................ 26
ADDITIONAL LEASES ...................................................... 26
APPLICABLE LAWS ........................................................ 27
RADON .................................................................. 27
HAZARDOUS SUBSTANCE .................................................... 27
NO OFFER ............................................................... 29
JOINT AND SEVERAL LIABILITY ............................................ 29
NO CONSTRUCTION AGAINST DRAFTING PARTY ................................. 29
TIME OF THE ESSENCE .................................................... 29
NO RECORDATION ......................................................... 30
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NO MERGER .............................................................. 30
NOTICE OF LANDLORD'S DEFAULT ........................................... 30
AUTHORITY .............................................................. 30
TAX CREDITS ............................................................ 30
FINANCIAL REPORTS ...................................................... 31
LANDLORD'S FEES ........................................................ 31
PRESUMPTION ............................................................ 31
WAIVER OF TECHNICAL DEFECTS IN NOTICES ................................. 32
TELECOMMUNICATIONS ..................................................... 32
NO RIGHT TO TERMINATE .................................................. 34
GUARANTY ............................................................... 34
CONFIDENTIALITY ........................................................ 35
FORCE MAJEURE .......................................................... 35
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THIS LEASE AGREEMENT, made on this 16th day of December, 1997 ("Lease")
is by and between TAMPA CITY CENTER ASSOCIATES ("Landlord"), whose mailing
address is Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, and BRASSIE
GOLF CORPORATION ("Tenant"), whose mailing address is Xxx Xxxxx Xxxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000.
PREMISES
1. Landlord leases to Tenant and Tenant leases and rents from Landlord
the premises ("Premises") shown and identified on the floor plan(s) attached
hereto as Exhibit "All and made a part hereof, located on the second floor of
the One Tampa City Center Building ("Building") located at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxx 00000, on property more specifically described on Exhibit
"B" attached hereto (the "Land") No easement for light and air is granted.
TERM
2. The term ("Term") of this Lease shall be five (5) years, unless
sooner terminated or extended as provided herein. The Term shall begin
("Commencement Date") on December 17, 1997 and shall end on December 16, 2002
("Expiration Date") at 6:00 P.M. "Lease Year" means the period commencing on the
Commencement Date or any anniversary thereof, and ending on the day before the
following anniversary of the Commencement Date.
BASE RENT AND ADDITIONAL RENT
3.A. Tenant agrees to pay Landlord, at Landlord's address above, or at
such other place as Landlord may designate in writing, without demand,
deduction, credit or setoff, as a covenant independent of all other covenants
contained in this Lease, and in lawful money of the United States of America:
(i) Rental ("Base Rent") of:
(a) One Hundred Thirty Three Thousand Nine Hundred Eighty and
No/100 ($133,980.00) Dollars for the first Lease Year ("Base Rent"), payable in
equal monthly installments of Eleven Thousand, One Hundred Sixty Five and No/100
($11,165.00) Dollars;
(b) One Hundred Forty Two Thousand, Nine Hundred Twelve and
00/100 Dollars ($142,912.00) for the second Lease Year, payable in equal monthly
installments of Eleven Thousand, Nine Hundred, Nine and 33/100 ($11,909.33)
Dollars;
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(c) One Hundred Fifty One Thousand, Eight Hundred Forty Four
and 00/100 Dollars ($151,844.00) for the third Lease Year, payable in equal
monthly installments of Twelve Thousand, Six Hundred, Fifty Three and 66/100
($12,653.66) Dollars;
(d) One Hundred Sixty Thousand, Seven Hundred Seventy Six and
00/100 Dollars ($160,776.00) for the fourth Lease Year, payable in equal monthly
installments of Thirteen Thousand, Three Hundred, Ninety Eight and 00/100
($13,1398.00) Dollars; and
(e) One Hundred Sixty Nine Thousand, Seven Hundred Eight and
00/100 Dollars ($169,708.00) for the fifth Lease Year, payable in equal monthly
installments of Fourteen Thousand, One Hundred Forty Two and 33/100 ($14,142.33)
Dollars;
all of which payments shall be paid in advance on the first day of each
calendar month during the Term (except that if the Commencement Date is
on other than the first day of a calendar month, monthly Base Rent for
such partial month shall be paid on or before the Commencement Date).
(ii) Adjustments to Base Rent, including without
limitation those provided in Paragraphs 3.D and 4.A, which adjustments
together with all other sums due from Tenant hereunder shall constitute
"Additional Rent"; and
(iii) All sales, privilege or rental tax (including
Florida Rental Tax) required by any governmental body on all Base Rent
and Additional Rent due from Tenant to Landlord.
3.B. Tenant shall pay a late charge in the amount of Two Hundred Fifty
and No/100 Dollars ($250.00) to defray administrative costs if any monthly
installment of Base Rent is not received by Landlord by the tenth (10th) day of
the pertinent calendar month. Any installment of Base Rent or Additional Rent or
any other charge or assessment due or to become due herein required to be paid
by Tenant which is not paid when due, shall bear interest at eighteen percent
(18%) per annum, from the due date until paid, for the purpose of reimbursing
Landlord for its opportunity costs incurred by reason of such failure by Tenant
and not as penalty therefor. The interest so charged shall be deemed Additional
Rent.
3.C. Base Rent and Additional Rent are together referred to herein as
"Rent".
3.D. For purposes of this Lease, the base line Operating Expenses
(defined below) of the entire Building ("Base Footage Expense") shall be equal
to the quotient of the actual Operating Expenses for the 1997 calendar year
divided by 732,630 square feet, the total rentable area in the Building for the
purpose of the calculations of this Paragraph 3 only. The rentable area of the
Premises will be conclusively deemed 8932 square feet for the purpose this
Lease. In determining the amount of Operating
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Expenses for each year of the Term, if less than one hundred percent (100%) of
the Building rentable area shall have been occupied by tenants at any time
during such year, Operating Expenses shall be determined for such year to be an
amount equal to the operating expenses which would normally be expected to be
incurred had such occupancy been one hundred percent (100%) throughout the year.
On or about the first day of March, 1999, and each subsequent March
1st, or as soon thereafter as the necessary information can reasonably be
secured, Landlord shall calculate the amount of actual Operating Expenses for
the calendar year immediately preceding. The actual Operating Expenses so
determined shall be divided by the said rentable area in the Building and the
quotient so obtained ("Actual Footage Expense") shall be compared to the Base
Footage Expense. If the Actual Footage Expense so determined exceeds the Base
Footage Expense, then Landlord shall promptly notify Tenant specifying the
adjustment to the Base Rent. There shall be no reduction in the Base Rent if the
Actual Footage Expense is less than the Base Footage Expense. On the first Base
Rent payment date next following each such notice from Landlord ("Adjustment
Date"), Tenant, in the case of an increase, shall pay to Landlord a lump sum
equal to 1/12th of the product of the difference between the Actual Footage
Expense and the Base Footage Expense times the said rentable area of the
Premises, multiplied by the number of months (and any fraction thereof) of the
Term then elapsed from the Commencement Date, or January 1st preceding the last
Adjustment Date (if any has occurred), whichever date is most recent, to such
payment date, taking into account any applicable adjustments to the Base Rent
previously paid under this Paragraph 3. Thereafter, and continuing until the
issuance of a new notice by Landlord, Tenant shall pay to Landlord each month,
1/12th of the product of the difference between the Base Footage Expense and
110% of the Actual Footage Expense times the said rentable area of the Premises.
On or about March 1st of each year during the Term and at any time Landlord
issues a notice to Tenant comparing the Base Footage Expense and the Actual
Footage Expense, the amounts, if any, collected by Landlord from Tenant under
this Paragraph 3 shall be adjusted, and if the amount so collected differs from
the amount actually due to Landlord hereunder, a reconciliation shall be made
between Landlord and Tenant. The foregoing adjustment provision shall survive
the Expiration Date and be applicable to such portion of the preceding calendar
year as this Lease was in effect.
"Operating Expenses" shall mean those items of cost and expense paid or
incurred by, or on behalf of, Landlord for management, repair, maintenance or
operation of the Building, adjacent plazas and sidewalks, the Land, and the
personal property of Landlord used in the operation of the Building and Land as
determined in accordance with generally accepted principles of sound management
consistently applied, which are properly
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chargeable to the operation of the Building, including but not limited to:
(i) Wages, salaries, bonuses and fees along with related
taxes, insurance benefits and other fringe benefits and reimbursable expenses.
(ii) All operation, management, maintenance, inspection,
repairs, painting of common areas, replacements, upkeep and servicing of the
Building and the equipment therein, including all supplies, equipment, tools and
materials used therein and service contracts (including but not limited to alarm
service, window cleaning, pest control, elevator and janitorial services);
(iii) Water, electricity, power, fuel and other utilities;
(iv) Premiums and other charges, with respect to insurance;
(v) All taxes and assessments and governmental charges and
fees imposed upon the Building, the Land, and Landlord's property used therein,
together with the allied facilities or improvements thereon (including without
limitation any occupancy, gross receipts or rental taxes paid by Landlord, but
not income or franchise tax or any other taxes imposed or measured by Landlord's
income or profits unless the same is in lieu of real estate taxes);
(vi) The management fee paid for managing the Building for the
Landlord;
(vii) Amortization, of the cost of capital investment items
(or the rentals attributable to leasing such items) that are for the purpose of
reducing operating costs or that may be required by governmental authority
and/or Landlord's insurance carriers, plus interest on the unamortized balance
thereof at the then current market rate. All such costs shall be amortized over
the reasonable life of the capital investment items, with the reasonable life
and amortization schedule being determined in accordance with sound management
accounting principles.
3.E. Failure of Landlord to furnish a statement of actual Operating
Expenses or to give notice of an adjustment to Base Rent under this Paragraph 3
in a timely manner shall not prejudice or act as a waiver of Landlord's right to
furnish such statement or give such notice at a subsequent time or collect any
adjustments to the Base Rent for any preceding period. Tenant hereby agrees that
the Landlord's statement of actual Operating Expenses 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 statement, Tenant provides Landlord
with written notice (i) disputing the mathematical accuracy of such amount (the
"Disputed
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Amount"), (ii) designating a certified public 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) 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 three percent (3%) 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 cause its accountant, and any
employees or agents involved in such review to keep all information disclosed by
Landlord in connection with such review strictly confidential. Notwithstanding
Tenant Is written notice to Landlord of its election to conduct a review of
Landlord' s records, Tenant shall timely pay to Landlord the amount due Landlord
in accordance with Landlord's statement and estimated Operating Expenses for the
current calendar year determined in accordance with Paragraph 3.D., above, which
payments shall be subsequently equitably adjusted if Tenant's review discloses
an overpayment acknowledged by Landlord.
3.F. Failure of Landlord to furnish a statement of actual Operating
Expenses or to give notice of an adjustment to Base Rent under this Paragraph 3
in a timely manner shall not prejudice or act as a waiver of Landlord's right to
furnish such statement or give such notice at a subsequent time or collect any
adjustments to the Base Rent for any preceding period.
IMPROVEMENTS BY LANDLORD
4.A. Tenant accepts the Premises in its "as-is" condition, with no
warranty from Landlord as to the condition of the Premises, including without
limitation, the improvements, equipment, and appliances contained therein.
