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EXHIBIT 10(vi)
OFFICE LEASE
THIS OFFICE LEASE (this "LEASE") is executed this 30th day of November,
2000, by and between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership ("LANDLORD"), and AMERICAN CLASSIC VOYAGES CO., a Delaware
corporation ("TENANT").
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises (shown outlined on Exhibit A attached hereto):
Floors: 2, 3, 4 and 10,000 square feet of
Rentable Area on Floor 1 Building Address: Tenant shall
submit to Landlord Tenant's requested Building address
and Landlord agrees to use reasonable efforts to have
such address approved by the appropriate governmental
agencies.
(the "BUILDING")
Land: Approximately seventeen (17) acres located in
Sawgrass Commerce Center (the "PARK") bounded by
Sawgrass Corporate Parkway on the west, N.W. 0xx Xxxxxx
on the south, X.X. 000xx Xxxxxx on the east and X.X.
00xx Xxxxxx on the North and as more particularly
described on Exhibit A attached hereto (the "LAND";
the Land, together with the Building, herein
collectively referred to as the "Project");
B. Rentable Area: approximately 130,000 rentable square feet
C. Building Expense Percentage: Shall be calculated by dividing the total
rentable square footage of the Leased
Premises by the total rentable square footage
of the Building;
D. Minimum Annual Rent:
Minimum
Annual Rent
Lease Year Per RSF
---------- -------
Year 1 $15.50
Year 2 $15.97
Year 3 $16.45
Year 4 $16.94
Year 5 $17.45
Year 6 $17.97
Year 7 $18.51
Year 8 $19.07
Year 9 $19.64
Year 10 $20.23
Year 11 $20.84
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Year 12 $21.47
Year 13 $22.11
Year 14 $22.77
Year 15 $23.45
(Rent does not include applicable Florida State Sales Tax or Additional Rent)
E. Initial Monthly Rental Installments:
Monthly
Lease Year Rental Installments
Year 1 $109,791.67 per month First Six Months of
First Lease Year
(based on 85,000 square feet occupied)
$167,916.67 per month Second Six Months of
First Lease Year
(based on 130,000 square feet occupied)
Year 2 $173,008.33 per month
Year 3 $178,208.33 per month
Year 4 $183,516.67 per month
Year 5 $189,041.67 per month
Year 6 $194,675.00 per month
Year 7 $200,525.00 per month
Year 8 $206,591.67 per month
Year 9 $212,766.67 per month
Year 10 $219,158.33 per month
Year 11 $225,766.67 per month
Year 12 $232,591.67 per month
Year 13 $239,525.00 per month
Year 14 $246,675.00 per month
Year 15 $254,041.67 per month
(Rent does not include applicable Florida State Sales Tax or Additional Rent)
F. Term: Fifteen (15) years and zero (0) months
G. Target Completion Date: November 6, 2001
H. Security Deposit: $500,000.00 in the form of a Letter of Credit per
Section 4 of the Lease
I. Broker(s): Xxxxxx X. Xxxxxxx, Inc., representing Tenant
Codina Realty Services, Inc. - ONCOR
International, representing Landlord
J. Permitted Use: General business and office purposes, including
but not limited to, conference reservation center
and computer facilities, employee and visitor
cafeteria and dining areas (including related
kitchen facilities), and any other legally
permitted use consistent with the character of a
similar type building
K. Target Plan Delivery Date: April 1, 2001
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L. Address for payments and notices as follows:
Landlord: Duke-Weeks Realty Limited Partnership
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
With a copy to: Duke-Weeks Realty Limited Partnership
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Legal Department
With Rental
Payments to: Duke-Weeks Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
Tenant:
Prior to the Commencement Date:
American Classic Voyages Co.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
After the Commencement Date:
American Classic Voyages Co.
[TO BE AGREED UPON BY LANDLORD AND TENANT AS
SOON AS REASONABLY POSSIBLE AFTER THE DATE
HEREOF]
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Exhibits attached hereto:
Exhibit A: Legal Description of Land
Exhibit B: Construction Agreement
Exhibit B-1: Scope of Work Specifications
Exhibit B-2: List of Comparable Buildings
Exhibit B-3 Intentionally Omitted
Exhibit B-4 Site Plan
Exhibit B-5 Rendering of Building
Exhibit X-0 Xxxxx Xxxxx
Xxxxxxx X-0 Approved Schedule
Exhibit B-8 Coordination of Improvement Work by Landlord
Exhibit C: Commencement Date Agreement
Exhibit D: Rules and Regulations
Exhibit E: Special Stipulations
Exhibit F: Form of Tax Certification
Exhibit G: Janitorial Specifications
Exhibit H: Intentionally Omitted
Exhibit I: Form of SNDA
Exhibit J: Form of Letter of Credit
Section 1.02. Lease of Premises.
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, under
the terms and conditions herein, the Leased Premises. The leasing of the Leased
Premises by Landlord to Tenant also shall include the appurtenant right of
Tenant to use, without charge, in common with the other tenants of the Building,
all driveways, accessways, sidewalks, landscaped areas, lobbies, elevators,
entrances and other common areas on the Land, as well as all entrances and other
similar areas in the Park which provide access from any public road to the
Building and any and all appurtenances, rights, interests, easements and
privileges relating thereto.
Subject to and in accordance with the terms and provisions set forth below,
Tenant shall have the option (the "PRE-COMMENCEMENT EXPANSION OPTION"),
exercisable at the time set forth below, to expand the Leased Premises by up to
an additional 20,000 square feet of contiguous Rentable Area. To exercise such
Pre-Commencement Expansion Option, Tenant must notify Landlord in writing at
least six (6) months prior to the Commencement Date, and Tenant must specify in
such written notice the proposed size (subject to the foregoing limit) of the
additional space desired by Tenant. The exact location of the Rentable Area to
be added to the Leased Premises as a result of the exercise by Tenant of the
Pre-Commencement Expansion Option shall be determined by Landlord, but Landlord
agrees that in designating the location of such space (the "PRE-COMMENCEMENT
EXPANSION SPACE"), (i) such space shall be internally contiguous with the Leased
Premises and (ii) such space shall have a configuration that is commercially
usable and which shall have an approximately proportionate share of exterior
window walls on the applicable floor of the Building. The Pre-Commencement
Expansion Space shall be taken on the same terms and conditions as the original
Leased Premises and Tenant shall be entitled to the same Tenant Improvement
Allowance per square foot of Rentable Area contained within the Pre-Commencement
Expansion Space on the same terms and conditions as provided for the original
Leased Premises in Exhibit B. In the event that Tenant provides Landlord with
Plans and Specifications for the Pre-Commencement Expansion Space on or prior to
the Plan Delivery Date, Landlord agrees to complete
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the Improvement Work with respect to the Pre-Commencement Expansion Space on the
same schedule as is provided for the initial Leased Premises. In the event that
Tenant provides Landlord with its Plans and Specifications for the
Pre-Commencement Expansion Space after the Plan Delivery Date, Landlord agrees
to deliver the Pre-Commencement Expansion Space to Tenant in accordance with the
Improvement Work for such space completed pursuant to the Work Letter within six
(6) months from Tenant's delivery to Landlord of its Plans and Specifications
for the Pre-Commencement Expansion Space; provided, however, that such six (6)
month period shall be extended on a day-for-day basis to the extent that
Landlord is unable, despite diligent good faith efforts, to obtain permits for
such work within two (2) months after receipt of Tenant's Plans and
Specifications for the Pre-Commencement Expansion Space. Landlord agrees to use
good faith reasonable efforts to complete such Improvement Work promptly after
Landlord's approval of the Plans and Specifications for such Pre-Commencement
Expansion Space. Base Rent and Annual Rental Adjustment shall be payable by
Tenant in the same manner as for the initial Leased Premises commencing on the
first (1st) business day of the second (2nd) week following the Completion Date
(as defined in Exhibit B hereto) for the Pre-Commencement Expansion Space.
Section 1.03. Rentable Area.
The term "Rentable Area", as used herein, shall refer to the rentable area of
the Leased Premises as determined in accordance with the "Standard Method for
Measuring Floor Area in Office Buildings," published by the Secretariat,
Building Owners and Managers Association International (ANSI/BOMA Z65.1-1996),
approved June 7, 1996 and applying a "load" or "add on" factor of no more than
9% with respect to full floors and 15% with respect to partial floors. In the
event Tenant initially occupies a partial floor but during the term hereof
expands into a full floor, the rentable square footage shall be determined on a
full floor basis. Unless otherwise specifically designated, all references to
Rentable Area, square footage or square feet in this Lease are to rentable
square footage or square feet.
The rentable area of the Leased Premises shall be calculated, on a preliminary
basis, by Landlord's architect when floor plans for the Leased Premises are
complete (subject to final, conclusive determination as described in the
following paragraph), in accordance with the definitions and methodology
contained in this Lease. Upon such determination by Landlord's architect, the
Rentable Area of the Leased Premises (as well as other calculations herein which
are based upon such Rentable Area including, without limitation, the Minimum
Annual Rent, Tenant's Proportionate Share, Annual Rental Adjustment and the
Tenant Improvement Allowance) shall be adjusted to reflect the number of square
feet of Rentable Area determined by such calculation.
Within thirty (30) days after the Commencement Date (defined below), Landlord's
architect shall field measure the Leased Premises, Landlord shall deliver to
Tenant Landlord's proposed form of Exhibit C, attached hereto and incorporated
herein, which shall contain an acknowledgment of the date upon which the
Commencement Date of this Lease occurred, Tenant's Proportionate Share and
Landlord's calculation of the exact number of square feet of Rentable Area
within the Leased Premises and the Building. Tenant shall have the right to
object to Landlord's proposed Exhibit C and any of the factual information
therein by delivering written notice to Landlord within twenty (20) days after
Landlord delivers Exhibit C to Tenant, failing which Tenant shall be deemed to
have agreed that all information contained in Exhibit C is correct. If Tenant
objects to Landlord's proposed Exhibit C or any of the factual information
therein within said twenty (20)-day period, Landlord and Tenant shall work
together for thirty (30) days to resolve their differences and, if such
differences are resolved within such thirty (30) day period, Landlord and Tenant
shall execute Exhibit C. If Landlord and Tenant are unable to resolve their
disagreement within such thirty (30) day period, the parties shall mutually
agree upon an experienced, qualified architect to resolve such disagreement
(concerning either the Rentable Area of the
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Leased Premises and/or the Building or concerning the correct Commencement
Date). The architect must not have been employed by either party previously and
must have ten (10) years experience immediately prior to the date in question
designing multi-story office buildings in the suburban Ft. Lauderdale, Florida
market area. If the parties are unable to agree on an architect within ten (10)
days after the expiration of such thirty (30) day period, either party may apply
to the Miami Chapter of the American Institute of Architects for designation of
an architect. The architect shall resolve the disagreement within thirty (30)
days of his/her selection. The decision of such architect shall be final and
binding upon both Landlord and Tenant and shall be incorporated into Exhibit C.
Upon execution by Landlord and Tenant of the agreed Exhibit C or the Exhibit C
determined by arbitration, the Commencement Date as shown on Exhibit C shall be
the Commencement Date for all purposes of this Lease and the Rentable Area of
the Leased Premises as shown on Exhibit C shall replace the Rentable Area of the
Leased Premises as shown in Section 1.01.B. and shall be deemed to be the
Rentable Area of the Leased Premises for all purposes under this Lease. Further,
all calculations, amounts and sums which are based upon the Rentable Area of the
Leased Premises including, without limitation, Minimum Annual Rent and the
Tenant Improvement Allowance shall be adjusted accordingly. All payments of
Minimum Annual Rent, Annual Rental Adjustment and all other payments of rent and
other sums of money required of Tenant herein shall be made as and when required
herein, notwithstanding any unresolved objections to Exhibit C. All such
payments shall be based upon the Landlord's proposed form of Exhibit C prepared
by Landlord until such objections have been finally resolved, whereupon any
overpayment or any underpayment theretofore made shall be adjusted by increasing
or reducing, as the case may be, the next installment of Minimum Annual Rent
coming due.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term.
The term of this Lease shall commence on the Commencement Date and expire at
12:00 midnight on the last day of the calendar month in which the fifteenth
(15th) anniversary of the Commencement Date occurs (the "LEASE TERM"). As used
herein, "COMMENCEMENT DATE" means the later of (i) the delivery of
Non-Disturbance Agreement(s) executed by all the prior encumbrancers of the
Project; or (ii) the first (1st) business day of the second (2nd) week following
the Completion Date (as defined in Exhibit B hereto).
Section 2.02. Construction of Building and Leased Premises.
Landlord agrees, at its sole cost and expense, to cause the Building to be
constructed in a good and workmanlike manner in compliance with all Applicable
Laws (as hereinafter defined). The Building shall be constructed in accordance
with the Base Building Plans (as defined in Exhibit B), Exhibit B and generally
in accordance with the renderings attached as Exhibit B-5, subject, however to
the finalization thereof as hereinafter described. The Leased Premises shall be
constructed, and the Improvement Allowance (as defined in Exhibit B) shall be
distributed, in accordance with the terms and provisions of Exhibit B.
Section 2.03. Surrender of the Premises.
Upon the expiration or earlier termination of this Lease, Tenant shall
immediately surrender the Leased Premises to Landlord in broom-clean condition.
Tenant shall remove its personal property in the Leased Premises at its sole
cost and expense. Tenant shall, at its expense, promptly repair any damage
caused by
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any such removal, and shall restore the Leased Premises to the condition
existing upon the Commencement Date, reasonable wear and tear, casualty,
condemnation and permitted alterations excepted. Landlord acknowledges and
agrees that Tenant shall not be required to remove any wiring or cabling except
such that is contained within the Leased Premises (not above-ceiling). Following
expiration or earlier termination of this Lease, all Tenant property which is
required to be removed hereby and is not removed within ten (10) days following
Landlord's written demand therefore shall be conclusively deemed to have been
abandoned and Landlord shall be entitled to dispose of such property at Tenant's
cost without incurring any liability to Tenant. The provisions of this section
shall survive the expiration or other termination of this Lease.
Section 2.04. Holding Over.
If Tenant retains possession of the Leased Premises after the expiration or
earlier termination of this Lease, such holdover shall be subject to and in
accordance with all of the terms of this Lease, except that (i) the Monthly
Rental Installment for the six (6) months of such holdover shall be equal to one
hundred twenty-five percent (125%) of the Monthly Rental Installment payable
during the last month of the Term (the "LAST MONTH'S RENT"), prorated for the
period of such holdover and (ii) Tenant shall also be required to pay the
monthly installment of the Annual Rental Adjustment, as prorated for such
holdover period. If Tenant continues to retain possession of the Leased Premises
for a period exceeding such six (6) month period, the Monthly Rental Installment
for any such additional holdover period shall be equal to one hundred fifty
percent (150%) of the last month's rent. In no event shall Tenant be liable for
consequential damages as a result of any holdover. Acceptance by Landlord of
rent after such expiration or earlier termination shall not result in a renewal
of this Lease. This Section 2.04 shall in no way constitute a consent by
Landlord to any holding over by Tenant upon the expiration or earlier
termination of this Lease, provided, however, Landlord's monetary remedies for
such holdover shall be limited to collection of holdover rental as specified
above, provided, further that this shall not prevent Landlord from pursuing a
dispossessory proceeding or other process to obtain possession of the Leased
Premises.
