LEASE AGREEMENT
BETWEEN
XXXXX TRIAD FT. XXXXX I, LTD.
as Landlord
AND
GARTNER GROUP, INC.
as Tenant
Effective Date:
July 30, 1997
TABLE OF CONTENTS
1. TERM OF LEASE.................................................................................................. 1
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1.1. Initial Term of Lease............................................................................... 1
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1.2. Lease Renewal Options............................................................................... 3
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2. CONSTRUCTION OF IMPROVEMENTS................................................................................... 4
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2.1. Landlord's Improvements............................................................................. 4
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2.2. Current Plans; Review Period; Final Plans And Specifications........................................ 4
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2.3. Excused Delay....................................................................................... 5
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2.4. Possession of Demised Premises...................................................................... 6
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2.5. Landlord's Failure to Timely Deliver................................................................ 6
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2.6. Outside Delivery Date............................................................................... 6
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2.7. Construction Guaranty............................................................................... 7
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2.8. Tenant's Acceptance of Demised Premises............................................................. 7
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2.9. Tenant Improvements................................................................................. 7
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2.10. Government Concessions.............................................................................. 7
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2.11. Option Property 1................................................................................... 7
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2.12. Option Property 2................................................................................... 8
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2.13. Proposed Plat....................................................................................... 8
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2.14. Right of First Offer................................................................................ 8
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3. RENT........................................................................................................... 9
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3.1. Rent................................................................................................ 9
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3.2. Additional Rent..................................................................................... 11
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3.3. Delinquent Rental Payments.......................................................................... 11
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4. USE OF DEMISED PREMISES........................................................................................ 12
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4.1. Permitted Use....................................................................................... 12
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4.2. Preservation of Demised Premises.................................................................... 12
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5. HAZARDOUS SUBSTANCES........................................................................................... 12
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5.1. Tenant's Covenants Regarding Hazardous Substances................................................... 12
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5.2. Landlord's Covenants Regarding Hazardous Substances................................................. 14
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6. OPERATING EXPENSES............................................................................................. 15
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6.1. Payment of Operating Expenses....................................................................... 15
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6.2. Definition of Operating Expenses.................................................................... 15
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6.3. Certain Exclusions from Operating Expenses.......................................................... 16
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7. PAYMENT OF TAXES, ASSESSMENTS, ETC............................................................................. 18
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7.1. Payment of Impositions.............................................................................. 18
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7.2. Tenant's Right to Contest Impositions............................................................... 18
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7.3. Levies and Other Taxes.............................................................................. 19
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7.4. Evidence of Payment................................................................................. 19
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7.5. Landlord's Right to Contest Impositions............................................................. 20
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7.6 Separate Assessment................................................................................. 20
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8. INSURANCE...................................................................................................... 20
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8.1. Landlord's Casualty Insurance Obligations......................................................... 20
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8.2. Tenant's Liability and Other Insurance Coverage................................................... 20
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8.3. Landlord's Liability Insurance Coverage........................................................... 21
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8.4. Extended Coverage Insurance Provisions............................................................ 21
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8.5. General Insurance Requirements.................................................................... 21
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8.6. Waiver of Subrogation............................................................................. 22
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8.7. Tenant's Personal Property Coverage............................................................... 22
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8.8. Unearned Premiums................................................................................. 22
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8.9. Blanket Insurance Coverage........................................................................ 22
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8.10. Tenant's Self-Insurance........................................................................... 22
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8.11 Worker's Compensation............................................................................. 22
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9. UTILITIES...................................................................................................... 23
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9.1. Payment of Utilities.............................................................................. 23
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10. REPAIRS........................................................................................................ 23
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10.1. Landlord's Repairs................................................................................ 23
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10.2. Maintenance....................................................................................... 23
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10.3. Prohibition Against Waste......................................................................... 24
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10.4. Service Agreements................................................................................ 24
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10.5 Parking Areas..................................................................................... 24
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11. COMPLIANCE WITH LAWS AND ORDINANCES............................................................................ 24
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11.1. Compliance with Laws and Ordinances............................................................... 24
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11.2. Compliance with Permitted Encumbrances............................................................ 25
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11.3 Tenant's Right to Contest Laws and Ordinances..................................................... 26
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12. MECHANIC'S LIENS AND OTHER LIENS............................................................................... 26
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12.1. Freedom from Liens................................................................................ 26
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12.2. Landlord's Indemnification........................................................................ 27
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12.3. Removal of Liens.................................................................................. 27
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13. INTENT OF PARTIES.............................................................................................. 27
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13.1. No Abatement...................................................................................... 27
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13.2. Entry by Landlord................................................................................. 28
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13.3. Interest on Unpaid Amounts........................................................................ 28
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14. DEFAULTS OF TENANT............................................................................................. 28
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14.1 Event of Default.................................................................................. 28
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14.2. Surrender of Demised Premises..................................................................... 29
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14.3. Reletting by Landlord............................................................................. 29
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14.4. Survival of Tenant's Obligations.................................................................. 29
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14.5. Damages........................................................................................... 30
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14.6. No Waiver......................................................................................... 30
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14.7. Remedies Cumulative............................................................................... 30
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14.8. Bankruptcy........................................................................................ 31
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14.9. Waiver by Tenant.................................................................................. 31
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15. DESTRUCTION AND RESTORATION.................................................................................... 31
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15.1. Destruction and Restoration....................................................................... 31
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15.2. Application of Insurance Proceeds................................................................. 32
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15.3. Continuance of Tenant's Obligations............................................................... 32
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15.4. Completion of Restoration......................................................................... 33
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15.5. Adjustment of Rent and Termination of Lease....................................................... 33
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16. CONDEMNATION................................................................................................... 34
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16.1. Condemnation of Entire Demised Premises........................................................... 34
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16.2. Partial Condemnation/Termination of Lease......................................................... 34
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16.3. Partial Condemnation/Continuation of Lease........................................................ 35
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16.4. Continuance of Obligations........................................................................ 36
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16.5. Adjustment of Rent................................................................................ 36
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16.6. Determination of "Material Partial Condemnation" and "Minor Partial Condemnation;" Arbitration.... 36
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17. ASSIGNMENT, SUBLETTING, ETC.................................................................................... 36
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17.1. Restriction on Transfer (Transfer Requiring Landlord Consent)..................................... 36
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17.2. Transfers......................................................................................... 37
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18. SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT.............................................. 37
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18.1. Subordination and Attornment by Tenant............................................................ 37
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18.2. Landlord's Default................................................................................ 38
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19. SIGNS.......................................................................................................... 38
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19.1. Tenant's Signs.................................................................................... 38
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20. CHANGES AND ALTERATIONS........................................................................................ 38
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20.1. Tenant's Changes and Alterations.................................................................. 38
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21. INDEMNITY...................................................................................................... 40
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21.1 Indemnity of Landlord............................................................................. 40
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21.2. Indemnity of Tenant............................................................................... 40
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21.3. Defense Provisions................................................................................ 41
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22. MISCELLANEOUS PROVISIONS....................................................................................... 42
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22.1. Entry by Landlord................................................................................. 42
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22.2. Exhibition of Demised Premises.................................................................... 42
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22.3. Notices........................................................................................... 42
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22.4. Quiet Enjoyment................................................................................... 43
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22.5. Landlord's Continuing Obligations................................................................. 43
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22.6. Estoppel.......................................................................................... 44
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22.7. Delivery of Corporate Documents................................................................... 44
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22.8. Short Form Lease.................................................................................. 44
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22.9. Severability...................................................................................... 45
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22.10. Successors and Assigns............................................................................ 45
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22.11. Captions.......................................................................................... 45
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22.12. Relationship of Parties......................................................................... 45
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22.13. Entire Agreement................................................................................ 45
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22.14. No Merger....................................................................................... 45
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22.15. Possession and Use.............................................................................. 45
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22.16. No Surrender During Lease Term.................................................................. 46
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22.17. Surrender of Demised Premises................................................................... 46
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22.18. Holding Over.................................................................................... 46
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22.19. Survival........................................................................................ 46
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22.20. Attorneys' Fees................................................................................. 46
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22.21. Landlord's Limited Liability.................................................................... 46
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22.22. Broker's Commissions............................................................................ 47
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22.23. Covenants, Representations and Warranties....................................................... 47
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22.24. Landlord's Permission, Consent or Approval...................................................... 47
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22.25. FORUM AND VENUE FOR LEGAL PROCEEDINGS/WAIVER OF JURY TRIAL...................................... 48
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22.26. Arbitration..................................................................................... 48
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22.27. Counterparts; Expiration of Lease Agreement; "Effective Date"................................... 48
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22.28 Access.......................................................................................... 49
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22.29 Protection of Laws.............................................................................. 49
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22.30 OSHA/Tight Building Syndrome.................................................................... 49
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22.31 Access by Individuals with Disabilities......................................................... 49
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22.32 Parking......................................................................................... 49
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22.33 Communications Equipment........................................................................ 50
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22.34 Contingency..................................................................................... 50
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22.35 Waiver of Statutory Landlord's Lien............................................................. 50
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LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease Agreement"), made as of the "Effective Date"
(as defined in Section 22.28), by and between XXXXX TRIAD FT. XXXXX I, LTD., a
Florida limited partnership ("Landlord"), and GARTNER GROUP, INC., a Delaware
corporation ("Tenant").
WITNESSETH:
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Landlord, for and in consideration of the rents, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, its
successors and assigns, to be paid, kept, observed and performed, has leased,
rented, let and demised, and by these presents does lease, rent, let and demise
unto Tenant, and Tenant does hereby take and hire, upon and subject to the
conditions and limitations hereinafter expressed, all that parcel of land
situated in the County of Xxx and State of Florida, described in Exhibit "A"
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attached hereto and made a part hereof, together with any appurtenant easements
described in said Exhibit "A" (the "Land"), together with all improvements
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located on and to be constructed thereon. Landlord's Improvements (as defined
in Article 2) and all other improvements, machinery, equipment, fixtures and
other property, real, personal or mixed (except Tenant's trade fixtures)
installed or located thereon, together with all additions, alterations and
replacements thereof are hereinafter referred to as the "Improvements." The
Land, the Building (as hereinafter defined) and the improvements are hereinafter
referred to as the "Demised Premises." The Demised Premises are subject to the
easements, restrictions, reservations and other "permitted encumbrances" set
forth in said Exhibit "D" (provided, however, that the terms of Section 11.2
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shall govern and prevail over any conflicting or inconsistent references to
"permitted encumbrances" contained in this Lease Agreement), true and complete
copies of which Landlord has furnished to Tenant at or prior to the execution
and delivery hereof. The structures located upon and being a part of the
Demised Premises which are constructed for human occupancy or for storage of
goods, merchandise, equipment, or other personal property are collectively
called the "Building." The Demised Premises and Building are located in a
certain development project called "Gateway Center" (the "Project"). The
Demised Premises are demised herein together with the non-exclusive use of all
facilities which serve the Demised Premises and with any and all and singular
appurtenances, rights, privileges and easements in or any way pertaining thereto
including, but not limited to, the right to use such parking facilities,
elevators, stairways, corridors, entrance ways, restrooms, common parking areas
and driveways, and other and similar or related facilities as may exist in and
about the Building and on the Land. Without limiting Tenant's permitted uses of
the Demised Premises as set forth in this Lease Agreement, Landlord and Tenant
acknowledge that Tenant s intended primary use of the Demised Premises will be
for office use ("Tenant's Intended Use"). Landlord represents and warrants to
Tenant (a) that Landlord is the sole owner in fee simple of the Land and (b)
that the Landlord has the full right and authority to lease the Demised Premises
(hereinafter defined to Tenant) and to otherwise enter into this Lease on the
terms and conditions set forth herein and (c) Landlord is not in default in any
of its obligations to any existing mortgagee or ground lessor and Landlord is
current in all its payments to said mortgagee(s) or ground lessor, and (d) the
Demised Premises is located in a municipal zoning classification that permits
Tenant to use the Demised Premises for general office use and related incidental
uses.
1. TERM OF LEASE.
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1.1. Initial Term of Lease.
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(a) Commencement Date. This Lease Agreement shall be for an initial
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term of ten (10) years (the "Initial Term") commencing on the "Commencement
Date" (as hereinafter defined). The term "Commencement Date" shall mean the
earlier of the date of (i) Substantial Completion, as hereinafter defined in
Section 1.1(c) below, and delivery of an SNDA, as hereinafter defined, pursuant
to the terms and conditions set forth in this Lease or (ii) the occupancy of the
Demised Premises and commencement of business operations by Tenant.
(b) Final Installation Work. Tenant intends to cause one or more
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independent entities to enter into contracts to perform the following
installation work, which items of work are included in the "Construction
Schedule" (as defined in Section 2.2(a)). The following work is collectively
referred to as the "Final Installation Work"; the contractors who are engaged to
perform the Final Installation Work are collectively referred to as "Final
Installation Contractors"; and, the contracts pursuant to which the Final
Installation Work will be performed are collectively referred to as the "Final
Installation Contracts"; provided, however that the definitions of Final
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Installation Work, Final Installation Contractors, and Final Installation
Contracts expressly exclude the work, improvements and equipment to be
performed, constructed, provided and/or installed (as applicable) by Landlord
pursuant to other provisions of this Lease Agreement.
(i) Installation of furniture and equipment, including "Work
Stations" (as hereinafter defined), power poles and chairs;
(ii) Accessing (pulling) computer cable (wiring), preparation for,
and final connection (hook-up) of computer equipment; and
(iii) Accessing (pulling) telecommunications cable (wiring),
preparation for, and final connection (hook-up) of telecommunications
equipment.
The parties acknowledge that the Final Installation Work must be completed
with respect to a portion of the Demised Premises in order to accomplish
Substantial Completion. Because the Final Installation Work will need to be
coordinated with other work under the Construction Schedule (which other work
will be supervised by Landlord's general contractor), Landlord and Tenant
mutually desire to cause certain portions of the Final Installation Work (and
certain portions of the scope of work within the related Final Installation
Contracts) to be performed by Landlord's general contractor in the interests of
coordination efficiency and critical path management. Tenant intends to
independently procure and provide the primary equipment and materials to be
installed pursuant to the Final Installation Contracts as described below in the
definition of "Tenant's Final Installation Work" (i.e., the Final Installation
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Work that is intended to be transferred to Landlord's general contractor is
intended to be solely "installation" supervision and not procurement
management). Tenant shall be responsible for payment of the cost of performing
the Final Installation Work in accordance with the payment terms contained in
the Final Installation Contracts (accordingly, Rent shall not be increased by
any portion of the cost of performing the Final Installation Work). Landlord
and Tenant agree to cooperate with each other, in the exercise of commercially
reasonable diligence, in attempting to cause the applicable portions of the
Final Installation Contracts to be transferred to Landlord's general contractor
and Landlord agrees to use its reasonable efforts to cause Landlord's general
contractor to accept coordination responsibility for such items of Final
Installation Work. The following provisions shall apply to those Final
Installation Contracts (or certain items of work therein) that are ultimately
transferred to Landlord's general contractor: (1) Landlord's general contractor
shall accept and assume responsibility for such Final Installation Contracts;
and (2) the work performed under such Final Installation Contracts shall be
deemed included in the work performed
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by Landlord for all purposes of this Lease Agreement, including, without
limitation, Section 2.7 (Construction Guaranty), but excluding Tenant's
obligation to pay for the cost of performing the Final Installation Contracts
pursuant to the terms set forth herein.
As used in this Lease Agreement, the defined phrase "Tenant's Final
Installation Work" shall mean: (i) those items within the scope of work
described in the Final Installation Contracts that Tenant voluntarily elects to
retain and will not be transferred to Landlord's general contractor; and (ii)
those items within the scope of work described in the Final Installation
Contracts that, notwithstanding Landlord's reasonable efforts, Landlord's
general contractor has not agreed to accept.
(c) Substantial Completion. The term "Substantial Completion" shall
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mean the last to occur of:
(i) Certificate of Occupancy -- the day that Tenant receives
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notice that a Certificate of Occupancy has been issued by Xxx County, Florida
with respect to the base Building and Tenant improvements in accordance with the
"Final Plans and Specifications" (as hereinafter defined) (which notice must
include a true and complete copy of such Certificate of Occupancy);
(ii) Certificate of Architect -- the day that Tenant receives an
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original, fully executed and sealed Certificate of Substantial Completion on AIA
Form G704 (1994) and issued by Smallwood, Reynolds, Xxxxxxx & Xxxxxxx
Architects, Inc. certifying to Tenant that the Landlord's Improvements, to the
best of its knowledge and belief after review and inspection, have been
completed in accordance with the applicable construction documents, with the
only exception of so-called "punch list" items.
(d) Lease Year. For the purposes of this Lease Agreement, the term
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"Lease Year" shall be defined as follows. The first Lease Year shall begin on
the Commencement Date. The first Lease Year will end twelve (12) months after
the Commencement Date. Each subsequent Lease Year shall commence on the day
immediately following the last day of the preceding Lease Year and shall
continue for a period of twelve (12) full calendar months. Promptly after the
Commencement Date the parties shall execute and deliver a written statement
which verifies the actual Commencement Date.
1.2. Lease Renewal Options.
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(a) Tenant shall have the right to renew this Lease Agreement for
two (2) additional terms of five (5) years (each hereinafter referred to as a
"Renewal Term"), provided that (i) Tenant gives Landlord written notice of its
renewal of this Lease Agreement no later than one (1) year prior to the
expiration of the Initial Term or Renewal Term, as the case may be, and (ii)
Tenant is not then in material default under the terms of this Lease Agreement,
beyond any applicable notice and cure periods, and this Lease Agreement is in
full force and effect. References to the "Term" shall mean the term of this
Lease Agreement, and shall include the Initial Term and, if applicable, the
Renewal Term(s). The Base Rent to be paid during the first year of each Renewal
Term shall be the lesser of (x) the then existing Base Rent, as escalated by two
and one-half percent (2.5%), or (y) ninety-five percent (95%) of the market rent
then being paid by other tenants occupying a similar amount of space at a
comparable building and project in Xxx County, Florida (the "Renewal Base
Rent"). In the event Tenant provides Landlord with notice of its exercise of its
option to renew, Tenant and Landlord shall negotiate in good faith to determine
the market rent to be paid during the applicable renewal term, based upon the
foregoing criteria. If the parties are unable to agree upon the market rent
described in the preceding clause (y) within thirty (30) days after the
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giving of Tenant's notice of intent to renew, then the parties shall submit the
dispute to binding arbitration as provided in Section 22.27 below. The Base
Rent shall escalate by two and one-half percent (2.5%) per annum, cumulative
and compounded, during any renewal or extension period to the same extent as
during the Initial Term and the Tenant shall remain obligated to also pay
Additional Rent and Operating Expenses during any renewal or extension period to
the same extent as obligated during the Initial Term.