4.C. Within 30 days after the Commencement Date, Tenant will execute
and deliver to Landlord a written declaration stating the Commencement Date and
Expiration Date. In such declaration, Tenant shall certify that Tenant is in
possession and has accepted the Premises, and that all conditions of this Lease
required of Landlord as of that date have been fulfilled, and there are no
defenses or off-sets against the enforcement of this Lease by Landlord.
4.D. Landlord's interest in the Premises and Building shall not be
subject to liens for improvements made by the Tenant, and Tenant shall have no
power or authority to create any lien or permit any lien to attach to the
Premises or to the present estate,
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reversion or other estate of Landlord in the Premises herein demised or on the
Building or other improvements thereon as a result of improvements made by
Tenant or for any other cause or reason. All materialmen, contractors, artisans,
mechanics and laborers and other persons contracting with Tenant with respect to
the Premises or any part thereof, are hereby charged with notice that such liens
are expressly prohibited and that they must look solely to Tenant to secure
payment for any work done or material furnished for improvements by Tenant or
for any other purpose during the term of this Lease, and Tenant covenants to
promptly notify such parties of this provision exculpating Landlord from
liability for such liens. Tenant shall indemnify Landlord against any loss or
expense incurred as a result of the assertion of any such lien, and Tenant
covenants and agrees to transfer any claimed or asserted lien to a bond or such
other security as may be permitted by law within three (3) business days of the
assertion of any such lien or claim of lien. Tenant shall advise all persons
furnishing designs, labor, materials or services to the premises in connection
with Tenant's improvements thereof of the provisions of this Paragraph. If any
such lien is claimed against the Premises, then, in addition to any other right
or remedy of Landlord, Landlord may, but shall not be obligated to, discharge
the same. Any amount paid by Landlord for such purposes shall be paid by Tenant
to Landlord as additional rent within ten (10) days of Landlord's demand
therefor.
FAILURE TO GIVE POSSESSION
5. If Landlord should fail to tender possession of the Premises to
Tenant by the date Landlord has specified as the Commencement Date for any
reason other, this Lease shall not be void or voidable by Tenant, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom. The
Term shall commence at the time thereafter when Landlord tenders possession of
the Premises to Tenant, and such date shall be the actual Commencement Date, and
the Term of this Lease shall be measured from said Commencement Date.
USE
6. The Premises shall be used for general office and related purposes
and no other purpose. The Premises shall not be used for retail sales (unless
specified to the contrary) or for any illegal purposes or in violation of any
regulation of any governmental body, or in any manner to create any trespass, or
to vitiate any insurance or increase the rate of insurance on the Premises or
the Building. Tenant agrees to comply with all governmental rules, regulations,
decrees or requirements applicable to the use and occupancy of the Premises.
Tenant will not use or permit the Premises to be used or occupied for any
purpose or in a any manner
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that may cause or tend to cause demonstrations, picketing, impair the reputation
of the Building or its desirability as an office building; use the Building or
allow the Premises to be used for any improper, immoral, unlawful, pornographic,
sexually explicit, or objectionable purpose. Tenant will conduct its business
and control its employees and agents in such a manner as not to create any
nuisance or interfere with, annoy, or disturb any other tenant or occupant of
the Building or Landlord in its operation of the Building. If Tenant receives
notice of any claim of violation of any law, rule or regulation applicable to
the Premises, Tenant shall give prompt notice thereof to Landlord. In the event
of any such circumstance, Tenant will give Landlord an opportunity to defend the
alleged violation with counsel reasonably acceptable to both Landlord and
Tenant, at Tenant's expense, and both will cooperate in the defense of any
alleged violation. In case of breach of any of the covenants contained in this
Xxxxxxxxx 0, Xxxxxxxx may, in addition to all other remedies available to the
Landlord under the Lease, elect to terminate this Lease by giving Tenant 60
days' written notice to vacate.
RELOCATION
7.A. Landlord may, by notice to Tenant, change the location of the
Premises from that set forth herein to another location on any floor.
7.B. Landlord reserves the right, upon giving 60 days, advance notice
to Tenant, to transfer and remove the Tenant from the Premises to any other
available rentable area of substantially equal size and area and equivalent
rental in the Building. Landlord shall bear the expense of such removal as well
as the expense of any renovations or alterations necessary to make the new space
substantially conform in layout and appointment with the original premises.
Landlord shall additionally bear the reasonable costs incurred by Tenant in
collection with replacement of existing stationary and business cards, and the
relocation of communications and computer lines. Landlord may exercise the right
to so relocate Tenant under this Paragraph 7 at any time including but not
limited to the period before Tenant takes possession of the Premises.
REPAIRS BY TENANT AND REMOVAL OF TENANT'S IMPROVEMENTS AND ALTERATIONS
8.A. Tenant accepts the Premises in their present condition (subject to
Tenant's obligation to bring the Premises into compliance with Applicable Laws
pursuant to Paragraph 41) as suited for the use intended by Tenant. Tenant will,
at Tenant's sole expense, take good care of the Premises and the fixtures,
equipment and appurtenances therein, and will suffer no active or permissive
waste or injury thereof. Tenant agrees, at Tenant's expense, but
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under the direction of Landlord, to promptly repair (making replacements where
necessary) any injury or damage to the Premises. Tenant also agrees, at Tenant's
expense but under the direction of Landlord, to promptly repair (making
replacements where necessary) any injury or damage to the Building caused by the
misuse or neglect thereof by Tenant, Tenant's employees, or by persons entering
the Building under express or implied invitation of Tenant. All such repairs and
replacements shall be of a quality equal to original installations. If Tenant
fails to make such repairs or replacements promptly, Landlord may, at its
option, make repairs or replacements, and Tenant shall repay the cost thereof to
Landlord on demand.
8.B. Tenant will not, without Landlord's written consent, make any
alterations, additions or improvements in or about the Premises. Tenant shall
obtain all appropriate governmental permits and approvals at Tenant's expense
prior to beginning any such work in the Premises. All alterations, additions or
improvements to the Premises (including, but not limited to, floor covering,
wall covering, wall and ceiling lighting fixtures, carpets, drapes and drapery
hardware) made or installed by Tenant (or by the Landlord for Tenant's benefit)
shall, at Tenant's sole cost and expense, comply with Applicable Laws, and shall
become the property of Landlord at the Expiration Date. Landlord reserves the
right to require Tenant, at Tenant's expense: (i) to remove any improvements
or additions made to the Premises by Tenant, or by Landlord for Tenant's
benefit, at the Expiration Date; and (ii) to repair all injury done by or in
connection with installation or removal of said improvements or additions.
Tenant further agrees to do so prior to the Expiration Date, or within 30 days
after notice from Landlord, whichever shall be later, provided that Landlord
gives such notice no later than 30 days after the Expiration Date. Any increase
in property taxes on or fire or casualty insurance premiums for the Building
attributable to such alteration, addition, or improvement shall be borne by
Tenant.
8.C. No later than the Expiration Date, Tenant will remove all Tenant's
personal property and Tenant shall repair all injury done by or in connection
with the installation or removal of said property and surrender the Premises
(together with all keys to the Premises) in as good a condition as they were at
the beginning of the Term, reasonable wear and tear excepted. All property of
Tenant remaining on the Premises after the Expiration Date shall be deemed
conclusively abandoned and may, at the election of Landlord, either be retained
as Landlord's property or be removed by Landlord, and Tenant shall reimburse
Landlord for the cost of removing the same, subject, however, to Landlord's
right to require Tenant to remove any improvements or additions made to the
Premises by Tenant pursuant to Paragraph 8.B.
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8.D. In doing work of any nature in, to or about the Premises, Tenant
will use only contractors or workmen approved in writing by Landlord.
REPAIRS BY LANDLORD
9.A. Tenant agrees that unless otherwise stipulated herein, Landlord
shall not be required to make any improvements to or repairs of any kind or
character on the Premises during the Term, except such repairs as may be deemed
necessary by Landlord for normal maintenance operations of the Building's
plumbing, heating and air conditioning and electrical systems. Landlord shall
use reasonable diligence in carrying out its obligations under this Paragraph 9,
but shall not be liable under any circumstances for any incidental or
consequential damage to any person or property for any failure to do so.
9.B. Landlord reserves the right to make changes in and about the
Building and Land, including any improvements located thereon. Such changes may
include, but not be limited to, rehabilitation, redecoration, refurbishment and
refixturing of the Building and expansion of or structural changes to the
Building, and changes to the address or name of 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 of the Premises.
SERVICES: ELEVATOR, AIR CONDITIONING, WATER, CLEANING AND ELECTRICITY
10.A. Landlord shall furnish the following services without charge, at
the proper season, during work day hours of 8:00 A.M. to 6:00 P.M. on Mondays
through Fridays, inclusive, (except where otherwise specified) on normal
business days, except holidays observed by national banks in Tampa, Florida and
Gasparilla Day:
(i) Elevator service and freight elevator service in common
with other tenants shall be provided during hours set by Landlord, provided that
at all times there shall be at least one elevator available to service the
Premises;
(ii) Air conditioning in Landlord's judgment sufficient to
reasonably cool or heat the Premises;
(iii) Water for ordinary lavatory purposes;
(iv) Common use restrooms;
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(v) Cleaning services during non-business hours, except
Saturdays and Sundays in accordance with the specifications attached
hereto as Exhibit "C";
(vi) Electric current as provided in Paragraph 10.B.
Services under items (i) and (ii) for periods other than periods
prescribed above will be made available by Landlord for the benefit of Tenant
provided Tenant has given Landlord written notice at least 24 hours in advance.
Tenant shall pay on demand as Additional Rent Landlord's standard charge for
such additional service(s).
10.B. Landlord shall furnish electric current sufficient for 3 xxxxx
per square foot of rentable area connected load at 85% demand during the time
periods of Paragraph 10.A. Tenant will not, without Landlord's prior written
consent in each instance, use or connect any electrical equipment or additional
services, which in Landlord's opinion will increase the said load, demand load
or use, or which will interfere with the electrical use or reasonable electrical
requirements of others in the Building. If Landlord grants such consent and
provides additional electrical service, circuits or equipment, or if Tenant uses
any of the services enumerated in this Paragraph 10.B. in an amount or for a
period in excess of that provided for herein, then Landlord shall charge Tenant,
and Tenant shall pay to Landlord, as Additional Rent, a sum as reimbursement for
the direct cost of such added services, at the rate published by the appropriate
public utility company supplying said service for that level of consumption,
together with applicable Florida Rental Tax.
10.C. Landlord shall in no way be liable for cessation of any of the
services of this Paragraph 10 caused by strike, accident or breakdown, nor shall
Landlord be liable for damages from the stopping of elevators or elevator
service, or any of the fixtures or equipment in the Building being out of
repair, or for injury to person or property, caused by any defects in the
electrical equipment, heating, ventilating and air conditioning system,
elevators or water apparatus, or for any damages arising out of failure to
furnish the services enumerated in this Paragraph 10. Cessation of any of the
services of this Paragraph 10 shall not be considered to be an eviction or
disturbance of Tenant's use of the Premises nor shall this Lease or any of the
provisions be deemed invalidated by such cessation.
10.D. There shall be no abatement, set-off or apportionment of rent
payable by Tenant relative to the failure of Landlord to furnish, or
interruption in the delivery of, any of the services of this Paragraph 10 or the
making of any of the repairs or maintenance of Paragraph 9. Landlord may
temporarily discontinue any such services as may be necessary due to causes
(except lack of funds) beyond the reasonable control of Landlord.