Section 2.05. Short Term Extension Option.
Landlord hereby grants to Tenant the right and option to unilaterally extend the
Lease Term for any period of time up to six (6) months following the expiration
of the Lease Term. Tenant shall exercise the option granted hereby by giving
Landlord notice of exercise at least twelve (12) months prior to the expiration
of the Term. If Tenant shall exercise Tenant's rights under this section, then
Tenant shall include in Tenant's notice of exercise a statement that Tenant is
exercising Tenant's rights under this section and Tenant shall designate a date
not later than the date six (6) months following the expiration of the Term to
which Tenant elects to extend the expiration date of the Term. Thereupon, this
Lease shall be extended to the date set forth in Tenant's notice of exercise. If
the Term of this Lease shall be extended under this section, all terms and
conditions of this Lease shall remain in full force and effect and Tenant shall
continue to pay Monthly Rental Installments during such extension period
calculated at a rate of increase of three percent (3.0%) of the last month's
rent. Following expiration of the short term option period selected and
exercised by Tenant pursuant to this section, the holdover provisions of Section
2.04 shall apply to any continued occupancy by Tenant.
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ARTICLE 3 - RENT
Section 3.01. Base Rent.
Subject to Section 3.06 below, Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments plus Florida State Sales tax in advance
on the Commencement Date and on or before the first day of each and every
calendar month thereafter during the Lease Term. The Monthly Rental Installments
shall be paid, except as otherwise provided herein, without deduction or offset
and, with respect to any partial calendar months, shall be prorated.
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Section 3.02. Annual Rental Adjustment Definitions.
A. "Annual Rental Adjustment" - shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar year.
B. "Operating Expenses" - shall mean the amount of all of Landlord's costs and
expenses paid or incurred in operating, repairing and maintaining the Building
(including the Common Areas as defined below) in good condition and repair for a
particular calendar year, including by way of illustration and not limitation:
all Real Estate Taxes (as hereinafter defined); insurance premiums and
deductibles; water, sewer, electrical and other utility charges other than the
electrical charges incurred with respect to any space in the Building other than
Common Areas; service and other charges incurred in the repair, operation and
maintenance of the elevators and the heating, ventilation and air-conditioning
system; cleaning and other janitorial services; tools and supplies; repair
costs; landscape maintenance costs; security services; license, permit and
inspection fees; management or administrative fees, not to exceed three percent
(3%) of the Minimum Annual Rent for such calendar year; supplies, costs, wages
and related employee benefits payable for the management, maintenance and
operation of the Building; maintenance and repair of the driveways, parking and
sidewalk areas (including snow and ice removal), landscaped areas; lighting;
maintenance and repair costs, dues, fees and assessments incurred under that
certain Declaration of Protective Covenants and Restrictions for Sawgrass
Commerce Center, recorded in Book 15002, Page 0711 (the "DECLARATION"); and
amortization (on a straight-line basis over the useful life of the item in
question) of the cost of acquiring and installing any system, apparatus, device
or equipment which is installed for the principal purpose of (i) reducing
Operating Expenses (but the annual amortization included may not exceed the
reasonable projected annual reduction), (ii) promoting safety or (iii) complying
with governmental requirements which first become effective after the
Commencement Date (the "PERMITTED CAPITAL EXPENSES"). Landlord agrees to provide
Tenant promptly upon Tenant's request, copies of all tax bills, canceled checks
(with respect to any tax payment) and other evidence of billing and payment of
Real Estate Taxes reasonably requested by Tenant.
At the request of Tenant, Landlord shall engage a security service on such terms
and conditions as are reasonably specified by Tenant. Tenant acknowledges and
agrees that Tenant shall be responsible for seventy-five percent (75%) of the
cost of such security service during such period that any such security service
is engaged as approved by Tenant (with the balance of such cost to be at the
expense of Landlord or other tenants of the Building).
At the option of Tenant, Tenant may request a statement from Landlord indicating
the amount of Tenant's Proportionate Share of Real Estate Taxes, in order for
Tenant to be eligible for a Qualified Targeted Industry tax refund for Tenant's
Proportionate Share of the Real Estate Taxes. Such certification shall be
addressed to the State of Florida Office of Tourism, Trade and Economic
Development and shall be signed by Landlord and delivered to Tenant within
fourteen (14) days of request by Tenant. Landlord shall attach as exhibits to
such certification a copy of the Real Estate Tax xxxx for the year in question
and a copy (front and back) of the cancelled check for the payment of such Real
Estate Taxes to the Broward County Tax Collector and shall be substantially in
the form attached hereto as Exhibit F.
Notwithstanding the foregoing, specifically excluded from "Operating Expenses"
are the following listed items:
(1) Costs associated with the operation of the business of the ownership
or entity which constitutes "Landlord", as distinguished from the
costs of building operations, including,
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but not limited to partnership accounting and legal matters, costs of
defending any lawsuits with any mortgagee, costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's
interest in the Project, costs of any disputes between Landlord and
its employees (if any), disputes of Landlord with Project management,
or outside fees paid in connection with disputes with other tenants;
(2) Costs incurred in connection with the original construction of the
Project or in connection with any capital expenditure in the Project
(except the Permitted Capital Expenditures) , including but not
limited to the addition or deletion of floors;
(3) Costs of alterations or improvements to the Premises or the premises
of other tenants (as compared to repairs or maintenance) (except the
Permitted Capital Expenditures);
(4) Depreciation, interest and principal payments on mortgages and other
debt costs (directly related to financing the Project, or any portion
thereof), if any;
(5) Costs of correcting defects in or inadequacy of the initial design or
construction of the Project;
(6) Expenses directly resulting from the negligence and/or willful
misconduct of Landlord, its agents, servants or employees;
(7) Legal fees, space planners' fees, real estate brokers' leasing
commissions and advertising expenses incurred in connection with the
development or leasing of the Project;
(8) Costs for which Landlord is entitled to be reimbursed by its
insurance carrier or any tenant's insurance carrier (excluding
commercially reasonable deductibles);
(9) Any bad debt loss, rent loss or reserves for bad debts or rent loss;
(10) The expense of any services provided to other tenants in the Building
which are in excess of the services made available to Tenant under
this Lease;
(11) Wages and salaries of management or supervising employees offsite
above the level of senior property manager; the wages of any employee
who does not devote substantially all of his or her time to the
Project shall be equitably apportioned among all projects for which
such employee performed services based upon the time such employee
spent on each project relative to the total time devoted by such
employee to all projects;
(12) Fines and penalties;
(13) Amounts paid as ground rental by Landlord;
(14) Any recalculation of or additional Operating Expenses actually
incurred more that two (2) years prior to the year in which Landlord
proposes that such costs be included in Operating Expenses;
(15) Capital expenditures required by Landlord's failure to comply with
laws enacted before the Commencement Date;
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(16) Costs incurred by Landlord with respect to goods and services
(including utilities sold and supplied to tenants and occupants of the
Building) to the extent that Landlord is entitled to reimbursement for
such costs directly from such tenant(s);
(17) Costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements made for new
tenants in the Building or incurred in renovating or otherwise
improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Building;
(18) Costs incurred by Landlord for alterations which are considered
capital improvements under generally accepted accounting principles,
consistently applied, except for Permitted Capital Expenditures;
(19) Any costs paid to Landlord or subsidiaries or affiliates of Landlord
for services in the Project to the extent the same exceeds the costs
of such services rendered by unaffiliated third parties on a
competitive basis;
(20) Rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment ordinarily
considered to be of a capital nature, except equipment not affixed to
the Building which is used in providing janitorial or similar services
and except for temporary rentals that are necessitated by an
emergency;
(21) Electric power costs for any tenant or tenant space;
(22) Any costs to repair or restore any portion of the Project following a
condemnation or a casualty (except to the extent of a commercially
reasonable deductible amount);
(23) Legal fees, accounting fees or consulting fees, except those incurred
directly in connection with Operating Expenses; and
(24) Costs incurred to remove, encapsulate or remediate asbestos or any
Hazardous Substances (as defined in Section 15.01.B.).
It is understood that Operating Expenses shall be reduced by all cash discounts,
trade discounts, or quantity discounts received by Landlord or Landlord's
managing agent in the purchase of any goods, utilities, or services in
connection with the operation of the Project. In the calculation of any expenses
hereunder, it is understood that no expense shall be charged in duplicate.
Landlord shall use commercially reasonable efforts to effect an equitable
proportion of bills for services rendered to the Project and to any other
property owned by Landlord. Landlord agrees to keep books and records showing
the Operating Expenses in accordance with a system of generally accepted
accounting practices consistently maintained on a year-to-year basis.
Notwithstanding any language contained herein to the contrary, Tenant hereby
agrees that, during any calendar year in which the entire Building is not
provided with Building Standard Services or is not at least ninety five percent
(95%) occupied on average throughout the calendar year, Landlord shall compute
all Variable Operating Costs (defined below) for such calendar year as though
the entire Building were provided with Building Standard Services and were
ninety-five percent (95%) occupied. For purposes of this lease the term
"VARIABLE OPERATING COSTS" shall mean any operating cost that varies with the
level of occupancy of the Building (e.g. tenant utilities and tenant cleaning
services, but
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the parties expressly agree that Real Estate Taxes are not included in Variable
Operating Expenses). In the event that Landlord excludes from "Operating
Expenses" any specific costs billed to or otherwise incurred for the particular
benefit of specific tenants of the Building, or to other buildings or projects
within the Park, Landlord shall have the right to increase "Operating Expenses"
by an amount equal to the cost of providing standard services similar to the
services for which such excluded specific costs were billed or incurred. In no
event shall Landlord receive from all tenants of the Building more than one
hundred percent (100%) of any Operating Expenses.
In the event that within six (6) months after Tenants' receipt of Landlord's
statement of Operating Expenses for the prior calendar year, Tenant reasonably
believes that certain of the Operating Expenses charged by Landlord include
costs that are not properly included within the term "Operating Expenses" or the
Landlord has erred in calculating same or that any of the amounts included
therein are not commercially reasonable, Tenant or its agents shall have the
right to audit Landlord's books and records and dispute any portion of such
statement in accordance with this paragraph. Tenant shall exercise such audit
right by providing Landlord with a written notice of Tenant's exercise of such
audit right within such 6-month period and a statement enumerating reasonable
detailed reasons for Tenant's objections to the statement issued by Landlord
(the "AUDIT NOTICE"). Within ten (10) business days of the receipt by Landlord
of an Audit Notice, Landlord shall cause its property manager at the Building to
meet with a designated employee or agent of Tenant (the "TENANT REPRESENTATIVE")
to discuss the objections set forth in the Audit Notice in order to attempt to
resolve the issues raised by Tenant in the Audit Notice. At least five (5)
business days prior to such meeting, Landlord shall provide the Tenant
Representative with reasonable access during normal business hours to Landlord's
books and records at the Building relating to Operating Expenses for the
calendar year in question. If, within thirty (30) days after Landlord's receipt
of the Audit Notice, Landlord and Tenant are unable to resolve Tenant's
objections, then not later than fifteen (15) days after the expiration of such
30-day period, Tenant shall notify Landlord if Tenant wishes to employ an
independent, reputable certified public accounting firm or a nationally
recognized operating expenses audit firm to inspect and audit Landlord's books
and records for the Building for the year in question. Tenant may not use an
accounting firm operating on a contingency fee basis in such audit during the
first five (5) years of the term of the Lease. Provided further however, after
the first five (5) years of the term of the Lease, Tenant may use a nationally
recognized operating expenses audit firm which operates on a contingency fee
basis to inspect and audit Landlord's books and records no more than twice
during the remaining term of the Lease or any independent, reputable certified
public accounting firm. All costs and expenses of any such audit shall be paid
by Tenant, unless such audit reveals (or it is ultimately determined by the
Independent Accountant, as described below) that Landlord overstated Operating
Expenses by five percent (5%) or more, in which case Landlord shall reimburse
Tenant for the cost of such audit. Any audit performed pursuant to the terms of
this section shall be conducted at the offices of Landlord's property manager at
the Building during normal business hours and Landlord shall make its books and
records conveniently available at the Building within ten (10) business days of
Tenant's notice that it desires to perform such audit. If, based on such audit,
Tenant believes that Landlord's statement includes improper or excessive charges
for Operating Expenses for the year in question, Tenant shall notify Landlord,
in writing, specifying the overcharges and including a copy of the audit. Tenant
shall have the right, at any time up through the date one (1) year after
Landlord's statement was delivered to Tenant, to submit the dispute to any of
the "Big-Five" accounting firms that is not then employed by Landlord or Tenant
(the "INDEPENDENT ACCOUNTANT"). Such Independent Accountant shall be asked to
resolve the dispute within thirty (30) days. The decision of such Independent
Accountant shall be final and binding on both Landlord and Tenant. If Landlord
and Tenant agree pursuant to this paragraph that Tenant was overcharged or if
the Independent Accountant determines that Tenant was overcharged, the
overcharge amount, together with interest at the Default Rate (as hereinafter
defined) from the date Tenant paid the amount shown on
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Landlord's statement, shall be applied as a credit to the next installments of
Minimum Annual Rent and Annual Rental Adjustment due hereunder (or if the Lease
has expired, promptly to Tenant in cash). Notwithstanding anything contained
herein to the contrary, Tenant shall be entitled to exercise its audit right
pursuant to this section only in strict accordance with the foregoing procedures
no more often than once per calendar year and each such audit shall relate only
to the calendar year most recently ended; provided, however, if Tenant discovers
overcharges in Landlord's statement, Tenant shall be entitled to audit up to two
(2) prior years' books and records with respect to the item(s) for which such
overcharge is discovered; and provided further, that in the event any audit
reveals evidence of fraud, Tenant shall be entitled to audit any and all prior
years' books and records with respect to all items. In the event that Tenant
fails to notify Landlord within the foregoing 6-month period that Tenant objects
to the statement of Operating Expenses, then Tenant's right to audit such year's
statement of Operating Expenses shall be null and void.
C. "Tenant's Proportionate Share of Operating Expenses" - shall be an amount
equal to the product of Tenant's Building Expense Percentage times the Building
Operating Expenses.
D. "Real Estate Taxes" - shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or the
Land by any authority having the power to so charge or tax, together with
reasonable costs and expenses of contesting the validity or amount of Real
Estate Taxes, which at Landlord's option may be calculated as if such contesting
work had been performed on a contingent fee basis (whether charged by Landlord's
counsel or representative; provided, however, that said fees are reasonably
comparable to the fees charged for similar services by others not affiliated
with Landlord, but in no event shall said fees exceed thirty-three percent (33%)
of the good faith estimated tax savings). Notwithstanding the foregoing, Real
Estate Taxes shall not include the following types: income, business license,
impact fees, capital, stock, succession, transfer, franchise, gift, estate,
inheritance or taxes or assessments attributable to the personal property of
other tenants.
E. "Common Areas" - shall mean the areas of the Building and the Land which
are designed for use in common by all tenants of the Building and their
respective employees, agents, customers, invitees and others, and includes, by
way of illustration and not limitation, entrances and exits, hallways and
stairwells, elevators, restrooms, sidewalks, driveways, parking areas,
landscaped areas and other areas as may be designated by Landlord as part of the
Common Areas of the Building. Tenant shall have the non-exclusive right, in
common with others, to the use of the Common Areas.