2. CONSTRUCTION OF IMPROVEMENTS.
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2.1. Landlord's Improvements. The Building shall consist of a two story
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building of approximately 62,400 "Rentable Square Feet" (as such term is defined
in Section 3.1 below). The Building will be constructed by Landlord at its sole
cost and expense and delivered to Tenant in "turnkey" condition. The Building
and other Improvements to be constructed by Landlord shall be designed and
constructed in accordance with the "Final Plans and Specifications" (as
hereinafter defined) (collectively, the "Landlord's Improvements"). Landlord
agrees to furnish at Landlord's sole cost and expense all of the material,
labor, and equipment for the construction of the Landlord's Improvements.
Landlord's Improvements shall be constructed in a good and workmanlike manner in
accordance with the Final Plans and Specifications and Landlord agrees to
complete the construction thereof in accordance with the applicable building
code in effect at the time of issuance of the building permits and all other
applicable Laws as they are presently interpreted and enforced by the
governmental bodies having jurisdiction thereof
2.2. Current Plans; Review Period; Final Plans And Specifications.
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(a) Current Plans. The Demised Premises shall include and
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incorporate all those certain design and program elements described in the
following documents (collectively, the "Current Plans"):
(i) The floor plan of the Building prepared by Smallwood,
Reynolds, Xxxxxxx & Xxxxxxx Architects, Inc. ("Xxxxxxxxx") dated May 22,
1997;
(ii) The Schematic Plans and Specifications prepared by the
Perry Company dated May 22, 1997 (the "Schematic Plans and
Specifications");
(iii) The Construction Schedule prepared by the Perry Company
dated June 24, 1997 (the "Construction Schedule").
(b) Review Period. The term "Review Period" shall mean a five (5)
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business day period after receipt by Tenant and Corporate Design Group, LLP (at
the addresses set forth in Section 2.2 (e) below) (collectively, "Tenant's
Review Team"), or Landlord as the case may be, during which such party shall
review the submitted documents and provide comments or approve such documents
pursuant to the terms set forth in this Section 2.2.
(c) Approved Final Plans and Specifications. Landlord, at its sole
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cost and expense, shall cause proposed Final Plans and Specifications for the
Demised Premises to be prepared in accordance with the Current Plans and the
building code and all other applicable laws referenced in Section 2.1 above.
Upon completion of all proposed Final Plans and Specifications, Landlord shall
submit the same (and all subsequent amendments thereto) to Tenant's Review Team
for its approval. Tenant's Review Team shall have a Review Period to approve,
reject or comment on, in writing, a submission of the proposed Final Plans and
Specifications furnished by Landlord. Tenant's Review Team shall respond in
writing within the
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Review Period and if such response does not unconditionally approve Landlord's
submission, Tenant's Review Team will include in its response a reasonable
explanation of those comments that are not self-explanatory ("Tenant's
Response"). Upon Landlord's receipt of Tenant's Response, Landlord and Tenant
shall meet to agree on changes in the proposed Final Plans and Specifications
that are not inconsistent with the Current Plans within a Review Period
commencing upon Landlord's receipt of Tenant's Response. If the proposed Final
Plans and Specifications are not approved within this Review Period, the
proposed Final Plans and Specifications of Landlord and the proposed Final Plans
and Specifications of Tenant shall be immediately submitted to the "Independent
Architect" in accordance with Section 2.2(f). Once the proposed Final Plans and
Specifications have been approved by Tenant in accordance with this Section, the
proposed Final Plans and Specifications shall be approved in writing by Landlord
and Tenant and be deemed the "Approved Final Plans and Specifications" and shall
be deemed incorporated into this Lease.
(e) Tenant's Review Team. In the event the time of (i) Tenant's
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review exceeds any Review Period, or (ii) a critical item, as shown on the
Construction Schedule, is disapproved by Tenant and subsequently the Independent
Architect finds for Landlord with respect to such critical item, then the
"Completion Date" and "Outside Delivery Date" (as hereinafter defined) shall be
extended for the same amount of days by which the actual review and approval
time exceeded such Review Period (the total number of such extension days is
referred to as the "Tenant Review Delay"). Any Final Plans and Specifications
or documentation requiring approval of Tenant shall be delivered to the
attention of Tenant, Attention: Xx. Xxxxx Xxxxxxxx, with a copy to Mr. Xxxx
Xxxxxx, at the following addresses, by courier, Airborne Express, Federal
Express or Certified Mail:
Xxxxx Xxxxxxxx Xxxx Xxxxxx
56 Top Xxxxxxx Xxxx 00 Xxx Xxxxxxx Xxxx
X.X. Xxx 00000 P.O. Box 10212
Stamford, CT 06904-2212 Xxxxxxxx. XX 00000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Review Period shall commence immediately upon receipt of the proposed Final
Plans and Specifications or other documentation by Tenant's Review Team or any
individual within their respective offices accepting delivery of same.
(f) Independent Architect. Disputes arising in connection with the
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approvals required under this Section 2.2 shall be referred to Hellmuth, Obata &
Kassabaum (the "Independent Architect") for binding arbitration. These
arbitration proceedings shall be conducted in Tampa, Florida and the parties
acknowledge the Contractor shall be included as a party to the binding
arbitration. With respect to any binding arbitration conducted under this
Section, Independent Architect shall enter a final written decision within five
(5) days of the receipt of the proposed Final Plans and Specifications and
written comments of each party. Neither party can dismiss the Independent
Architect appointed hereunder without the written consent of the other party.
Should the Independent Architect be dismissed by mutual agreement of the parties
or should the Independent Architect resign this appointment, a new independent
third party architect will be selected by mutual agreement of the parties. The
Independent Architect's reasonable fees and costs shall be shared equally
between Landlord and Tenant.
2.3. Excused Delay. Landlord shall diligently proceed with the
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construction of the Landlord's Improvements and complete the same and deliver
possession thereof to Tenant on or before February 1,
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1998 (the "Completion Date"); provided, however if delay is caused or
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contributed to by act (including change orders) or neglect of Tenant, or those
acting for or under Tenant, labor disputes, casualties, acts of God or the
public enemy, governmental embargo restrictions, shortages of fuel, labor or
building materials, action or non-action of public utilities, or federal
governments affecting the work, or action or non-action of Seller, as
hereinafter defined, (and not caused by Landlord), or other entities exercising
control over the Property via restrictive covenants or other causes beyond
Landlord's reasonable control then the time of completion of said construction
shall be extended for the additional time caused by such delay. The delays
resulting from the events described in this Section 2.3 are each hereinafter
referred to as an "Excused Delay" and the events are each hereinafter referred
to as "Force Majeure Events."
2.4. Possession of Demised Premises. If the Landlord's Improvements are
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not Substantially Completed on or prior to the Completion Date but are partially
ready for occupancy, Tenant may, but need not, occupy the portion of same that
is ready for occupancy, and in the event of such occupancy Tenant shall pay to
Landlord the pro rata portion of the full Base Rent and the pro rata portion of
the full amount of other obligations to be paid by Tenant hereunder equitably
based upon the area of the Building occupied by Tenant. Base Rent and the
payment of other obligations to be paid by Tenant shall commence upon the
Commencement Date; provided, however that in the event the Landlord's
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Improvements are partially completed and partially ready for occupancy, and are
occupied by Tenant, a pro rata portion of the Base Rent and the pro rata portion
of all other obligations to be paid by Tenant shall be payable commencing with
such date of partial occupancy, and shall be equitably adjusted from time to
time based upon the area of the portion of Landlord's Improvements actually
occupied by Tenant. Prior to such partial occupancy, Tenant and/or Tenant's
contractors shall have been able to install its machinery, equipment, fixtures
and other personal property within the portion of the Demised Premises to be
occupied by Tenant. In performing such pre-occupancy work, Tenant shall not
thereby interfere with the completion of construction or occasion any labor
dispute as a result of such installations and Tenant hereby agrees to assume all
risk of loss or damage to such machinery, equipment, fixtures and other personal
property, and to indemnify, defend and hold harmless Landlord from any loss or
damage to such machinery, equipment, fixtures and personal property, and all
liability, loss or damage arising from any injury to the property of Landlord,
or its contractors, subcontractors or materialmen, and any death or personal
injury to any person or persons to the extent caused by Tenant or its
contractors in connection with such installations, except for liability, loss or
damage to the extent caused by Landlord's negligence or willful misconduct (or
of Landlord's agents, contractors or employees).
2.5. Landlord's Failure to Timely Deliver. Landlord shall deliver the
------------------------------------
completed Landlord's Improvements no later than the Completion Date; provided,
--------
however that the Completion Date may be extended, due to an Excused Delay
-------
without Landlord being thereby responsible to pay liquidated damages to Tenant.
Subject to Excused Delay, in the event Substantial Completion takes place on or
after the Completion Date, Landlord shall pay to Tenant as liquidated damages
(and not as a penalty) an amount equal to two times the per diem Base Rent for
each day beyond the Completion Date that the Landlord's Improvements have not
achieved Substantial Completion. Such payment shall be in the form of cash or
as an offset against Rent due by Tenant, at the option of Landlord.
2.6. Outside Delivery Date. In the event Landlord fails or is unable to
---------------------
achieve Substantial Completion of the Landlord's Improvements on or prior to
April 15, 1998, provided, however, that such date may be extended "day for day"
-------- -------
by an Excused Delay (the "Outside Delivery Date"); then Tenant may, in its sole
and absolute discretion, cancel and terminate this Lease Agreement by providing
written notice thereof to Landlord within thirty (30) days following the Outside
Delivery Date (but prior to Substantial Completion), whereupon this Lease
Agreement shall terminate effective as of the date set forth in Tenant's
6
notice, or Tenant's right to terminate under this Section 2.6 is waived (but
Tenant's other rights under this Lease or at law or in equity are not waived in
such event and are hereby expressly reserved). Landlord shall use commercially
reasonable efforts and proceed with commercially reasonable diligence to
complete the construction of the Building and Demised Premises by February 1,
1998.
2.7. Construction Guaranty. Landlord guarantees the Landlord's
---------------------
Improvements (excluding those items installed or materials purchased by Tenant
in connection with Final Installation Work and Tenant Final Installation Work)
against defective workmanship and/or materials for a period of one (1) year from
the date of "Substantial Completion" (as defined in Section 1.1 above) of
Landlord's Improvements and Landlord agrees, at its sole cost and expense, to
repair or replace any defective item occasioned by poor workmanship and/or
materials during said one-year period. Any such cost will not be considered part
of Operating Expenses, as hereinafter defined, during this one (1) year period.
Thereafter, all such costs, to the extent not covered by applicable warranties,
shall be considered Operating Expenses.
2.8. Tenant's Acceptance of Demised Premises. Within a period of ninety
---------------------------------------
(90) days after the Commencement Date, Tenant shall notify Landlord, in writing,
of all portions of the Landlord's Improvements which are incomplete and Landlord
shall forthwith complete such items; however, such obligation shall not include
-------
or apply to any aspects of the Landlord's Improvements which consist of latent
defects or other aspects which would not be apparent upon a visual inspection of
the Landlord's Improvements.
2.9. Tenant Improvements. Included in the Landlord's Improvements shall
-------------------
be certain interior improvements for Tenant ("Tenant Improvements"), which
Landlord will provide, to the extent of $14.42 per square foot based on a 62,400
square foot building (the "Tenant Improvement Allowance"). If the cost of the
Tenant Improvements exceeds the Tenant Improvement Allowance, Tenant shall pay
any difference between the Tenant Improvement Allowance and the actual costs of
the Tenant Improvements as approved in the Current Plans within ten (10) days of
receipt of an invoice, together with verifying documentation, from Landlord. In
the event the actual cost of the Tenant Improvements of the Demised Premises is
less than $14.42 per square foot (the "Tenant Improvement Savings"), Landlord,
at its option, shall either (i) pay the amount of the Tenant Improvement Savings
to Tenant in the form of cash, (ii) pay the amount of the Tenant Improvement
Savings to Tenant by setoff against the next Rent Payment or payments due, or
(iii) reduce the Base Rent by an amount calculated according to the following
formula: Tenant Improvements Savings x 9% / Rentable Square Feet of the
Building = reduction in Base Rent.
2.10. Government Concessions. Landlord and Tenant agree to use their
----------------------
best commercially reasonable efforts to seek concessions from all agencies
having jurisdiction over the construction or operation of the Building in the
form of reduced impact fees, taxes or other government related costs. In the
event actual cost savings are generated as a result of such efforts, Landlord,
at its option, shall either (i) pay the amount of the actual cost savings to
Tenant in the form of cash, (ii) pay the amount of the actual cost savings to
Tenant by setoff against the next Rent Payment or payments due, or (iii) reduce
the Base Rent by an amount calculated according to the following formula:
Dollar amount of concessions x 9% / Rentable Square Feet of Building = reduction
in Base Rent.
2.11. Option Property 1. At any time before February 15, 2002, Tenant
-----------------
shall have the right to notify Landlord in writing of its desire to expand into
a separate, free-standing facility containing between 30,000 rentable square
feet and 32,000 rentable square feet (the "Small Option Building") to be
constructed by Landlord on the property described in Exhibit B attached hereto
(the "Exhibit B Property"), with occupancy provided to Tenant within nine (9)
months from the date Landlord and Tenant enter into a
7
mutually agreeable lease for the Small Option Building (the "Small Option
Building Lease"). Landlord and Tenant shall enter into the Small Option Building
Lease within thirty (30) days of such written notification and the full
execution of the Small Option Building Lease by and between Landlord and Tenant
shall be a condition precedent to Landlord exercising its option under its
Option Agreement with Seller, as hereinafter defined, to purchase the Exhibit B
Property. In addition to other mutually agreeable terms, the Small Option
Building Lease shall provide that (i) the term of the Small Option Building
Lease shall be for a minimum of ten (10) years, (ii) the Initial Term shall be
extended through the expiration of the Small Option Building Lease, and (iii)
the Rent for the Small Option Building shall be mutually determined by Landlord
and Tenant within thirty (30) days of receipt of Tenant's notification to
Landlord of its desire to expand into the Small Option Building. Tenant's
exercise of its rights under this Section 2.11 terminates all of Tenant's rights
under Section 2.12. Landlord and Tenant agree that Landlord's failure to perform
its obligations under this Section 2.11 shall not constitute a breach of its
obligations under this Lease, that this Section 2.11 is a separate and
independent obligation of Landlord and that Tenant shall have the right to bring
a separate and independent action for damages against Landlord under this
Section 2.11 subject to the terms and conditions of Sections 22.20, 22.21 and
22.26, which are incorporated into this Section 2.11 by this reference.
2.12. Option Property 2. At any time before February 15, 2002, Tenant
-----------------
shall have the right to notify Landlord in writing of its desire to expand into
a separate, freestanding facility containing between 60,000 rentable square feet
and 75,000 rentable square feet (the "Large Option Building"), to be constructed
by Landlord on the Exhibit B Property and the property described in Exhibit C
attached hereto (the "Exhibit C Property") with occupancy provided to Tenant
within nine (9) months from the date Landlord and Tenant enter into a mutually
agreeable lease for the Large Option Building (the "Large Option Building
Lease"). Landlord and Tenant shall enter into the Large Option Building Lease
within thirty (30) days of such written notification and the full execution of
the Large Option Building Lease by and between Landlord and Tenant shall be a
condition precedent to Landlord exercising its option under its Option Agreement
with Seller, as hereinafter defined, to purchase the Exhibit B Property and the
Exhibit C Property. In addition to other mutually agreeable terms, the Large
Option Building Lease shall provide that (i) the term of the Large Option
Building Lease shall be for a minimum of 10 years, (ii) the Initial Term shall
be extended through the expiration of the Large Option Building Lease, and (iii)
the Rent for the Large Option Building shall be mutually determined by Landlord
and Tenant within thirty (30) days of receipt of Tenant's notification of its
desire to expand into the Large Option Building. Tenant's exercise of its
rights under this Section 2.12 terminates all of Tenant's rights under Section
2.11. Landlord and Tenant agree that Landlord's failure to perform its
obligations under this Section 2.12 shall not constitute a breach of its
obligations under this Lease, that this Section 2.12 is a separate and
independent obligation of Landlord and that Tenant shall have the right to bring
a separate and independent action for damages against Landlord under this
Section 2.12 subject to the terms and conditions of Sections 22.20, 22.21, and
22.26, which are incorporated into this Section 2.12 by this reference.
2.13. Proposed Plat. Landlord and Tenant acknowledge that the Land needs
-------------
to be platted prior to the Commencement Date and Landlord and Tenant hereby
approve that certain preliminary plat prepared by Xxxxxx X. Xxxxxx, P.L.S.
#3741, Reference Number 9345PCS for filing and recording with the applicable
authorities in Xxx County, Florida.
2.14. Right of First Offer. For the period commencing on the Commencement
--------------------
Date and ending on the date that Xxxxx Triad Ft. Xxxxx I, Ltd ("Triad") sells
the Demised Premises, Tenant shall have the continuing right of first offer with
respect to Demised Premises as set forth in this Section. In the event Triad
desires to sell, exchange or otherwise dispose of the Demised
8
Premises (or a portion thereof), then Triad shall transmit a true and complete
copy of the offer that Triad is willing to accept ("Offer") to Tenant, along
with its other information regarding the Offer which is in the possession of or
available to Triad on a reasonable basis in order to allow Tenant to evaluate
the Offer. Tenant may elect to accept the Offer by providing notice of such
election to Triad within 15 days after Tenant's receipt of the Offer related
information as aforesaid. If Tenant fails to provide notice of such election on
or before the expiration of such 15 day period, then Tenant will be deemed to
have rejected the Offer and Triad may sell the Demised Premises to any purchaser
for a price equal to or greater than 90% of the Offer. If Tenant timely elects
to accept such offer, then the parties hereto shall proceed to consummate the
transactions set forth in the Offer pursuant to the terms and provisions
thereof; provided, however, that closing shall occur no later than the outside
closing date set forth in the Offer, but in no event shall Tenant be required to
consummate closing prior to the date that is 90 days after receipt of the Offer
and related information. If Tenant elects (or is deemed to have elected) to
reject the Offer, Triad shall be entitled to market the Demised Premises for
Sale (or exchange) to any other potential purchasers; provided, however, in the
event that Triad receives an Offer that Triad is prepared to accept which offer
is more than 10% lower than the Purchase Price contained in the Offer that
Tenant did not accept, Triad shall present such modified Offer to Tenant
whereupon Tenant shall have the same rights to accept or reject the modified
Offer as described above with respect to the Offer.