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Landlord shall use reasonable diligence in carrying out its obligations under
this Paragraph 10, but shall not be liable under any circumstances for any
incidental or consequential damage to any person or property for any failure to
do so. No reduction or discontinuance of such services under this Paragraph 10
shall be construed as an eviction of Tenant or (except as specifically provided
in this Lease) release Tenant from any obligation of Tenant under this Lease,
and nothing contained herein shall derogate from the provisions of Paragraph 21.
10.E. Landlord's obligation to furnish heat, cooling and electricity
shall be conditioned upon the availability of adequate energy sources. Landlord
shall have the right to reduce heat, cooling and electricity within the Building
as required by any mandatory or voluntary fuel or energy savings, allocation or
similar statute, regulation, order or program.
TENANT RISK
11. Landlord, its officers, directors, agents, and employees shall not
be liable for any loss, injury or damages to persons or property resulting from
any cause whatsoever, including, but, not limited to acts or omissions of
Landlord or other tenant in the Building, construction defects, water, rain,
sleet, fire, explosion, falling plaster, glass, tile or sheetrock, steam, gas,
electricity, water or rain which may leak from any part of the Premises or the
Building, or from the pipes, appliances or plumbing works therein or from the
roof, street, or subsurface or whatsoever, storms, negligence and accidents,
breakage, stoppage, or leaks of gas, heating, sewer pipes, boilers, wiring or
plumbing or any other defect in, on or about the Premises, except where such
damage is caused by or due to the sole gross negligence or willful acts of
Landlord. Tenant expressly assumes all liability for or on account of any such
injury, loss or damage, and will at all times indemnify and save Landlord
harmless from and against all liability, damage or expense caused by, or arising
out of, any such injury, loss or damage to persons or property upon the
Premises, the Building or the contiguous land. Landlord makes no representations
or warranties with respect to crime in the area, undertakes no duty to protect
against criminal acts and shall not be liable for any injury, wrongful death,
business damages, or property damage arising from any criminal acts. The
Landlord may, from time to time, employ security personnel and equipment,
however, such personnel and equipment are only for the protection of the
Landlord's property. The Landlord reserves the right, in its sole and absolute
discretion, to start, alter or terminate any such security services without
notice. The Tenant is urged to provide security for its own personnel, property,
and business, as it deems necessary. The Tenant is urged to obtain insurance to
protect against criminal acts.
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DESTRUCTION OR DAMAGE TO PREMISES
12.A. If the Premises or the Building are so substantially damaged as
to be untenantable by storm, fire, earthquake or other casualty, or if the
Building is damaged to the extent that the cost of repair exceeds 25?6 of the
then replacement cost of the Building, or if the Premises or Building are
materially damaged by such event during the last six (6) months of the Term or
any extension thereof, then Rent shall equitably xxxxx from the date of such
damage or destruction, and Landlord, at Landlord's sole option, may elect: (i)
to terminate this Lease as of the date of the fire or casualty by written notice
to Tenant given within 60 days after that date; or (ii) to commence within 60
days of receipt of insurance settlement the restoration of the Premises to a
tenantable condition (including Tenant Improvements existing at the commencement
of the Lease Term) but not including any other alterations, additions, or
improvements by Tenant), which restoration Landlord shall pursue with due
diligence. In the event Landlord elects to restore the Premises, this Lease
shall remain in force and effect and Rent shall commence upon delivery of the
Premises to Tenant in a tenantable condition.
12.B. If the Premises are damaged but not rendered wholly untenantable
by any of the events set forth in Paragraph 12.A and this Lease shall not be
terminated pursuant to Paragraph 12.A, Rent shall xxxxx in such proportion as
the Premises have been damaged and Landlord shall restore the Premises as
speedily as practicable whereupon full rent shall commence.
12.C. In no event shall Rent xxxxx if the damage or destruction of the
Premises, whether total or partial, is the result of the negligence of Tenant,
its agents or employees.
12.D. Landlord shall have no liability under any circumstances for any
business losses of Tenant, or for any losses to Tenant's personal property or
fixtures caused by any casualty occurrence as contemplated in this Paragraph 12.
No damages shall accrue to Tenant, nor shall any termination privilege become
operable against Landlord, for delays which may occur because of adjustment of
any insurance claim by Landlord, or for any delay not reasonably within
Landlord's control.
SUBORDINATION AND ATTORNMENT
13.A. This Lease is and shall continue to be subject and subordinate to
any mortgages, deeds of trust, ground leases and underlying leases which may now
or hereafter cover or affect the Land or the Building, and to all renewals,
modifications, consolidations, replacements and extensions of any such
instruments. This clause shall be self-operative and no instrument
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of subordination shall be required, however, at any time and from time to time,
Tenant shall execute promptly any certificate in confirmation of such
subordination that Landlord may request.
13.B. If any such ground or underlying lease(s) or mortgage or deed of
trust is terminated or foreclosed, this Lease (at the option of the lessor under
such ground or underlying lease (s) or the purchaser at such foreclosure sale,
as the case may be) shall not terminate, nor be terminable by Tenant by reason
of such termination or foreclosure, and Tenant shall attorn to the lessor under
such ground or underlying lease (s) or the purchaser at such foreclosure sale.
In no event shall any such lessor or purchaser be:
(a) liable for any act or omission of Landlord or any prior
landlord;
(b) liable for the return of any security deposit not assigned
or received by such purchaser;
(c) subject to any offsets or defenses that the Tenant might
have against Landlord or any prior landlord;
(d) 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;
RULES AND REGULATIONS
14. Tenant shall at all times and shall cause its employees, agents,
licensees, and any other persons entering the Building under express or implied
invitation of Tenant, to observe and comply with the Rules and Regulations
attached hereto as Exhibit I'D", and such further reasonable rules and
regulations as Landlord may prescribe on written notice to Tenant. Landlord
shall use reasonable efforts to secure compliance by all tenants and other
persons with the Rules and Regulations from time to time in effect, but shall
not be responsible to Tenant for failure of any person to comply with such Rules
and Regulations.
FLOOR LOAD
15. Tenant shall not overload the floors, nor shall Tenant install any
heavy business machines or any safes or heavy equipment of any kind without
prior written consent of Landlord, which, if granted, may be conditioned upon
moving by skilled licensed handlers and installation and maintenance at Tenant's
expense of special reinforcing and settings adequate to absorb and prevent noise
and vibration.
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DEFAULT
16.A. If Tenant defaults in paying any installment or other payment of
Rent on or before the date when due; or if Tenant is in default for 15 days
after written notice thereof in performing any other of Tenant's obligations
hereunder; or if the Premises shall become vacant, deserted or abandoned; or if
Tenant is named in a petition in bankruptcy; or if a receiver is appointed for
Tenant's property, including Tenant's interest in the Premises, and such
receiver or petition is not removed or discharged within 60 days after written
notice from Landlord to Tenant to obtain such removal; or if, whether
voluntarily or involuntarily, Tenant takes advantage of any debtor relief
proceedings under any present or future law, whereby the rent or any part
thereof is or is proposed to be reduced or payment thereof deferred; or if
Tenant makes an assignment for the benefit of creditors; or if the Premises or
Tenant's effects or interest therein shall be levied upon or attached under
process against Tenant, not satisfied or dissolved within 30 days after such
levy or attachment; then, and in any of said events Landlord, at its option, may
after the occurrence of such default, in addition to any other rights or
remedies under law or equity, pursue any or all of the following:
(i) Terminate this Lease by written notice to Tenant. Upon
such termination by Landlord, Tenant will at once surrender possession of the
Premises to Landlord and remove all of Tenant's effects therefrom; and Landlord
may forthwith re-enter the Premises and repossess itself thereof, and remove all
persons and effects therefrom, using such force as may be necessary without
being guilty of trespass, forcible entry or detainer or other tort; or
(ii) Remedy such default for the account and at the expense of
Tenant without thereby waiving such default; or
(iii) Landlord may declare immediately due and payable all
Base Rent and all Additional Rent and any other charges and assessments against
the Tenant due or to become due hereunder for the balance of the Term.
16.B. In addition to, and not in lieu of Landlord's foregoing rights,
Landlord may, at its option, as Tenant's agent without termination of this
Lease, enter upon and rent the Premises, with or without advertisement, and by
private negotiations and for any terms and conditions Landlord deems reasonable.
Tenant shall be liable to Landlord for deficiency, if any, between all rent
reserved hereunder and the total rental applicable to the Term obtained by
Landlord on re-letting after deducting Landlord's expenses in restoring the
Premises and all cost incident to such re-letting, including without limitation,
advertising costs, legal fees and brokerage commissions. The total rental
applicable to the term obtained by Landlord on such reletting shall be the
property of the Landlord and Landlord shall
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not be liable to Tenant for any excess thereof over rent reserved hereunder.
16.C. In the event Landlord elects to terminate this Lease as herein
above provided, Landlord may, in addition to any other remedies it may have,
recover from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Premises, reasonable attorneys' fees, a
prorata portion of any rental abatement, tenant improvement allowance, and any
other cash concession set forth herein (which shall be amortized over the Term)
and including the worth at the time of such termination of the excess, if any,
of the amount of Base Rent and Additional Rent reserved in this Lease for the
remainder of the Term over the then reasonable rental value of Premises for the
remainder of the Term, all of which amounts shall be immediately due and payable
from Tenant to Landlord.
16.E. The receipt by Landlord of Base Rent or Additional Rent or any
other charge or assessment with knowledge of the breach of any covenant of this
Lease shall not be deemed a waiver of such breach other than the failure of
Tenant to pay the particular Base Rent or Additional Rent or other charges or
assessments so accepted.
ASSIGNMENT AND SUBLETTING
17.A. Without the prior written consent of Landlord, Tenant shall not
assign, mortgage or encumber this Lease or sublease the Premises or any part
thereof.
17.B. If Tenant desires to sublease the Premises or any part thereof,
Tenant shall submit to Landlord a written request for the consent of Landlord to
such subletting, which request shall be accompanied by the name and address of
the proposed subtenant,,a description identifying the space to be sublet, a copy
of the fully executed sublease conditioned only upon approval of Landlord, the
nature and character of the business of the proposed subtenant, and its proposed
use of the Premises, current financial information on the proposed subtenant and
such other information as Landlord may request. Landlord shall have the option
within 30 days of receipt of such notice and information to give notice to
Tenant requiring Tenant to sublease to Landlord or its nominee such portion of
the Premises proposed to be sublet, for a term to commence on the date as set
forth in Landlord's notice to Tenant (which date shall not be less than 60 nor
more than 120 days following the service of such notice) and to expire on the
expiration date provided in the proposed sublease, but otherwise on the same
terms and conditions as contained in this Lease, except for such terms and
conditions thereof that are irrelevant or inapplicable, in which event, Tenant
shall deliver possession of the sublet area in the same condition as Tenant is
obligated to surrender possession at the end of the
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Term, as provided in this Lease, except that Landlord shall make the necessary
separating partitions and Tenant shall reimburse Landlord for the cost thereof.