Section 3.03. Payment of Annual Rental Adjustment for Operating Expenses.
In addition to the Minimum Annual Rent specified in this Lease, Tenant shall pay
to Landlord as additional rent for the Leased Premises, in each calendar year or
partial calendar year, during the Lease Term, an amount equal to the Annual
Rental Adjustment for such calendar year, in an amount not to exceed $6.63 per
rentable square foot for the first year of the Lease Term (net of Tenant's
electric and security guard charges). The Annual Rental Adjustment shall be
estimated annually by Landlord, and written notice thereof shall be given to
Tenant prior to December 1 of the previous calendar year. Tenant shall pay to
Landlord each month, at the same time the Monthly Rental Installment is due, an
amount equal to one-twelfth (1/12) of the estimated Annual Rental Adjustment. If
Real Estate Taxes or the cost of janitorial services or Common Area utility
increase during a calendar year, Landlord may increase the estimated Annual
Rental Adjustment once during such year by giving Tenant thirty (30) days
written notice to that effect, and thereafter Tenant shall pay to Landlord, in
each of the remaining months of such year, an amount equal to the amount of such
increase in the estimated Annual Rental Adjustment divided
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by the number of months remaining in such year. Within ninety (90) days after
the end of each calendar year, Landlord shall prepare and deliver to Tenant a
statement showing the actual Annual Rental Adjustment for the calendar year in
question. Within thirty (30) days after receipt of the aforementioned statement,
Tenant shall pay to Landlord, or Landlord shall credit against the next
installment(s) of Minimum Annual Rent due from Tenant (or pay directly to Tenant
if the Lease has expired or has been terminated), as the case may be, the
difference between the actual Annual Rental Adjustment for the preceding
calendar year and the estimated amount paid by Tenant during such year.
Section 3.04. Late Charges.
Tenant acknowledges that Landlord shall incur certain additional unanticipated
administrative and legal costs and expenses if Tenant fails to timely pay any
payment required hereunder. Therefore, in addition to the other remedies
available to Landlord hereunder, if any payment required to be paid by Tenant to
Landlord hereunder shall become overdue, such unpaid amount shall bear interest
from the due date thereof to the date of payment at the Default Rate. As used
herein, the term "DEFAULT RATE" shall mean the prime rate (as reported in the
Wall Street Journal) of interest (the "PRIME RATE") plus four percent (4%) per
annum.
Section 3.05. Maximum Increase in Operating Expenses.
Notwithstanding anything in this Lease to the contrary, Landlord agrees that the
amount of the Annual Rental Adjustment calculated to be due under Section 3.03
hereunder attributable to Controllable Operating Expenses (as hereinafter
defined) paid or incurred in (i) the first lease year shall not exceed $3.36 per
square foot of Rentable Area and (ii) for any subsequent lease year, shall not
exceed five percent (5%) of the amount attributable to Controllable Operating
Expenses properly chargeable to Tenant under this Lease for the prior calendar
year. As used herein, the term "CONTROLLABLE OPERATING EXPENSES" shall mean all
Operating Expenses of any kind or nature other than Real Estate Taxes, service
payments in lieu of real estate taxes, insurance premiums, charges for public
utilities and management or administrative fees applicable to such expenses.
Section 3.06. Minimum Annual Rent and Annual Rental Adjustment During First
Lease Year.
Minimum Annual Rent and Annual Rental Adjustment shall be payable by Tenant only
on 85,000 square feet of Rentable Area of the Leased Premises for the period
commencing on the Commencement Date and ending on the six (6) month anniversary
of the Commencement Date to the extent that Tenant doesn't occupy for business
purposes more than 85,000 square feet of Rentable Area during that portion of
the Lease Term. To the extent that Tenant occupies for business purposes more
than 85,000 square feet of Rentable Area during the initial six (6) months of
the Lease Term, Tenant shall pay Minimum Annual Rent and Annual Rental
Adjustment applicable to any portion of the Leased Premises above the 85,000
square feet of Rentable Area which it occupies for business purposes.
Thereafter, Minimum Annual Rent and Annual Rental Adjustment shall be payable
with respect to the entirety of the Leased Premises.
ARTICLE 4 - SECURITY DEPOSIT
Section 4.01. Letter of Credit.
(a) Tenant shall, within five (5) business days after the execution of this
Lease, provide to Landlord an irrevocable unconditional letter of credit (the
"LETTER OF CREDIT") in substantially the form attached
15
hereto as Exhibit J or as otherwise reasonably acceptable to Landlord and issued
by Chase Manhattan Bank or another bank reasonably acceptable to Landlord (the
"LETTER OF CREDIT BANK"). The Letter of Credit shall be in the amount of Five
Hundred Thousand and 00/100 ($500,000.00) Dollars and shall be held by Landlord
as security for the full and faithful performance by Tenant of all of the terms,
conditions and covenants contained in the Lease on the part of Tenant to be
performed, including but not limited to the payment of rent.
(b) In the event of a default by Tenant in the payment of rent or performance or
observance of any of the other terms, conditions or covenants of this Lease
beyond the expiration of any notice and cure period, Landlord may, at its option
and with notice to Tenant, present the Letter of Credit to the Letter of Credit
Bank together with a certificate from Landlord executed by any officer of
Landlord certifying that Tenant is in default under the Lease, has failed to
cure such default within the time periods specified in the Lease for cure and
that Landlord is entitled to draw upon the Letter of Credit. Upon such
presentation, Landlord may draw upon the Letter of Credit and apply all or any
part thereof to payment of rent or to cure any such default; and if Landlord
does so, Tenant shall, upon request, deposit with Landlord the amount so applied
so that Landlord will have on hand at all times during the Security Period (as
hereinafter defined) the full amount of the Letter of Credit. If Landlord shall
improperly draw under the Letter of Credit, Landlord shall immediately return
the drawn amount (together with interest from the date drawn until repaid at the
rate per annum which is the lesser of (i) the Default Rate or (ii) the highest
rate permitted by law) and reimburse Tenant for any charges imposed by the
issuer in connection with the draw or restoration of the letter of credit. The
Letter of Credit shall be renewed on an annual basis during the Security Period
(except with respect to the last year of the Security Period). If Tenant has not
renewed the Letter of Credit as required at least forty five (45) days prior to
the expiration date thereof, Landlord may immediately draw upon the Letter of
Credit and hold the cash proceeds in lieu thereof. All sums held by Landlord
pursuant to this section shall be without interest.
(c) Notwithstanding anything to the contrary in this Lease, if there has been no
breach of any material undertaking by Tenant under the Lease beyond any
applicable notice and grace period, at the end of the twelfth (12th) month of
the Lease Term, the amount of the Letter of Credit shall be reduced by One
Hundred Thousand and 00/100 ($100,000.00) Dollars. Thereafter, if there
continues to be no breach of any material undertaking by Tenant under the Lease
beyond any applicable notice and grace period, at the end of the twenty fourth
(24th) month of the Lease Term, the amount of the Letter of Credit shall be
reduced again by One Hundred Thousand and 00/100 ($100,000.00) Dollars.
Thereafter, if there continues to be no breach of any material undertaking by
Tenant under the Lease beyond any applicable notice and grace period, at the end
of the thirty sixty (36th) month of the Lease Term, the amount of the Letter of
Credit shall be reduced again by One Hundred Thousand and 00/100 ($100,000.00)
Dollars. Thereafter, if there continues to be no breach of any material
undertaking by Tenant under the Lease beyond any applicable notice and grace
period, at the end of the forty-eighth (48th) month of the Lease Term, the
amount of the Letter of Credit shall be reduced again by One Hundred Thousand
and 00/100 ($100,000.00) Dollars. Thereafter, if there continues to be no breach
of any material undertaking by Tenant under the Lease beyond any applicable
notice and grace period, at the end of the sixtieth (60th) month of the Lease
Term, the amount of the Letter of Credit shall be reduced again by One Hundred
Thousand and 00/100 ($100,000.00) Dollars such that the Letter of Credit has
been reduced to zero and Tenant shall thereafter have no further obligation
under this Article 4 (the period of time during which the Letter of Credit is
required to be posted is herein called the "SECURITY PERIOD").
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ARTICLE 5 - OCCUPANCY AND USE
Section 5.01. Use.
The Leased Premises shall be used by Tenant for the Permitted Use and for no
other purposes without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned. Landlord represents
and warrants to Tenant that the applicable laws, codes and regulations, as
applicable to the Project, permit the Leased Premises to be used for general
office use. Tenant shall have access to the Leased Premises twenty four (24)
hours per day, seven (7) days per week.
Section 5.02. Covenants of Tenant Regarding Use.
Tenant shall (i) use and maintain the Leased Premises and conduct its business
thereon in a safe, careful, reputable and lawful manner, (ii) comply with all
laws, rules, regulations, orders, ordinances, directions and requirements of any
governmental authority or agency, now in force or which may hereafter be in
force ("APPLICABLE LAWS"), including without limitation those which shall impose
upon Landlord or Tenant any duty with respect to or triggered by a change in the
use or occupation of, or any improvement or alteration to, the Leased Premises,
(iii) comply with and obey all Building Rules and Regulations attached hereto as
Exhibit D and as may be reasonably modified from time to time by Landlord on
reasonable notice to Tenant (provided that such modifications do not materially
and adversely affect Tenant's use and enjoyment of, or access to, the Leased
Premises). Tenant shall not do or permit anything to be done in or about the
Leased Premises which will in any way unreasonably obstruct or interfere with
the rights of other tenants or occupants of the Building or create a nuisance.
Landlord shall not be responsible to Tenant for the non-performance by any other
tenant or occupant of the Building of any of the Building Rules and Regulations,
but agrees to take reasonable measures to assure such other tenant's compliance.
Tenant shall not use the Leased Premises, or allow the Leased Premises to be
used, for any purpose or in any manner which would invalidate any policy of
insurance now or hereafter carried on the Building or increase the rate of
premiums payable on any such insurance policy unless Tenant reimburses Landlord
for any increase in premium charged.
Section 5.03. Landlord's Rights Regarding Use.
In addition to the rights specified elsewhere in this Lease, Landlord shall have
the following rights regarding the use of the Leased Premises or the Common
Areas, each of which may be exercised without notice or liability to Tenant: (a)
Landlord may install such signs, advertisements or notices or tenant
identification information on the directory board as it shall deem reasonably
necessary or proper; (b) Landlord shall have the right at any time to control,
change or otherwise alter the Common Areas in such manner as it deems reasonably
necessary or proper, provided that such control, change or alteration does not
materially and adversely affect Tenant's use and enjoyment of, or access to, the
Leased Premises or the nature of the Building as a first class building for the
Sawgrass/Sunrise submarket; (c) Landlord, its employees and agents and any
mortgagee of the Building shall have the right to enter any part of the Leased
Premises at reasonable times upon reasonable notice except in the event of an
emergency where no notice shall be required for the purposes of examining or
inspecting the same, showing the same to prospective purchasers, mortgagees or,
during the last twelve (12) months of the Lease Term, to prospective tenants and
making such repairs, alterations or improvements to the Leased Premises or the
Building as Landlord may deem necessary or desirable, provided, however, that
any repairs made by Landlord shall be at Tenant's expense except as provided in
Section 7.02 hereof. Except with respect to Landlord's gross negligence or
intentional misconduct, Landlord shall incur no liability to Tenant for such
entry, nor shall such entry constitute an eviction of Tenant or a termination of
this Lease, or entitle Tenant to any abatement of rent therefor; provided,
however, that Landlord agrees in its exercise of any
17
rights pursuant to this Section, to use good faith efforts to minimize
Landlord's interference with Tenant's business operations.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
Section 6.01. Services to be Provided.
Landlord shall furnish to Tenant, except as noted below, the following utilities
and other building services at levels and in types customary for first-class
office buildings in the Sawgrass/Sunrise, Florida submarket and as more
particularly provided below. As a part of the Base Building Work, Landlord shall
install electric meters for the Leased Premises and Tenant shall be responsible
for and pay directly to the provider of such utility or service all charges for
electrical service for the Leased Premises. Utility charges for services to the
Common Areas shall be included in Operating Expenses.
(a) Heating, ventilation and air-conditioning in accordance with the
specifications provided in the Work Letter attached hereto as required by Tenant
with Landlord providing Tenant with independent control of such HVAC within the
Leased Premises;
(b) Electric current for lighting equal to at least two (2) xxxxx per square
foot of Rentable Area plus electrical current for outlets and convenience power
equal to at least four (4) xxxxx per square foot of Rentable Area (on demand);
(c) Water in the Common Areas for lavatory and drinking purposes;
(d) Automatic elevator service twenty-four hours per day through not less than
three (3) passenger cabs and one (1) non-dedicated freight elevator cab, except
in emergencies or for routine maintenance and in any case, both passenger
elevators won't be removed from service at one time for routine maintenance;
(e) Cleaning and janitorial service in the Leased Premises and Common Areas on
Monday through Friday of each week, except legal holidays in accordance with
Exhibit G attached hereto;
(f) Washing of windows at intervals reasonably established by Landlord (but
not less than twice per year);
(g) Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting as required from time to time as a result of normal usage;
(h) Cleaning and maintenance of the Common Areas, including the removal of
rubbish, ice and snow;
(i) Access control for the Building comparable as to coverage, control and
responsiveness to other similarly situated first-class multi-tenant office
buildings in suburban Ft. Lauderdale, Florida;
(j) Security service for the Building as specified in Section 3.02; and
(k) Repair and maintenance to the extent specified elsewhere in this Lease.
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In the event of utility deregulation, Landlord may choose the electric, natural
gas or water service provider, provided, that the service provided by such
provider and cost of such services and utilities shall be comparable to that
provided and charged in other comparable buildings in the Sawgrass/Sunrise,
Florida submarket. Charges for such utilities and services provided by Landlord,
if any, shall not exceed the charges that would have been payable if such
utilities and services had been directly billed by the utilities or service
providers to Tenant.
Section 6.02. Additional Services.
If Tenant requests utilities or building services in addition to those
identified above or any of the above utilities or building services in
frequency, scope, quality or quantity substantially greater than those which
Landlord determines are normally required by other tenants in the Building for
the Permitted Use, then Landlord shall use reasonable efforts to attempt to
furnish Tenant with such additional utilities or building services. In the event
Landlord is able to and does furnish such additional utilities or building
services, the actual costs thereof shall be borne by Tenant. Tenant shall
reimburse Landlord monthly (except with respect to after-hours HVAC and
electrical which Tenant shall pay directly to the utility provider) for the same
as Additional Rent at the same time Monthly Rental Installments and other
Additional Rent is due.
If any lights, density of staff, machines or equipment used by Tenant in the
Leased Premises materially affect the temperature otherwise maintained by the
Building's air-conditioning system or generate substantially more heat in the
Leased Premises than that which would normally be generated by that typically
used by other tenants in the Building or by tenants in comparable office
buildings, then Tenant as part of the initial leasehold improvements shall
install any machinery or equipment which Landlord considers reasonably necessary
in order to restore the temperature balance between the Leased Premises and the
rest of the Building, including equipment which modifies the Building's
air-conditioning system. All costs expended to install any such machinery and
equipment and any additional costs of operation and maintenance in connection
therewith shall be borne by Tenant.