3. RENT.
----
3.1. Rent. In consideration of the leasing of the Demised Premises and
----
the construction of the Landlord's Improvements referred to in Article 2 hereof,
Tenant covenants to pay Landlord, without previous demand therefor and without
any right of setoff or deduction whatsoever (except as otherwise expressly
provided hereinafter), at the address of Landlord set forth hereinbelow, or at
such other place as Landlord may from time to time designate in writing, a
rental for the initial Term of this Lease as follows:
(a) Rent Components. Tenant shall pay rent in an amount equal to
---------------
$12.87 per "Rentable Square Foot" (as such term is hereinafter defined) based on
a 62,400 square foot Building, subject to adjustment pursuant to this Lease
Agreement ("Rent"), the components of which are (i) $12.06 per rentable Square
Foot for base rent, which amount is based on Current Plans and is subject to
adjustment pursuant to this Lease Agreement ("Base Rent"), and (ii) $.81, which
represents the estimated total of the Operating Expenses as defined in Section
6.2 (collectively the "Estimated First Year Operating Expenses"). If the actual
Rentable Square Feet as determined by Section 3.1(g) is greater than or less
than 62,400 square feet, the rent per square foot will be adjusted so that the
gross rent is equal to the product of $12.87 per square foot times 62,400 square
feet. Rent shall be payable in equal monthly installments, in advance, together
with any Federal, State, local or other jurisdictional sales or use taxes.
(b) Rent Schedule. Tenant shall pay Rent in accordance with the
-------------
following schedule:
(i) Year 1: During the first Lease Year, Tenant's Base Rent
------
shall be based on 41,600 Rentable Square Feet. Operating
Expenses shall be based on the total square feet within the
Building ("the Total Building Space").
9
(ii) Year 2: During the second Lease Year, Tenant's Base Rent,
------
increased as set forth in Section 3.1(c) herein, shall be
based on 52,000 Rentable Square Feet. Operating expenses,
as adjusted pursuant to Section 3.1(d) herein, shall be
based on the Total Building Space.
(iii) Year 3 and Subsequent Years: During the third Lease Year
---------------------------
and all subsequent years, Tenant's Base Rent and Operating
Expenses, as adjusted by Sections 3.1(c) and 3.1(d) herein,
shall be based on the Total Building Space.
(c) Base Rent Increase. Beginning on the first day of the second
------------------
Lease Year, and continuing annually thereafter, Base Rent per square foot (or
the Renewal Base Rent, if applicable) shall be increased by an amount equal to
two and one-half percent (2.5%) per year, cumulative and compounded.
(d) Base Year Operating Expenses. Landlord and Tenant acknowledge
----------------------------
that the Estimated First Year Operating Expenses reflect only an estimate of
Operating Expenses based on Landlord's experience in developing, owning and
managing similar buildings. Therefore, at the end of the First Lease Year,
Landlord shall calculate actual Operating Expenses for the First Lease Year and
those expenses, subject to the adjustments set forth below, collectively shall
be deemed the "Base Year Operating Expenses".
(e) Operating Expense Adjustments. The parties each acknowledge
-----------------------------
that the Rent specified in sub Section (a) of this Section 3 does not provide
for increases in Operating Expenses (as hereinafter defined) which may hereafter
affect the Building; accordingly, during the Term of this Lease, and any
extension(s) thereof, beginning with the first day of the Second Lease Year,
Tenant shall pay to Landlord in the form of Additional Rent (plus any applicable
tax), estimated increased Operating Expenses (including real estate taxes) over
the Base Year Operating Expenses (the "Estimated Increase").
To implement and effect the foregoing obligation of Tenant to pay the
Estimated Increase, Tenant shall pay Landlord on or before the first day of each
calendar month one-twelfth (1/12) of the amount of the Estimated Increase for
the then current Lease Year. There shall be an annual reconciliation between
what Tenant paid and what Tenant should have paid within ninety (90) days
following the end of each Lease Year. Any amount paid by Tenant which exceeds
the correct amount due shall be credited to the next succeeding payment of Rent
due under this Section 3.1. If Tenant has paid less than the correct amount
due, Tenant shall pay the balance within ten (10) days of receipt of written
notice from Landlord. Tenant's obligation to pay the adjustments described in
this Section 3.1(e) shall survive the expiration or earlier termination of this
Lease. Tenant shall have thirty (30) days immediately following the submission
to it by Landlord of each applicable adjustment calculation to objection to such
particular calculation. Should Tenant fail duly and timely to object to such
particular calculation, which object, to be effective, must be in writing and
must state the specifics of such particular objection, then the parties
understand and agree, Landlord's calculation shall be conclusively deemed to be
correct.
Landlord, simultaneously with its submission to Tenant of each
applicable year-end adjustment calculation, shall submit to Tenant a reasonably
detailed statement of Operating Expenses to include, where reasonably
appropriate, backup data. Tenant shall have the right, by itself, or through
its employees or agents, at reasonable times and at a reasonable place in Tampa,
Florida, designated by Landlord, to audit Landlord's books and records in
support of the then applicable year-end adjustment
10
calculation. Tenant agrees that it will not divulge or disclose to third parties
(other than Tenant's attorneys, accountants, auditors or similar professionals,
where in each instance such "outside" parties have a bona fide "need to know")
any data, information, etc., disclosed by Landlord to Tenant (or its auditors)
under the terms and provisions of this Section 3.1(e). If there is a timely
written objection by Tenant (see final two sentences of the immediately
preceding Section), and if Landlord and Tenant are unable to resolve such
objection within thirty (30) days following the delivery by Tenant to Landlord
of such written objection, then Tenant shall immediately thereafter pay Landlord
what Landlord claims is due. The dispute may then be submitted by Tenant to
binding arbitration by the American Arbitration Association in Tampa, Florida,
in accordance with its then prevailing rules. Judgment upon the arbitration
award may be entered in any court in Tampa, Florida, having jurisdiction. The
arbitrators shall have no power to change the provisions of this Lease. The
arbitration panel shall consist of three arbitrators, one of whom shall be a
commercial real estate attorney actively engaged in the practice of law for at
least the last 5 years, another of whom shall be a certified public accountant
actively engaged in the practice of accounting in the commercial real estate
area for at least the last 5 years, and the third of whom shall be a licensed
real estate broker actively engaged in the commercial leasing brokerage area for
at least the last 5 years. Both parties shall continue to perform their
respective Lease obligations during the pendency of any arbitration proceedings.
If it is determined by such arbitration that Tenant overpaid the amount due, the
overpaid amount, together with interest thereon at the rate of two percent (2%)
above the "prime rate" or "base rate" from time to time announced by
NationsBank, N.A. [or its successors] (such rate of interest is sometimes
referred to herein as the "Maximum Rate of Interest and shall be charged from
the date when the same is due hereunder until the same shall be paid, but in no
event shall such rate be in excess of the maximum rate permitted by law), shall
be paid by Landlord to Tenant within ten (10) days, or, at Tenant's election,
applied to the Rent next due under this Lease. For the purposes of that portion
of this Lease dealing with attorney's fees, Tenant shall not be deemed to be
"the prevailing party" unless it is determined by such arbitration that Tenant
overpaid by more than five percent (5%) the Estimated Increases. Likewise for
the purposes of that portion of this Lease dealing with attorney's fees,
Landlord shall not be deemed to be "the prevailing party" unless it is
determined by such arbitration that Tenant has underpaid by more than five
percent (5%) the Estimated Increases. Subject to the foregoing, the arbitrators
shall have the power to award reasonable attorney's fees and reasonable expenses
and costs.
(f) First Year Operating Expenses. In the event actual Operating
-----------------------------
Expenses for the first Lease Year are less than the Estimated First Year
Operating Expenses, Tenant shall receive a credit against the next succeeding
payment of Operating Expenses equal to the amount by which the Estimated First
Year Operating Expenses exceeded actual First Year Operating Expenses. In the
event Estimated First Year Operating Expenses are less than actual First Year
Operating Expenses, Tenant shall pay the balance due within ten (10) days of
receipt of written notice from Landlord.
(g) For the purposes of this Lease Agreement, the term "Rentable
Square Feet" shall mean the total square footage of the Building measured from
the exterior surface of each outer wall to the exterior surface of the opposite
outer wall. On or before the date which is thirty (30) days prior to the
anticipated Commencement Date, Landlord shall submit to Tenant a statement in
writing, certified as being true and correct by Landlord's architect, of the
exact number of Rentable Square Feet contained in the Demised Premises. Such
calculation and certification shall be subject to verification by Tenant and/or
Tenant's architect at Tenant's cost and expense. In the event of a dispute as
to the Rentable Square Feet, Landlord and Tenant agree to submit the dispute to
the Independent Architect under and pursuant to the terms of Section 2.2(f).
3.2. Additional Rent. In addition to the payment of Rent, Tenant shall
---------------
be responsible for
11
paying or satisfying the amount by which the actual Operating Expenses, as
defined in Section 6.2, exceed the Estimated First Year Operating Expenses or
the Base Year Operating Expenses, as the case may be.
3.3. Delinquent Rental Payments. All payments of Base Rent and
--------------------------
Additional Rent shall be payable without previous demand therefor and without
any right of setoff or deduction whatsoever, and in case of nonpayment of any
item of Additional Rent by Tenant when the same is due, Landlord shall have, in
addition to all its other rights and remedies, all of the rights and remedies
available to Landlord under the provisions of this Lease Agreement or by law in
the case of nonpayment of Rent or Additional Rent. The performance and
observance by Tenant of all the terms, covenants, conditions and agreements to
be performed or observed by Tenant hereunder shall be performed and observed by
Tenant at Tenant's sole cost and expense. Any installment of Rent or Additional
Rent or any other charges payable by Tenant under the provisions hereof which
shall not be paid when due or within ten (10) days thereafter shall bear
interest at the Maximum Rate of Interest.
4. USE OF DEMISED PREMISES.
-----------------------
4.1. Permitted Use. The Demised Premises including all buildings or
-------------
other improvements hereafter erected upon the same shall be used for such
activities as may be lawfully carried on in and about the Demised Premises,
provided that such use does not violate the terms of any restrictive covenants.
--------
Tenant shall not use or occupy the same, or knowingly permit them to be used or
occupied, contrary to any statute, rule, order, ordinance, requirement or
regulation applicable thereto, or in any manner which would violate any
certificate of occupancy affecting the same, or which would make void or
voidable any insurance then in force with respect thereto or which would make it
impossible to obtain fire or other insurance thereon required to be furnished
hereunder, or which would cause structural injury to the improvements or cause
the value or usefulness of the Demised Premises, or any portion thereof,
substantially to diminish (reasonable wear and tear excepted), or which would
constitute a public or private nuisance or waste, and Tenant agrees that it will
promptly, upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use.
4.2. Preservation of Demised Premises. Tenant shall not use, suffer, or
--------------------------------
permit the Demised Premises, or any portion thereof, to be used by Tenant, any
third party or the public in such manner as might reasonably tend to impair
Landlord's title to the Demised Premises, or any portion thereof, or in such
manner as might reasonably make possible a claim or claims of adverse usage or
adverse possession by the public, as such, or third persons, or of implied
dedication of the Demised Premises, or any portion thereof. Nothing in this
Lease Agreement contained and no action nor inaction by Landlord shall be deemed
or construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Demised Premises.
5. HAZARDOUS SUBSTANCES.
--------------------
5.1. Tenant's Covenants Regarding Hazardous Substances.
-------------------------------------------------
(a) In connection with Tenant's use and occupancy of the Demised
Premises, Tenant shall at all times and in all respects comply with all
applicable federal, state and local laws, ordinances and regulations ("Hazardous
Materials Laws") relating to industrial hygiene, environmental protection or the
use, analysis, generation, manufacture, storage, presence, disposal or
transportation of any oil, flammable explosives, asbestos, urea formaldehyde,
radioactive materials or waste, or other hazardous toxic,
12
contaminated or polluting materials, substances or wastes, including without
limitation any "hazardous substances," "hazardous wastes," "Hazardous Materials"
or "toxic substances" under any such laws, ordinances or regulations
(collectively, "Hazardous Materials").
(b) Tenant shall at its own expense procure, maintain in effect and
comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals required for Tenant's use of the Demised
Premises, including, without limitation, discharge of (appropriately treated)
materials or waste into or through any sanitary sewer system serving the Demised
Premises (excluding therefrom, however, normal sanitary sewer discharge, it
being understood and agreed by the parties hereto that Landlord shall be
responsible for costs and expenses associated with normal sanitary sewer permits
and authorizations with respect to the Demised Premises). Except as discharged
into the sanitary sewer in strict accordance and conformity with all applicable
Hazardous Materials Laws, Tenant shall cause any and all Hazardous Materials
placed or installed on the Demised Premises by Tenant, its agents, employees or
contractors, to be removed from the Demised Premises and transported solely by
duly licensed haulers to duly licensed facilities for final disposal of such
Hazardous Materials. Tenant shall in all respects, handle, treat, deal with and
manage any and all such Hazardous Materials in, on, under or about the Demised
Premises in complete conformity with all applicable Hazardous Materials Laws and
prudent industry practices regarding the management of such Hazardous Materials.
All reporting obligations imposed by Hazardous Materials Laws regarding such
Hazardous Materials are solely the responsibility of Tenant unless otherwise
required by law. Upon expiration or earlier termination of this Lease, Tenant
shall cause all Hazardous Materials which were installed or placed in the
Demised Premises by Tenant, its agents, employees or contractors, to be removed
from the Demised Premises and transported for use, storage or disposal in
accordance with and in complete compliance with all applicable Hazardous
Materials Laws. Tenant shall not take any remedial action in response to the
presence of any such Hazardous Materials in, on, about or under the Demised
Premises or in any Improvement situated on the Land, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any such Hazardous Materials in any way connected with the
Demised Premises or the Improvements on the Land without first notifying
Landlord of Tenant's intention to do so and affording Landlord ample opportunity
to appear, intervene or otherwise appropriately assert and protect Landlord's
interest with respect thereto. In addition, at Landlord's request, Tenant shall
remove all tanks or fixtures which were installed or placed in or on the Demised
Premises by Tenant, its agents, employees or contractors, and which contain or
contained or are contaminated with Hazardous Materials.
(c) Promptly after Tenant acquires actual knowledge of same, Tenant
shall notify Landlord in writing of (i) any enforcement, clean-up, removal or
other governmental or regulatory action instituted, completed or threatened
pursuant to any Hazardous Materials Laws with respect to the Demised Premises;
(ii) any claim made or threatened by any person against Landlord, or the Demised
Premises, relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials placed
or installed on the Demised Premises by Tenant, its agents, employees or
contractors; and (iii) any reports made to any environmental agency arising out
of or in connection with any such Hazardous Materials in, on or about the
Demised Premises or with respect to any such Hazardous Materials removed from
the Demised Premises, including, any complaints, notices, warnings, reports or
asserted violations in connection therewith. Tenant shall also provide to
Landlord, as promptly as possible, and in any event within five (5) business
days after Tenant first receives or sends the same, copies of all claims,
reports, complaints, notices, warnings or asserted violations relating in any
way to the Demised Premises or Tenant's use thereof. Upon written request
therefor by Landlord (to enable Landlord to defend itself from any claim or
charge related to any Hazardous Materials Law), Tenant shall promptly deliver to
Landlord notices of hazardous waste manifests reflecting the legal and proper
disposal
13
of all such Hazardous Materials removed from the Demised Premises. All such
manifests shall list the Tenant or its agent as a responsible party and in no
way shall attribute responsibility for any such Hazardous Materials to Landlord.
(d) Tenant shall indemnify, defend (with counsel reasonably
acceptable to Landlord), protect and hold Landlord and each of Landlord's
officers, directors, partners, employees, agents, attorneys, successors and
assigns free and harmless from and against any and all claims, liabilities,
damages, costs, penalties, forfeitures, losses or expenses (including attorneys'
fees) for death or injury to any person or damage to any property whatsoever
arising or resulting in whole or in part, directly or indirectly, from the
presence or discharge of Hazardous Materials, in, on, under, upon or from the
Demised Premises or the Improvements placed or installed thereon by Tenant, its
agents, employees or contractors or from the transportation or disposal of such
Hazardous Materials to or from the Demised Premises to the extent caused by
Tenant whether knowingly or unknowingly. Tenant's obligations hereunder shall
include, without limitation, and whether foreseeable or unforeseeable, all costs
of any required or necessary repairs, clean-up or detoxification or
decontamination of the Demised Premises or the Improvements, and the presence
and implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration of or early termination
of the term of this Lease Agreement. For purposes of the indemnity provided
herein, any acts or omissions of Tenant, or its employees, agents, customers,
sub-lessees, assignees, contractors or sub-contractors of Tenant (whether or not
they are negligent, intentional, willful or unlawful) shall be strictly
attributable to Tenant.
(e) Landlord may, at its expense, commission an environmental audit
of the Demised Premises at any time after prior written notice to Tenant.
5.2. Landlord's Covenants Regarding Hazardous Substances.
---------------------------------------------------
(a) Landlord warrants and represents (i) that, to the best of its
present knowledge, the Demised Premises will be at the Commencement Date free
from any Hazardous Materials and shall comply with all applicable Hazardous
Materials Laws; (ii) that the Demised Premises are and will be at the
Commencement Date free of any asbestos or asbestos containing substance; (iii)
that Landlord has never received any notice of any violation of or non-
compliance with any Hazardous Material Laws as regards the Demised Premises;
(iv) that, except for use or discharge in strict accordance and conformity with
all applicable laws, Landlord has never caused or permitted any Hazardous
Material, asbestos or asbestos-containing substance to be placed, held, located
or disposed of on, under or at the Premises or any part thereof. Landlord shall
indemnify and hold Tenant harmless from and against any and all loss, damage,
cost or expense (including but not limited to clean-up costs and losses relating
to interruption or cessation of operations) arising out of or relating to any
breach of any of the foregoing warranties and representations.