17.C. In the event Landlord requires Tenant to sublease to
Landlord or its nominee, pursuant to Paragraph 17.B, then the rents (including
all additional rents) payable under the sublease shall be equal to the
proportion of such rents payable under this Lease as the proportion which the
usable sublet area bears to the usable area in the Premises. Without limiting
the generality of the foregoing, it is expressly agreed that: (i) this Paragraph
17 is inapplicable to such sublease to Landlord or its nominee; (ii) such
sublease to Landlord or its nominee shall grant to the subtenant the unqualified
and unrestricted right, without Tenant's permission: (1) to assign such sublease
or any interest therein and/or to sublet the space covered by such sublease or
any portion thereof and (2) to make any and all changes, alterations and
improvements in the space covered by the sublease; (iii) such sublease to
Landlord or its nominee shall provide that any assignee or undertenant of the
subtenant may, at the election of the subtenant, be permitted to make
alterations, decorations and installations in such space or any part thereof,
and shall also provide in substance that any such alterations, decorations and
installations thereon made by an assignee or undertenant of the subtenant may be
removed, in whole or in part, by such assignee or undertenant, at its option,
prior to or upon the expiration or other termination of such sublease, provided
that such assignee or undertenant, at its expense, shall repair the damage and
injury, if any, to such space caused by such removal; and (iv) such sublease to
Landlord or its nominee shall also provide the parties to such sublease
expressly negate any intention that any estate created under such sublease be
merged with any other estate held by either of said parties.
17.D. In the event that Landlord shall not exercise its option under
Paragraph 17.B, then Landlord shall not unreasonably withhold or delay its
consent to the proposed subletting, provided:
(i) The proposed subletting is for purposes not inconsistent
with the manner of use permitted herein and is in keeping with the then
standards of the Building and does not violate any negative covenants or rights
granted other tenants in any other lease between Landlord and other tenants in
the Building; and
(ii) The proposed subtenant is a reputable party of
reasonable financial worth considering the responsibility involved and Tenant
shall provide Landlord with proof thereof satisfactory to Landlord; and
(iii) The proposed subtenant is not then an occupant of any
part of the Building; and
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(iv) The proposed sublease shall contain a provision making
such sublease subject to the terms and conditions of this Lease; and
(v) The proposed subletting shall not release Tenant from
the due, prompt and punctual performance of all the terms, covenants and
conditions contained in this Lease on its part to be performed or observed and
from the payment of the Base Rent and Additional Rents due and to become due
under this Lease; and
(vi) The consent of Landlord to the proposed subletting
shall not constitute a waiver of any provision of this Lease and no further
subletting shall be made without Landlord's prior consent in writing, and the
subtenant shall not further assign or sublet the Premises without Landlord's
prior written consent, and then only upon compliance with all the provisions
contained in this Paragraph 17; and
(vii) That in the event portions of the Premises are sublet,
in no event shall there be more than one tenant (including Tenant) in the
Premises; and
(viii) Tenant shall not have (1) advertised or publicized in
any way the availability of all or part of the Premises without prior notice to
Landlord or (2) publicly advertised the Premises for subletting whether through
broker, agent, representative or otherwise at a rental rate less than that for
which space in the Building is being offered for rent by Landlord, but this
provision shall not prohibit the renting by Tenant at such lower rate; and
(ix) Landlord shall have the right to require Tenant to pay
to Landlord a sum equal to (1) any rent or other consideration paid to Tenant by
any subtenant which is in excess of the rent then being paid by Tenant to
Landlord pursuant to the terms of this Lease and (2) any other profit or gain
realized by Tenant from any such subletting. All sums payable under this
Paragraph 17.D (ix) by Tenant shall be paid to Landlord as Additional Rent
immediately upon receipt thereof by Tenant. If only a part of the Premises is
sublet, the rent paid therefor by Tenant to Landlord shall be deemed to be that
fraction thereof that the usable area of such sublet space bears to the usable
area of the Premises.
17.E. If Tenant is a limited liability company, 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), or a general or limited partnership (the "Entity"), any
transfer of part or all of the shares, units or interests in the Entity by sale,
assignment, merger, reorganization, 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,
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insolvency, or other proceedings, including but not limited to any adjustment in
partnership interests) so as to result in a change in the present control of
said Entity by the person(s) now owning a majority of said corporate shares,
units or interests in the Entity shall constitute an assignment for purposes of
this Paragraph 17.
17.F. If Tenant assigns this Lease or subleases all or a portion of the
Premises without conforming to all of the terms and conditions of this Xxxxxxxxx
00, Xxxxxxxx shall not be precluded from collecting rent from the assignee or
subtenant and collection of same shall not be construed to be a ratification by
Landlord of the assignment or sublease; and the proposed assignment or sublease
shall be voidable at the option of the Landlord.
17.G. Tenant covenants and agrees that in any case where Tenant claims
Landlord is unreasonably withholding its consent to a subletting, Tenant shall
not make any claim against Landlord for damages but shall be restricted to the
remedy of declaratory judgment.
17.H. In the event Tenant desires to assign this Lease or any part
hereof, Tenant shall submit to Landlord a written request for Landlord's consent
to such assignment, which request, shall be accompanied by the name and address
of the proposed assignee and a copy of the fully executed assignment conditioned
only upon the approval of Landlord, together with the proposed assignee's
proposed use of the Premises, current financial information on the proposed
assignee and such other information as Landlord may request. Based upon such
information, Landlord may in its sole discretion (i) grant Tenant right to
assign the Lease, (ii) deny Tenant's request to assign this Lease, (iii)
terminate this Lease effective no less than thirty (30) days after notice to
Tenant of such termination, or (iv) seek additional information with respect to
the proposed assignee. If Landlord grants its consent, it shall have the right
to require Tenant to pay Landlord a sum of money equal to any rent and any other
consideration paid to Tenant by such assignee in excess of any rent which is
then being paid or which under the terms of this Lease is to be paid by Tenant
to Landlord plus any other profit or gain realized by Tenant upon such
assignment. All sums payable by Tenant under this paragraph shall be paid to
Landlord as Additional Rent immediately upon receipt thereof by Tenant.
RIGHT OF ENTRY
18. Landlord shall have the right to enter into and grant licenses to
enter the Premises at any time upon reasonable notice to Tenant under the
circumstances (except no notice shall be required in the case of leasing,
maintenance or an emergency) for any purpose which Landlord may deem necessary
for any emergency or
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routine maintenance of, repair to, installation in or operation of the Building,
including without limitation, the exhibiting of the Premises to prospective
purchasers, mortgagees or tenants. In addition, Landlord shall have the right to
take all necessary materials and equipment into the Premises and to store the
same within during the necessary repairs and maintenance. Any entry and activity
by the Landlord, as permitted under this Paragraph 18, shall not entitle Tenant
to any rent abatement, shall not constitute an eviction of Tenant and shall not
in any way violate the Lease or any provision hereof.
EMINENT DOMAIN
19.A. If the whole of the Premises shall be condemned, or purchased in
lieu of condemnation, by any competent authority, for any public purpose, then,
the Term of this Lease shall cease and terminate from the time when the
possession shall be required for such use or purpose and the rent shall be
apportioned accordingly.
19.B. If any part of the Premises shall be taken or condemned or
purchased in lieu thereof by any competent authority for any public purpose,
provided the balance of the Premises remaining cannot be effectively utilized by
Tenant for office space, Tenant shall have the option to cancel this Lease,
giving Landlord written notice within 20 days after receipt of notice of the
condemnation from Landlord, or in the absence of such notice, within a
reasonable time after the taking occurs. If Tenant is entitled to exercise said
option to terminate and does so, all rents shall be prorated to the date Tenant
is required to give up possession. In the event Tenant is not entitled to cancel
the Lease, or if it is entitled to do so but does not exercise its option, then
Tenant will be responsible for the rent as heretofore set forth to the date of
such taking or purchase; after which date the rent herein reserved shall be
reduced proportionately as the usable floor area of the remaining leased space
compares to the usable floor area of the leased space before such taking or
purchase.
19.C. Landlord and Tenant hereby agree that any award or proceeds
resulting from a condemnation or sale in lieu thereof of the whole or part of
the Premises shall belong solely to Landlord, and Tenant hereby waives any right
to make any claim therefor as the result of this Lease; provided, however, that
Tenant shall not be prevented from pursuing any claim for business damages
against the condemning authority, so long as such claim is separate from
Landlord's claim and will not diminish Landlord's award.
19.D. If there shall be taken during the Term of this Lease any
substantial or material part of the Building, and Landlord decides not to
restore the Building, Landlord may, upon reasonable notice to Tenant, terminate
this Lease. If this Lease
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is not terminated by either party following a condemnation, Landlord shall apply
the proceeds of condemnation received by Landlord to restoration, to the extent
necessary.
QUIET ENJOYMENT
20. Tenant, on paying the Base Rent and Additional Rent and keeping and
performing the conditions and covenants herein contained, shall and may
peaceably and quietly enjoy the Premises for the Term aforesaid as against all
persons claiming by, through or under Landlord, subject, however, to the terms
of this Lease and any underlying leases and mortgages or deeds of trust, if any.
INDEMNITY AND HOLD HARMLESS
21. Notwithstanding that joint or concurrent liability may be imposed
upon Landlord by law, Tenant shall indemnify, defend and hold harmless Landlord,
at Tenant's expense against: (i) any default by Tenant hereunder or any
violation of laws or ordinances, or governmental orders of any kind; (ii) any
act or omission of Tenant or its agents, contractors, employees, licensees, or
any other person entering upon the Premises under express or implied invitation
of Tenant; and (iii) all claims for injury or damage to persons or property by
reason of the use or occupancy of the Premises regardless of the cause.
Moreover, Landlord shall not be liable for any damage or injury to the Premises,
to Tenant's property, to Tenant, its agents, contractors, employees, invitees or
licensees, arising from any use or condition of the Premises, the Building, or
any sidewalk or entrance way . serving the Building, or the act of neglect of
other Building tenants or the malfunction of any equipment or apparatus serving
the Building. Any and all claims for any damage referred to in this Paragraph 21
are hereby waived by Tenant.
TENANT'S FIRE AND EXTENDED COVERAGE AND WAIVER OF SUBROGATION THEREUNDER
22.A. At all times during the Term of this Lease, Tenant agrees to keep
the trade fixtures, operating equipment, furnishings, alterations, additions,
improvements (but not including the Tenant Improvements existing at the
commencement of the Lease Term) and any other equipment furnished and installed
by Tenant insured against loss or damage by fire or other casualty, with fire
and extended coverage insurance in an amount equal to not less than ninety
percent (90%) of the full insurable value thereof, written by one or more
responsible insurance companies licensed to do business in the State of Florida,
naming Tenant as the insured and the Landlord as the certificate holder. Each
such policy shall
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be non-cancelable for any cause without first giving Landlord 30 days' prior
written notice.
22.B. Tenant further agrees to maintain in force during the Term of
this Lease a policy or policies of commercial general liability insurance,
including property damage, written by one or more responsible insurance
companies licensed to do business in the State of Florida, insuring Tenant and
naming Landlord as an additional insured against loss of life, bodily injury
and/or property damage with respect to the Premises and the business operated by
Tenant in the Premises, in which the limit of public liability shall not be less
than One Million and No/100th Dollars ($1,000,000.00) for combined single limit
bodily injury and property damage liability. Each such policy shall be
noncancelable for any cause without first giving Landlord 30 days, prior written
notice.
22.C. A copy of the insurance policies required in Paragraphs 22.A and
22.B, or a certificate of said insurance required under said paragraphs, shall
be delivered to Landlord on or before the Commencement Date.