Section 6.03. Interruption of Services.
Notwithstanding anything to the contrary contained in this Lease, if Tenant
cannot reasonably use all or any portion of the Leased Premises for Tenant's
intended business operation by reason of any interruption in services to be
provided by Landlord (and Tenant does not in fact use such portion of the Leased
Premises) and such condition exists for three (3) or more consecutive business
days or five (5) or more business days within any thirty (30) day period, then
Tenant's Minimum Annual Rent and Annual Rental Adjustment shall be abated for
that portion of the Leased Premises that Tenant is unable to use for Tenant's
intended business operations until such service is restored to the Leased
Premises, provided, however, that if and to the extent that the interruption in
services is not a result of Landlord's negligence or failure to act, Tenant
shall be entitled to an abatement of Tenant's Minimum Annual Rent and Annual
Rental Adjustment only if and to the extent that such loss is covered by
Landlord's property, rental loss or similar insurance. At the time of the loss
of service, Tenant must give written notice promptly to Landlord of the loss of
service and its claim for abatement and Tenant only shall be entitled to
abatement of Minimum Annual Rent and Annual Rental Adjustment in proportion to
the area rendered unusable. Landlord may prevent or stop abatement of Minimum
Annual Rent and Annual Rental Adjustment by providing substantially the same
service in similar quality and quantity by temporary or alternative means until
the cause of the loss of service can be corrected. If any such interruption in
services renders twenty-five percent (25%) or more of the Leased Premises
unusable for ninety (90) or more consecutive days, Tenant shall have the right
to terminate this Lease by written notice to Landlord at any time prior to the
19
restoration of such services. Tenant shall not be entitled to the rent abatement
or termination rights set forth above if the service interruption is caused by
the act or omission of Tenant.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
Section 7.01. Repair and Maintenance of Building.
Subject to Section 7.02, Landlord shall make all necessary repairs to the roof,
structural elements, exterior walls, exterior doors, windows, corridors and
other Common Areas, and Landlord shall keep the Building and the Land in a safe,
clean and neat condition and use reasonable efforts to keep all equipment used
in common with other tenants in good condition and repair. In addition to the
foregoing, if, within three (3) years of the Commencement Date of the Lease,
Tenant notifies Landlord of a latent defect, then Landlord, at Landlord's
expense (without inclusion as an Operating Expense), will repair such latent
defect as soon as practicable.
Section 7.02. Repair and Maintenance of Leased Premises.
Tenant shall keep and maintain the Leased Premises in good order, condition and
repair. Except for ordinary wear and tear, casualty, condemnation and damage and
repairs which Tenant is not obligated to make as provided elsewhere in this
Lease, the cost of all repairs and maintenance to the Leased Premises shall be
borne by Tenant. In the event Tenant fails to maintain the Leased Premises as
required herein or fails to commence repairs (as required herein and as
requested by Landlord in writing) within thirty (30) days after such request, or
fails diligently to proceed thereafter to complete such repairs, Landlord shall
have the right in order to preserve the Leased Premises or portion thereof,
and/or the appearance thereof, to make such repairs or have a contractor make
such repairs and charge Tenant for the cost thereof as additional rent, together
with interest at the rate of twelve percent (12%) per annum from the date of
making such payments.
Section 7.03. Alterations.
Except for Permitted Alterations, Tenant shall not permit alterations in or to
the Leased Premises unless and until the plans and the contractor have been
approved by Landlord in writing, such approval not to be unreasonably withheld,
delayed or conditioned. Landlord's failure to respond within ten (10) business
days after Tenant's written request, shall be deemed a consent provided that
such request specifically sets out the time limit for such response and
specifies that Landlord shall be deemed to have consented if it fails to respond
within such time period. All such alterations shall become a part of the realty
and the property of Landlord, and shall not be removed by Tenant, except for
trade fixtures and personalty, unless Landlord designates at the time of
granting such consent that such alterations must be removed at the termination
of the Lease. Tenant shall repair any damage caused by the removal of any
alterations, trade fixtures and personalty from the Leased Premises. Tenant
shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. Upon completion of the work, Tenant shall provide lien waivers from
the subcontractors or a final affidavit of lien waiver from the general
contractor, and such lien waiver shall be in a form reasonably acceptable to
Landlord. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be
20
discharged of record (by bonding or otherwise) within thirty (30) days after
filing. Tenant shall indemnify Landlord from all costs, losses, expenses and
reasonable attorneys' fees actually incurred in connection with any construction
or alteration performed by or at the request of Tenant and any related lien.
Notwithstanding the foregoing, Tenant shall have the right to make
non-structural, non-MEP (mechanical, electrical and plumbing) alterations
(including painting and carpeting) without the consent of Landlord (a "PERMITTED
Alteration"), so long as (i) Tenant notifies Landlord in writing of its
intention to do such work at least ten (10) days prior to the initiation of such
work, (ii) such alterations do not cause excessive loads on the Building and its
systems and are not visible from the exterior of the Leased Premises and (iii)
Tenant obtains and furnishes to Landlord any required building permits.
21
ARTICLE 8 - CASUALTY
Section 8.01. Casualty.
In the event of total or partial destruction of the Project or the Leased
Premises by fire or other casualty, Landlord agrees to promptly restore and
repair same; provided, however, Landlord's obligation hereunder shall be limited
to the reconstruction of such of the Building and the payment toward restoration
of Improvement Work in an amount equal to the Improvement Allowance. Rent shall
proportionately xxxxx during the time that the Leased Premises or part thereof
are unusable because of any such damage. Notwithstanding the foregoing, if the
Leased Premises are (i) so destroyed that they cannot be repaired or rebuilt
within three hundred sixty five (365) days from the casualty date; or (ii)
destroyed by a casualty which is not covered by the insurance required
hereunder; then either Landlord or Tenant may, upon thirty (30) days' written
notice to the other party, terminate this Lease with respect to matters
thereafter accruing. Tenant waives any right under applicable laws inconsistent
with the terms of this paragraph. Notwithstanding the provisions of this
paragraph, if any material damage or destruction which renders the Leased
Premises untenantable occurs within the final two (2) years of the Lease Term,
then either Landlord or Tenant may, without regard to the aforesaid 365-day
period, terminate this Lease by written notice to the other party.
Section 8.02. Fire and Extended Coverage Insurance.
During the Lease Term, Landlord shall maintain "all-risk" fire and extended
coverage insurance on the Building in an amount equal to the full insurable
value of the Building and the initial tenant improvements constructed pursuant
to Exhibit B, but shall not protect Tenant's personal property on the Leased
Premises; and, notwithstanding the provisions of Section 9.01 and Section 9.03,
neither party shall be liable for any damage to the other's property, regardless
of cause, including the negligence of either party and its employees, agents and
invitees. Tenant hereby expressly waives any right of recovery against Landlord
for damage to any personal property of Tenant located in or about the Leased
Premises, however caused, including the negligence of Landlord and its
employees, agents and invitees. Notwithstanding the provisions of Section 9.01
below, Landlord hereby expressly waives any rights of recovery against Tenant
for damage to the Leased Premises or the Building, however caused, including the
negligence of Tenant and its employees, agents and invitees. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility.
Tenant shall assume the risk of, be responsible for, have the obligation to
insure against, and indemnify Landlord and hold it harmless from any and all
liability for any loss of or damage or injury to any person (including death
resulting therefrom) or personal property occurring in the Leased Premises,
regardless of cause, except for any loss or damage covered by Landlord's
insurance as provided in Section 8.02 and except for that caused directly by the
sole negligence of Landlord or its employees, agents, customers or invitees; and
Tenant hereby releases Landlord from any and all liability for the same.
Tenant's obligation to indemnify Landlord hereunder shall include the duty to
defend against any claims asserted by reason of such loss, damage or injury and
to pay any judgments, settlements, costs, fees and expenses, including
22
reasonable attorneys' fees, incurred in connection therewith. This provision
shall survive the expiration or earlier termination of this Lease.
Section 9.02. Tenant's Insurance.
Tenant shall carry general public liability and property damage insurance,
issued by one or more insurance companies reasonably acceptable to Landlord,
with the following minimum coverages:
(a) Worker's Compensation: minimum statutory amount.
(b) Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed operations,
products liability, and fire damage: Not less than $3,000,000 Combined Single
Limit for both bodily injury and property damage.
(c) All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage
insurance, if applicable, for the full cost of replacement of Tenant's property.
The insurance policies shall protect Tenant and Landlord as their interests may
appear, naming Landlord and Landlord's managing agent and mortgagee as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days' prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverages on or
before the Commencement Date. If Tenant fails to carry such insurance and
furnish Landlord with such Certificates of Insurance after a request to do so,
Landlord may, upon written notice to Tenant, obtain such insurance and collect
the cost thereof from Tenant.
Section 9.03. Landlord's Responsibility.
Landlord shall assume the risk of, be responsible for, have the obligation to
insure against, and indemnify Tenant and hold it harmless from, any and all
liability for any loss of or damage or injury to person (including death
resulting therefrom) or property (other than Tenant's property as provided in
Section 8.02) occurring in, on or about the Common Areas, regardless of cause,
except for that caused by the sole negligence of Tenant or its employees,
agents, customers or invitees; and Landlord hereby releases Tenant from any and
all liability for the same. Landlord's obligation to indemnify Tenant hereunder
shall include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees and
expenses, including reasonable attorneys' fees, incurred in connection
therewith. This provision shall survive the expiration or earlier termination of
this Lease.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be acquired
by the exercise of eminent domain, Landlord may terminate this Lease by giving
written notice to Tenant on or before the date possession thereof is so taken.
If all or any part of the Leased Premises, the Building or the Common Areas
shall be acquired by the exercise of eminent domain so that the Leased Premises
shall become impractical for Tenant to use for the Permitted Use, Tenant may
terminate this Lease by giving written notice to Landlord as of the date
possession thereof is so taken. If this Lease is terminated as provided above,
this Lease shall cease and expire as if the date of transfer of possession of
the Leased Premises, the Project or any portion thereof, was the expiration date
of this Lease. In the event that this Lease is not terminated by either Landlord
or Tenant as aforesaid, Tenant shall pay the Minimum Annual
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Rent and all other rentals up to the date of possession of such portion of the
Leased Premises so taken or condemned and this Lease shall thereupon cease and
terminate with respect to such portion of the Leased Premises so taken or
condemned as if the date of transfer of possession of the Leased Premises was
the expiration date of the term of this Lease relating to such portion of the
Leased Premises. Thereafter, the Minimum Annual Rental and Annual Rental
Adjustment shall be adjusted on a pro rata, net rentable square foot basis. In
the event of any such condemnation or taking and this Lease is not so
terminated, Landlord shall promptly repair the Leased Premises or the Project,
as the case may be, to Building Standard condition so that the remaining portion
of the Leased Premises or the Project, as the case may be, shall constitute an
architectural unit, fit for Tenant's occupancy and business. In the event of any
temporary taking or condemnation for any public purpose of the Leased Premises
or any portion thereof, this Lease shall continue in full force and effect
except that Minimum Annual Rent and Annual Rental Adjustment shall be adjusted
on a pro rata net rentable square foot basis for the period of time that the
Leased Premises are so taken as of the date of transfer of possession of the
Leased Premises. In the event of any condemnation or taking of the Leased
Premises, Tenant hereby assigns to Landlord the value of all or any portion of
the unexpired term of the Lease and all leasehold improvements and Tenant may
not assert a claim for a condemnation award therefor; provided, however, Tenant
may pursue a separate attempt to recover an award or compensation against or
from the condemning authority for (i) the value of any fixtures, furniture,
furnishings, improvements and other property which were condemned but which
under the terms of this Lease Tenant is permitted to remove at the end of the
Lease Term, (ii) the unamortized cost of any improvements to the Leased Premises
made by Tenant, which are not so removable by Tenant at the end of the Lease
Term but which were installed solely at Tenant's expense, (iii) relocation and
moving expenses and (iv) compensation for loss to Tenant's business.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Except as otherwise permitted in this Article 11, Tenant shall not assign this
Lease or sublet the Leased Premises in whole or in part without Landlord's prior
written consent, which consent shall not be unreasonably withheld, delayed or
denied. Landlord shall be deemed to have consented to any request for consent to
an assignment or sublet if Landlord shall not have responded within ten (10)
business days of such request, provided such request specifically sets out the
time limit for such response and specifies that Landlord shall be deemed to have
consented if it fails to respond within such time period. In the event of any
permitted assignment or subletting, Tenant shall remain primarily liable
hereunder. The acceptance of rent from any other person shall not be deemed to
be a waiver of any of the provisions of this Lease or to be a consent to the
assignment of this Lease or the subletting of the Leased Premises. Except in
connection with an assignment or a subletting to an Affiliate (as hereinafter
defined), in the event that Tenant sublets the Leased Premises or any part
thereof, or assigns this Lease and at any time receives rent and/or other
consideration which exceeds that which Tenant would at that time be obligated to
pay to Landlord, Tenant shall pay to Landlord fifty percent (50%) of the Net
Profit (as hereinafter defined) as such rent is received by Tenant. Tenant
agrees to reimburse Landlord for reasonable accounting and attorneys' fees
incurred in conjunction with the processing and documentation of any requested
assignment, subletting or any other hypothecation of this Lease or Tenant's
interest in and to the Leased Premises (not to exceed $500.00). As used herein,
the term "Net Profit" shall mean rent and/or other consideration received by
Tenant for such sublease or assignment less all of Tenant's costs and expenses
actually incurred associated therewith, including market brokerage fees,
attorneys' fees, free rent, lease takeover payments, moving allowances and the
cost of remodeling or otherwise improving the Leased Premises or providing an
improvement allowance for said sublessee or assignee.
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Notwithstanding the foregoing, Tenant may freely transfer and assign this Lease
or sublet all or any portion of the Leased Premises (i) to any entity that
controls, is controlled by or is under common control with, Tenant, (ii) to any
entity resulting from a merger, acquisition, consolidation or reorganization of
or with Tenant; or (iii) in connection with the sale of all or substantially all
of the stock or assets of Tenant (any of the foregoing herein called an
"AFFILIATE"), without having to obtain any consent or approval of Landlord;
provided, however, that any such assignment or subletting shall not result in
Tenant being released or discharged from any liability under this Lease except
to the extent Tenant ceases to exist following any such merger or consolidation.
Tenant shall provide Landlord with written notice of such assignment or
subletting prior to or promptly following the effective date of such assignment
or subletting.
Notwithstanding anything to the contrary contained in this Article 11, provided
Tenant gives Landlord at least fifteen (15) days advance written notice,
Landlord's consent shall not be required to a subletting or assignment meeting
the following criteria:
(i) The proposed use:
(a) is consistent with the Permitted Use hereunder and is comparable
to the use of other Class A office buildings in the Sunrise/Sawgrass market
area.
(b) does not require services which would unreasonably burden the
mechanical or electrical systems of the Building and which are not otherwise
provided for in the Lease.
(ii) The proposed sublessee/assignee is not a governmental subdivision or
agency or an entity which enjoys diplomatic or sovereign immunity.