(b) In connection with Landlord's ownership, development, operation,
management and maintenance and replacement of the Project (including the Demised
Premises) (such activity by or at the bequest of Landlord and/or its affiliate
being hereinafter collectively called the "Landlord's Activities"), Landlord
shall at all times and in all respects comply with all Hazardous Materials Laws.
(c) Landlord shall at its own expense procure, maintain in effect
and comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals in connection with Landlord's Activities,
including, without limitation, discharge of (appropriately treated) materials or
waste into or through any sanitary sewer system serving the Project. Except as
discharged into the sanitary
14
sewer in strict accordance and conformity with all applicable Hazardous
Materials Laws, Landlord shall cause any and all Hazardous Materials to be
removed from the Project and transported solely by duly licensed haulers to duly
licensed facilities for final disposal of such Hazardous Materials. Landlord
shall in all respects, handle, treat, deal with and manage any and all Hazardous
Materials in, on, under or about the Project in complete conformity with all
applicable Hazardous Materials Laws and prudent industry practices regarding the
management of such Hazardous Materials. All reporting obligations imposed by
Hazardous Materials Laws with respect to the Landlord's Activities are solely
the responsibility of Landlord. Landlord shall not take any remedial action in
response to the presence of any Hazardous Materials in, on, about or under the
Demised Premises or in any Improvement situated on the Land, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the Demised
Premises or the Improvements on the Land without first notifying Tenant of
Landlord's intention to do so and affording Tenant ample opportunity to appear,
intervene or otherwise appropriately assert and protect Tenant's interest with
respect thereto.
(d) Promptly after Landlord acquires actual knowledge of same,
Landlord shall notify Tenant in writing of (i) any enforcement, clean-up,
removal or other governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Materials Laws with respect to the Project;
(ii) any claim made or threatened by any person against Tenant, or the Demised
Premises, relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials; and
(iii) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in, on or about the Project or with
respect to any Hazardous Materials removed from the Project, including, any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Landlord shall also provide to Tenant, as promptly as possible, and
in any event within five (5) business days after Landlord first receives or
sends the same, with copies of all claims, reports, complaints, notices,
warnings or asserted violations relating in any way to the Project or Landlord's
Activities.
(e) Landlord shall indemnify, defend (with counsel reasonably
acceptable to Tenant), protect and hold Tenant and each of Tenant's officers,
directors, partners, employees, agents, attorneys, successors and assigns free
and harmless from and against any and all claims, liabilities, damages, costs,
penalties, forfeitures, losses or expenses (including attorneys' fees) for death
or injury to any person or damage to any property whatsoever arising or
resulting in whole or in part, directly or indirectly, from the presence or
discharge of Hazardous Materials, in, on, under, upon or from the Project or the
Improvements located thereon or from the transportation or disposal of Hazardous
Materials to or from the Project to the extent caused by Landlord, its agents,
employees or contractors, whether knowingly or unknowingly. Landlord's
obligations hereunder shall include, without limitation, and whether foreseeable
or unforeseeable, all costs of any required or necessary repairs, clean-up or
detoxification or decontamination of the Project or the Improvements, and the
presence and implementation of any closure, remedial action or other required
plans in connection therewith, and shall survive the expiration of or early
termination of the term of this Lease Agreement. For purposes of the indemnity
provided herein, any acts or omissions of Landlord, or its employees, agents,
customers, sub-lessees, assignees, contractors or sub-contractors of Landlord
(whether or not they are negligent, intentional, willful or unlawful) shall be
strictly attributable to Landlord.
6. OPERATING EXPENSES.
------------------
6.1. Payment of Operating Expenses. In addition to Rent during the First
-----------------------------
Lease Year (which
15
includes the Estimated First Year Operating Expenses), Tenant shall pay to
Landlord as "Additional Rent" the amount by which actual "Operating Expenses"
(as such term is hereinafter defined) for each Lease Year exceed the Estimated
First Year Operating Expenses during the first Lease Year of the Initial Term
and the "Base Year Operating Expenses" each Lease Year thereafter.
6.2. Definition of Operating Expenses. Subject to the exclusions set
--------------------------------
forth in Section 6.3 below, for the purposes of this Lease Agreement, the term
"Operating Expenses" shall mean the total cost or expense, incurred by Landlord
operating, repairing or maintaining the Demised Premises and sales, use and
other similar taxes which are paid by Tenant to Landlord together with the
monthly installments of Rent. Operating Expenses shall include, without
limitation, the following:
(a) Wages, salaries, payroll costs, and benefits paid to or on
behalf of Landlord's employees directly engaged in the operation, maintenance,
repair and security (pro rated to reflect only that portion of the employee(s)
time serving the Demised Premises and excluding any time, expenses, etc. to the
extent relating to any other building or property owned, operated or managed by
Landlord or any affiliate of Landlord).
(b) Administrative costs of management, including a reasonable and
customary management fee, provided the management fee does not exceed three (3)
percent of the Rent.
(c) Cost of insurance required by Article 8.
(d) Any cost or expense incurred by Landlord in connection with
maintaining its option agreement for the Exhibit C Property under Section 2.12.
6.3. Certain Exclusions from Operating Expenses.
------------------------------------------
(a) Notwithstanding the terms and provisions of Section 6.2 or of
any other terms or provision of this Lease Agreement, the following shall be
excluded from Operating Expenses: (1) leasing commissions, (2) subject to
Tenant's obligation to make "Tenant's Compliance Contribution" pursuant to
Section 11.1, costs incurred by Landlord for alterations or additions that are
considered capital improvements and/or replacements under generally accepted
accounting principles; (3) any depreciation or amortization on the Project; (4)
subject to Tenant's obligation to make "Tenant's Compliance Contribution"
pursuant to Section 11.1, costs of a capital nature, including, without
limitation, capital improvements, capital repairs, capital equipment and capital
tools as determined in accordance with generally accepted accounting principles;
(5) costs, fines or penalties incurred due to a violation by Landlord of any of
the terms and conditions of this lease or any other lease relating to the
Project, or of any Laws; (6) interest on debt or amortization payments, or
increases in interest on debt, or any mortgages and rental under any ground or
underlying lease, or any other debt for borrowed money; (7) repairs and any
other work occasioned by fire, windstorm or other casualty which are paid from
insurance or condemnation proceeds; (8) fines, penalties or late charges
incurred because of Landlord's failure to promptly pay an obligation; and (9)
any cost or expense which is already passed onto Tenant (or reimbursed to
Landlord) pursuant to some other term or provision of this Lease Agreement, or
any expense billed to and paid directly by Tenant on its own account or on
behalf of Landlord and (10) the cost of constructing the Improvements and
preparing the Demised Premises for occupancy by Tenant.
(b) Capital Improvements. Tenant shall not be obligated to pay for
--------------------
any costs of a capital nature, subject to the following two qualifications: (1)
Tenant shall be obligated to pay "Tenant's
16
Compliance Contribution" pursuant to Section 11.1; and (2) if during the Initial
Term (or any Renewal Term) Landlord and Tenant mutually agree that a capital
improvement would result in a reduction in Operating Expenses, Landlord and
Tenant may (at the time that they mutually approve such capital improvement)
agree upon a portion of the amortization of such capital improvement to be
included in the definition of "Operating Expenses", provided, however, it is the
intent of the parties that in no event will the portion of the amortization
included in Operating Expenses exceed the cost savings associated with the
capital improvement and if Landlord incurs a cost of a capital nature without
obtaining Tenant's prior written consent and agreement, Tenant shall not be
responsible for paying any portion of such capital cost.
(c) Tenant's Direct Obligations. Except for Landlord's obligations
---------------------------
under Section 10.1(a) and Operating Expenses as set forth in Section 6.2, Tenant
shall directly maintain, pay and perform any and all other obligations and
charges in connection with Tenant's use and occupancy of the Demised Premises,
including, without limitation, business license or similar permit fees (but not
Certificate of Occupancy or construction related permits, licenses or other
authorizations, all of which shall be paid by Landlord). In the event Tenant
fails to perform, pay or discharge any such obligations or charges when due
without penalty or interest, Landlord may, but shall not be obligated to pay the
same. In the event Landlord makes any such payment, Tenant shall immediately
reimburse Landlord therefore together with interest at the Maximum Rate of
Interest on such amount within 15 days of demand by Landlord. Further, Tenant
agrees to indemnify, defend and hold Landlord harmless from and against Tenant's
failure to comply with this Section 6.3(c). The direct obligations and charges
related to Tenant's use and occupancy of the Demised Premises under this Section
6.3(c) shall include but not be limited to the following:
(i) Cost of all utilities as set forth in Article 9 including
but not limited to electricity, water and sewer.
(ii) All supplies and materials used in operation and
maintenance of the Demised Premises.
(iii) Cost of any maintenance or service agreements such as
alarm or security service (excluding the cost of any separate alarm or
security service paid for by Tenant), landscape maintenance, window
cleaning, and air conditioning service.
(iv) Cost of repairs, replacements and general maintenance,
excluding capital improvements, except as otherwise provided in
Section 6.3(b) and Section 11.1 hereinafter.
(v) All assessments by Gateway Services District and any other
applicable assessments or charged levied by entities having
jurisdiction thereof, pursuant to restrictive covenants or law,
against the Demised Premises.
(vi) All impositions as set forth in Article 7.
(vii) Cost to provide janitorial service.
(viii) Cost to keep and maintain the Building, the Demised
Premises, common facilities, common areas, parking area, sidewalks and
appurtenances in a first class condition.
17
(ix) Cost to adequately light the Building and the Demised
Premises, and provide and replace lamps and related equipment when
necessary.
(x) Cost to provide hot and cold water and sanitary and
toilet facilities and supplies for use by Tenant, its employees and
invitees.
(xi) Cost to furnish and provide the Demised Premises with
electric current for lighting, normal office use, heating, air
conditioning and office machines, such as duplicating and word
processing equipment and computer terminals.
(xii) Cost to provide sufficient elevator service for access to
the Demised Premises. (At least one (1) elevator shall operate during
non-business hours, affording access to the Premises.)
(xiii) Cost to provide adequate security services for the
Demised Premises, the Building and common areas in and around the
Building, including fire and burglar alarm devices and guard
protection, to perform annual inspection and/ or testing of the smoke
detectors and fire extinguishers in the Demised Premises and
elsewhere in the Building and to provide for the periodic maintain
and annual inspection of the Building fire alarm system.
7. PAYMENT OF TAXES, ASSESSMENTS, ETC.
----------------------------------
7.1. Payment of Impositions. Tenant covenants and agrees to pay during
----------------------
the Term directly to the applicable authority before any fine, penalty, interest
or cost may be added thereto for the nonpayment thereof, all real estate taxes,
special assessments, water rates and charges, sewer rates and charges, including
charges for public utilities, street lighting, excise levies, licenses, permits,
inspection fees, other governmental charges, and all other charges or burdens of
whatsoever kind and nature (including costs, fees, and expenses of complying
with any restrictive covenants or similar agreements to which the Demised
Premises are subject) incurred in the use, occupancy, ownership, operation,
leasing or possession of the Demised Premises, without particularizing by any
known name or by whatever name hereafter called, and whether any of the
foregoing be general or special, ordinary or extraordinary, foreseen or
unforeseen (all of which are sometimes herein referred to as "Impositions"),
which at any time during the Term may have been or may be assessed, levied,
confirmed, imposed upon, or become a lien on the Demised Premises, or any
portion thereof, or any appurtenance thereto, rents or income therefrom, and
such easements or rights as may now or hereafter be appurtenant or appertain to
the use of the Demised Premises. Tenant shall be able to take advantage of all
applicable discounts for early payment of Impositions. Neither the Impositions
nor any other charge passed onto Tenant shall ever include any (i) profit,
income, revenue or similar tax upon the income of Landlord or any franchise,
excise, corporate, estate, partnership, inheritance, succession, capital levy,
transfer, documentary or similar tax of Landlord, or (ii) any charge, fee or
amount due and payable in connection with the design, development or
construction of the Demised Premises. Tenant shall pay all special (or similar)
assessments for public improvements or benefits which, during the Term shall be
laid, assessed, levied or imposed upon or become payable or become a lien upon
the Demised Premises, or any portion thereof, provided, however, that if by law
--------
any special assessment is payable (without default) or, at the option of the
owner, may be paid (without default) in installments (whether or not interest
shall accrue on the unpaid balance of such
18
special assessment), Tenant may pay the same, together with any interest accrued
on the unpaid balance of such special assessment, in installments as the same
respectively become payable and before any fine, penalty, interest or cost may
be added thereto for the nonpayment of any such installment and the interest
thereon. Tenant shall pay all special assessments or installments thereof
(including interest accrued thereon), whether heretofore or hereafter laid,
assessed, levied or imposed upon the Demised Premises, or any portion thereof,
which are due and payable during the Term. Landlord shall pay all installments
of special assessments (including interest accrued on the unpaid balance) which
are payable prior to the commencement and after the expiration or sooner
termination of the Term. Tenant shall pay all real estate taxes, whether
heretofore or hereafter levied or assessed upon the Demised Premises, or any
portion thereof, which are due and payable during the Term. Landlord shall pay
all real estate taxes which are payable prior to the commencement of the Term.
Any provision herein to the contrary notwithstanding, Landlord shall pay that
portion of the real estate taxes and installments of special assessments
attributable to the Demised Premises prior to and after the Term which the
number of days in said years not within the Term bears to 365, and Tenant shall
pay the balance of said real estate taxes and installments of special
assessments during said years.
7.2. Tenant's Right to Contest Impositions. Tenant shall have the right
-------------------------------------
at its own expense to contest the amount or validity, in whole or in part, of
any Imposition by appropriate proceedings diligently conducted in good faith,
but only after payment of such Imposition, unless such payment, or a payment
thereof under protest, would operate as a bar to such contest or interfere
materially with the prosecution thereof, in which event, notwithstanding the
provisions of Section 7.1 hereof, Tenant may postpone or defer payment of such
Imposition if (i) neither the Demised Premises nor any portion thereof would, by
reason of such postponement or deferment, be in danger of being forfeited or
lost, and (ii) Tenant shall have deposited with Landlord cash or a certificate
of deposit or irrevocable letter of credit payable to Landlord issued by a
national bank or federal savings and loan association or other security
reasonably acceptable to Landlord in the amount of the Imposition so contested
and unpaid, together with all interest and penalties which may accrue in
Landlord's reasonable judgment in connection therewith, and all charges that may
or might be assessed against or become a charge on the Demised Premises, or any
portion thereof, during the pendency of such proceedings. If, during the
continuance of such proceedings, Landlord shall, from time to time, reasonably
deem the amount deposited, as aforesaid, insufficient, Tenant shall, upon demand
of Landlord, make additional deposits of such additional sums of money or such
additional certificates of deposit or irrevocable letters of credit as Landlord
may reasonably request. Upon failure of Tenant to make such additional
deposits, the amount theretofore deposited may be applied by Landlord to the
payment, removal and discharge of such Imposition, and the interest, fines and
penalties in connection therewith, and any costs, fees (including attorney's
fees) and other liability (including costs incurred by Landlord) accruing in any
such proceedings. Upon the termination or final determination of any such
proceedings, Tenant shall pay the amount of such Imposition or part thereof, if
any, as finally determined in such proceedings, the payment of which may have
been deferred during the prosecution of such proceedings, together with any
costs, fees, including reasonable attorney's fees, interest, penalties, fines
and other liability in connection therewith, and upon such payment Landlord
shall return all amounts, certificates or other security deposited with it with
respect to the contest of such Imposition, as aforesaid, or, at the written
direction of Tenant, Landlord shall make such payment out of the funds on
deposit with Landlord and the balance, if any, shall be returned to Tenant.
Tenant shall be entitled to the refund of any Imposition, penalty, fine and
interest thereon received by Landlord which have been paid by Tenant or which
have been paid by Landlord but for which Landlord has been previously reimbursed
in full by Tenant. Landlord shall not be required to join in any proceedings
referred to in this Section 7.2 unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought
by or in the name of Landlord, in which event Landlord shall join in such
proceedings or permit the same
19
to be brought in Landlord's name upon compliance with such conditions as
Landlord may reasonably require. Landlord shall not ultimately be subject to any
liability for the payment of any fees, including attorney's fees, costs and
expenses in connection with such proceedings. Tenant agrees to pay all such fees
(including reasonable attorney's fees), costs and expenses or, within ten (10)
days of Landlord's demand, to make reimbursement to Landlord for such payment.
During the time when any such certificate of deposit or other security is on
deposit with Landlord, and prior to the time when the same is returned to Tenant
or applied against the payment, removal or discharge of Impositions, as above
provided, Tenant shall be entitled to receive all interest paid thereon. Cash
deposits shall bear interest.
7.3. Levies and Other Taxes. If, at any time during the term of this
----------------------
Lease Agreement, any method of taxation shall be such that there shall be
levied, assessed or imposed on Landlord, or on the Base Rent or Additional Rent,
or on the Demised Premises, or any portion thereof, a capital levy, gross
receipts tax or other tax on the rents received therefrom, or a franchise tax,
or an assessment, levy or charge measured by or based in whole or in part upon
such rents, Tenant covenants to pay and discharge the same, it being the
intention of the parties hereto that the rent to be paid hereunder shall be paid
to Landlord absolutely net without deduction or charge of any nature whatsoever
foreseeable or unforeseeable, ordinary or extraordinary, or of any nature, kind
or description, except as in this Lease Agreement otherwise expressly provided.
Nothing in this Lease Agreement shall require Tenant to pay any profit, income,
revenue or similar tax upon the income of Landlord or any franchise, excise,
corporate, estate, partnership, inheritance, succession, capital, levy,
transfer, documentary or similar tax of Landlord.
7.4. Evidence of Payment. Tenant covenants to furnish Landlord, within
-------------------
thirty (30) days after the date upon which any Imposition or other tax,
assessment, levy or charge is payable by Tenant without imposition of any fine,
penalty, interest or cost, official receipts of the appropriate taxing
authority, or other appropriate proof satisfactory to Landlord, evidencing the
payment of the same. The certificate, advice or xxxx of the appropriate
official designated by law to make or issue the same or to receive payment of
any Imposition or other tax, assessment, levy or charge may be relied upon by
Landlord as sufficient evidence that such Imposition or other tax, assessment,
levy or charge is due and unpaid at the time of the making or issuance of such
certificate, advice or xxxx.