22.D. Landlord hereby waives any and all rights of recovery against
Tenant for or arising out of damage to or destruction of the Premises, or the
Building, from causes then included under standard fire and extended coverage
insurance policies or endorsements, and Landlord covenants and agrees with
Tenant that Landlord will obtain a waiver from the carrier of Landlord's
insurance on the Building releasing such carrier's subrogation rights as against
Tenant.
22.E. Tenant hereby waives any and all rights of recovery against
Landlord for or arising out of damage to or destruction of any property of
Tenant from causes then included under standard fire and extended coverage
insurance policies or endorsements, and Tenant covenants and agrees with
Landlord that Tenant will obtain a waiver from the carrier of Tenant's insurance
on the Premises releasing such carrier's subrogation rights as against Landlord.
REMEDIES CUMULATIVE
23. The rights given to Landlord herein are in addition to any rights
that may be given to Landlord by any statute or otherwise.
HOLDING OVER
24. If Tenant remains in possession after the Expiration Date, with
Landlord's acquiescence and without any distinct agreement between the parties,
Tenant shall be a tenant at will,
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and such tenancy shall be subject to all the provisions hereof, except that the
monthly portion of the Base Rent shall be doubled for the entire hold-over
period and there shall be no renewal of this Lease by operation of law. Nothing
in this Paragraph 24 shall be construed as a consent by Landlord to the
possession of the Premises by Tenant after the Expiration Date. Tenant shall be
responsible to Landlord for all consequential damages resulting from Tenant's
failure to timely surrender the Premises is strict accordance with this
Paragraph.
NO WAIVER OR CHANGES
25. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease,
or any of the Rules and Regulations herein or hereafter adopted by Landlord,
shall not prevent a subsequent act or omission, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach other than
the failure of Tenant to pay the particular rent so accepted. No provision of
this Lease shall be deemed to have been waived by Landlord, unless such waiver
be in writing signed by Landlord. No act or thing done by Landlord or Landlord's
agent during the Term shall be deemed an acceptance of a surrender of the
Premises and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord.
TENANT'S ESTOPPEL
26. Tenant shall, from time to time, upon not less than 10 days, prior
written request by Landlord, execute, acknowledge and deliver to Landlord a
written statement certifying that this Lease is unmodified and in full force and
effect (for if there have been modifications that the same is in full force and
effect as modified and stating the modifications), the dates to which the rent
and other charges have been paid, whether or not to the best of Tenant's
knowledge Landlord is in default hereunder (and if so, specifying the nature of
the default), and addressing any other matter pertaining to this Lease, it being
intended that any such statement delivered pursuant to this Paragraph 26 may be
relied upon by a prospective purchaser of Landlord's interest or mortgagee of
Landlord's interest or assignee of any mortgage or deed of trust upon Landlord's
interest in the Premises.
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MARGINAL NOTATIONS
27. The marginal notations in this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
NOTICE
28.A. Tenant shall pay the rent and other charges payable hereunder to
Landlord and forward all notices to Landlord at the following address (or at
such other place as Landlord may hereafter designate in writing):
Tampa City Center Associates
c/o Cushman & Xxxxxxxxx of Florida, Inc.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
With a copy to:
GTE Realty Incorporated
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Landlord shall forward all notices to Tenant to:
Brassie Golf Corporation
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: __________
Any notice provided for in this Lease must, unless otherwise expressly provided
herein, be in writing, and be forwarded by registered or certified mail, return
receipt requested, postage prepaid, or by personal delivery or national
overnight service. Any notice of demand required to be given or that may be
given hereunder shall be deemed complete upon the date of receipt thereof, or if
delivery is refused, on the date of attempted delivery thereof. If notice
deposited in the mail, in the manner above, is unclaimed, such notice shall be
effective three (3) days after the date of mailing. Either party hereto may
change its address to any other address in the United States of America by
notice in writing given to the other party in the manner herein provided.
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28.B. Tenant hereby appoints as its agent to receive all dispossessory
or distraint proceedings, the person occupying the Premises, and if there is no
person occupying same, then such service may be made by attachment thereof on
the main entrance to the Premises.
USE OF NAME
29. Tenant shall not, except to designate Tenant's business address
(and then only in a conventional manner and without emphasis or display), use
the name or xxxx (as shown on the top of this page) "One Tampa City Center" for
any purpose whatsoever. Landlord shall have the right from time to time to
rename the Building, and shall not be liable to Tenant for the resulting costs.
APPLICABLE LAWS
30. This lease shall be construed under the laws of the State of
Florida.
HEIRS AND ASSIGNS
31. The provisions of this Lease shall inure to the benefit of and be
binding upon Landlord and Tenant, and their respective successors, heirs, legal
representatives and assigns; it being understood that the term "Landlord", as
used in this Lease, means only the owners, or the lessee for the time being of
the Land and the Building, so that in the event of any sale or sales of the Land
or of any lease thereof, the Landlord named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, or the lessee, as the case may be, has assumed and agreed to
carry out any and all covenants and obligations of Landlord hereunder during the
period such party has possession of the Land and the Building. Should the Land
and the entire Building be severed as to ownership by sale and/or lease, then
the owner of the entire Building or lessee of the entire Building that has the
right to lease space in the Building to tenants shall be deemed the "Landlord".
Tenant shall be bound to any succeeding landlord for all the terms, covenants
and conditions hereof and shall execute any attornment agreement not in conflict
herewith at the request of any succeeding landlord.
LANDLORD'S EXCULPATION
32. Neither shareholders, officers or directors of Landlord
(collectively, the "parties") shall be liable for the performance
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of Landlord's obligations under this Lease. Tenant shall look solely to Landlord
to enforce Landlord' s obligations hereunder and shall not seek any damages
against any of the parties. Tenant agrees that the liability of Landlord for
Landlord's obligations under this Lease is specifically limited to Landlord's
interest in the Building, and Landlord shall never be personally liable with
respect to any of the terms, covenants and conditions of this Lease.
ENTIRE AGREEMENT AND OTHER AGREEMENTS
33.A. This Lease and the instrument setting forth the Commencement Date
and the Expiration Date pursuant to Paragraph 2, contain the entire agreement of
the parties hereto and no representations, inducements, promises or agreements,
oral or otherwise, between the Landlord and Tenant not embodied herein, shall be
of any force or effect.
33.B. Any agreement hereafter between Landlord and Tenant shall be
ineffective to modify, release or otherwise effect this Lease, in whole or in
part, unless such agreement is in writing and signed by both parties.
REASONABLE MODIFICATION
34. If in connection with obtaining financing for the Building, or for
any ground or underlying lease(s), a recognized institutional, lender shall
request reasonable modifications in this Lease as a condition of such financing,
Tenant will not unreasonably withhold, delay or defer its consent, provided that
such modifications do not increase the obligations of Tenant hereunder or
adversely affect, to a material extent, Tenant's leasehold interest or Tenant's
use and enjoyment of the Premises.
LEGAL CONSTRUCTION
35. If any of the provisions of this Lease shall be held to be invalid,
illegal or unenforceable for any reason, such circumstance shall not affect any
other provision. This Lease shall be construed as if such invalid, illegal or
unenforceable provision had never been herein.
BROKER
36. Tenant represents that, except for Xxxxxxx & Xxxxxxxxx, Inc.
("Broker"), Tenant has not dealt with any real estate broker, sales person or
finder in connection with this Lease, and no other real estate broker initiated
or participated in the negotiation of
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this Lease, or showed the Premises to Tenant. Tenant agrees to indemnify and
hold harmless Landlord from and against any liabilities and claims for
commissions and fees arising out of a breach of the foregoing representation.
Landlord shall be responsible for the payment of all commissions to Broker,
based upon the leasing commission policy of Landlord affecting the Building on
the date of this Lease.
SECURITY DEPOSIT
37. Tenant has deposited with Landlord a sum equal to Fifty Thousand,
Six Hundred Fourteen 67/100 (50,614.67), which comprises: (i) prepaid Base Rent
for the first month of the Lease Term ($11,165.00); (ii) prepaid Base Rent for
the last two months of the Lease Term (an aggregate amount of $28,284.67)
(together with prepaid Base Rent for the second month referred to as the
"Prepaid Rent"); and (iii) a security deposit of Eleven Thousand One Hundred
Sixty Five and No/100 Dollars ($11,165.00) (the "Security Deposit"). The Prepaid
Rent and the Security Deposit shall serve as security for the performance of
Tenant's obligations in this Lease, except that the prepaid Base Rent shall be
applied to Rent due for the specified months if not sooner applied to cure a
Tenant default in accordance with this Section. The Security Deposit shall be
returned to Tenant, without interest, within 30 days after the Expiration Date,
provided Tenant has fully performed hereunder, and has vacated the Premises
surrendering all keys. If Tenant defaults in any of the provisions of this
Lease, Landlord may, but shall not be required to, apply all or part of the
Prepaid Rent not previously applied to Base Rent and the Security Deposit to the
payment of any amount due from Tenant hereunder or for any sum which Landlord
may spend or be required to spend because of Tenant's default, including any
damages or deficiency in reletting of the Premises whether such damages or
deficiency accrue before or after summary proceedings or re-entry by Landlord.
Landlord shall have the right to apply any part of the Prepaid Rent and Security
Deposit to cure any default of Tenant and if Landlord does so, Tenant shall,
within ten (10) days after demand, deposit with Landlord the amount so applied
so that Landlord shall have the full Prepaid Rent and Security Deposit (less any
amount of Prepaid Rent applied to the specified month's Base Rent) on hand at
all times during the Term. In the event of a sale of the Building or a lease of
the Building, subject to this Lease, Landlord shall be released from all
liability for the application of the Prepaid Rent to the specified month's Base
Rent and the return of the Security Deposit, and Tenant shall look to the new
landlord for such application and return. This provision shall apply to every
transfer or assignment of the Prepaid Rent and Deposit to a new landlord. The
Prepaid Rent and Security Deposit shall not be assigned or encumbered by Tenant
without the written consent of Landlord and such assignment or encumbrance
without Landlord's consent shall be void.
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ATTORNEY'S FEES
38. In the event Tenant defaults in the performance of any of the
provisions of this Lease and Landlord places the enforcement of this Lease, or
any part thereof, or the collection of any rent due or to become due hereunder
or recovery of the possession of the Premises in the hands of an attorney,
Tenant agrees to pay Landlord's attorney's fees and costs, whether or not suit
is instituted. If suit is instituted between Landlord and Tenant with respect to
this Lease or the Premises, the prevailing party shall be entitled to
reimbursement from the non-prevailing party for all reasonable attorneys' fees
and costs incurred at the trial level and at all levels of appeal. Landlord and
Tenant hereby waive the right to trial by jury in any action or proceeding
brought in connection with this Lease or the Premises, to the extent such waiver
is permitted by applicable law.
LANDLORD'S LIEN
39.A. Tenant hereby grants to Landlord a lien and security interest on
all property of Tenant now or hereafter placed in or upon the Premises, and such
property shall be, and remain subject to, such lien and security interest of
Landlord for payment of all rent and other sums agreed to be paid by Tenant
herein.
39.B. The provisions of this Paragraph relating to such lien and
security interest shall constitute a security agreement under and subject to the
Uniform Commercial Code of the State of Florida so that Landlord shall have, and
may enforce, a security interest on all property of Tenant now or hereafter
placed in or on the Premises, in addition to and cumulative of the Landlord's
liens and rights provided by law or by the other terms and provisions of this
Lease.