ARTICLE 12 - SUBORDINATION; ESTOPPELS; TRANSFERS BY LANDLORD
Subject to execution by Landlord, Tenant and the holder of the interest in
question of an SNDA in the form described below, Landlord shall have the right
to subordinate this Lease to any mortgage presently existing or hereafter placed
upon the Building. In the event of a sale or transfer of Landlord's interest in
this Lease (except a mortgage or other transfer as security for a debt), the
"Landlord" named herein, or in the case of a subsequent transfer, upon the
express written assumption by the transferee of all of Landlord's obligations,
duties and liabilities arising from and after the date of transfer, the
transferor shall, after the date of such transfer, be automatically released
from all personal liability for the performance or observance of any term,
condition, covenant or obligation thereafter accruing against Landlord, but
Landlord shall not be released from any duties, obligations or liabilities
accruing prior to the date of transfer or arising out of events that occur prior
to the date of transfer. Within ten (10) business days following receipt of a
written request from Landlord, Tenant shall execute and deliver to Landlord,
without cost, any instrument which Landlord deems reasonably necessary to
confirm the subordination of this Lease so long as such instrument is consistent
with this Lease and the executed SNDA and so long as each successor acknowledges
all of Tenant's rights under this Lease in a manner consistent with the executed
SNDA. In addition, within ten (10) business days following receipt of a written
request from either party hereunder, the other party shall execute and deliver
to the requesting party an estoppel certificate in such form as the requesting
party may reasonably request certifying, if true (i) that this Lease is in full
force and effect and unmodified or stating the nature of any modification, (ii)
the date to which rent has been paid, (iii) that there are not, to the
certifying party's knowledge, any uncured defaults or specifying such defaults
if any are claimed, and (iv) any other factual matters or state of facts
reasonably required respecting the Lease. Such estoppel may be relied upon by
the requesting
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party. As a condition to Tenant's execution of this Lease, Landlord, Tenant and
Landlord's mortgagee agree to execute a subordination, non-disturbance and
attornment agreement in the form attached hereto as Exhibit I and by this
reference made a part hereof (the "SNDA"). In addition, Tenant's agreement to
subordinate to any future mortgage, deed of trust or ground lease shall be
subject to the execution and delivery of a document substantially the same as
the SNDA by Landlord, Tenant and each holder of a mortgage or deed of trust or
ground lease, as the case may be, which may hereafter affect the Building or
otherwise in form and substance reasonably satisfactory to Tenant; otherwise,
this Lease shall be superior to any such future mortgage or deed of trust or
ground lease.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent
within five (5) business days after written notice from Landlord that the same
is due, or Tenant fails to pay any other amounts due Landlord from Tenant within
thirty (30) business days after written notice that the same is due. Tenant
hereby expressly waives any additional notice required under ss. 83.20 of the
Florida Statutes.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than thirty days are reasonably required
to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said thirty-day period and thereafter
diligently completes the required action within a reasonable time.
(c) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action except as provided in Article 4 above or
otherwise as arising out of Landlord's gross negligence or intentional
misconduct.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such Default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises,
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and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Tenant
shall be obligated to pay the same to Landlord, together with all other
reasonable loss or damage which Landlord may sustain by reason of Tenant's
default, which shall include without limitation expenses of preparing the Leased
Premises for re-letting, demolition, repairs, tenant finish improvements,
brokers' commissions and reasonable attorneys' fees, less the reasonable rental
value of the Leased Premises for the remainder of the Lease Term had the Lease
not been so terminated (the "DEFAULT DAMAGES"), it being expressly understood
and agreed that the liabilities and remedies specified in this subsection (b)
shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the Default.
Notwithstanding anything to the contrary contained in the Lease, Landlord agrees
to use commercially reasonable efforts to mitigate Landlord's damages..
Section 13.03. Landlord's Default and Tenant's Remedies.
(a) If Landlord fails to pay any amounts due to Tenant under this Lease
and shall not cure such failure within ten (10) business days following Tenant's
written notice to Landlord (and to the holder of any mortgage of which Tenant
shall have been notified in writing) or, if Landlord fails to keep or perform
any of its obligations under this Lease and shall not cure such failure within
thirty (30) days following Tenant's written notice to Landlord (and to the
holder of any mortgage of which Tenant shall have been notified in writing),
Landlord shall be in default under this Lease; provided, however, if the failure
is of a nature that such failure cannot be cured within thirty (30) days,
Landlord shall not be in default so long as Landlord commences the cure within
such thirty (30) day period and diligently and continuously pursues the cure to
completion as soon as reasonably possible. Upon the occurrence of any default by
Landlord hereunder, Tenant may, in addition to any rights and remedies allowed
by law or in equity, pursue any one or more of the following remedies: (i) take
any and all action reasonably necessary to cure Landlord's default; or (ii) if
Tenant either (a) obtains a written decision from an arbitration tribunal in an
arbitration proceeding providing for a monetary remedy (in whole or in part), or
(b) obtains a monetary judgment against Landlord, then Tenant may offset the
amount of such judgment or decision against Minimum Annual Rent and Annual
Rental Adjustment or other payments thereafter coming due from Tenant to
Landlord pursuant to this Lease, in an amount not to exceed fifty percent (50%)
of any Minimum Annual Rent and Annual Rental Adjustments until such time as
Tenant must offset against 100% of the remaining Minimum Annual Rent and Annual
Rental Adjustment to recoup the amount of such judgment or decision.
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(c) If and only if, as a result of a Landlord default in its obligations
hereunder, Tenant's use of a substantial portion of the Leased Premises for
normal business operations has been materially and adversely affected such that
Tenant cannot conduct business within the Leased Premises (or any material
portion thereof), Tenant may terminate this Lease; provided, however, Tenant may
not exercise this termination right until after the thirty (30) day cure period
provided to Landlord above has expired and Tenant has provided the holder of any
mortgage (of which Tenant has been provided written notice) written notice of
the Landlord default and afforded such holder an additional twenty (20) days
opportunity to cure Landlord's failure (or if such failure cannot reasonably be
cured within such twenty (20) day period, Tenant may not terminate if the holder
of such mortgage commences the cure within such twenty (20) day period and
diligently pursues the cure to completion.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building and the Land, the
rent and other income derived therefrom, casualty insurance proceeds or
condemnation awards not used for restoration and any proceeds of sale of the
Building or the Land, for the collection of such judgment; and Tenant further
agrees that no other assets of Landlord shall be subject to levy, execution or
other process for the satisfaction of Tenant's judgment. Landlord hereby
specifically acknowledges and agrees that Tenant may offset against Minimum
Annual Rent and Annual Rental Adjustment any unsatisfied judgment against
Landlord as provided in Section 13.03 above. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or any suit or action in connection with
enforcement or collection of amounts which become owing or payable under or on
account of insurance maintained by Landlord.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Intentionally omitted.
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ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL LAWS AND HAZARDOUS
SUBSTANCES
Section 15.01. Environmental Definitions.
A. "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
B. "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
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Section 15.02. Compliance.
Tenant, at its sole cost and expense, shall promptly comply with the
Environmental Laws including any notice from any source issued pursuant to the
Environmental Laws or issued by any insurance company which shall impose any
duty upon Tenant with respect to the use, occupancy, maintenance or alteration
of the Leased Premises whether such notice shall be served upon Landlord or
Tenant.
Landlord shall be obligated to deliver the Leased Premises to Tenant in
compliance with all Applicable Laws, including all Environmental Laws, and
Landlord shall be obligated, at Landlord's sole expense, to remedy any
violations of Applicable Laws in the Base Building Condition including, without
limitation, the Americans with Disabilities Act, that exist at the time the
Leased Premises are delivered to Tenant; provided, however, that Landlord shall
not be responsible for violations of Applicable Laws relating to the Improvement
Work except to the extent that such Improvement Work is not constructed in
accordance with the Plans and Specifications. Landlord shall comply with all
Environmental Laws with respect to the operation of the Building and the Land.
Landlord shall not cause or permit the use, generation, storage, release,
disposal in or about the Building, or any portion thereof, of any Hazardous
Substances. Landlord shall not permit the use of any Hazardous Substances,
including without limitation, asbestos, in the construction of any portion of
the Building.
Section 15.03. Restrictions on Tenant.
Tenant shall operate its business and maintain the Leased Premises in compliance
with all Environmental Laws. Tenant shall not cause the use, generation,
release, manufacture, refining, production, processing, storage or disposal of
any Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as necessary and appropriate for its Permitted Use in which case the use,
storage or disposal of such Hazardous Substances shall be performed in
compliance with the Environmental Laws and the highest standards prevailing in
the industry.
Section 15.04. Notices, Affidavits, Etc.
Tenant and Landlord shall each immediately notify the other of (i) any violation
of the Environmental Laws on, under or about the Leased Premises, the Land or
the Building, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises, the Land or the Building and
shall immediately deliver to the other any notice received by such party
relating to (i) and (ii) above from any source. Tenant and Landlord shall
execute affidavits, representations and the like within five (5) days of the
other party's request therefor concerning such party's best knowledge and belief
regarding the presence of any Hazardous Substances on, under or about the Leased
Premises, the Land or the Building.
Section 15.05. Landlord's Rights.
Landlord and its agents shall have the right, but not the duty, upon advance
notice (except in the case of emergency when no notice shall be required) to
inspect the Leased Premises and conduct tests thereon to determine whether or
the extent to which there has been a violation of Environmental Laws by Tenant
or whether there are Hazardous Substances on, under or about the Leased
Premises. In exercising its rights herein, Landlord shall use reasonable efforts
to minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord shall not be
liable for any interference, loss, or damage to Tenant's property or business
caused thereby.
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Section 15.06. Indemnification.
Tenant shall indemnify Landlord and Landlord's managing agent from any and all
claims, losses, liabilities, costs, expenses and damages, including reasonable
attorneys' fees, costs of testing and remediation costs, incurred by Landlord in
connection with any breach by Tenant of its obligations under this Article 15.
Landlord shall indemnify Tenant from any and all claims, losses, liabilities,
costs, expenses and damages, including reasonable attorneys' fees, costs of
testing and remediation costs, incurred by Tenant in connection with Landlord's
violation of Environmental Laws. The covenants and obligations under this
Article 15 shall survive the expiration or earlier termination of this Lease.
Section 15.07. Existing Conditions.
Notwithstanding anything contained in this Article 15 to the contrary, Tenant
shall not have any liability to Landlord under this Article 15 resulting from
any conditions existing, or events occurring, or any Hazardous Substances
existing or generated, at, in, on, under or in connection with the Leased
Premises, the Land or the Building prior to the Commencement Date of this Lease,
except to the extent Tenant exacerbates the same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant.
This Lease shall inure to the benefit of and be binding upon Landlord and Tenant
and their respective successors and assigns.
Section 16.02. Governing Law.
This Lease shall be governed in accordance with the laws of the State where the
Building is located.
Section 16.03. Secure Areas. Landlord acknowledges and agrees that the Premises
shall from time to time include files, materials, information, documents, work
product and similar items which are proprietary to Tenant and are strictly
confidential (collectively, the "CONFIDENTIAL INFORMATION"). Landlord covenants
and agrees that it shall take all reasonable steps to ensure that the
Confidential Information is not disclosed, transferred, utilized, reproduced,
disseminated to or discussed with any person by Landlord, its employees,
invitees, independent contractors or any other representatives of Landlord, and
Landlord shall take all steps necessary to prevent any employee, invitee,
independent contractor or other representative of Landlord from violating the
terms of this Section 16.03. Landlord acknowledges that disclosure of the
Confidential Information would result in irreparable injury to Tenant and by
reason thereof, Landlord consents and agrees that Tenant shall be entitled to an
injunction to be issued by any court of competent jurisdiction restraining
Landlord and anyone covered by this Section 16.03 from committing or continuing
such violation. The obligation of Landlord to maintain confidentiality shall
survive the termination of this Lease. Further, Tenant shall have the right to
designate certain areas of the Leased Premises as "Secured Areas" which Landlord
shall not have access to, except in the event of an emergency. In that regard,
Landlord hereby agrees that in the event Landlord deems it necessary to enter
such Secured Areas due to an emergency, any documents, information or other
items contained in such Secured Areas shall be deemed to be Confidential
Information.
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Section 16.04. Force Majeure.
Landlord and Tenant (except with respect to the payment of any monetary
obligation) shall be excused for the period of any delay in the performance of
any obligation hereunder when such delay is occasioned by causes beyond its
control, including but not limited to work stoppages, boycotts, slowdowns or
strikes; shortages of materials, equipment, labor or energy; unusual weather
conditions; or acts or omissions of governmental or political bodies.
Notwithstanding anything in this Lease to the contrary, any Force Majeure claim
shall only be effective if written notice is provided by the party claiming the
Force Majeure event to the other within two (2) business days after discovery of
the event triggering the Force Majeure claim and any Force Majeure event shall
only be grounds for a delay directly and reasonably attributable to such Force
Majeure event.
Section 16.05. Examination of Lease.
Submission of this instrument for examination or signature to Tenant does not
constitute a reservation of or option for Lease, and it is not effective as a
Lease or otherwise until execution by and delivery to both Landlord and Tenant.
Section 16.06. Indemnification for Leasing Commissions.
The parties hereby represent and warrant that the only real estate brokers
involved in the negotiation and execution of this Lease are the Brokers. Each
party shall indemnify the other from any and all liability for the breach of
this representation and warranty on its part and shall pay any compensation to
any other broker or person who may be entitled thereto. The parties acknowledge
that certain officers, directors, shareholders, or partners of Landlord or its
general partner(s), are licensed real estate brokers and/or salesmen under the
laws of the State of Florida. Tenant consents to such parties acting in such
dual capacities. Landlord hereby agrees to pay Brokers their respective leasing
commissions pursuant to a separate agreement between each Broker and Landlord.
Section 16.07. Notices.
Any notice required or permitted to be given under this Lease or by law shall be
deemed to have been given if it is written and delivered in person or by
overnight courier or mailed by certified mail, postage prepaid, to the party who
is to receive such notice at the address specified in Article 1. If sent by
overnight courier, the notice shall be deemed to have been given one (1)
business day after sending. If mailed, the notice shall be deemed to have been
given on the date which is three (3) business days following mailing. Either
party may change its address by giving written notice thereof to the other
party.
Section 16.08. Partial Invalidity; Complete Agreement.
If any provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions shall remain in full force and effect.
This Lease represents the entire agreement between Landlord and Tenant covering
everything agreed upon or understood in this transaction. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
between the parties. No change or addition shall be made to this Lease except by
a written agreement executed by Landlord and Tenant.
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Section 16.09. Special Stipulations.
Attached hereto as Exhibit E are Special Stipulations which are incorporated
herein by this reference. In the event of any inconsistency or conflict between
the Special Stipulations and the provisions of the body of this Lease, the
Special Stipulations shall control.
Section 16.10. Signage.
Tenant shall have the right to install Tenant's signage on two (2) of the
exterior elevations (as selected by Tenant) of the Building (which may be
illuminated). Landlord shall not permit any other Building signage; provided,
however, in the event that Tenant fails to occupy at least 80,000 square feet of
Rentable Area in the Building, Landlord shall be permitted to install signage on
the two (2) remaining exterior elevations of the Building for any single tenant
occupying at least the square feet of Rentable Area then occupied by Tenant in
the Building. In addition to the foregoing, Landlord shall provide Tenant with
internal directory signage and Tenant's prorata share of and top location on any
multi-tenant exterior monument signage constructed by Landlord. No internal
Building or tenant signage shall otherwise be permitted. Such Building signage
and monument panel shall be at Tenant's expense. Landlord shall provide a
Building directory reasonably satisfactory to Tenant. Tenant shall place no
other exterior signs on the Leased Premises without the prior written consent of
Landlord. Any signs not in conformity with the Lease may be immediately removed
by Landlord.