7.5. Landlord's Right to Contest Impositions. In addition to the right
---------------------------------------
of Tenant under Section 7.2 to contest the amount or validity of Impositions,
Landlord shall also have the right, but not the obligation, to contest the
amount or validity, in whole or in part, of any Impositions not contested by
Tenant, by appropriate proceedings conducted in the name of Landlord or in the
name of Landlord and Tenant. If Landlord elects to contest the amount or
validity, in whole or in part, of any Impositions, such contests by Landlord
shall be at Landlord's expense, provided, however that if the amounts payable by
-----------------
Tenant for Impositions are reduced (or if a proposed increase in such amounts is
avoided or reduced) by reason of Landlord's contest of Impositions, Tenant shall
reimburse Landlord for Tenant's pro-rata share of Landlord's actual and
reasonable costs incurred by Landlord in contesting Impositions, but such
reimbursements shall not be in excess of the amount saved by Tenant by reason of
Landlord's actions in contesting such Impositions.
7.6 Separate Assessment. Landlord represents and warrants to Tenant that
-------------------
the Demised Premises are currently separately assessed from the remainder of the
Project (or other portions thereof), or are capable of being separately assessed
and will be so assessed in the next assessment cycle.
8. INSURANCE.
---------
20
8.1. Landlord's Casualty Insurance Obligations. In connection with Rent
-----------------------------------------
and Additional Rent to be paid by Tenant to Landlord, Landlord agrees to obtain
and continuously maintain in full force and effect during the Term, commencing
with the date that Rent (full or partial) commences, policies of insurance
covering the Improvements constructed, installed or located on the Demised
Premises naming the Tenant, as an additional insured, against: (i) loss or
damage by fire; (ii) loss or damage from such other risks or hazards now or
hereafter embraced by an "Extended Coverage Endorsement," including, but not
limited to, windstorm, hail, explosion, vandalism, riot and civil commotion,
damage from vehicles, smoke damage, water damage and debris removal; (iii) loss
for flood if the Demised Premises are in a designated flood or flood insurance
area; (iv) loss from so-called explosion, collapse and underground hazards; (v)
loss of rental insurance for at least a twelve (12) month period; and (vi) loss
or damage from such other risks or hazards of a similar or dissimilar nature
which are now or may hereafter be customarily insured against with respect to
improvements similar in construction, design, general location, use, occupancy
and location to the Improvements. At all times, such insurance coverage shall be
in an amount equal to one hundred percent (100%) of the then "full replacement
cost" of the Improvements. "Full Replacement Cost" shall be interpreted to mean
the cost of replacing the Improvements without deduction for depreciation or
wear and tear, and it shall include a reasonable sum for architectural,
engineering, legal, administrative and supervisory fees connected with the
restoration or replacement of the Improvements in the event of damage thereto or
destruction thereof. If a sprinkler system shall be located in the Improvements,
sprinkler leakage insurance shall be procured and continuously maintained by
Landlord. For the period prior to the date when full or partial Rent commences
hereunder Landlord, at its sole cost and expense, shall also maintain in full
force and effect, on a completed value basis, insurance coverage on the Building
and Improvements on Builder's Risk or other comparable coverage. Landlord and
Tenant shall require any contractor, subcontractor, sub-subcontractor, laborer
or materialman that works on the Demised Premises for Landlord or Tenant to
provide a satisfactory certificate of insurance to the other prior to
commencement of any such work.
8.2. Tenant's Liability and Other Insurance Coverage. During the Term,
-----------------------------------------------
Tenant, at its sole cost and expense, shall obtain and continuously maintain in
full force and effect the following insurance coverage:
(a) Commercial general liability insurance against any loss,
liability or damage on, about or relating to the Demised Premises, or any
portion thereof, with limits of not less than Two Million Dollars
($2,000,000.00) combined single limit coverage, per occurrence and aggregate, on
an occurrence basis. Any such insurance obtained and maintained by Tenant shall
name Landlord as an additional insured therein and shall be obtained and
maintained from and with a reputable and financially sound insurance company
authorized to issue such insurance in the State of Florida. Such insurance shall
specifically insure (by contractual liability endorsement) Tenant's obligations
under Section 21.1 of this Lease Agreement.
(b) Such other insurance and in such amounts as may from time to
time be reasonably required by Landlord, against other insurable hazards which
-------
at the time are commonly insured against in the case of premises and/or
buildings or improvements similar in construction, design, general location,
use, occupancy and location to those on or appurtenant to the Demised Premises
and at commercially reasonable rates.
The insurance set forth in this Section 8.2 shall be maintained by Tenant
at not less than the limits set forth herein until reasonably required to be
changed firm time to time by Landlord, in writing, whereupon Tenant covenants to
obtain and maintain thereafter such protection in the amount or amounts
21
so required by Landlord.
8.3. Landlord's Liability Insurance Coverage. During the Term, Landlord,
---------------------------------------
at its sole cost and expense, shall obtain and continuously maintain in full
force and effect commercial general liability insurance against any loss,
liability or damage on, about or relating to the Project, or any portion
thereof, with limits of not less than Five Million Dollars ($5,000,000.00)
combined single limit coverage, per occurrence and aggregate, on an occurrence
basis. Any such insurance obtained and maintained by Landlord shall name Tenant
as an additional insured therein (unless Tenant elects to self insure under
Section 8.10, in which event Tenant shall be removed as an additional insured),
and shall be obtained and maintained from and with a reputable and financially
sound insurance company authorized to issue such insurance in the State of
Florida. Such insurance shall specifically insure (by contractual liability
endorsement) Landlord's obligations under Section 21.2 of this Lease Agreement.
8.4. Extended Coverage Insurance Provisions. All policies of insurance
--------------------------------------
required by Section 8.1 shall provide that the proceeds thereof shall be payable
to Landlord and if Landlord so requests shall also be payable to any contract
purchaser of the Demised Premises and the holder of any mortgages now or
hereafter becoming a lien on the fee of the Demised Premises, or any portion
thereof, as the interest of such purchaser or holder appears pursuant to a
standard named insured or mortgagee clause. Tenant shall not, on Tenant's own
initiative or pursuant to request or requirement of any third party, take out
separate insurance concurrent in form or contributing in the event of loss with
that required in Section 8.1 hereof, unless Landlord is named therein as an
additional insured with loss payable as in said Section 8.1 provided. Tenant
shall immediately notify Landlord whenever any such separate insurance is taken
out and shall deliver to Landlord original certificates evidencing the same.
8.5. General Insurance Requirements. Each policy required under Sections
------------------------------
8.1 and 8.2 shall have attached thereto (i) an endorsement that such policy
shall not be canceled or materially changed without at least thirty (30) days
prior written notice to the party named therein as an additional insured, and
(ii) an endorsement to the effect that the insurance as to the interest of the
party named as additional insured shall not be invalidated by any act or neglect
of the insuring party. All policies of insurance shall be written on companies
reasonably satisfactory to the party named as an additional insured therein and
licensed in the State of Florida. Certificates evidencing insurance shall be in
a form reasonably acceptable to the recipient party, shall be delivered to such
party upon commencement of the Term and prior to expiration of such policy, new
certificates evidencing such insurance, shall be delivered to such party not
less than twenty (20) days prior to the expiration of the then current policy
term.
8.6. Waiver of Subrogation. Landlord and Tenant shall include in the
---------------------
policy or policies of insurance required by this Article 8 a waiver by the
insurer of all rights of subrogation against Landlord or Tenant in connection
with any loss or damage thereby insured against. Neither party, nor its agents,
employees or guests, shall be liable to the other for loss or damage caused by
the risk covered by such insurance.
8.7. Tenant's Personal Property Coverage. Tenant, at its option, shall
-----------------------------------
maintain insurance coverage (including loss of use and business interruption
coverage) upon Tenant's business and upon all personal property of Tenant or the
personal property of others kept, stored or maintained on the Demised Premises
against loss or damage by fire, windstorm or other casualties or causes for such
amount as Tenant may desire.
8.8. Unearned Premiums. Upon expiration or sooner termination of the
-----------------
Term, the unearned
22
premiums upon any insurance policies or certificates thereof lodged with Tenant
by Landlord shall, subject to the provisions of Article 14 hereof, be payable to
Tenant.
8.9. Blanket Insurance Coverage. Nothing in this Article shall prevent
--------------------------
Tenant from taking out insurance of the kind and in the amount provided for
under the preceding Sections of this Article under a blanket insurance policy or
policies (evidence thereof reasonably satisfactory to Landlord shall be
delivered to Landlord) which may cover other properties owned or operated by
Tenant as well as the Demised Premises; provided, however, that any such policy
--------
of blanket insurance of the kind provided for shall (i) specify therein the
amounts thereof exclusively allocated to the Demised Premises or Tenant shall
furnish Landlord and the holder of any fee mortgage with a written statement
from the insurers under such policies specifying the amounts of the total
insurance exclusively allocated to the Demised Premises, and (ii) not contain
any clause which would result in the insured thereunder being required to carry
any insurance with respect to the property covered thereby in an amount not less
than any specific percentage of the Full Replacement Cost of such property in
order to prevent the insured therein named from becoming a co-insurer of any
loss with the insurer under such policy; and provided further, however, that
----------------
such policies of blanket insurance shall, as respects the Demised Premises,
contain the various provisions required of such an insurance policy by the
foregoing provisions of this Article.
8.10. Tenant's Self-Insurance. Notwithstanding anything herein to the
-----------------------
contrary, upon ninety (90) days prior written notice to Landlord, Tenant may
from time to time self-insure with respect to any or all of the risks required
to be insured against by Tenant under this Lease Agreement; subject to its
continued waiver of subrogation under Section 8.6 hereinabove and provided that
Tenant provides satisfactory evidence to Landlord that Tenant has a net worth in
excess of $100,000,000.00. In connection therewith, Tenant shall be required to
deliver to Landlord, from time to time, at Landlord's request, updated financial
information of Tenant certifying that Tenant has a net worth in excess of
$100,000,000.00 (the "Net Worth Certification"). The mere purchase and existence
of insurance by the Tenant, or the Tenant's decision to self-insure does not
reduce or relieve the Tenant from liability incurred and/or assumed within the
scope of this Lease.
8.11 Worker's Compensation
---------------------
Landlord shall carry appropriate workers' compensation and employers'
liability insurance on those of its employees who may at any time enter the
Demised Premises and agrees to indemnify and hold harmless Tenant from and
against any and all expenses connected with claims made by Landlord's employees
for injuries incurred at the Demised Premises.
9. UTILITIES.
---------
9.1. Payment of Utilities. During the Term, Tenant will pay directly to
--------------------
the applicable utility company, when due without the imposition of any fine,
penalty, interest of costs, all charges of every nature, kind or description for
utilities furnished solely to the Demised Premises or chargeable solely against
the Demised Premises, including all charges for water, sewage, heat, gas, light,
garbage, electricity, telephone, steam, power, or other public or private
utility services. Prior to the Commencement Date, Landlord shall pay for all
utilities or services at the Demised Premises used by it or its agents,
employees or contractors (excluding therefrom, however, any utilities consumed
in connection with construction of the Demised Premises). All such charges for
utilities are Operating Expenses pursuant to Section 6 hereinabove.
23
10. REPAIRS.
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10.1. (a) Landlord's Repairs. Landlord, at its sole cost and expense
------------------
(subject to Landlord's right to receive Tenant's Compliance Contribution
pursuant to Section 11.1(b) as Operating Expenses pursuant to Section 6.1),
throughout the Term, shall take good care of the roof, structure (which, for the
purposes of this Agreement shall mean load bearing walls, foundation, roof
system and exterior panels, excluding items of a cosmetic nature) and paved
parking areas (in accordance with Section 10.5 herein) in the Demised Premises
(including any improvements hereafter erected or installed on the Land), and
shall keep the same in good order and condition, and shall make and perform all
routine maintenance thereof and all necessary repairs thereto, ordinary and
extraordinary, foreseen and unforeseen, of every nature, kind and description.
When used in this Article, "repairs" shall include all necessary replacements,
renewals, alterations, additions and betterments. All repairs made by Landlord
shall be at least equal in quality to the original work and shall be made by
Landlord in accordance with all laws, ordinances and regulations whether
heretofore or hereafter enacted. The necessity for or adequacy of maintenance
and repairs shall be measured by the standards which are appropriate for
improvements of similar construction and class, provided that Landlord shall in
any event make all repairs necessary to avoid any structural damage or other
damage or injury to the Improvements.
(b) Tenants Repairs. Except to the extent otherwise set forth in
---------------
Section 10.1(a) above, Tenant, at its sole cost and expense, throughout the
Term, shall take good care of the Demised Premises and shall keep the same in
good order and condition, and shall make and perform all routine maintenance
thereof and all necessary repairs thereto, interior and exterior, ordinary and
extraordinary, foreseen and unforeseen, of every nature, kind and description.
When used in this Article, "repairs" shall include all necessary replacements,
renewals, alterations, additions and betterments. All repairs made by Tenant
shall be at least equal in quality to the original work and shall be made by
Tenant in accordance with all laws, ordinances and regulations whether
heretofore or hereafter enacted. The necessity for or adequacy of maintenance
and repairs shall be measured by the standards which are appropriate for
improvements of similar construction and class, provided that Tenant shall in
any event make all repairs necessary to avoid any damage or injury to the
Improvements.
10.2. Maintenance. Except to the extent otherwise set forth in Section
-----------
10.1(a) above, Tenant, at its sole cost and expense, shall take good care of,
repair and maintain all driveways, pathways, roadways, sidewalks, curbs, spur
tracts, parking areas (in accordance with Section 10.5 herein), loading areas,
landscaped areas, entrances and passageways of the Demised Premises in good
order and repair and shall promptly remove all accumulated snow, ice and debris
from any and all driveways, pathways, roadways, sidewalks, curbs, parking areas,
loading areas, entrances and passageways, and keep all portions of the Demised
Premises including areas appurtenant thereto, in a clean and orderly condition
free of dirt, rubbish, debris and unlawful obstructions. Further, Tenant shall
keep the Demised Premises safe for human occupancy and use.
All work performed by Tenant under this Article 10 shall provide for
containment of any toxic materials which may be encountered and shall be in
strict conformance with OSHA and EPA standards and local building codes and
regulations. Landlord shall not use toxic paint or other materials which may
emit fumes or odors harmful to Tenant's employees.
10.3. Prohibition Against Waste. Tenant shall not do or suffer any
-------------------------
waste or damage, disfigurement or injury to the Demised Premises, or any
improvements hereafter erected thereon, or to the fixtures or equipment therein
or permit or suffer any overloading of the floors or other use of the
24
Improvements that would place an undue stress on the same or any portion thereof
beyond that for which the same was designed.
10.4. Service Agreements. Tenant, at its sole cost and expense, shall
------------------
maintain contracts for servicing the systems serving the Demised Premises,
including, without limitation, landscape maintenance, pest control, security,
xxxxx or lift stations, if applicable, generators, window cleaning, trash
removal, parking lot maintenance and sweeping, fire safety maintenance and
inspection, signage maintenance, exterior painting, interior cosmetic
maintenance such as wall covering, painting walls and carpeting, plumbing
repairs and general plumbing maintenance, the elevator system and the HVAC
System, with contractors and pursuant to contracts reasonably satisfactory to
Landlord. Tenant shall provide Landlord with copies of such contracts and
information regarding such contractors for Landlord's approval, which approval
shall not be unreasonably withheld.
10.5 Parking Areas. Tenant shall be responsible for ordinary repairs,
-------------
maintenance and sweeping of all parking areas, including any routine pothole
patching or repair. Tenant shall cause the parking areas to be resealed and
restriped as needed, but in no event less than once every three (3) years.
Landlord shall be responsible for resurfacing the parking areas upon the
recommendation of an independent parking consultant selected by Landlord and
Tenant; however, in the event Tenant fails to adhere to the resealing and
restriping schedule set forth herein, Landlord shall be relieved of such
responsibility and any required resurfacing shall be the sole responsibility of
Tenant.
11. COMPLIANCE WITH LAWS AND ORDINANCES.
-----------------------------------
11.1. Compliance with Laws and Ordinances. As used in this Lease
-----------------------------------
Agreement, the term "Laws" shall mean all present and future laws, ordinances,
orders, rules, regulations and requirements of all federal, state, municipal and
other governmental bodies having jurisdiction over the Demised Premises and the
appropriate departments, commissions, boards and officers thereof, and the
orders, rules and regulations of the Board of Fire Underwriters where the
Demised Premises are situated, or any other body now or hereafter constituted
exercising lawful or valid authority over the Demised Premises, or any portion
thereof or the sidewalks, curbs, roadways, alleys, entrances or railroad tract
facilities adjacent or appurtenant thereto, or exercising authority with respect
to the use or manner of use of the Demised Premises, or such adjacent or
appurtenant facilities, including, without limitation, the Americans with
Disabilities Act. Landlord shall be responsible for constructing Landlord's
Improvements in accordance with all Laws, as such laws exist as of the date of
the issuance of its building permits and certificate of occupancy. At all times
during Tenant's occupancy of the Demised Premises (or any portion thereof),
Tenant shall cease and remove any violation of Laws resulting from Tenant's
specific use of the Demised Premises other than for general office use. Landlord
and Tenant mutually acknowledge that amendments to existing Laws or enactment of
new Laws taking effect after the Commencement Date may require that substantial
cost be incurred in making physical alterations or improvement to Landlord's
Improvements (physical alterations or improvements to the Landlord's
Improvements that are required to be made during the initial term or any renewal
term to bring the Demised Premises into compliance with amendments to existing
Laws or enactments of new Laws are collectively referred to as "Future
Compliance Improvements"). The term "Future Compliance Improvements" shall not
include any improvements necessary due to Landlord's failure to comply with all
existing Laws as they related to construction of the Landlord's Improvements.
Because the cost of making the Future Compliance Improvements is unforeseeable
as of the Effective Date of this Lease Agreement and may be substantial, the
parties hereby agree to the following with respect to making Future Compliance
Improvements:
25
(a) Landlord shall have the responsibility, at Landlord's sole
expense, for constructing or making the Future Compliance Improvements which are
attributable solely to changes in Laws and are required for Tenant to continue
to utilize Landlord's Improvements for the purposes permitted under this Lease,
subject only to Tenant's obligation to pay Landlord the "Tenant's Compliance
Contribution."