39.C. Tenant agrees to execute as debtor such financing statement or
statements and such other documents as Landlord may now or hereafter request in
order to protect or further perfect Landlord's security interest. Tenant hereby
irrevocably appoints Landlord as its attorney in fact to execute and file such
financing statements on its behalf.
ADDITIONAL LEASES
40. If Tenant leases other space within the Building, any default under
such other lease shall constitute a default under this Lease, and any default
under this Lease will constitute a default under such other lease.
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APPLICABLE LAWS
41. Tenant shall cause all portions of the leasehold improvements to
the Premises, including the Tenant Improvements and any subsequent alteration,
modification or addition thereto throughout the Term to comply with all laws,
ordinances, rules, regulations, standards and guidelines of any governmental
entity, agency or authority, including without limitation, all building codes,
fire codes, life-safety codes, and the Americans With Disabilities Act of 1990
("Applicable Laws"). Tenant shall indemnify Landlord and hold Landlord harmless
from and against any expenses, damages, liabilities or claims, including
attorneys' fees, arising from any alleged non-compliance of such improvements
with Applicable Laws. If as a result of the Tenant Improvements or any
subsequent renovation or improvements to any part of the Premises or the
Building, Landlord then or at any later time becomes obligated to incur expenses
to comply with any Applicable Law, which expenses Landlord would not be
obligated to incur if not for Tenant making such renovation or improvement, then
Tenant shall, within thirty (30) days after demand therefor, reimburse Landlord
for all such expenses.
RADON
42. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
unit.
HAZARDOUS SUBSTANCE
43. As used herein, "Hazardous Materials Laws" means all federal, state
and local laws, statutes, ordinances and regulations, rules, rulings, policies,
orders and administrative actions and orders relating to industrial hygiene,
environmental protection or the use, analysis, generation, manufacture, storage,
disposal or transportation of any oil, flammable explosives, asbestos, urea
formaldehyde, radioactive materials or waste, infectious waste, or other
hazardous, toxic, contaminated or polluting materials, substances or wastes,
including, without limitation, any "hazardous substances," "hazardous wastes,"
"hazardous materials" or "toxic substances" under any such laws, ordinances or
regulations (collectively, "Hazardous Materials"). Tenant shall, at its own
expense, at all times and in all respects: (i) comply with all Hazardous
Materials Laws regarding Hazardous Materials introduced in or about the Building
or Land by or at the direction of Tenant or in connection with Tenant's use of
the
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Premises ("Tenant's Hazardous Materials"); and (ii) procure, maintain in effect
and comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals relating to Tenant's Hazardous Materials
within, on, under or about the Building or Land in conformity with all
applicable Hazardous Materials Laws and prudent industry practices regarding
management of such Hazardous Materials. Landlord recognizes and agrees that
Tenant may use Tenant's Hazardous Materials in normal quantities that are
applicable to general office use and that such use by Tenant shall not be deemed
a violation of this Paragraph, so long as the levels are not in violation of any
Hazardous Materials Laws. Upon termination or expiration of the Lease, Tenant
shall, at its own expense, cause all of Tenant's Hazardous Materials to be
removed from the Premises, Building, and Land, and transported for use, storage
or disposal in accordance and compliance with all applicable Hazardous Materials
Laws. Landlord acknowledges that it is not the intent of this Paragraph to
prohibit Tenant from operating its business as described in this Lease. Tenant
may operate its business according to the custom of the industry so long as the
use or presence of Tenant's Hazardous Materials is strictly and properly
monitored according to all applicable governmental requirements. Tenant shall
indemnify, protect, defend (by counsel reasonably acceptable to Landlord), and
hold Landlord and Landlord's Indemnitees free and harmless from and against any
and all claims, liabilities, penalties, forfeitures, losses and expenses
(including attorneys, fees) or death of or injury to any person or damage to any
property whatsoever, including, without limitation, the Building and Land,
arising from or caused in whole or in part, directly or indirectly, by the
presence in or about the Building or Land of any of Tenant's Hazardous Materials
or by Tenant's failure to comply with any Hazardous Materials Law regarding
Tenant's Hazardous Materials or in connection with any removal, remediation,
clean up, restoration and materials required hereunder to return the Premises
and any other property of whatever nature to their condition existing prior to
the appearance of Tenant's Hazardous Materials.
a. Tenant shall comply with all Hazardous Materials Laws
regarding the disclosure of the presence or danger of Tenant's Hazardous
Materials. Tenant acknowledges and agrees that all reporting and warning
obligations required under the Hazardous Materials Laws with respect to Tenant's
Hazardous Materials are the sole responsibility of Tenant, whether or not such
Hazardous Materials Laws permit or require Landlord to provide such reporting or
warnings, and Tenant shall be solely responsible for complying with such
Hazardous Materials Laws regarding the disclosure of, the presence or danger of
Tenant's Hazardous Materials. Tenant shall immediately notify Landlord, in
writing, of any complaints, notices, warnings, reports or asserted violations of
which Tenant becomes aware relating to Hazardous Materials on or about the
Premises, the Building or the Land. Tenant shall also immediately notify
Landlord if Tenant knows or has reason to believe Tenant's
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Hazardous Materials have or will be released in or about the Building or Land.
b. Tenant shall not perform or cause to be performed, any
Hazardous Materials surveys, studies, reports or inspection, relating to the
Premises, the Building or the Land without obtaining Landlord's advance written
consent, which consent may be withheld in Landlord's sole discretion. At any
time prior to the expiration of the Lease Term, Landlord shall have the right to
enter upon the Premises in order to conduct appropriate tests and to deliver to
Tenant the results of such tests to demonstrate that levels of any Hazardous
Materials in excess of permissible levels has occurred as a result of Tenant's
use of the Premises.
c. The respective rights and obligations of Landlord and
Tenant under this Paragraph shall survive the expiration or termination of this
Lease.
NO OFFER
44. This Lease is submitted to Tenant on the understanding that it will
not be considered an offer and will not bind Landlord in any way until Tenant
has duly executed and delivered duplicate originals to Landlord and Landlord has
executed and delivered one of such originals to Tenant.
JOINT AND SEVERAL LIABILITY
45. If Tenant is composed of more than one signatory to this Lease,
each signatory will be jointly and severally liable with each other signatory
for payment and performance according to this Lease. The act of, written notice
to, written notice from, refund to, or signature of any signatory to this Lease
(including without limitation modifications of this Lease made by fewer than all
such signatories) will bind every other signatory as though every other
signatory had so acted, or received or given the written notice or refund, or
signed.
NO CONSTRUCTION AGAINST DRAFTING PARTY
46. Landlord and Tenant acknowledge that each of them and their counsel
have had an opportunity to review this Lease and that this Lease will not be
construed against Landlord merely because Landlord has prepared it.
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TIME OF THE ESSENCE
47. Time is of the essence of each and every provision of this Lease.
NO RECORDATION
48. Tenant's recordation of this Lease or any memorandum or short form
of it will be void and a default under this Lease.
NO MERGER
49. The voluntary or other surrender of this Lease by Tenant or the
cancellation of this Lease by mutual agreement of Tenant and Landlord or the
termination of this Lease on account of Tenant's default will not work a merger,
and will, at Landlord's option, (a) terminate all or any subleases and
subtenancies or (b) operate as an assignment to Landlord of all or any subleases
or subtenancies. Landlord's option under this Paragraph will be exercised by
written notice to Tenant and all known sublessees or subtenants in the Premises
or any part of the Premises.
NOTICE OF LANDLORD'S DEFAULT
50. In the event of any alleged default in the obligation of Landlord
under this Lease, Tenant will deliver to Landlord written notice listing the
reasons for Landlord's default and Landlord will have 30 days following receipt
of such notice to cure such alleged default or, in the event the alleged default
cannot reasonably be cured within a 30-day period, to commence action and
proceed diligently to cure such alleged default. A copy of such notice to
Landlord will be sent to any holder of a mortgage or other encumbrance on the
building or project of which Tenant has been notified in writing, and any such
holder will have a reasonable period in which to cure such alleged default,
including such time as such holder may require to commence and pursue a
foreclosure action, if required to effect such cure.
AUTHORITY
51. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by requisite action
of the board of directors or partners, as the case may be, and agree upon
request to deliver to Landlord a resolution or similar document to that effect.
TAX CREDITS
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52. Landlord is entitled to claim all tax credits and depreciation
attributable to leasehold improvements in the Premises. Promptly after
Landlord's demand, Landlord and Tenant will prepare a detailed list of the
leasehold improvements and fixtures and their respective costs for which
Landlord or Tenant has paid. Landlord will be entitled to all credits and
depreciation for those items for which Landlord has paid by means of any tenant
finish allowance or otherwise. Tenant will be entitled to any tax credits and
depreciation for all items for which Tenant has paid with funds not provided by
Landlord.
FINANCIAL REPORTS
53. Within 15 days after Landlord's request, Tenant will furnish
Tenant's most recent audited financial statements (including any notes to them)
to Landlord, or, if no such audited statements have been prepared, such other
financial statements (and notes to them) as may have been prepared by an
independent certified public accountant or, failing those, Tenant's internally
prepared financial statements certified by Tenant Is chief financial officer to
be complete and accurate. Tenant will discuss its financial statements with
Landlord and will give landlord access to tenant's books and records in order to
enable landlord to verify the financial statements. Landlord will not disclose
any aspect of Tenant' s financial statements that Tenant designates to Landlord
as confidential except (a) to Landlord's lenders or prospective purchasers of
the project, (b) in litigation between Landlord and Tenant, and (c) if required
by court order.
LANDLORD'S FEES
54. Whenever Tenant requests Landlord to take any action or give any
consent required or permitted under this Lease, Tenant will reimburse Landlord
for all of Landlord's reasonable costs incurred in reviewing the proposed action
or consent, including without limitation reasonable attorneys, engineers' or
architects' fees, within 10 days after Landlord's delivery to tenant of a
statement of such costs. Tenant will be obligated to make such reimbursement
without regard to whether Landlord consents to any such proposed action.
PRESUMPTION
55. In all cases hereunder, and in any suit, action or proceeding of
any kind between the parties, it shall be presumptive evidence of the fact of
the existence of a charge being due, if Landlord shall produce a xxxx, notice or
certificate to the effect that such charge appears of record on the books in his
office or
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appears as an open charge on the books, records or official bills of municipal
authorities, and has not been paid.
WAIVER OF TECHNICAL DEFECTS IN NOTICES
56. In lieu of Tenant waiving the right to receive any notices, Tenant
hereby waives any technical defects, as to form, substance and delivery, in the
giving of any notices required by this Lease and Florida Statutes, including the
statutory three-day notice required by Section 83.20, Florida Statutes, so long
as the notice reasonably apprises the Tenant of the general nature of the reason
for the giving of the notice and affords the tenant a reasonable opportunity to
cure, if applicable.