Section 16.11. Consent.
Except as may be expressly provided herein, where the consent of a party is
required, such consent will not be unreasonably withheld, conditioned or
delayed.
Section 16.12. Parking.
Tenant shall be entitled to use on a non-exclusive basis parking spaces in the
Project based on a ratio of 5.7 parking spaces per thousand square feet of
Leased Premises for the first 150,000 square feet of Rentable Area, based on a
ratio of 5.0 parking spaces per thousand square feet for the next 40,000 square
feet of additional Rentable Area and based on a ratio of 4.0 parking spaces per
thousand square feet for any additional Rentable Area thereafter, and shall
otherwise park in common with other tenants of Landlord. Included in the parking
ratios, Landlord shall provide to Tenant ten (10) marked visitor parking spaces
(in close proximity to the Building) for exclusive use by Tenant's visitors and
guests. Subject to the immediately preceding sentence, Tenant agrees not to
overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in the use of parking facilities. Landlord reserves the right in
its absolute discretion to determine whether parking facilities are becoming
crowded and, in such event, to allocate parking spaces among Tenant and other
tenants. In addition to the visitors spaces, but included within the parking
ratio, for every thousand square feet of Leased Premises, Landlord shall
designate one (1) reserved parking space for Tenant's exclusive use at a
location reasonably determined by Landlord. Subject to the foregoing, there will
be no assigned parking unless Landlord, in its sole discretion, may deem
advisable. No vehicle may be repaired or serviced in the parking area and any
vehicle deemed abandoned by Landlord will be towed from the project and all
costs therein shall be borne by the Tenant. All driveways, ingress and egress,
and all parking spaces are for the joint use of all tenants. There shall be no
parking permitted on any of the streets or roadways located within the Park.
Section 16.13. Time.
Time is of the essence of each term and provision of this Lease.
30
33
Section 16.14. Representations and Warranties.
The undersigned represent and warrant that (i) such party is duly organized,
validly existing and in good standing (if applicable) in accordance with the
laws of the state under which it was organized; (ii) the Tenant is authorized to
do business in the State where the Building is located; and (iii) the individual
executing and delivering this Lease has been properly authorized to do so, and
such execution and delivery shall bind such party.
Section 16.15. Radon Gas.
Radon Gas 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.
Section 16.16. Compliance With Laws.
Landlord, at Landlord's sole cost and expense, shall ensure that as of the
Commencement Date, the Building and the Leased Premises are in compliance with
all Applicable Laws governing the Leased Premises (provided, however, that
Landlord shall not be responsible for violations of Applicable Laws relating to
the Improvement Work except to the extent that such Improvement Work is not
constructed in accordance with the Plans and Specifications), including but not
limited to, the Americans With Disabilities Act, excepting only that Tenant
shall be responsible during the term of this Agreement for such costs and
expenses as may be required as a direct result of Tenant's particular use of the
Leased Premises or Tenant's alterations to the Leased Premises.
Section 16.17 Complete Agreement. There are no oral agreements between Landlord
and Tenant affecting this Lease, and this Lease supercedes and cancels any and
all previous negotiations, arrangements, agreements and understandings, if any,
between Landlord and Tenant with respect to the subject matter of this Lease or
the Building.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
Signed and delivered LANDLORD:
as to Landlord, in the
presence of: DUKE-WEEKS REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership
---------------------------
Unofficial Witness By: Duke-Weeks Realty Corporation,
its General Partner
---------------------------
Unofficial Witness By:
---------------------------
Name:
-------------------------
Title:
-------------------------
34
Signed and delivered TENANT:
as to Tenant, in the
presence of:
AMERICAN CLASSIC VOYAGES CO.
---------------------------
Unofficial Witness By:
---------------------------
--------------------------- Name:
Unofficial Witness -------------------------
Title:
-------------------------
35
EXHIBIT A
LEGAL DESCRIPTION OF LAND
36
EXHIBIT B
CONSTRUCTION AGREEMENT
37
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
Re: Office Lease dated November ___, 2000, by and between Duke-Weeks
Realty Limited Partnership, as Landlord, and American Classic Voyages
Co., as Tenant (the "Lease")
Pursuant to Article 1 of the captioned Lease, the undersigned agree as
follows:
1. The Commencement Date of the Lease is _______________________________,
200__.
2. The expiration date of the Lease is the ____ day of ___________________,
_____, unless sooner terminated pursuant to the
Lease or unless extended pursuant to the Lease.
3. The number of square feet of Rentable Area within the Leased Premises is
_____________.
4. The number of square feet of Rentable Area within the Building is
___________________.
5. Tenant's Proportionate Share of the Building is _______________.
6. The Building address is _______________________________________________.
This ____ day of _________________________, 200__.
Signed and delivered LANDLORD:
as to Landlord, in the
presence of: DUKE-WEEKS REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership
---------------------------
Unofficial Witness By: Duke-Weeks Realty Corporation,
its General Partner
---------------------------
Unofficial Witness By:
--------------------------
Name:
------------------------
Title:
------------------------
Signed and delivered TENANT:
as to Tenant, in the
presence of:
AMERICAN CLASSIC VOYAGES CO.
---------------------------
Unofficial Witness By:
---------------------------
___________________________ Name:
Unofficial Witness -------------------------
Title:
-------------------------
38
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Leased Premises
other than Landlord standard blinds without Landlord's prior written approval,
which approval shall not be unreasonably withheld, delayed or conditioned. All
electric ceiling fixtures hung in offices or spaces along the perimeter of the
Building must be fluorescent, of a quality, type, design and bulb color
reasonably approved by Landlord. Neither the interior nor the exterior of any
exterior windows shall be coated or otherwise sunscreened without written
consent of Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited, painted
or affixed by any tenant on, about or from any part of the Leased Premises or
the Building without the prior written consent of Landlord. In the event of the
violation of the foregoing by any tenant, Landlord may remove or stop same
without any liability, and may charge the expense incurred in such removal or
stopping to tenant. Standard interior signs on doors and lobby directory shall
be inscribed, painted or affixed for each tenant by Landlord, and shall be of a
size, color and style reasonably acceptable to Landlord. The lobby directory
will be provided exclusively for the display of the name and location of tenants
only, and Landlord reserves the right to exclude any other names therefrom.
Nothing may be placed on the exterior of corridor walls or corridor doors other
than Landlord's standard lettering except as otherwise provided in the Lease.
4. The sinks and toilets and other plumbing fixtures shall not be used for
any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. Subject to Section
8.02 of the Lease, all damages resulting from any misuse of the fixtures shall
be borne by the tenant who, or whose subtenants, assignees or any of their
servants, employees, agents, visitors or licensees shall have caused the same.
5. Tenant shall not cover or obstruct the windows or glass that is exposed
to the common corridors or lobby area of the Building.
6. Except as otherwise permitted by the Lease, Tenant shall not xxxx,
paint, drill into, or in any way deface any part of the Leased Premises or the
Building. Except as otherwise permitted by the Lease, no boring, cutting or
stringing of wires or laying of linoleum or other similar floor coverings shall
be permitted, except with the prior written consent of the Landlord and as the
Landlord may direct, which consent shall not be unreasonably withheld, delayed
or conditioned. Landlord shall direct electricians as to where and how telephone
or telegraph wires are to be introduced. The location of telephones, call boxes
and other office equipment affixed to the Leased Premises shall be subject to
the reasonable approval of Landlord.
7. No bicycles, vehicles, birds or animals of any kind (except seeing eye
dogs) shall be brought into or kept in or about the Leased Premises. Tenant
shall not cause any objectionable odors to be produced from and permeate the
Leased Premises.
39
8. The Leased Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Leased Premises. No tenant shall occupy or permit any portion of the
Leased Premises to be occupied as an office for the manufacture or sale of
liquor, narcotics, or tobacco in any form, or as a medical office, or as a
xxxxxx or manicure shop, or an employment bureau without the express written
consent of Landlord. The Leased Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
9. No tenant shall unreasonably disturb or interfere with occupants of the
Building or those having business with them, whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way. No tenant
shall throw anything out of doors, windows or down the passageways.
10. No tenant, subtenant or assignee nor any of its servants, employees,
agents, visitors or licensees, shall at any time bring or keep upon the Leased
Premises any inflammable, combustible or explosive fluid, chemical or substance
or firearm, except such cleaning materials or other materials customarily
utilized in first class office buildings.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. Each tenant must upon the termination of his
tenancy, restore to the Landlord all keys of doors, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same. Tenant may maintain certain secure areas so long as Landlord
has access to such secure areas in the event of an emergency.
12. Tenant shall not overload the floors of the Leased Premises. Subject to
Section 8.02 of the Lease, all damage to the floor, structure or foundation of
the Building due to improper positioning or storage items or materials shall be
repaired by Landlord at the sole cost and expense of Tenant, who shall reimburse
Landlord immediately therefor upon demand. All removals or the carrying in or
out of any safes, freight, furniture, or bulky matter of any description must
take place during the hours which Landlord shall reasonably determine from time
to time. The moving of safes or other fixtures or bulky matter of any kind must
be done upon previous notice to the superintendent of the Building and under his
supervision, and the persons employed by any tenant for such work must be
reasonably acceptable to Landlord. Landlord reserves the right to inspect all
safes, freight or other bulky articles to be brought into the Building and to
exclude from the Building all safes, freight or other bulky articles which
violate any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part. The Landlord reserves the right to prescribe the weight
and position of all safes, which must be placed upon supports approved by
Landlord to distribute the weight.
13. No tenant shall purchase janitorial or maintenance or other like
services, from any person or persons not approved by Landlord, which approval
shall not be unreasonably withheld, delayed or conditioned.
14. Landlord reserves the right to require all persons entering the
Building between the hours of 6 p.m. and 8 a.m. and at all hours on Sunday and
legal holidays to register with Landlord's security personnel. Each tenant shall
be responsible for all persons entering the Building at tenant's invitation,
express or implied. Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of any
person. In case of an invasion, mob riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right without any abatement of rent to require all persons to
vacate the Building and to prevent access to the Building
40
during the continuance of the same for the safety of the tenants and the
protection of the Building and the property in the Building.
15. Any persons employed by any tenant to do janitorial work or other work
in the Leased Premises shall, while in the Building and outside of the Leased
Premises, be subject to and under the control and direction of the
superintendent of the Building (but not as an agent or servant of said
superintendent or of the Landlord), and tenant shall be responsible for all acts
of such persons.
16. In the event Tenant has any questions or requests in regard to the
Leased Premises, such questions or requests shall be initially directed to the
Property Manager for the Building.
17. Canvassing, soliciting and peddling in the Building are prohibited, and
each tenant shall cooperate to prevent the same.
18. All office equipment of any electrical or mechanical nature shall be
placed by tenant in the Leased Premises in settings which will absorb or prevent
any unreasonable vibration, noise and annoyance.
19. No air-conditioning unit or other similar apparatus shall be installed
or used by any tenant without the written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned.
20. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
21. The scheduling of tenant move-ins shall be subject to the reasonable
discretion of Landlord.
22. The Building is a smoke-free Building. Smoking is strictly prohibited
within the Building. Smoking shall only be allowed in areas designated as a
smoking area by Landlord. Tenant and its employees, representatives, contractors
or invitees shall not smoke within the Building or throw cigar or cigarette
butts or other substances or litter of any kind in or about the Building, except
in receptacles placed in it for that purpose.
23. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord.
24. Tenant shall be responsible for and cause the proper disposal of
medical waste, if any, including hypodermic needles, created by its employees.
It is Landlord's desire to maintain in the Building the highest standard of
dignity and good taste consistent with comfort and convenience for tenants. Any
action or condition not meeting this high standard should be reported directly
to Landlord. The Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
necessary for the safety, care and cleanliness of the Building, and for the
preservation of good order therein.
41
EXHIBIT E
SPECIAL STIPULATIONS
1 . Expansion Options. Tenant shall have the option to expand the Leased
Premises into the space and pursuant to the time schedules described as follows:
1.1 Fifth Year Expansion Option. Provided that, at the time of the exercise
of this option, this Lease is in effect and no event of Default beyond any
applicable cure period then exists, Tenant shall have the option to expand the
Leased Premises by up to 20,000 square feet of Rentable Area (as determined by
Tenant) (hereinafter the "FIFTH YEAR EXPANSION SPACE"). Tenant shall exercise
this option, if at all, by written notice to Landlord on or before the
forty-second (42nd) month anniversary of the Commencement Date. The Fifth Year
Expansion Space shall be either internally contiguous or contiguous with other
space leased by Tenant and on contiguous floors and shall have a configuration
that is commercially usable and which shall have an approximately proportionate
share of the exterior window walls on the applicable floor of the Building. The
lease of the Fifth Year Expansion Space shall commence, at Landlord's option, at
any time between the sixtieth (60th) and the sixty sixth (66th) month of the
Lease Term, upon the same terms and conditions contained in the Lease except the
Minimum Annual Rent for the Fifth Year Expansion Space shall be the Market Rate
(as hereafter defined) and provided that the Minimum Annual Rent and Annual
Rental Adjustment shall commence on the earlier to occur of (i) ninety (90) days
following the date that Landlord delivers the Fifth Year Expansion Space to
Tenant for commencement of construction of tenant improvements therein, or (ii)
the date that Tenant occupies such Fifth Year Expansion Space for business
purposes. All tenant improvements in all portions of the Fifth Year Expansion
Space which have been previously improved for another tenant shall be delivered
to and accepted by Tenant in an "as is" condition.
1.2 Seventh Year Expansion Option. Provided that Tenant has not exercised
the option for the Fifth Year Expansion Space and, at the time of the exercise
of this option, this Lease is in effect and no event of Default beyond any
applicable cure period then exists, Tenant shall have the option to expand the
Leased Premises by up to 20,000 square feet of Rentable Area (as determined by
Tenant) (hereinafter the "SEVENTH YEAR EXPANSION Space"). Tenant shall exercise
this option, if at all, by written notice to Landlord on or before the
sixty-sixth (66th) month anniversary of the Commencement Date. The Seventh Year
Expansion Space shall be either internally contiguous or contiguous with other
space leased by Tenant and on contiguous floors and shall have a configuration
that is commercially usable and which shall have an approximately proportionate
share of the exterior window walls on the applicable floor of the building. The
lease of the Seventh Year Expansion Space shall commence, at Landlord's option,
at any time between the eighty-fourth (84th) and ninetieth (90th) month of the
Lease Term, upon the same terms and conditions contained in the Lease except the
Minimum Annual Rent for the Seventh Year Expansion Space shall be the Market
Rate (as hereafter defined) and provided that the Minimum Annual Rent and Annual
Rental Adjustment shall commence on the earlier to occur of (i) ninety (90) days
following the date that Landlord delivers the Seventh Year Expansion Space to
Tenant for commencement of construction of tenant improvements therein, or (ii)
the date that Tenant occupies such Seventh Year Expansion Space for business
purposes. All tenant improvements in all portions of the Seventh Year Expansion
Space which have been previously improved for another tenant shall be delivered
to and accepted by Tenant in an "as is" condition.