(b) Except to the extent otherwise elected by Tenant or Landlord
herein below, Tenant shall be required to reimburse Landlord for the cost of
constructing or making the Future Compliance Improvements by paying Landlord
additional Operating Expenses in a monthly amount during the Lease Term equal to
the amortized cost of the Future Compliance Improvements constructed or made by
Landlord, amortized over the useful life of such Future Compliance Improvements
as determined by generally accepted accounting principles, such amortization
period not to exceed twenty (20) years ("Tenant's Compliance Contribution"). As
conditions precedent to Landlord's right to receive the Tenant's Compliance
Contribution, (i) Landlord shall have delivered a written notice to Tenant
stating that Landlord intends to commence a Future Compliance Improvement, which
notice shall also cite the applicable Law pursuant to which the Future
Compliance Improvement is being made and provide an estimate of Tenant's
Compliance Contribution, and (ii) Landlord shall submit to Tenant invoices and
other reasonable documentation evidencing the amounts paid by Landlord in making
or constructing the Future Compliance Improvements. Upon Tenant's receipt of a
notice from Landlord of Future Compliance Improvements to be constructed by
Landlord, Tenant may provide Landlord with notice that Tenant will not pay
Tenant's Compliance Contribution and if Tenant does not agree to pay, Landlord
shall, within thirty (30) days of such notice from Tenant, elect to terminate
the Lease or to pay Tenant's Compliance Contribution. If Tenant agrees to pay
Tenant's Compliance Contribution, Landlord agrees to provide Tenant with
reasonable documentation supporting the cost to construct the Future
Improvements and Tenant's Compliance Contribution prior to the initial payment
of Tenant's Compliance Contribution.
(c) Tenant shall have the responsibility, at Tenant's sole expense,
for constructing or making the Future Compliance Improvements which are solely
attributable to changes in use by Tenant or alterations by Tenant.
11.2. Compliance with Permitted Encumbrances. Tenant shall not violate
--------------------------------------
the terms and provisions of the agreements, contracts, easements, restrictions,
reservations or covenants, if any, set forth in Exhibit "D" attached, or
hereafter created by Tenant or consented to, in writing, by Tenant or requested,
in writing, by Tenant, provided, however that, although Tenant shall not violate
--------
the terms of such documents identified on Exhibit "D" as aforesaid, the parties
acknowledge and agree that Tenant is not a party to or otherwise bound by any of
such documents and that nothing in this Lease Agreement is intended or shall be
deemed or construed to pass on to or otherwise impose upon Tenant the duties,
obligations or liabilities of Landlord or of any other party under such
documents (except for Tenant's covenant to Landlord not to violate such
documents as set forth above in this Section 11.2). Tenant shall also comply
with, observe and perform all provisions and requirements of all policies of
insurance at any time in force with respect to the Demised Premises and required
to be obtained and maintained under the terms of Article 8 hereof and shall
comply with all development permits issued by governmental authorities issued in
connection with the development of the Demised Premises. Landlord agrees to
comply with, and perform all of its duties and obligations under, the Permitted
Encumbrances (and all other agreements, contracts, easements, restrictions,
reservations or covenants, if any, created during the Term that affect or relate
to the Demised Premises), including, without limitation, the timely payment of
and any and all sums required to be paid thereunder.
11.3 Tenant's Right to Contest Laws and Ordinances. After prior written
---------------------------------------------
notice to Landlord,
26
Tenant, at its sole cost and expense and without cost or expense to Landlord,
shall have the right to contest the validity or application of any law or
ordinance referred to in this Article 11 in the name of Tenant or Landlord, or
both, by appropriate legal proceedings diligently conducted but only if the
terms of any such law or ordinance, compliance therewith pending the prosecution
of any such proceeding may legally be delayed without the occurrence of any
lien, charge or liability of any kind against the Demised Premises, or any
portion thereof, and without subjecting Landlord or Tenant to any liability,
civil or criminal, for failure so to comply therewith until the termination or
final determination of such proceeding; provided, however if any lien, charge or
--------
civil liability would be incurred by reason of any such delay, Tenant
nevertheless, on the prior written consent of Landlord, may contest as aforesaid
and delay as aforesaid, provided that such delay would not subject Tenant or
Landlord to criminal liability and Tenant: (i) furnishes Landlord security,
reasonably satisfactory to Landlord, against any loss or injury by reason of any
such contest or delay; (ii) prosecutes the contest with due diligence and in
good faith; and (iii) agrees to indemnify, defend and hold harmless Landlord and
the Demised Premises from any charge, liability or expense whatsoever. The
security furnished to Landlord by Tenant shall be in the form of a cash deposit,
a Certificate of Deposit issued by a national bank or federal savings and loan
association payable to Landlord or irrevocable letter of credit payable to
Landlord or other form reasonably acceptable to Landlord. Said deposit shall be
held, administered and distributed in accordance with the provisions of Section
7.2 hereof relating to the contest of the amount or validity of any Imposition.
If necessary or proper to permit Tenant to contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorneys fees incurred by Landlord, execute
and deliver any appropriate papers or other documents; provided, however, that
-------- -------
Landlord shall not be required to execute any document or consent to any
proceeding which would result in the imposition of any cost, charge, expense or
penalty on Landlord or the Demised Premises.
12. MECHANIC'S LIENS AND OTHER LIENS.
--------------------------------
12.1. Freedom from Liens. Tenant shall not suffer or permit any mechanic's
------------------
lien or other lien to be filed against the Demised Premises, or any portion
thereof, by reason of work, labor, skill, services, equipment or materials
supplied to the Demised Premises at the request of Tenant, or anyone holding the
Demised Premises, or any portion thereof, through or under Tenant. If any such
mechanic's lien or other lien caused by or attributed to Tenant shall at any
time be filed against the Demised Premises, or any portion thereof, Tenant shall
cause the same to be discharged of record or bonded within sixty (60) days after
the date of filing the same. If Tenant shall fail to discharge or bond such
mechanic's lien or liens or other lien within such period, then, in addition to
any other right or remedy of Landlord, after five (5) days prior written notice
to Tenant, Landlord may, but shall not be obligated to, discharge the same by
paying to the claimant the amount claimed to be due or by procuring the
discharge of such lien as to the Demised Premises by deposit into the court
having jurisdiction of such lien, the foreclosure thereof or other proceedings
with respect thereto, of a cash sum sufficient to secure the discharge of the
same, or by the deposit of a bond or other security with such court sufficient
in form, content and amount to procure the discharge of such lien, or in such
other manner as is now or may in the future be provided by present or future law
for the discharge of such lien as a lien against the Demised Premises. Any
amount paid by Landlord, or the value of any deposit so made by Landlord,
together with all costs, fees and expenses in connection therewith (including
reasonable attorneys' fees of Landlord), together with interest thereon at the
Maximum Rate of Interest set forth in Section 3.4 hereof, shall be repaid by
Tenant to Landlord on demand by Landlord and if unpaid may be treated as
Additional Rent. Tenant shall indemnify and defend Landlord against and save
Landlord and the Demised Premises, and any portion thereof, harmless from all
losses, costs, damages, expenses, liabilities, suits penalties, claims, demands
and obligations, including,
27
without limitation, reasonable attorneys' fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
All materialmen, contractors, artisans, mechanics, laborers and any other
person now or hereafter furnishing any labor, services, materials, supplies or
equipment to Tenant with respect to the Demised Premises, or any portion
thereof, are hereby charged with notice that they must look exclusively to
Tenant to obtain payment for the same. Notice is hereby given that Landlord
shall not be liable for any labor, services, materials, supplies, skill,
machinery, fixtures or equipment finished or to be furnished to Tenant upon
credit, and that no mechanic's lien or other lien for any such labor, services,
materials, supplies, machinery, fixtures or equipment shall attach to or affect
the state or interest of Landlord in and to the Demised Premises, or any portion
thereof.
12.2. Landlord's Indemnification. The provisions of Section 12.1 above
--------------------------
shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Demised
Premises in the performance of Landlord's obligation to construct the Landlord's
Improvements required by the provisions of Article 2 hereof, and Landlord does
hereby agree to indemnify and defend Tenant against and save Tenant and the
Demised Premises, and any portion thereof, harmless from all losses, costs,
damages, expenses, liabilities and obligations, including, without limitation,
reasonable attorneys' fees resulting from the assertion, filing, foreclosure or
other legal proceedings with respect to any such mechanic's lien or other lien.
12.3. Removal of Liens. Except as otherwise provided for in this Article,
----------------
Tenant shall not create, permit or suffer, and shall promptly discharge and
satisfy of record, any other lien, encumbrance, charge, security interest, or
other right or interest which shall be or become a lien, encumbrance, charge or
security interest upon the Demised Premises, or any portion thereof, or the
income therefrom, or on the interest of Landlord or Tenant in the Demised
Premises, or any portion thereof, save and except for those liens, encumbrances,
charges, security interests, or other rights or interests consented to, in
writing by Landlord, or those mortgages, assignments of rents, assignments of
leases and other mortgage documentation placed thereon by Landlord in financing
or refinancing the Demised Premises.
13. INTENT OF PARTIES.
-----------------
13.1. No Abatement. Except as may be otherwise set forth in this Lease
------------
Agreement, all Rent and Additional Rent shall be paid by Tenant to Landlord
without abatement, deduction, diminution, deferment, suspension, reduction or
setoff, nor shall the obligations of Tenant be affected by reason of any other
cause whether similar or dissimilar to the foregoing or by any laws or customs
to the contrary. It is the express intent of Landlord and Tenant that unless
otherwise set forth herein: (i) the obligations of Landlord and Tenant hereunder
shall be separate and independent covenants and agreements and that the Rent and
Additional Rent, and all other charges and sums payable by Tenant hereunder,
shall commence at the times provided herein and shall continue to be payable in
all events unless the obligations to pay the same shall be terminated pursuant
to an express provision in this Lease Agreement or under applicable Law; (ii)
all costs or expenses of any character or kind, general or special, ordinary or
extraordinary, foreseen or unforeseen, and of every kind and nature whatsoever
that may be necessary or required in and about the Demised Premises, or any
portion thereof, and Tenant's possession or authorized use thereof during the
Term, shall be paid by Tenant except to the extent otherwise set forth in this
Lease Agreement; (iii) all Impositions, insurance premiums, utility expense and
all other costs, fees, interest, charges, expenses, reimbursements and
obligations of every kind and nature whatsoever relating to the Demised
Premises, or any portion thereof, which may arise or become due during the Term,
or any extension or
28
renewal thereof, shall be paid or discharged by Tenant as Additional Rent; and
(iv) Tenant hereby agrees to indemnify, defend and save Landlord harmless from
and against such costs, fees, charges, expenses, reimbursements and obligations,
any interest thereon.
13.2. Entry by Landlord. If Tenant shall at any time fail to pay Rent
-----------------
or Additional Rent, or shall fail to make any other payment or perform any other
act on its part to be made or performed, then Landlord, after prior written
notice to Tenant as provided in Section 14.1 and any applicable cure period (or
without notice or cure in case of emergency), and without waiving or releasing
Tenant from any obligation of Tenant contained in this Lease Agreement, may, but
shall be under no obligation to do so make any payment or perform any act on
Tenant's part to be paid or performed as set forth in this Lease Agreement in
such manner and to such extent as Landlord may deem necessary or desirable, and
Landlord may enter upon the Demised Premises for any such purpose and take all
such action therein or thereon as may be necessary therefor. Nothing herein
contained shall be deemed as a waiver or release of Tenant from any obligation
of Tenant in this Lease Agreement contained.
13.3. Interest on Unpaid Amounts. If Landlord performs Tenant's
--------------------------
obligations as set forth in Section 13.2, all sums so paid by Landlord and all
necessary and incidental costs and expenses, including reasonable attorneys'
fees, in connection with the performance of any such act by Landlord, together
with interest thereon at the Maximum Rate of interest provided for in Section
3.4 hereof from the date of making such expenditure by Landlord, shall be deemed
Additional Rent hereunder and, except as is otherwise expressly provided herein,
shall be payable to Landlord within ten (10) days of demand or, at the option of
Landlord, may be added to any monthly installment of Rent then due or thereafter
becoming due under this Lease Agreement, and Tenant covenants to pay any such
sum or sums, with interest as aforesaid, and Landlord shall have, in addition to
any other right or remedy of Landlord, the same rights and remedies in the event
of nonpayment thereof by Tenant as in the case of default by Tenant in the
payment of monthly Base Rent.
14. DEFAULTS OF TENANT.
------------------
14.1 Event of Default. If any one or more of the following events (in
----------------
this Lease Agreement sometimes called "Event of Default" in the singular and
"Events of Default" in the plural) shall happen:
(a) If default shall be made by Tenant, by operation of law or
otherwise, under the provisions of Article 17 hereof relating to assignment,
sublease, mortgage or other transfer of Tenant's interest in this Lease
Agreement or in the Demised Premises or in the income arising therefrom;
(b) If default shall be made in the due and punctual payment of any
Base Rent or Additional Rent payable under this Lease Agreement or in the
payment of any obligation to be paid by Tenant hereunder, when and as the same
shall become due and payable without imposition of any fine, penalty, interest
or cost, and such default shall continue for a period of ten (10) days after
written notice thereof given by Landlord to Tenant in accordance with Section
22.3;
(c) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement, other than those
referred to in Subsections (a) and (b) of this Section 14.1, which does not
expose Landlord to criminal liability, and such default shall continue for a
period of thirty (30) days after written notice thereof given by Landlord to
Tenant, or in the case of such a default or contingency which cannot with due
diligence and in good faith be cured within thirty (30) days, and Tenant fails
to proceed promptly and with due diligence and in good faith to cure the same
and
29
thereafter to prosecute the curing of such default with due diligence and in
good faith, it being intended that in connection with a default which does not
expose Landlord to criminal liability, not susceptible of being cured with due
diligence and in good faith within thirty (30) days, that the time allowed
Tenant within which to cure the same shall be extended for such period as may be
necessary for the curing thereof promptly with due diligence and in good faith;
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement, other than those
referred to in subsections (a), (b) and (c) of this Section 14.1, and which
exposes Landlord to criminal liability, and such default shall continue after
written notice thereof given by Landlord to Tenant, and Tenant fails to proceed
timely and promptly with all due diligence and in good faith to cure the same
and thereafter to prosecute the curing of such default with all due diligence,
it being intended that in connection with a default which exposes Landlord to
criminal liability that Tenant shall proceed immediately to cure or correct such
condition with continuity and with all due diligence and in good faith; then,
and in any such event, Landlord, at any time thereafter during the continuance
of any such Event of Default, may give written notice to Tenant specifying such
Event of Default or Events of Default and stating that this Lease Agreement
shall expire and terminate on the date specified in such notice, and upon the
date specified in such notice this Lease Agreement, all rights of Tenant under
this Lease Agreement, including all rights of renewal whether exercised or not,
shall expire and terminate. In the alternative or in addition to the foregoing
remedy, Landlord may assert and have the benefit of any other remedy allowed at
law, or in equity under the laws of the State of Florida.
14.2. Surrender of Demised Premises. Upon any expiration or termination of
-----------------------------
this Lease Agreement, Tenant shall quit and peaceably surrender the Demised
Premises, and all portions thereof, to Landlord and Landlord, upon or at any
time after any such expiration or termination, may, without further notice,
enter upon and reenter the Demised Premises, and all portions thereof, and
possess and repossess itself thereof by summary proceeding or ejectment and may
dispossess Tenant and remove Tenant and all other persons and property from the
Demised Premises, and all portions thereof, and may have, hold and enjoy the
Demised Premises and the right to receive all rental and other income of and
from the same.
14.3. Reletting by Landlord. At any time, or from time to time after any
---------------------
such expiration or termination, Landlord may relet the Demised Premises, or any
portion thereof, in the name of Landlord or otherwise, for such term or terms
(which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent) as Landlord, in its sole and absolute discretion, may
determine and may collect and receive the rents therefor. Landlord shall in no
way be responsible or liable for any failure to relet the Demised Premises, or
any part thereof, or for any failure to collect any rent due upon any such
reletting. Landlord agrees to use reasonable good faith efforts to relet the
Demised Premises to mitigate damages.
14.4. Survival of Tenant's Obligations.
--------------------------------
(a) No such expiration or termination of this Lease Agreement shall
relieve Tenant of its liabilities and obligations under this Lease Agreement (as
if this Lease Agreement had not been so terminated or expired), and such
liabilities and obligations shall survive any such expiration or termination. In
the event of any such expiration or termination, whether or not the Demised
Premises, or any portion thereof, shall have been relet, Tenant shall pay to
Landlord a sum equal to the Rent, and the Additional Rent and any other charges
required to be paid by Tenant, up to the time of such expiration or termination
of this Lease Agreement, and thereafter Tenant, until the end of what would have
been the Term in the absence of such expiration or termination, shall be liable
to Landlord for, and shall pay to Landlord, as and
30
for liquidated and agreed current damages for Tenant's default:
(i) The equivalent of the amount of the Rent, Additional Rent
and any other charges which would be payable by Tenant under this Lease
Agreement if this Lease Agreement were still in effect, less
(ii) The net proceeds of any reletting effected pursuant to the
provisions of Section 14.3 hereof after deducting all of Landlord's actual
and reasonable expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions, legal
expenses, reasonable attorneys' fees, alteration costs, and expenses of
preparation of the Demised Premises, or any portion thereof, for such
reletting.
(b) Tenant shall pay such current damages in the amount determined in
accordance with the terms of this Section, as set forth in a written statement
thereof from Landlord to Tenant (hereinafter called the "Deficiency"), to
Landlord in monthly installments on the days on which the Rent, Additional Rent
and other charges payable by Tenant would have been payable under this Lease
Agreement if this Lease Agreement were still in effect, and Landlord shall be
entitled to recover from Tenant each monthly installment of the Deficiency as
the same shall arise.
14.5. Damages. At any time after an Event of Default and termination of
-------
this Lease, whether or not Landlord shall have collected any monthly Deficiency
as set forth in Section 14.4, Landlord shall, at its option, be entitled to
recover from Tenant, and Tenant shall pay to Landlord, within ten (10) days of
Landlord's demand, as and for final damages for Tenant's default, an amount
equal to the positive difference (if any) between (A) the then present value of
the aggregate of the Rent, Additional Rent and other charges (as set forth in
Section 6.3(c)) to be paid by Tenant hereunder for the unexpired portion of the
term of the Lease Agreement (assuming this Lease Agreement had not been so
terminated), minus (B) the present value of the then aggregate fair and
reasonable market rent of the Demised Premises and Additional Rent and other
charges (as set forth in Section 6.3(c)) to be paid by Tenant for the same
period less a good faith estimate of the customary and reasonable expenses that
may be incurred by Landlord in reletting the Demised Premises.