TELECOMMUNICATIONS
57. Tenant acknowledges and agrees that all telephone and
telecommunications services desired by Tenant shall be ordered and utilized at
the sole expense of Tenant. Unless Landlord otherwise requests or consents in
writing, all of Tenant's telecommunications equipment shall be and remain solely
in the Tenant's premises and the, telephone closet(s) on the floor(s) on which
the Tenant's premises is located, in accordance with rules and regulations
adopted by Landlord from time to time. Unless otherwise specifically agreed to
in writing, Landlord shall have no responsibility for the maintenance of
Tenant's telecommunications equipment, including wiring; nor for any wiring or
other infrastructure to which Tenant's telecommunications equipment may be
connected. Tenant agrees that, to the extent any such service is interrupted,
curtailed or discontinued, Landlord shall have no obligation or liability with
respect thereto even if the cause thereof is due to the negligence of Landlord,
its employees, agents, and contractors, and it shall be the sole obligation of
Tenant at its expense to obtain substitute service.
Landlord shall have the right, upon reasonable prior notice to Tenant, to
interrupt or turn off telecommunications facilities in the event of emergency or
as necessary in connection with repairs to the Building or installation of
telecommunications equipment for other Tenants of the Building.
Any and all telecommunications equipment installed in the Tenant's premises or
elsewhere in the Building by or on behalf of Tenant, including wiring, or other
facilities for telecommunications transmittal, shall be removed prior to the
expiration or earlier termination of the Lease term, by Tenant at its sole cost
or, at Landlord's election, by Landlord at Tenant's sole cost, with the cost
thereof to be paid as Additional Rent. Landlord shall have the right, however,
upon written notice to Tenant to require Tenant to abandon and leave in place,
without additional payment to
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Tenant or credit against rent, any and all telecommunications wiring and related
infrastructure, or selected components thereof, whether located in the Tenant's
premises or elsewhere in the Building.
In the event that Tenant wishes at any time to utilize the services of a
telephone or telecommunications provider whose equipment is not then servicing
the Building, no such provider shall be permitted to install its lines or other
equipment within the Building without first securing the prior written approval
of the Landlord. Landlord's approval shall not be deemed any kind of warranty or
representation by Landlord, including, without limitation, any warranty or
representation as to the suitability, competence, or financial strength of the
provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no expense whatsoever with respect to any aspect of the provider's provision of
its services, including without limitation, the costs of installation, materials
and services; (ii) prior to commencement of any work in or about the Building by
the provider, the provider shall supply Landlord with such written indemnities,
insurance, financial statements, and such other items as Landlord reasonably
determines to be necessary to protect its financial interests and the interests
of the Building relating to the proposed activities of the provider; (iii) the
provider agrees to abide by such rules and regulations, Building and other
codes, job site rules and such other requirements as are reasonably determined
by Landlord to be necessary to protect the interests of the Building, the
Tenants in the Building and Landlord, in the same or similar manner as Landlord
has the right to protect itself and the Building with respect to proposed
alterations as described in Article 8 of this Lease; (iv) Landlord reasonably
determines that there is sufficient space in the Building for the placement of
all of the provider's equipment and materials; (v) the provider agrees to abide
by Landlord requirements, if any, that provider use existing Building conduits
and pipes or use Building contractors (or other contractors approved by
Landlord); (vi) Landlord receives from the provider such compensation as is
reasonably determined by Landlord to compensate it for space used in the
Building for the storage and maintenance of the provider's equipment, for the
fair market value of a provider's access to the Building, and the costs which
may reasonably be expected to be incurred by Landlord; (vii) the provider agrees
to deliver to Landlord detailed "as built" plans immediately after the
installation of the provider's equipment is complete; and (viii) all of the
foregoing matters are documented in a written license agreement between Landlord
and the provider, the form and content of which is reasonably satisfactory to
Landlord.
Notwithstanding any provision of the proceeding paragraphs to the contrary, the
refusal of Landlord to grant its approval to any
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prospective telecommunications provider shall not be deemed a default or breach
by Landlord of its obligation under this Lease unless and until Landlord is
adjudicated to have acted recklessly or maliciously with respect to Tenant's
request for approval, and in that event, Tenant shall still have no right to
terminate the Lease or claim an entitlement to rent abatement, but may as
Tenant's sole and exclusive recourse seek a judicial order of specific
performance compelling Landlord to grant its approval as to the prospective
provider in question. The provisions of this paragraph may be enforced solely by
Tenant and Landlord, are not for the benefit of any other party, and
specifically but without limitation, no telephone or telecommunications provider
shall be deemed a third party beneficiary of this Lease.
Tenant shall not utilize any wireless communications equipment (other than usual
and customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises or the Building, without Landlord, s prior
written consent. Such consent may be conditioned in such a manner so as to
protect Landlord's financial interests and the interests of the Building, and
the other tenants therein, in a manner similar to the arrangements described in
the immediately preceding paragraphs.
In the event that telecommunications equipment, wiring and facilities of any
type installed by or at the request of Tenant within the Tenant's premises, or
elsewhere within or on the Building causes interference to equipment used by
another party, Tenant shall assume all liability related to such interference.
Tenant shall use reasonable efforts, and shall cooperate with Landlord and other
parties, to promptly eliminate such interference. In the event that Tenant is
unable to do so, Tenant will substitute alternative equipment which remedies the
situation. If such interference persists, Tenant shall discontinue the use of
such equipment, and, at Landlord's discretion, remove such equipment according
to foregoing specifications.
NO RIGHT TO TERMINATE
58. Tenant hereby waives the remedies of termination and rescission and
hereby agrees that Tenant's sole remedies for Landlord's default hereunder and
for breach of any promise or inducement shall be limited to a suit for damages
and/or injunction.
GUARANTY
59. INTENTIONALLY OMITTED.
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CONFIDENTIALITY
60. Tenant acknowledges that the terms and conditions of this Lease are
to remain confidential for the Landlord's benefit, and may not be disclosed by
Tenant to anyone, by any manner or means, directly or indirectly, without
Landlord's prior written consent. The consent by the Landlord to any disclosures
shall not be deemed to be a waiver on the part of the Landlord of any
prohibition against any future disclosure.
FORCE MAJEURE
61. Whenever a period of time is herein prescribed for the taking of
any action by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation of such period of time, any delays
due to strikes, labor difficulties, unavailability of materials, riots, acts of
God, shortages of labor or materials, delays resulting from governmental
actions, permitting or effects of laws, regulations or restrictions, financing,
or any other cause whatsoever beyond the control of Landlord. Landlord will have
no liability to Tenant, nor will Tenant have any right to terminate this Lease
or xxxxx rent or assert a claim of partial or total actual or constructive
eviction, because of Landlord's failure to perform any of its obligations in the
Lease if the failure is due to such causes.
IN WITNESS WHEREOF, the parties have executed this Lease on the date first above
written.
AS TO TENANT: TENANT:
Signed, sealed and delivered
in the presence of:
BRASSIE GOLF CORPORATION
/s/ ? By: /s/ Xxxxxxxx X. Xxxx
------------------------------ -----------------------------------
Witness As its: President
---------------------------
/s/ ? Xxxxxxxx X. Xxxx
------------------------------ ------------------------------
Witness (Print name signed above)
AS TO LANDLORD: LANDLORD:
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Signed, sealed and delivered
in the presence of:
TAMPA CITY CENTER ASSOCIATES
/s/ ?
------------------------------ By: GTE REALTY CORPORATION,
Witness As General Partner
/s/ ?
------------------------------
Witness By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxxx,
President
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-------------------------------------------------------------------------------
EXHIBIT "B"
DESCRIPTION OF LAND
-------------------------------------------------------------------------------
Office Tower occupies Parcel 1, all of block 81 general map of Tampa according
to map or plat thereof as recorded in Plat Book 1, page 7 of the Public Records
of Hillsborough County, Florida.
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===============================================================================
EXHIBIT "C"
JANITORIAL SPECIFICATIONS
===============================================================================
DAILY JANITORIAL SERVICE SPECIFICATIONS
--------------------------------------------------------------------------------
Day porters shall be on duty from 6:30 a.m. to 3:30 p.m., Mondays through
Fridays; Sundays and holidays are excepted. The duties of the day porters and
their supervisor, who are under the exclusive direction of the Building
Management, shall be, but are not limited to, the following:
1. ENTRANCE LOBBY: The entrance areas are to be kept neat and clean at all
times and the following minimum cleaning operations shall be maintained
to attain the effect:
a. Mop and vacuum floors daily and as necessary.
b. Dust walls as necessary.
c. Wipe down or polish metal surfaces as necessary.
d. Clean cigarette urns and screen sand daily and as needed.
e. Wash door glass daily and as needed.
f. Remove trash from all containers and dispose of in proper
manner.
2. ELEVATORS:
a. Vacuum carpet daily as needed.
b. Check and clean elevator interiors periodically throughout the
day.
c. Clean sides of all elevator cars daily.
d. Clean hand rails daily.
e. Clean lobby elevator saddles, doors and frames daily.
3. RESTROOMS:
a. Fill soap dispensers, paper towel dispensers and toilet seat
cover dispensers as needed. (Towels, soap and toilet seat
covers are to be furnished by Owner.)
b. Report all mechanical deficiencies (i.e., dripping faucets,
clogged toilets, lights out, etc.) to the Building Management
Office.
c. Spot clean all mirrors and powder shelves.
d. Empty paper towel receptacles as needed.
4. PUBLIC AREAS:
a. Police all public stairwells and keep in clean condition. Spot
mop spillage.
b. Dust all railings as necessary.
c. Police all public areas for trash.
5. BUILDING SERVICE AREAS:
a. Sweep all ramps and the loading dock area.
b. Remove all gum and foreign matter from sidewalks on sight.
x. Xxx down and remove lobby runners as necessary.
d. Damp mop as needed.
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e. Change lights as requested by Management.
6. EXTERIOR STRUCTURE AND GROUNDS SERVICES:
a. Police entire perimeter of building, including landscaped
planters and storm drain grills to the street on all sides.
b. Spot sweep accumulations of dirt, papers and leaves in all
xxxxx areas where winds tend to cause collection of debris.
c. Spot clean all exterior glass at building and retail
entrances.
d. Empty all waste receptacles and remove trash from designated
trash area.
e. Sweep sidewalk, steps, walks and benches.
NIGHTLY TENANT SUITE AND COMMON AREA SPECIFICATIONS
-------------------------------------------------------------------------------
1. NIGHTLY SERVICES:
a. Vacuum all areas.
b. Dust mop all resilient, composition and marble floors with
dust mops. Spot damp mop to remove spills and water stains as
required.
c. Dust all desks, window xxxxx and office furniture with treated
dust cloths.
d. Empty all waste paper baskets and other trash containers. Any
bulk trash or moving boxes that are clearly marked "Trash"
shall be removed.
e. Remove all trash from floors to the designated trash areas.
f. Remove fingerprints, dirt, smudges, graffiti, etc., from all
doors, frames, glass partitions, jambs and elevator interiors.
g. Return chairs and waste baskets to proper positions.
h. Clean, sanitize and polish drinking fountains.
i. Dust and remove debris from all metal door thresholds as
necessary.
j. Wipe clean smudged brightwork as necessary.
k. Check for burned-out lights and report them to Supervisor.
Janitorial Supervisor to leave list of burned-out lights at
Building Management Office nightly.
l. Police all interior public corridor planters.
m. Sweep all stairwells.
2. WEEKLY SERVICES:
a. Dust all low-reach areas including, but not limited to, chair
rungs, structural and furniture ledges, baseboards, door
louvers, wood paneling, molding, etc.
b. Dust inside of all door jambs.
c. Spot clean and polish all brightwork.
d. Sanitize all telephone receivers.
e. Wash out and disinfect all cans and other receptacles.
f. Spot clean spills from carpet as necessary.