1.3 Tenth Year Expansion Option. Provided that, at the time of the exercise
of this option, this Lease is in effect and no event of Default beyond any
applicable cure period then exists, Tenant shall
42
have the option to expand the Leased Premises by up to 20,000 square feet of
Rentable Area (as determined by Tenant) (hereinafter the "TENTH YEAR EXPANSION
SPACE"). Tenant shall exercise this option, if at all, by written notice to
Landlord on or before the one hundred second (102nd) month anniversary of the
Commencement Date. The Tenth Year Expansion Space shall be either internally
contiguous or contiguous with other space leased by Tenant and on contiguous
floors and shall have a configuration that is commercially usable and which
shall have an approximately proportionate share of the exterior window walls on
the applicable floor of the building. The lease of the Tenth Year Expansion
Space shall commence, at Landlord's option, at any time between the one hundred
twentieth (120th) and the one hundred twenty sixth (126th) month of the Lease
Term, upon the same terms and conditions contained in the Lease except the
Minimum Annual Rent for the Tenth Year Expansion Space shall be the Market Rate
(as hereafter defined) and provided that the Minimum Annual Rent and Annual
Rental Adjustment shall commence on the earlier to occur of (i) ninety (90) days
following the date that Landlord delivers the Tenth Year Expansion Space to
Tenant for commencement of construction of tenant improvements therein, or (ii)
the date that Tenant occupies such Tenth Year Expansion Space for business
purposes. All tenant improvements in all portions of the Tenth Year Expansion
Space which have been previously improved for another tenant shall be delivered
to and accepted by Tenant in an "as is" condition.
1.4 Result of Exercise. The Fifth Year Expansion Space, the Seventh Year
Expansion Space and the Tenth Year Expansion Space are sometimes severally and
collectively referred to in this Lease as the "Expansion Space". Any Expansion
Space as to which Tenant has properly exercised its option in accordance with
this Section 1 shall be leased by Tenant from Landlord for the balance of the
Lease Term on the terms and conditions of this Lease then, and from time to time
thereafter, in effect except as specifically set forth above. Tenant shall not
have the right to exercise any expansion option for less than 5,000 square feet
of Rentable Area. Landlord shall provide Tenant not less than six (6) month's
written notice of the date that the applicable Expansion Space will be delivered
to Tenant for commencement of construction of tenant improvements therein. Upon
Tenant's exercise of its expansion option, Landlord and Tenant shall enter into
an amendment to this Lease for the applicable expansion option space to reflect
the addition of such expansion space to the Leased Premises. All tenant
improvements in all portions of the Expansion Space which have been previously
improved for another tenant shall be delivered to and accepted by Tenant in an
"as is" condition. With respect to any other portions of Expansion Space which
have not been previously improved for any other tenant (i) Landlord shall be
responsible for the Base Building Work (as defined in Exhibit B) thereto and
(ii) Landlord will complete such Base Building Work prior to the date that such
Expansion Space is made available to Tenant for the commencement of the
Improvement Work.
1.5 Market Rate. Market Rate, as used herein, shall mean the then (as of
the date of such determination) fair market rental value of the Leased Premises
or applicable Expansion Space, as the case may be, determined in accordance with
the provisions set forth below. Following Tenant's exercise of an expansion
option or the renewal option, Landlord and Tenant shall have thirty (30) days
thereafter to agree upon the Market Rate to be paid by Tenant to Landlord for
the Leased Premises or the applicable Expansion Space, as the case may be, it
being intended that the rental for the Leased Premises or such Expansion Space
shall be equal to one hundred percent (100%) of what a willing, comparable new
non-equity tenant would pay and receive and what a willing, comparable landlord
of a comparable Class A office building in the Sunrise/Sawgrass market area
would give at arms length, as rent, concessions, tenant improvement allowances,
other allowances, brokerage commissions, inducements and other economic
considerations for the lease of space comparable to the Leased Premises or the
Expansion Space, as the case may be, for which the Market Rate is being
determined, taking into account all relevant factors applicable to the lease of
such space for the duration of the Lease Term or the applicable
43
renewal term, including without limitation, age and quality of the Building,
size of space, length of term, creditworthiness of tenant, free rent, method of
paying operating expenses, tenant improvement allowances, rent concessions and
rental escalations and, with respect to an extension of the Lease Term, also
taking into account that Landlord would not incur any "down-time" or marketing
expense in connection with Tenant's extension of this Lease. In the event
Landlord and Tenant are unable to agree on the Market Rate within such thirty
(30) day period, each of Landlord and Tenant shall designate an appraiser
holding the M.A.I. designation who has a minimum of ten (10) years experience in
appraising similar properties in the submarket in which the Leased Premises is
located. Each such appraiser shall determine the Market Rate of the Leased
Premises or the applicable Expansion Space, as the case may be, based upon an
analysis of similar buildings in the area in which the Leased Premises is
located and considering all other factors provided above. In the event each
appraiser identifies a Market Rate which is within five percent (5%) of the
other appraiser's Market Rate, it shall be conclusively determined that the
Market Rate of the Leased Premises shall be equal to the average of the two (2)
amounts. In the event the two (2) appraisers' figures for Market Rate differ by
more than five percent (5%), the two (2) appraisers shall jointly choose a third
appraiser holding the same qualifications, which appraiser shall make a
determination as to the Market Rate; in such event it shall be conclusively
determined that the Market Rate shall be equal to the average of such third
appraiser's Market Rate and the next closest Market Rate as determined by the
first two (2) appraisers.
2. Option to Extend. Provided that, at the time of the exercise of this
option, this Lease is in effect and no event of Default beyond any applicable
cure period then exists, Tenant shall have the option to extend the Lease Term
for two (2) successive periods of five (5) years each (each an "EXTENSION
TERM"). Tenant shall exercise such option by delivering to Landlord, no later
than twelve (12) months prior to the expiration of the initial term or the first
Extension Term, as the case may be, written notice of Tenant's desire to extend
the term of the Lease with respect to all or a portion (but not less than 94,998
square feet of Rentable Area) of the then existing Leased Premises. Such
Extension Term shall apply to Rentable Area which is internally contiguous or
contiguous with other space leased by Tenant and on contiguous floors and shall
have a configuration such that the portion of the Leased Premises that is
surrendered is commercially usable. Tenant must indicate in the notice delivered
to Landlord that Tenant exercises its option with respect to less than all of
the Leased Premises and shall specify in such notice the particular portions of
the Leased Premises which will be excluded from the Leased Premises during the
applicable Extension Term. Unless Landlord otherwise agrees in writing, Tenant's
failure to timely exercise such option shall waive it. If Tenant properly
exercises its option to extend, Landlord and Tenant shall execute an amendment
to the Lease reflecting the terms and conditions of the Extension Term. Each
Extension Term shall be upon the same terms and conditions contained in the
Lease except the Minimum Annual Rent for each Extension Term shall be at the
Market Rate.
3. Right of First Offer. Provided that, at the time of the exercise of this
option, this Lease is in effect, no event of Default beyond any applicable cure
period then exists, Landlord shall have an ongoing obligation to notify Tenant
in writing, after the initial lease-up of any space, ("LANDLORD'S NOTICE") of
the availability of such space located within the Building on any floor
contiguous to Tenant's floor(s) (the "OFFER SPACE") before marketing such Offer
Space. Tenant shall have seven (7) business days from its receipt of Landlord's
Notice to deliver to Landlord a written acceptance agreeing to lease the Offer
Space on the terms and conditions contained herein except that the Minimum
Annual Rent shall be, at Tenant's sole discretion, either:
a. At the Market Rate; or
44
b. At the same rate that Tenant is then paying for the original Leased
Premises with an Improvement Allowance equal to the product of $27.00 per square
foot of Rentable Area multiplied by a fraction, the numerator being the number
of months remaining in the Lease Term and the denominator being 180.
In the event Tenant accepts the Offer Space on the terms and conditions
specified in the Landlord's Notice, the term for the Offer Space shall be
coterminous with the term for the original Leased Premises; provided, however,
that the minimum term for the Offer Space shall be five (5) years and the Term
for the original Leased Premises shall be extended, to be coterminous with the
term for the Offer Space. The Minimum Annual Rent for the original Leased
Premises during such extended term shall be an amount equal to the Minimum
Annual Rent then being paid by Tenant on the original Leased Premises increased
by 3.0% for each year of extension of the Original Lease Term. The Commencement
Date of the Offer Space and the payment of Minimum Annual Rent and Annual Rental
Adjustment shall be the earlier of (i) the date Tenant occupies the Offer Space
for business purposes, or (ii) ninety (90) days following Landlord delivery of
possession of the Offer Space to Tenant.
In the event Tenant fails to notify Landlord of its acceptance within said seven
(7) business day period, such failure shall be conclusively deemed a waiver of
Tenant's Right of First Offer with respect to such Offer Space, whereupon Tenant
shall have no further rights with respect to the Offer Space (except as provided
in Section 4 below) and Landlord shall be free to lease the Offer Space to a
third party; provided, however, (i) if the Offer Space is not subsequently
leased to another tenant within one hundred eighty (180) days after the
expiration of such seven (7) business day period, Tenant's right of first offer
with respect to the Offer Space shall be reinstated and (ii) if the Offer Space
is leased to a third party within such one hundred eighty (180) day period,
Tenant's right of first offer shall be reinstated with respect to such Offer
Space only upon expiration of the term of such lease and any extensions thereof.
4. Right of First Refusal. Provided that, at the time of the exercise of this
option, this Lease is in effect and no event of Default beyond any applicable
cure period then exists, Tenant shall have a right of first refusal (the
"REFUSAL OPTION") to lease any of the additional space in the Building (the
"REFUSAL SPACE"). The Refusal Space shall be offered to Tenant upon the terms
and conditions and at the rental rate then being offered by a specific third
party prospective tenant for such space which terms, conditions and rental rate
that Landlord is willing to accept. Upon notification in writing by Landlord
that the Refusal Space is available, Tenant shall have seven (7) business days
in which to notify Landlord in writing of its election to lease the Refusal
Space at such rental rates and at such square footage described above, in which
event this Lease shall be amended to incorporate such Refusal Space. If Tenant
declines its Refusal Option, then this Refusal Option with respect to the
applicable Refusal Space shall terminate and Landlord may lease the Refusal
Space to the prospective third party on the terms offered to Tenant; provided,
however, (i) if the Refusal Space is not subsequently leased to another tenant
within one hundred twenty (120) days after the expiration of such seven (7)
business day period, Tenant's right of first refusal with respect to the Refusal
Space shall be reinstated and (ii) if the Refusal Space is leased to a third
party within such one hundred twenty (120) day period, Tenant's right of first
refusal shall be reinstated with respect to such Refusal Space only upon
expiration of the term of such lease and any extensions thereof and the receipt
by Landlord of a subsequent third party offer for such space. It is understood
and agreed that this Refusal Option shall not be construed to prevent any tenant
in the Building from extending or renewing its lease.
5. Sundry Shop. Landlord covenants and agrees that so long as Tenant is
occupying the Leased Premises, Landlord shall use commercially reasonable
efforts to cause to be provided in the Building a sundry shop that operates
during business hours Monday through Friday.
45
6. Generator. Landlord hereby grants to Tenant the right, at its sole cost and
expense, to erect, install and maintain a generator serving the Leased Premises,
subject to the following terms and conditions:
a. The location, design, construction, size, capacity and all other aspects
of such generator shall be subject to Landlord's prior approval, which approval
shall not be unreasonably withheld, delayed or conditioned.
b. Tenant shall shield or screen the generator from public view. In the
event the generator is located in the parking facility, any parking space(s)
taken by the generator shall be counted towards the total number of parking
spaces allocated to Tenant under this Lease.
c. The expense of installing, constructing, maintaining and removing the
generator shall be at the sole cost and expense of Tenant and shall be paid
directly by Tenant. Tenant shall be responsible for all costs and expenses
associated with such generator and Tenant shall promptly repair any damage to
the Building or the Land resulting from the installation, construction,
maintenance or removal of such generator. Upon the termination or expiration of
the Lease, Tenant shall promptly remove the generator at its sole cost and
expense. Tenant shall restore any portion of the Building or Land affected by
the generator to substantially the same condition existing prior to the
installation of the generator, normal wear and tear excepted.
7. Antennae Equipment. Landlord hereby grants to Tenant the right to install,
maintain and operate, free of charge, satellite dishes, communication equipment
and related equipment (each dish not to exceed six (6) feet in diameter)(the
"EQUIPMENT") on the roof of the Building (Tenant being entitled to use its pro
rata share of the portion of the roof top allocated to communication equipment)
subject to the following terms and conditions:
a. The location of the Equipment shall be approved by Landlord prior to
Tenant's installation of the Equipment. Tenant shall deliver to Landlord
Tenant's plans and specifications for the installation of the Equipment and the
surrounding screening for review and approval by Landlord's engineer not less
than thirty (30) days prior to commencing installation of the Equipment.
Landlord's approvals hereunder shall not be unreasonably withheld, delayed or
conditioned.
b. Tenant shall install the Equipment in an aesthetically neutral or
pleasing manner and shall exercise all reasonable steps to shield or screen the
Equipment from public view. Tenant shall fence or screen the Equipment so as to
minimize any risks to ensure that the Equipment does not create a nuisance.
c. Tenant shall operate the Equipment in compliance with all Applicable
Laws.
d. Upon expiration or earlier termination of this Lease, Tenant shall
promptly remove the Equipment and repair all damage to the Building caused
thereby.
e. Landlord shall cause any equipment installed by Landlord or other
tenants of the Building not to hinder or unreasonably interfere with the
operation of Tenant's Equipment.
f. Tenant shall have the right, subject to the reasonable supervision of
the Building engineer, to use the Building risers to install cabling to connect
the Equipment to the Leased Premises.
46
8. Partial Termination. Notwithstanding anything to the contrary contained in
this Lease, Tenant shall have the option to reduce the size of the Leased
Premises by up to one (1) full floor (the "TERMINATION OPTION"), provided that
the result of such reduction shall be that all remaining space shall be
internally contiguous or contiguous with other space leased by Tenant and on
contiguous floors. Such reduction shall be effective at the end of the tenth
(10th) lease year (the "TERMINATION DATE"), by Tenant providing Landlord with
written notice of such Termination Option election (the "TERMINATION NOTICE").
Such Termination Notice shall specify in such notice the particular portions of
the Leased Premises to be excluded from the Leased Premises (the "TERMINATION
PREMISES"). Such Termination Option shall be effective only if the Termination
Notice is given to Landlord at least twelve (12) months prior to the Termination
Date (the "TERMINATION NOTICE DEADLINE"); accordingly, if Tenant has not given
its Termination Notice to Landlord prior to the ninth (9th) anniversary of the
Commencement Date, this Termination Option shall expire and be of no further
force or effect. Landlord shall deliver to Tenant written confirmation of
Landlord's approval of the Termination Premises within thirty (30) days after
the date of the Termination Notice. In the event of the failure by Landlord to
so respond, Tenant's designation of the Termination Premises shall be deemed
approved. As a condition precedent to any reduction of the Leased Premises,
Tenant must deliver to Landlord on or before the thirty (30) days following
Landlord's approval (or deemed approval)(or at such later date as Landlord shall
specify in Landlord's approval notice) of the Termination Premises, a
termination fee equal to the unamortized portion (amortized at 11.5 percent per
annum) of the Improvement Allowance, leasing commissions paid by Landlord and
attributable to the Termination Premises and a sum equal to three (3) month's of
the then current monthly rental installments of Monthly Annual Rent attributable
to the Termination Premises.