14.6. No Waiver. No failure by Landlord or by Tenant to insist upon the
---------
performance of any of the terms of this Lease Agreement or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance by Landlord of
full or partial rent from Tenant or any third party during the continuance of
any such breach, shall constitute a waiver of any such breach or of any of the
terms of this Lease Agreement. None of the terms of this Lease Agreement to be
kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease Agreement, but each of the terms of this Lease Agreement
shall continue in full force and effect with respect to any other then existing
or subsequent breach of this Lease Agreement. No waiver of any default of Tenant
herein shall be implied from any omission by Landlord to take any action on
account of such default, if such default persists or is repeated and no express
waiver shall affect any default other than the default specified in the express
waiver and then only for the time and to the extent therein stated. One or more
waivers by Landlord shall not be construed as a waiver of a subsequent breach of
the same covenant, term or condition.
14.7. Remedies Cumulative. In the event of any breach or breach by either
-------------------
party of any of the terms contained in this Lease Agreement, the non-breaching
party shall be entitled to enjoin such breach or
31
breach and shall have the right to invoke any right or remedy allowed at law or
in equity or by statute or otherwise as though entry, reentry, summary
proceedings and other remedies were not provided for in this Lease Agreement.
Each remedy or right of either party provided for in this Lease Agreement shall
be cumulative and shall be in addition to every other right or remedy provided
for in this Lease Agreement, or now or hereafter existing under Florida law or
in equity or otherwise, and the exercise or the beginning of the exercise by
Landlord or Tenant of any one or more of such rights or remedies shall not
preclude the simultaneous or later exercise by Landlord or Tenant of any or all
other rights or remedies.
14.8. Bankruptcy. If, during the term of this Lease Agreement, (i) Tenant
----------
shall make an assignment for the benefit of creditors, (ii) a voluntary petition
be filed by Tenant under any law having for its purpose the adjudication of
Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to an involuntary
petition in bankruptcy, (iii) a receiver be appointed for the property of
Tenant, or (iv) any department of the state or federal government, or any
officer thereof duly authorized, shall take possession of the business or
property of Tenant as a result of the breach of any Law on the part of Tenant,
the occurrence of any such event shall be deemed a breach of the Lease Agreement
and this Lease Agreement shall, ipso facto upon the happening of any of said
events, be terminated and the same shall expire as fully and completely as if
the day of the happening of such event were the date hereon specifically fixed
for the expiration of the term, and Tenant will then quit and surrender the
Demised Premises, but Tenant shall remain liable as hereinafter provided.
Notwithstanding other provisions of this Lease Agreement, or any present or
future law, Landlord shall be entitled to recover from Tenant or Tenant's estate
(in lieu of the equivalent of the amount of all rent and other charges unpaid at
the date of such termination) the damages set forth in Section 14.4 above,
unless any statute or rule of law covering the proceedings in which such damages
are to be proved shall limit the amount of such claim capable of being so
proved, in which case Landlord shall be entitled to prove as and for damages by
reason of such breach and termination of this Lease Agreement the maximum amount
which may be allowed by or under any such statute or rule of law without
prejudice to any fights of Landlord against any guarantor of Tenant's
obligations herein. Nothing contained herein shall limit or prejudice Landlord's
right to prove and obtain as damages arising out of such breach and termination
the maximum amount allowed by any such statute or rule of law which may govern
the proceedings in which such damages are to be proved, whether or not such
amount be greater equal to, or less than the amount of damages to which Landlord
is entitled under Section 14.4. Specified remedies to which Landlord may resort
under the terms of this Section 14.8 are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may be
lawfully entitled.
14.9. Waiver by Tenant. Tenant hereby expressly waives, so far as permitted
----------------
by law, any and all right of redemption or reentry or repossession or to revive
the validity and existence of this Lease Agreement in the event that Tenant
shall be dispossessed by a judgment or by order of any court having jurisdiction
over the Demised Premises or the interpretation of this Lease Agreement or in
case of entry, reentry or repossession by Landlord or in case of any expiration
or termination of this Lease Agreement.
15. DESTRUCTION AND RESTORATION.
---------------------------
15.1. Destruction and Restoration. Landlord covenants and agrees that
---------------------------
in case of damage to or destruction of the Improvements after the Commencement
Date by fire or otherwise, Landlord, at its sole cost and expense, shall
promptly restore, repair, replace and rebuild the same within a period of twelve
(12) months from the date of the damage or destruction (provided, however, such
period shall be subject to Excused Delay). The Demised Premises (including
Tenant's changes and alterations made pursuant to Section 20.1, provided such
changes or alterations are insured by Landlord pursuant to Article 8) shall be
32
restored as nearly as possible to the condition that the same were in
immediately prior to such damage or destruction with such changes or alterations
(made in conformity with Article 20 hereof) as may be reasonably acceptable to
Landlord and Tenant or required by Law. Tenant shall forthwith give Landlord
written notice of such damage or destruction upon the occurrence thereof and
specify in such notice, in reasonable detail, the extent thereof. Such
restoration, repairs, replacements, rebuilding, changes and alterations,
including the cost of temporary repairs for the protection of the Demised
Premises, or any portion thereof, pending completion thereof are sometimes
hereinafter referred to as the "Restoration." The Restoration shall be carried
on and completed in accordance with the provisions and conditions of this
Article 15. If the net amount of the insurance proceeds (after deduction of all
costs, expenses and fees related to recovery of the insurance proceeds)
recovered by Landlord or Tenant and held by Landlord and Tenant as co-trustees
is reasonably deemed insufficient by Landlord to complete the Restoration of the
Improvements (exclusive of Tenant's leasehold improvements, personal property
and trade fixtures which shall be restored, repaired or rebuilt out of Tenant's
separate funds), Landlord shall, upon request of Tenant, deposit with Landlord
and Tenant, as co-trustees a cash deposit equal to the reasonable estimate of
the amount necessary to complete the Restoration of the Improvements less the
amount of such insurance proceeds available.
15.2. Application of Insurance Proceeds.
---------------------------------
(a) All insurance monies recovered by Landlord or Tenant shall be
held by Landlord and Tenant as co-trustees on account of such damage or
destruction, less the costs, if any, to Landlord of such recovery, shall be
applied to the payment of the costs of the Restoration and shall be paid out
from time to time as the Restoration progresses upon the written request of
Landlord, accompanied by a certificate of the architect or a qualified
professional engineer in charge of the Restoration stating that as of the date
of such certificate: (i) the sum requested is justly due to the contractors,
subcontractors, materialmen, laborers, engineers, architects, or persons, firms
or corporations furnishing or supplying work, labor, services or materials for
such Restoration, or is justly required to reimburse Landlord for any
expenditures made by Landlord in connection with such Restoration, and when
added to all sums previously paid out by Landlord and Tenant does not exceed the
value of the Restoration performed to the date of such certificate by all of
said parties; (ii) except for the amount, if any, stated in such certificates to
be due for work, labor, services or materials, there is no outstanding
indebtedness known to the person signing such certificate, after due inquiry,
which is then due for work, labor, services or materials in connection with such
Restoration, which, if unpaid, might become the basis of a mechanic's lien or
similar lien with respect to the Restoration or a lien upon the Demised
Premises, or any portion thereof, and (iii) the costs, as estimated by the
person signing such certificate, of the completion of the Restoration required
to be done subsequent to the date of such certificate in order to complete the
Restoration do not exceed the sum of the remaining insurance monies, plus the
amount deposited by Landlord, if any, remaining in the hands of Landlord and
Tenant as co-trustees after payment of the sum requested in such certificate.
(b) Landlord shall furnish Tenant at the time of any such payment
with evidence reasonably satisfactory to Tenant that there are no unpaid bills
in respect to any work, labor, services or materials performed, furnished or
supplied in connection with such Restoration. Landlord and Tenant as co-trustees
shall not be required to pay out any insurance monies where Landlord fails to
supply satisfactory evidence of the payment of work, labor, services or
materials performed, famished or supplied, as aforesaid. If the insurance monies
in the hands of Landlord and Tenant as co-trustees, and such other sums, if any,
deposited with Landlord and Tenant as co-trustees pursuant to this Section 15.2
hereof, shall be insufficient to pay the entire costs of the Restoration,
Landlord agrees to pay any deficiency promptly upon demand. Upon completion of
the Restoration and payment in full thereof by Landlord, Tenant shall,
33
within a reasonable period of time thereafter, turn over to Landlord all
insurance monies or other monies then remaining upon submission of proof
reasonably satisfactory to Tenant that the Restoration has been paid for in full
and the damaged or destroyed Building and other improvements repaired, restored
or rebuilt as nearly as possible to the condition they were in immediately prior
to such damage or destruction, or with such changes or alterations as may be
made in conformity with Article 20 hereof.
15.3. Continuance of Tenant's Obligations. Except as provided for in
-----------------------------------
Section 15.6, no destruction of or damage to the Demised Premises, or any
portion thereof, by fire, casualty or otherwise shall permit Tenant to surrender
this Lease Agreement or shall relieve Tenant from its liability to pay to
Landlord the Rent and Additional Rent payable under this Lease Agreement or from
any of its other obligations under this Lease Agreement, and Tenant waives any
rights now or hereafter conferred upon Tenant by present or future law or
otherwise to quit or surrender this Lease Agreement or the Demised Premises, or
any portion thereof, to Landlord or to any suspension, diminution, abatement or
reduction of rent on account of any such damage or destruction.
15.4. Completion of Restoration. The foregoing provisions of this Article
-------------------------
apply only to damage or destruction of the Improvements by fire, casualty or
other cause occurring after the Commencement Date. Any such damage or
destruction occurring prior to such time shall be restored, repaired, replaced
and rebuilt by Landlord, and during such period of construction Landlord shall
obtain and maintain the builder's risk insurance coverage referred to in Article
2 hereof all monies received by Landlord under its builder's risk insurance
coverage shall be applied by Landlord to complete the Restoration of such damage
or destruction and if such insurance proceeds are insufficient Landlord shall
provide all additional funds necessary to complete the Restoration of the
Improvements.
15.5. Adjustment of Rent and Termination of Lease. In the event of damage
-------------------------------------------
to or destruction of the Improvements, in whole or in part, under Section 15.1
hereof, the Base Rent payable hereunder the period from and after such damage or
destruction to the date of Substantial Completion of the Restoration of the
Improvements shall be equitably adjusted and abated based on the portion of the
Improvements being utilized by Tenant after such damage or destruction. If
Landlord fails to complete the Restoration of the Demised Premises required
under this Lease within the time period set forth under Section 15.1 above,
Tenant may terminate this Lease upon giving Landlord written notice of its
election to terminate fifteen (15) days following the expiration of such time
period or Tenant shall have waived its right to terminate for this breach of the
Lease, except to the extent otherwise provided under this Section 15.6. If,
within twenty-four (24) months prior to the expiration of the Term, the
Improvements shall be destroyed or damaged to such an extent that the
Restoration thereof will cost an amount in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00) over and above the net proceeds of the insurance required
to be and maintained by Landlord (to be collected by Landlord and Tenant as co-
trustees as provided in Section 15.2 above), hereinafter referred to as the
"Excess Funds", and Landlord shall be unable or unwilling to expend out of its
own funds such Excess Funds for the purpose of Restoration of such damage or
destruction for occupancy by Tenant, Landlord shall, with reasonable promptness,
notify Tenant, in writing, of such fact, which notice shall be accompanied by a
detailed statement of the nature and extent of such damage or destruction and
detailed estimates of the total cost of Restoration. Within thirty (30) days
after the giving of such notice, Tenant shall notify Landlord either that (i) it
will furnish, at its sole cost and expense, the Excess Funds which are
necessarily required in connection with the Restoration (to be disbursed in
conformity with the requirements of Section 15.2 hereof), (ii) it is unwilling
to expend the Excess Funds for such purpose. Failure to give such notice within
such thirty (30) day period shall be deemed an election by Tenant not to make
such expenditure. In the event that Landlord elects not to expend the Excess
Funds, as aforesaid, then Tenant shall have the option, within thirty (30) days
after the
34
expiration of said thirty (30) day period, to terminate this Lease Agreement and
surrender the Demised Premises to Landlord by a notice, in writing, addressed to
Landlord, specifying such election accompanied by Tenant's payment of the then
remaining balance, if any, of the Rent and Additional Rent and other charges
hereafter specified in this Section. Upon the giving of such notice and the
payment of such amounts, the Term shall cease and come to an end on a day to be
specified in Tenant's notice, which date shall not be more than thirty (30) days
after the date of delivery of such notice by Tenant to Landlord. Tenant shall
accompany such notice with its payment of all Rent and Additional Rent and other
charges payable by Tenant hereunder, justly apportioned to the date of such
termination. In such event Landlord shall be entitled to the proceeds of all
insurance required to be carried hereunder and Tenant shall execute all
documents reasonably requested by Landlord to allow such proceeds to be paid to
Landlord.
If, within twenty-four (24) months prior to the expiration of the Term, the
Improvements shall be destroyed or damaged to such an extent that the
Restoration thereof cannot be reasonably completed by Landlord within seven (7)
months of such damage or destruction, Landlord shall, with reasonable promptness
notify Tenant in writing of such fact, which notice shall be accompanied by a
detailed statement of the proposed schedule for the Restoration period. Within
thirty (30) days after the giving of such notice, Tenant shall notify Landlord
either that (i) it will agree to the construction schedule of Landlord or (ii)
it will elect to terminate this Lease Agreement and surrender the Demised
Premises to Landlord by notice in writing addressed to Landlord specifying such
election accompanied by Tenant's payment of the then remaining balance, if any,
of the Rent and Additional Rent and other charges due and owing by Tenant under
this Lease Agreement. Upon the giving of such notice and the payment of such
amounts, the Term shall cease and come to an end on a day to be specified in
Tenant's notice, which date shall not be more than 30 days after the delivery of
such notice by Tenant to Landlord. In such event Landlord shall be entitled to
the proceeds of all insurance required to be carried hereunder and Tenant shall
execute all documents reasonably requested by Landlord to allow such proceeds to
be paid to Landlord.
16. CONDEMNATION.
------------
16.1. Condemnation of Entire Demised Premises.
---------------------------------------
(a) If, during the Term, the entire Demised Premises shall be taken
as the result of the exercise of the power of eminent domain (hereinafter
referred to as the "Proceedings"), this Lease Agreement and all right, title and
interest of Tenant hereunder shall cease and come to an end on the sooner of (i)
the date of vesting of title pursuant to such Proceedings, or (ii) the date on
which Tenant can no longer occupy the Demised Premises as set forth herein and
Landlord shall be entitled to and shall receive the total award made in such
Proceedings, Tenant hereby assigning any interest in such awards, damages,
consequential damages and compensation to Landlord and Tenant hereby waiving any
right Tenant has now or may have under present or future law to receive any
separate award of damages for its interest in the Demised Premises, or any
portion thereof, or its interest in this Lease Agreement, except as hereinafter
provided in subsection (b).
(b) In any taking of the Demised Premises, or any portion thereof,
whether or not this Lease Agreement is terminated as in this Section provided,
Tenant shall not be entitled to any portion of the award for the taking of the
Demised Premises or damage to the Improvements, except as otherwise provided for
in Section 16.3 with respect to the restoration of the Improvements, or for the
estate or interest of Tenant therein, all such award, damages, consequential
damages and compensation being hereby assigned to Landlord, and Tenant hereby
waives any right it now has or may have under present or future law to receive
any separate award of damages for its interest in the Demised Premises, or any
portion
35
thereof, or its interest in this Lease Agreement, except that Tenant shall have,
nevertheless, the limited right to prove in the Proceedings and to receive any
award which may be made for damages to or condemnation of Tenant's trade
fixtures and equipment, the damage to Tenant's business and for Tenant's
relocation costs, and moving expenses and reestablishment costs in connection
therewith.
16.2. Partial Condemnation/Termination of Lease. If, during the Initial
-----------------------------------------
Term of this Lease Agreement, or any extension or renewal thereof, less than the
entire Demised Premises, shall be taken in any such Proceedings, this Lease
Agreement shall, upon the sooner of (i) the date of vesting of title in the
Proceedings or (ii) the date on which Tenant can no longer occupy the Demised
Premises as set forth herein that constitutes a "Material Partial Condemnation"
(as defined below), terminate as to the portion of the Demised Premises so
taken, and Tenant may, at its option, terminate this Lease Agreement as to the
remainder of the Demised Premises. A "Material Partial Condemnation" shall mean
a taking pursuant to which the business of Tenant conducted in the portion of
the Demised Premises taken cannot reasonably be carried on with substantially
the same scope, utility and efficiency in the remainder of the Demised Premises.
Such termination as to the remainder of the Demised Premises shall be effected
by notice in writing given not more than sixty (60) days after the date of
vesting of title in such Proceedings, and shall specify a date not more than
sixty (60) days after the giving of such notice as the date for such
termination. Upon the date specified in such notice, the Term, and all right,
title and interest of Tenant hereunder, shall cease and come to an end. In the
event that Tenant elects not to terminate this Lease Agreement as to the
remainder of the Demised Premises, the rights and obligations of Landlord and
Tenant shall be governed by the provisions of Section 16.3 below.