3. MONTHLY SERVICES:
45
a. Dust all high-reach areas including, but not limited to, tops
of door frames, structural and furniture ledges, air
conditioning diffusers and return grills, tops of partitions,
picture frames, etc.
b. Vacuum upholstered furniture.
c. Move all plastic carpet protectors and thoroughly vacuum under
and around all desks and office furniture.
d. Edge all carpeted areas,
e. Dust venetian blinds.
4. TWO TIMES PER MONTH: Scrub or otherwise recondition all resilient or
composition flooring to provide a level of appearance equivalent to a
completely refinished floor.
5. QUARTERLY: Shampoo and extract all common elevator lobby areas.
NIGHTLY RESTROOM SERVICE SPECIFICATIONS
-------------------------------------------------------------------------------
1. NIGHTLY SERVICES:
a. Restock all restrooms with supplies from the Owner's stock,
including paper towels, toilet seat covers, toilet tissue and
hand soap as required.
b. Wash and polish all mirrors, dispensers, faucets, flushometers
and brightwork with non-scratch, disinfectant cleaner. Wipe
dry all sinks.
c. Wash and sanitize all toilets, urinals and sinks.
d. Remove stains, descale toilets, urinals and sinks as required.
e. Mop all restroom floors with disinfectant germicidal solution.
f. Empty and sanitize all waste, sanitary napkin and tampon
receptacles.
g. Remove all restroom trash.
h. Spot clean all fingerprints, marks and graffiti from walls,
partitions, glass, aluminum and light switches as required.
i. Check for light fixtures burned out or not working properly
and report them to the Supervisor. Janitorial Supervisor is to
leave a list at Building Office on a daily basis.
j. Wash vents located in doors.
2. WEEKLY SERVICES: Dust all low-reach and high-reach areas, including but
not limited to, structural ledges, mirror tops, partition tops and
edges, air conditioning diffusers and return air grills.
3. MONTHLY SERVICES:
a. Wipe down all tile walls and metal partitions. Partitions
shall be left clean and streakfree after this work.
b. Clean all ventilation grills.
c. Dust all doors and door jambs.
d. Machine scrub ceramic tile floors and grout.
46
4. QUARTERLY: The tile flooring in the ladies' and men's restrooms on
floors 19, 29, 34 and 35, including any other restroom flooring that
will be added in the future with like tile, require a cosmetic cover-up
application such as Tile Guard.
NIGHTLY MAIN FLOOR ELEVATOR LOBBY AND PUBLIC CORRIDOR
SPECIFICATIONS
-------------------------------------------------------------------------------
1. NIGHTLY SERVICES:
a. Spot clean all glass, including low partitions and the
corridor side of all windows and glass doors to tenant
premises.
b. Spot clean all brightwork, including kick plates, base,
partition tops, hand rails, waste paper receptacles, planters,
elevator call button plates and visible hardware on the
corridor side of tenant entry doors.
c. Thoroughly clean all door saddles free of dirt and debris.
d. Vacuum, spot clean, sweep or damp mop all flooring.
e. Spot clean and dust directory board glass and ledges.
f. Screen sand for cigarette butts in all ash receptacles located
just outside all entrance doors. Also empty all trash
receptacles, replace plastic liners and sanitize as needed.
g. Buff terrace level corridor floor.
2. WEEKLY: Sweep all three service stairwells from the basement to the
39th floor.
NIGHTLY PASSENGER ELEVATOR SPECIFICATIONS
-------------------------------------------------------------------------------
1. NIGHTLY SERVICES:
a. Clean all metal surfaces.
b. Spot clean cab walls and interior doors.
c. Spot clean outside surfaces of all elevator doors and frames.
d. Vacuum cab floor and edges thoroughly.
e. Wipe clean all door tracks and thresholds.
2. WEEKLY SERVICES:
a. Thoroughly clean entire interior surfaces of all doors and
frames and outside surfaces of all doors and frames.
b. Thoroughly clean all door tracks and thresholds.
3. MONTHLY SERVICES: Steam extract carpet in all passenger elevators.
4. QUARTERLY SERVICES: Wipe clean entire cab ceiling.
47
NIGHTLY EXTERIOR STRUCTURE AND GROUNDS SERVICES
SPECIFICATIONS
1. NIGHTLY SERVICES:
a. Police entire perimeter of building, including the landscaped
areas and storm drain grills, up to the property lines on all
sides.
b. Spot sweep accumulations of dirt, papers and leaves in all
xxxxx areas where winds tend to cause a collection of debris.
c. Spot clean all exterior glass at building entrances.
d. Lift nap on all entry walk-off mats as necessary with a heavy
bristle brush and vacuum.
e. Empty all waste receptacles and remove trash from designated
trash areas.
f. Sweep sidewalks, steps, landscaped areas, walks and benches.
g. Pick up and sweep loading dock area.
2. MONTHLY SERVICES:
a. Pressure clean the loading dock and trash compactor area.
b. Pick up and sweep the loading dock area.
WINDOW CLEANING SERVICES
1. MONTHLY SERVICES:
a. Wash exterior glass on terrace level.
b. Wash interior glass of Main Lobby, Branch Bank and Building
Management Office.
48
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EXHIBIT "D"
RULES AND REGULATIONS
-------------------------------------------------------------------------------
1. The sidewalks, walks, plaza entries, corridors, concourses, ramps,
staircases, escalators and elevators shall not be obstructed or used
for any purpose other than ingress and egress to and from the Premises.
No bicycle or motorcycle shall be brought into the Building or kept on
the Premises without the consent of Landlord.
2. No freight, furniture or bulky matter of any description will be
received into the Building or carried into the elevators except in such
a manner, during such hours and using such elevators and passageways as
may be approved by Landlord, and then only having been scheduled in
advance. Any hand trucks, carryalls or similar appliances used for the
delivery or receipt of merchandise or equipment shall be equipped with
rubber tires, side guards and such other safeguards as Landlord shall
require.
3. Landlord shall have the right to prescribe the weigh@ position and
manner of installation of safes and/or other heavy equipment which
shall, if considered necessary by Landlord, be installed in a manner
which shall insure satisfactory weight distribution. All damage done to
the Building by reason of a safe or any other article of Tenant's
office equipment being on the Premises shall be repaired at the expense
of Tenant. The time and manner of moving safes and/or other heavy
equipment shall be subject to prior approval by Landlord.
4. Only persons authorized by Landlord will be permitted to furnish ice,
drinking water, towels, barbering, shoe shining, floor polishing and
other similar services to Tenant and only at hours and under
regulations fixed by Landlord. Tenant shall use no other method of
heating or cooling than that supplied by Landlord.
5. Tenant or the employees, agents, servants, visitors or licensees of
Tenant shall not at any time, place, leave or discard any rubbish,
paper, articles or objects of any kind whatsoever outside the doors of
the Premises or in the corridors or passageways of the Building. No
animals or birds except for assist animals shall be brought or kept in
or about the Building.
6. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability for offices, and upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising.
7. Tenant shall not place, cause or allow to be placed any sign or
lettering whatsoever, at, in, about or upon the Premises, except in and
at such places as may be designated by Landlord and consented to by
Landlord in writing. All lettering and graphics on corridor doors shall
conform to the standard prescribed by Landlord. No trademark shall be
displayed in any event.
8. Canvassing, soliciting or peddling in the Building is prohibited and
Tenant shall cooperate to prevent same.
9. Landlord shall have the right to exclude any person from the Building
other than during customary business hours, and any person in the
Building will be subject to identification by the employees and agents
of Landlord. All persons in or entering the Building shall be required
to comply with the security policies of the Building. Landlord will
provide all security services for the Building, provided that if Tenant
desires any additional security service for the Premises, Tenant shall
have the right (with the advance written consent of Landlord) to obtain
such additional service at Tenant's sole cost and expense.
10. Only workmen employed, designated or approved by Landlord may be
employed for repairs, installation, alterations, painting, material
moving and other similar work that may be done on the Premises.
11. Tenant shall not do any cooking or conduct any restaurant luncheonette
or cafeteria for the sale or service of food or beverages to its
employees or to others, or permit the delivery of any food or beverage
to the Premises, except by such persons delivering the same as shall be
approved by Landlord and only under regulations fixed by Landlord.
Tenant may, however, operate a coffee bar by and for its employees.
12. Tenant shall not bring or permit to be brought or kept in or on the
Premises any inflammable, combustible, corrosive, caustic, poisonous or
explosive fluid, material. chemical or substance, or cause or permit
any odors to permeate in or emanate from the Premises.
49
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EXHIBIT "D"
RULES AND REGULATIONS
(CONTINUED)
-------------------------------------------------------------------------------
13. Tenant shall not xxxx, paint, drill into, or in any way deface any part
of the Building or the Premises. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of
Landlord, as Landlord may direct. Tenant shall not install any
resilient tile or similar floor covering in the Premises except with
the prior approval of Landlord.
14. No additional locks or bolts of any kind shall be placed on any door in
the Building or the Premises and no lock on any door therein shall be
changed or altered in any respect Landlord shall furnish two keys for
each lock on doors in the Premises and shall, on Tenant's request and
at Tenant's expense, provide additional duplicate keys. All keys shall
be returned to Landlord upon the termination of this Lease. Landlord
may be at all times keep a pass key to the Premises. All entrance doors
to the Premises shall be left closed at all times, and left locked when
the Premises are not in use.
15. Tenant shall give immediate notice to Landlord in case of accidents in
the Premises or in the Building or of defects therein or in any
fixtures or equipment or of any known emergency in the Building.
16. Tenant shall not use the Premises or permit the Premises to be used for
photographic, multilith or multigraph reproduction except in connection
with its own business and then only with Landlord's prior permission.
17. Tenant shall not use or permit any portion of the Premises to be used
as an office for a public stenographer or typist, offset printing, the
sale of liquor or tobacco, a xxxxxx or manicure shop, an employment
bureau, a labor union office, a doctor's or dentist's office, a dance
or music studio, any type of school, or for any use other than those
specifically granted in this Lease.
18. Tenant shall not advertise for laborers giving the Premises as an
address, nor pay such laborers at a location in the Premises.
19. The requirements of Tenant will be attended to only upon application at
the offices of the Building. Employees of Landlord shall not perform
any work or do anything outside of their regular duties, unless under
special instructions from the office of Landlord.
20. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Business machines and mechanical equipment
belonging to Tenant which cause noise, vibration or any other nuisance
that may be transmitted to the structure or other portions of the
Building or to the Premises, to such a degree as to be objectionable to
Landlord or which interfere with the use or enjoyment by other tenants
of their premises or the public portions of the Building, shall be
placed and maintained by Tenant at Tenant's expense, in settings of
cork, rubber or spring type vibration eliminators sufficient to
eliminate noise and vibration.
21. No draperies, shutters or other covering may be installed by Tenant
between the Building Standard window covering and the exterior windows
or walls. Installation and use of lighting which is visible from the
exterior of the Building, except for Building Standard lights, are
subject to the prior written approval of Landlord.
22. Tenant shall not place, install or operate within the Premises or any
other part of the Building any engine, stove or machinery, or conduct
mechanical operations therein, without the written consent of Landlord.
23. No portion of the Premises or any other part of the Building shall at
any time be used or occupied as sleeping or lodging quarters.