47
EXHIBIT F
FORM OF TAX CERTIFICATION
Certification of Payment of Real Estate Taxes
This Certification is being issued by Duke-Weeks Realty Limited Partnership
("LANDLORD"), in order to certify to the State of Florida Office of Tourism,
Trade and Economic Development that American Classic Voyages Co. ("TENANT") has
paid $_______________ in real estate taxes for the period beginning ________ and
ending __________________ pursuant to Section 3.02 of the Office Lease between
Landlord and Tenant dated November ___, 2000, and that Landlord has in turn paid
these real estate taxes to the Broward County Tax Collector, pursuant to the
copy of the tax xxxx attached hereto as Schedule 1 and a copy of the cancelled
check to the Broward County Tax Collector indicating payment of such taxes
attached hereto as Schedule 2. Tenant's proportionate share of the real estate
taxes represents ____ % of the entire real estate taxes assessed on the attached
tax xxxx.
Landlord is issuing this certification to the Office of Tourism, Trade and
Economic Development in order to establish the payment of real estate taxes by
Tenant, so that Tenant will be eligible to offset such amounts of real estate
taxes paid by Tenant pursuant to the Qualified Targeted Industries tax credit,
as set out in Section 288.106(3)(c)2.d Florida Statutes.
This Certification is executed by the undersigned this ____ day of
_____________, ________.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
An Indiana limited partnership
By: Duke-Weeks Realty Corporation
Its General Partner
By: _____________________________
Name: _____________________________
Title: _____________________________
48
EXHIBIT G
JANITORIAL SPECIFICATIONS
CLEANING
A. Office Area
Daily: (Monday through Friday, inclusive, holidays excepted)
Empty and clean all waste receptacles and ashtrays and remove waste
material from the Premises, wash receptacles as necessary.
Sweep and dust, mop all uncarpeted areas using a dust-treated mop.
Vacuum all rugs and carpeted areas.
Hand dust and wipe with treated cloths all horizontal surfaces
including furniture, office equipment, windowsills, door ledges, chair
rails, and convector tops, within normal reach.
Wash clean all water fountains
Remove and dust under all desk equipment and telephones and replace
same.
Wipe clean all brass and other bright work.
Hand dust all grill work within normal reach.
Upon completion of cleaning, all lights will be turned off and doors
locked, leaving the Premises in an orderly condition.
Weekly:
Dust coat racks, and the like.
Remove all finger marks from private entrance doors, light switches
and doorways.
Quarterly:
Render high dusting not reached in daily cleaning to include:
Dusting all pictures, frames, charts, graphs, and similar wall
hangings.
Dusting all vertical surfaces, such as walls, partitions, doors, and
ducts.
Dusting of all pipes, ducts and high moldings.
Dusting of all venetian blinds.
B. Lavatories:
Daily: (Monday through Friday, inclusive, holidays excepted).
Sweep and damp mop floors.
Clean all mirrors, powder shelves, dispensers and receptacles, bright
work, flushometers, piping, and toilet seat hinges.
Wash both sides of all toilet seats.
Wash all basins, bowls and urinals.
Dust and clean all powder room fixtures.
Empty and clean paper towel and sanitary disposal receptacles.
Remove waste paper and refuse.
49
Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished by Landlord.
A sanitizing solution will be used in all lavatory cleaning.
Monthly:
Machine scrub lavatory floors. Wash all partitions and tile walls in
lavatories.
C. Main Lobby, Elevators, Building Exterior and Corridors:
Daily: (Monday through Friday, inclusive, holidays excepted)
Sweep and wash all floors.
Wash all rubber mats.
Clean elevators, wash or vacuum floors, wipe down walls and doors.
Spot clean any metal work inside lobby.
Spot clean any metal work surrounding Building Entrance doors.
Monthly:
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
D. Window Cleaning:
Window of exterior walls will be washed on the inside and the outside
twice per year.
E. Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
50
EXHIBIT H
INTENTIONALLY OMITTED
51
EXHIBIT I
FORM OF SNDA
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT made this ___ day of ________, 200___, among
________________________________, a national banking association chartered
pursuant to the laws of the United States of America (hereinafter referred to as
"LENDER"), DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
(hereinafter referred to as "Landlord") and AMERICAN CLASSIC VOYAGES CO., a
Delaware corporation (hereinafter referred to as "TENANT").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a certain Office Lease
(hereinafter referred to as the "Lease") dated November ___, 2000, relating to
the premises (hereinafter referred to as the "PREMISES") located or to be
located in Sawgrass Commerce Center, Sunrise Florida and constructed upon the
real property described in Exhibit "A" attached hereto and by this reference
made a part hereof (hereinafter referred to as the "PROJECT"); and
WHEREAS, Lender has made or has committed to make a loan to Landlord in the
principal amount of $_________ secured by a deed of trust, assignment and
security agreement (hereinafter referred to as the "SECURITY INSTRUMENT") which
contains an assignment of leases and rents from Landlord to Lender covering,
inter alia, the Premises; and
WHEREAS, Tenant has agreed that the Lease shall be subject and subordinate
to the Security Instrument held by Lender, provided Tenant is assured of
continued occupancy of the Premises under the terms of the Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the sum of Ten Dollars ($10.00) and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
and notwithstanding anything in the Lease to the contrary, it is hereby agreed
as follows:
1. Lender, Tenant and Landlord do hereby covenant and agree that the Lease,
with all rights, options, liens and charges created thereby, is and
shall continue to be subject and subordinate in all respects to the
Security Instrument and to any renewals, modifications,
consolidations, replacements and extensions thereof and to all
advancements made thereunder.
2. Lender does hereby agree with Tenant that, in the event Lender becomes
the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, so long as no uncured event of default exists
under the Lease following notice and the expiration of the applicable
cure period, (a) Lender will take no action which will interfere with or
disturb Tenant's possession or use of the Premises or other rights under
the Lease, and (b) the Premises shall be subject to the Lease and Lender
shall recognize Tenant as the tenant of the Premises for the remainder
of the term of the Lease in accordance with all the provisions thereof
(including, without limitation, assuming the obligation to fund the
Tenant Improvement Allowance), provided, however, that Lender shall not
be subject to any offsets
52
or defenses which Tenant might have against any prior landlord except
those which arose under the provisions of the Lease out of such
landlord's default and accrued after Tenant had notified Lender and
given Lender the opportunity to cure same as hereinbelow provided, nor
shall Lender be liable for any act or omission of any prior landlord
(but Lender shall be obligated to cure any Landlord default of a
continuing, on-going nature), nor shall Lender be bound by any rent or
additional rent which Tenant might have paid for more than the current
month to any prior landlord nor shall it be bound by any amendment or
modification of the Lease made without its consent.
3. Tenant does hereby agree with Lender that, in the event Lender becomes
the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize
Lender as the landlord under the Lease for the remainder of the term
thereof, and Tenant shall perform and observe its obligations
thereunder, subject only to the terms and conditions of the Lease.
Tenant further covenants and agrees to execute and deliver upon request
of Lender, or its assigns, an appropriate agreement of attornment to
Lender and any subsequent titleholder of the Premises.
4. Any option or rights contained in the Lease, or otherwise existing, to
acquire any or all of the Project (or any superior leasehold interest
therein) are hereby made subject and subordinate to the rights of Lender
under the Security Instrument; and acquisition of any or all of the
Project made by Tenant during the term of the Security Instrument shall
be made subordinate and subject to the Security Instrument.
5. So long as the Security Instrument remains outstanding and unsatisfied,
Tenant will mail or deliver to Lender, at the address and in the manner
hereinbelow provided, a copy of all notices permitted or required to be
given to Landlord by Tenant under and pursuant to the terms and
provisions of the Lease. At any time within the time permitted Landlord
for curing any default under the Lease as therein provided, Lender may,
but shall have no obligation to, pay any taxes and assessments, make any
repairs and improvements, make any deposits or do any other act or thing
required of Landlord by the terms of the Lease; and all payments so made
and all things so done and performed by Lender shall be as effective to
prevent the rights of Landlord from being forfeited or adversely
affected because of any default under the Lease as the same would have
been if done and performed by Landlord.
6. Lender shall have no liability whatsoever hereunder prior to becoming
the owner of the Premises; and Tenant agrees that if Lender becomes the
owner of the Premises, Tenant shall look solely to the estate or
interest of Lender in the Premises (and such other sources of funds as
are described in Section 13.04 of the Lease) for satisfaction of any
obligation which may be or become owing by Lender to Tenant hereunder or
under the Lease.
7. Landlord and Tenant hereby certify to Lender that the Lease has been
duly executed by Landlord and Tenant and is in full force and effect;
that the Lease and any modifications and amendments specified herein are
a complete statement of the agreement between Landlord and Tenant with
respect to the leasing of the Premises or otherwise affecting the
Project, and the Lease has not been modified or amended except as
specified herein; that to the knowledge of Landlord and Tenant, no party
to the Lease is in default thereunder; that no rent under the Lease has
been paid more than thirty (30) days in advance of its due date; and
that Tenant, as of this date, has no charge, lien or claim of offset
under the Lease, or otherwise, against the rents or other charges due or
to become due thereafter.
53
8. Unless and except as otherwise specifically provided herein, any and all
notices, elections, approvals, consents, demands, requests and responses
thereto ("COMMUNICATIONS") permitted or required to be given under this
Agreement shall be in writing, signed by or on behalf of the party
giving the same, and shall be deemed to have been properly given and
shall be effective upon the earlier of receipt thereof or deposit
thereof in the United States mail, postage prepaid, certified with
return receipt requested, to the other party at the address of such
other party set forth hereinabove or at such other address within the
continental United States as such other party may designate by notice
specifically designated as a notice of change of address and given in
accordance herewith; provided, however, that the time period in which a
response to any Communication must be given shall commence on the date
of receipt thereof; and provided further that no notice of change of
address shall be effective with respect to Communications sent prior to
the time of receipt thereof. Receipt of Communications hereunder shall
occur upon actual delivery (whether by mail, telecopy transmission,
messenger, courier service, or otherwise) to an individual party or to
an officer or general or limited partner of a party or to any agent or
employee of such party at the address of such party set forth
hereinbelow, subject to change as provided hereinabove. An attempted
delivery in accordance with the foregoing, acceptance of which is
refused or rejected, shall be deemed to be and shall constitute receipt;
and an attempted delivery in accordance with the foregoing by mail,
messenger, or courier service (whichever is chosen by the sender) which
is not completed because of changed address of which no notice was
received by the sender in accordance with this provision prior to the
sending of the Communication shall also be deemed to be and constitute
receipt. Any Communication, if given to Lender, must be addressed as
follows, subject to change as provided hereinabove:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
and, if given to Tenant, must be addressed to Tenant's notice addresses
set forth in the Lease; and, if given to Landlord, must be addressed as
follows, subject to change as provided hereinabove:
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
9. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives,
successors, successors-in-title and assigns. When used herein, the term
"landlord" refers to Landlord and to any successor to the interest of
Landlord under the Lease.
54
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
LENDER:
Signed, sealed and delivered ________________________________
In the presence of:
_______________________ By:______________________
Witness Title:________________
_______________________ (BANK SEAL)
Witness
TENANT:
Signed, sealed and delivered AMERICAN CLASSIC VOYAGES CO.
in the presence of: a Delaware corporation
________________________ By:______________________
Witness Title:________________
------------------------
Witness
LANDLORD:
Signed, sealed and delivered DUKE-WEEKS REALTY LIMITED
in the presence of: PARTNERSHIP, a Delaware corporation
________________________ By: Duke-Weeks Realty Corporation
Witness Its: General Partner
________________________ By:_________________________
Witness Title:______________________
55
EXHIBIT J
FORM OF LETTER OF CREDIT
Duke-Weeks Realty Limited Partnership
00000 Xxxxxxxx Xxxxx Xxxxx Xxxxxx: USD 500,000
Suite 150 (Five Hundred Thousand and
Xxxxx, Xxxxxxx 00000 00/100 United States Dollars)
WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO __________ IN
YOUR FAVOR, FOR AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT INDICATED ABOVE,
EXPIRING AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF BUSINESS ON NOVEMBER ___,
2001 OR ANY AUTOMATICALLY EXTENDED EXPIRY DATE.
THIS LETTER OF CREDIT IS AVAILABLE WITH THE CHASE MANHATTAN BANK, NEW YORK
AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON THE CHASE MANHATTAN BANK,
NEW YORK WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.
BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS READING
AS FOLLOWS:
"THIS DRAWING USD ___________________ UNDER THE CHASE MANHATTAN BANK LETTER OF
CREDIT NO. __________________ REPRESENTS FUNDS DUE US FOR PAYMENT OR PERFORMANCE
DEFAULT BY AMERICAN CLASSIC VOYAGES CO. UNDER THE OFFICE LEASE DATED NOVEMBER
____, 2000 EXECUTED BY BENEFICIARY AND AMERICAN CLASSIC VOYAGES CO."
IT IS A CONDITION OF THIS IRREVOCABLE LETTER OF CREDIT THAT IT SHALL BE
AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ADDITIONAL ONE YEAR PERIODS FROM
THE PRESENT OR EACH FUTURE EXPIRATION DATE, UNLESS AT LEAST 45 DAYS PRIOR TO
SUCH DATE WE SEND YOU NOTICE IN WRITING BY REGISTERED MAIL, OR HAND DELIVERY AT
THE ABOVE ADDRESS, THAT WE ELECT NOT TO RENEW THIS LETTER OF CREDIT FOR SUCH
ADDITIONAL PERIOD. UPON SUCH NOTICE TO YOU, YOU MAY DRAW DRAFTS ON US AT SIGHT
FOR AN AMOUNT NOT TO EXCEED THE BALANCE REMAINING IN THIS LETTER OF CREDIT
WITHIN THE THEN APPLICABLE EXPIRY DATE, ACCOMPANIED BY YOUR DATED STATEMENT
PURPORTEDLY SIGNED BY ONE OF YOUR OFFICERS READING: "THE AMOUNT OF THIS DRAWING
USD __________ UNDER THE CHASE MANHATTAN BANK LETTER OF CREDIT NUMBER
_____________ REPRESENTS FUNDS DUE US AS WE HAVE RECEIVED NOTICE FROM THE CHASE
MANHATTAN BANK OF THEIR DECISION NOT TO EXTEND LETTER OF CREDIT NUMBER
____________ FOR AN ADDITIONAL YEAR.
PARTIAL DRAWINGS PERMITTED.
WE HEREBY AGREE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF THIS LETTER OF CREDIT WILL BE DULY HONORED.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500)
AND ENGAGES US IN ACCORDANCE WITH THE TERMS THEREOF. THE NUMBER AND THE DATE OF
OUR CREDIT AND THE NAME OF OUR BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED.