16.3. Partial Condemnation/Continuation of Lease. If, during the Initial
------------------------------------------
Term, or any extension or renewal thereof, less than the entire Demised Premises
shall be taken in any such Proceeding, and this Lease Agreement is not
terminated as in Section 16.2 hereof provided (a "Minor Partial Condemnation"),
this Lease Agreement shall, upon the sooner of (i) the date of vesting of title
in the Proceedings or (ii) the date on which Tenant can no longer occupy the
Demised Premises as set forth herein, terminate as to the parts so taken. The
net amount of the award (after deduction of all costs and expenses, including
attorneys' fees) shall be held by Landlord and Tenant as co-trustees and applied
as hereinafter provided. Landlord, in such case, covenants and agrees, at
Landlord's sole cost and expense (subject to reimbursement to the extent
hereinafter provided), promptly to restore that portion of the Improvements on
the Demised Premises not so taken to a complete architectural and mechanical
unit for the use and occupancy of Tenant as in this Lease Agreement provided,
but only to the extent such award or proceeds are actually made available to
Landlord. In the event that the net amount of the award (after deduction of all
costs and expenses, including attorneys' fees) that may be received by Landlord
and held by Landlord and Tenant as co-trustees in any such Proceedings for
physical damage to the Improvements as a result of such taking is insufficient
to pay all costs of such restoration work, Landlord shall deposit with Landlord
and Tenant as co-trustees such additional sum as may be required. Landlord and
Tenant as co-trustees agree in connection with such restoration work to apply so
much of the net amount of any award (after deduction of all costs and expenses,
including attorneys' fees) that may be received by Landlord and held by Landlord
and Tenant as co-trustees in any such Proceedings for physical damage to the
Improvements as a result of such taking to the costs of such restoration work
thereof and the said net award for physical damage to the Improvements as a
result of such taking shall be paid out from time to time to Landlord, or on
behalf of Landlord, as such restoration work progresses upon the written request
of Tenant, which shall be accompanied by a certificate of the architect or the
registered professional engineer in charge of the restoration work stating that:
(i) the sum requested is justly due to the contractors, subcontractors,
materialmen, laborers, engineers, architects or other persons, firms or
corporations furnishing or supplying work, labor, services or materials for such
restoration work or as is justly required to reimburse Landlord
36
for expenditures made by Landlord in connection with such restoration work, and
when added to all sums previously paid out by Landlord and Tenant as co-trustees
does not exceed the value of the restoration work performed to the date of such
certificate. If payment of the award for physical damage to the Improvements as
a result of such taking, as aforesaid, shall not be received by Landlord in time
to permit payments as the restoration work progresses (except in the event of an
appeal of the award by Landlord), Landlord shall, nevertheless, perform and
fully pay for such work without delay (except such Excused Delays as are
referred to in Article 2.3 hereof), and payment of the amount to which Landlord
may be entitled shall thereafter be made by Tenant out of the net award for
physical damage to the Improvements as a result of such taking as and when
payment of such award is received by Tenant. If Landlord appeals an award and
payment of the award is delayed pending appeal Landlord shall, nevertheless,
perform and fully pay for such work without delay (except such Excused Delays as
are referred to in Article 2.3 hereof). Landlord shall also furnish Landlord and
Tenant as co-trustees with each certificate hereinabove referred to, together
with evidence reasonably satisfactory to Landlord and Tenant as co-trustees that
there are no unpaid bills in respect to any work, labor, services or materials
performed, furnished or supplied, or claimed to have been performed, furnished
or supplied, in connection with such restoration work, and that no liens have
been filed against the Demised Premises, or any portion thereof Landlord and
Tenant as co-trustees shall not be required to pay out any funds when there are
unpaid bills for work, labor, services or materials performed, furnished or
supplied in connection with such restoration work, or where a lien for work,
labor, services or materials performed, furnished or supplied has been placed
against the Demised Premises, or any portion thereof. Upon completion of the
restoration work and payment in full therefor by Landlord, and upon submission
of proof reasonably satisfactory to Landlord that the restoration work has been
paid for in full and that the Improvements have been restored or rebuilt to a
complete architectural and mechanical unit for the use and occupancy of Tenant
as provided in this Lease Agreement, Landlord and Tenant as co-trustees shall
pay over to Landlord any portion of the cash deposit furnished by Landlord then
remaining. From and after the date of delivery of possession to the condemning
authority pursuant to the Proceedings, a just and proportionate part of the Base
Rent and Operating Expenses, according to the extent and nature of such taking,
shall xxxxx for the remainder of the Term.
16.4. Continuance of Obligations. In the event of any termination of this
--------------------------
Lease Agreement, or any part thereof, as a result of any such Proceedings,
Tenant shall pay to Landlord all Base Rent and all Additional Rent and other
charges payable hereunder with respect to that portion of the Demised Premises
so taken in such Proceedings with respect to which this Lease Agreement shall
have terminated justly apportioned to the date of such termination. In the event
this Lease Agreement is not terminated in accordance with the terms of this
Article 16, then from and after the sooner of (i) the date of vesting of title
in such Proceedings or (ii) the date on which Tenant can no longer occupy the
Demised Premises as set forth herein, Tenant shall continue to pay the Base
Rent and Additional Rent and other charges payable hereunder, as in this Lease
Agreement provided, to be paid by Tenant subject to an abatement of a just and
proportionate part of the Base Rent and Operating Expenses according to the
extent and nature of such taking as provided for in Section 16.5 with respect to
the Demised Premises remaining after such taking.
16.5. Adjustment of Rent. In the event of a partial taking of the Demised
------------------
Premises under Section 16.2 hereof, or a partial taking of the Demised Premises
under Section 16.3 hereof, followed by Tenant's election not to terminate this
Lease Agreement, the fixed Base Rent payable hereunder during the period from
and after the sooner of the date of vesting of title in such Proceedings or the
date on which Tenant can no longer occupy the Demised Premises as set forth
herein to the termination of this Lease Agreement shall be reduced to a sum
equal to the product of the Base Rent provided for herein multiplied by a
fraction, the numerator of which is the value of the Demised Premises after such
taking and after the same has been restored to a complete architectural unit,
and the denominator of which is the value of the
37
Demised Premises prior to such taking.
16.6. Determination of "Material Partial Condemnation" and "Minor Partial
-------------------------------------------------------------------
Condemnation;" Arbitration. Landlord and Tenant shall make reasonable, good
--------------------------
faith efforts to reach agreement whether a taking pursuant to Proceedings
constitutes a "Material Partial Condemnation" or a "Minor Partial Condemnation"
as defined in Article 16. If the parties are unable to reach agreement, such
dispute shall be resolved by binding arbitration using the same procedure as is
set forth in Section 22.27, subject to the following modifications: (i) the
appraiser(s) shall be instructed to determine whether the applicable
condemnation constitutes a "Material Partial Condemnation" or a "Minor Partial
Condemnation" as defined in Article 16 (not market value); and (ii) last
sentence of Section 22.27 will be deemed modified to provide that the
determination of at least two of the three appraisers shall prevail.
17. ASSIGNMENT, SUBLETTING, ETC.
----------------------------
17.1. Restriction on Transfer (Transfer Requiring Landlord Consent).
-------------------------------------------------------------
Except with respect to Permitted Transfers (as such term is hereinafter defined
in Section 17.2 below), Tenant shall not sublet the Demised Premises, or any
portion thereof, nor assign, mortgage, pledge, transfer or otherwise encumber or
dispose of this Lease Agreement, or any interest therein, or in any manner
assign, mortgage, pledge, transfer or otherwise encumber or dispose of its
interest or estate in the Demised Premises, or any portion thereof under this
Lease Agreement without obtaining Landlord's prior written consent in each and
every instance, which consent may be withheld by Landlord, in its sole and
absolute discretion.
17.2. Transfers. Notwithstanding anything in this Lease Agreement to
---------
the contrary, Tenant may, in its sole and absolute discretion and without the
prior written consent or approval of Landlord, assign, sublease, transfer, or
otherwise dispose of any or all of its interest in, to or under this Lease
Agreement or in, to or under the Demised Premises to an "Affiliate" (as such
term as hereinafter defined) (any such transaction or event being herein called
an "Affiliate Transfer") or any other entity, provided that such Affiliate or
entity has a net worth equal to or greater than Tenant at the time of execution
of this Lease as adjusted for inflation to the date of the assignment. For the
purposes of this Section, the term "Affiliate" shall mean and refer to: (i) any
person or entity which acquires all or substantially all of the assets or the
issued and outstanding capital stock of Tenant; (ii) any corporation or other
entity resulting from reorganization, consolidation or merger of Tenant into or
with any other entity; (iii) the holder or holders of the majority of the issued
or outstanding capital stock of Tenant or of any of the entities described in
this Section; or (iv) any parent, subsidiary, brother, sister, or affiliate
corporation or entity of Tenant. As used in the foregoing clause (iv), the
expression "affiliate corporation or entity" shall mean and refer to a
corporation or entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under the control of,
Tenant. The term "control" as used in the foregoing provision shall mean and
refer to the right and power, direct or indirect, to direct or cause the
direction of the management and policies of such corporation.
18. SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT.
----------------------------- -----------------------------------
18.1. Subordination and Attornment by Tenant. This Lease Agreement and all
--------------------------------------
rights of Tenant herein, and all interest or estate of Tenant in the Demised
Premises, or any portion thereof, shall be subject and subordinate to the lien
of any mortgage, deed of trust, security instrument or other document of like
nature ("Mortgage"), which at any time may be placed upon the Demised Premises,
or any portion thereof, by Landlord, and to any replacements, renewals,
amendments, modifications, extensions or refinancing
38
thereof, and to each and every advance made under any Mortgage. Tenant agrees at
any time hereafter, and from time to time on demand of Landlord, to execute and
deliver to Landlord any instruments, releases or other documents that may be
reasonably required for the purpose of subjecting and subordinating this Lease
Agreement to the lien of any such Mortgage. The subordination and attornment
provided for in this Section 18.1 is conditioned upon Landlord obtaining a
Subordination, Non-Disturbance and Attornment Agreement ("SNDA") from the
existing mortgagee, and from any future mortgagee providing that in the event of
a termination of or foreclosure under any such ground lease or mortgage, such
holder will respect Tenant's possession rights under this Lease Agreement and
shall not disturb Tenant's possession of the Demised Premises provided that
Tenant (i) is not in default of any of its material obligations under this Lease
subject to the giving of notice, if any, and the expiration of any applicable
cure period; (ii) that Tenant will execute the SNDA in form and content
reasonably provided by said mortgagee or lessor provided that the SNDA shall
provide that in any action or proceeding commenced by such mortgagee or lessor
or upon any enforcement of any rights by such mortgagee or lessor, that Tenant's
rights under the Lease Agreement shall be respected and shall not be disturbed
and that the Lease Agreement shall remain in full force and effect provided that
Tenant is not in default under any of the material terms, covenants or
conditions of the Lease Agreement beyond the expiration of all applicable notice
and cure periods, and (iii) that Tenant agrees that upon mortgagee acquiring
title to the Demised Premises, Tenant shall attorn directly to said mortgagee or
its purchaser, and (iv) that Tenant agrees to such other terms and conditions as
may be reasonably required by said mortgagee provided that such terms and
conditions do not increase or alter any of Tenant's obligations under this Lease
Agreement or decrease any rights of Tenant or adversely affect the Tenant's
leasehold interest under this Lease Agreement, and (v) that Tenant shall join in
the execution and delivery of the SNDA and shall agree to the effect that if
such holder of the Mortgage (or purchaser of holder's interest at a foreclosure
sale or otherwise) shall succeed to the interest of the Landlord under this
Lease (whether as a consequence of a foreclosure or any other circumstance),
Tenant shall be bound to the holder of the Mortgage (or purchaser of holder's
interest at a foreclosure sale or otherwise) under the terms, conditions and
covenants of this Lease Agreement for the balance of the term remaining after
such succession and Tenant will attorn to such holder of the Mortgage (or
purchaser of holder's interest at a foreclosure sale or otherwise) as its
Landlord upon any such succession.
18.2. Landlord's Default. In the event of any act of omission of
------------------
Landlord constituting a default by Landlord, Tenant shall not exercise any
remedy until Tenant has given Landlord prior written notice of such act or
omission and until a thirty (30) day period of time to allow Landlord or the
mortgagee to remedy such act or omission shall have elapsed following the giving
of such notice; provided however, that if such act or omission cannot, with due
----------------
diligence and in good faith, be remedied within such thirty (30) day period, the
Landlord and/or mortgagee shall be allowed such further period of time as may be
reasonably necessary provided that it shall have commenced remedying the same
with due diligence and in good faith within said thirty (30) day period (up to a
maximum of ninety (90) days). In the event Landlord's act or omission which
constitutes a Landlord's default hereunder results in the reasonable possibility
of criminal liability or an immediate threat of bodily harm to Tenant's
employees, agents or invites, or damage to Tenant's property, Tenant may proceed
to cure the default without prior notice to Landlord provided, however, that in
--------- -------
that event Tenant shall give written notice to Landlord as soon as possible upon
commencement of such cure. Nothing herein contained shall be construed or
interpreted as requiring any mortgagee to remedy such act or omission. Landlord
shall reimburse Tenant for any costs or expenses paid by Tenant on behalf of
Landlord under this Section 18.2, together with interest at the Maximum Rate of
Interest, within fifteen (15) days of written demand by Tenant.
19. SIGNS.
-----
39
19.1. Tenant's Signs. Tenant may erect signs on the exterior or interior of
--------------
the Building or on the landscaped area adjacent thereto, provided that such sign
or signs: (i) do not cause any structural damage or other damage to the
Building; (ii) do not violate applicable Laws; and (iii) do not violate any
existing restrictions affecting the Demised Premises.
20. CHANGES AND ALTERATIONS.
-----------------------
20.1. Tenant's Changes and Alterations. Subject to the terms and
--------------------------------
conditions of this Section 20, Tenant shall have the right at any time, and from
time to time during the term of this Lease Agreement, to make such changes and
alterations, structural or otherwise, to the Building, Improvements and fixtures
hereafter erected on the Demised Premises as Tenant shall deem necessary or
desirable in connection with the requirements of its business, which such
changes and alterations (other than changes or alterations of Tenant's movable
trade fixtures and equipment) shall be made in all cases subject to the
following conditions, which Tenant covenants to observe and perform:
(a) Permits. No change or alteration shall be undertaken until Tenant
-------
shall have procured and paid for, so far as the same may be required from time
to time, all municipal, state and federal permits and authorizations of the
various governmental bodies and departments having jurisdiction thereof, and
Landlord agrees to join in the application for such permits or authorizations
whenever such action is necessary, all at Tenant's sole cost and expense,
provided such applications to not cause Landlord to become liable for any cost,
fees or expenses.
(b) Compliance with Final Plans and Specifications. Before
----------------------------------------------
commencement of any change, alteration, restoration or construction involving
(a) alteration of a structural component of the Building, (b) alteration of the
exterior surface of the Building (excluding signage, landscaping and other
matters that do not directly or permanently affect the exterior surface of the
Building, and (c) non-structural alterations to the interior of the Building
with an estimated cost of more than Two Hundred Fifty Thousand Dollars
($250,000) (collectively, "Restricted Alterations"), Tenant shall: (i) furnish
Landlord with detailed plans and specifications of the proposed change or
alteration; (ii) obtain Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed or conditioned; (iii) obtain Landlord's
prior written approval of a licensed architect or licensed professional engineer
selected and paid for by Tenant, who shall supervise any such work if Tenant
elects to engage such architect or engineer (hereinafter referred to as
"Alterations Architect or Engineer"); and (iv) obtain Landlord's prior written
approval of detailed Final Plans and Specifications prepared and approved in
writing by said Alterations Architect or Engineer, and of each amendment and
change thereto. With respect to Landlord's prior approval of Restricted
Alterations, (A) Landlord shall not unreasonably withhold, condition or delay
its approval of non-structural Restricted Alterations, and (B) Landlord may
withhold its approval of structural Restricted Alterations in its sole
discretion. All changes or alterations under this Article 20 other than
Restricted Alterations are referred to as "Unrestricted Alterations." Tenant
shall have the right to commence and proceed with Unrestricted Alterations
without obtaining Landlord's prior consent or approval; provided, however, that
Tenant shall give Landlord reasonable notice that it is making an Unrestricted
Alteration.
(c) Utility Maintained. Any change or alteration shall, when
------------------
completed, be of such character as not to reduce the utility of the Demised
Premises or the Building for general office use to which such change or
alteration is made below its utility to Landlord immediately before such change
or alteration, nor shall such change or alteration reduce the area or cubic
content of the Building, nor change the character of the Demised Premises or the
Building as to use without Landlord's express written
40
consent.
(d) Compliance with Laws. All Work done in connection with any change
--------------------
or alteration shall be done promptly and in a good and workmanlike manner and in
compliance with all building and zoning laws of the place in which the Demised
Premises are situated, and with all Laws. The cost of any such change or
alteration shall be paid in cash so that the Demised Premises and all portions
thereof shall at all times be free of liens for labor and materials supplied to
the Demised Premises, or any portion thereof provided, however that the
-----------------
foregoing is not intended to prohibit progress payments, retainages, escrows and
related payment mechanisms which are customary among prudent and well
represented owners in the commercial construction industry. The Work of any
change or alteration shall be prosecuted with reasonable dispatch, delays due to
strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions or similar causes beyond the control of Tenant
excepted. Tenant shall obtain and maintain, at its sole cost and expense, during
the performance of the Work, workers' compensation insurance covering all
persons employed in connection with the Work and with respect to which death or
injury claims could be asserted against Landlord or Tenant or against the
Demised Premises or any interest therein, together with comprehensive general
liability insurance for the mutual benefit of Landlord and Tenant with limits of
not less than One Million Dollars ($1,000,000.00) in the event of injury to one
person, Three Million Dollars ($3,000,000.00) in respect to any one accident or
occurrence, and Five Hundred Thousand Dollars ($500,000.00) for property damage,
and the fire insurance with "extended coverage" endorsement required by Section
8.1 hereof shall be supplemented with "builder's risk" insurance on a completed
value form or other comparable coverage on the Work. All such insurance shall be
in a company or companies authorized to do business in the State of Florida and
reasonably satisfactory to Landlord, and all such policies of insurance or
certificates evidencing insurance shall be delivered to Landlord endorsed
"Premium Paid" by the company or agency issuing the same, or with other evidence
of payment of the premium reasonably satisfactory to Landlord.
(e) Location of Improvements. No change, alteration, restoration or
------------------------
new construction shall be in or connect the Improvements with any property,
building or other improvement located outside the boundaries of the parcel of
land described in Exhibit "A" attached, nor shall the same obstruct or interfere
-----------
with any existing easement.
(f) Removal of Improvements. As a condition to granting approval for
-----------------------
any changes or alterations, Landlord may require Tenant to agree that Landlord,
by written notice to Tenant, given at or prior to the time of granting such
approval, may require Tenant to remove any improvements, additions or
installations installed by Tenant in the Demised Premises at Tenant's sole cost
and expense, and repair and restore any damage caused by the installation and
removal of such improvements, additions, or installations; provided, however,
-------- -------
that the only improvements, additions or installations which Tenant shall remove
shall be those specified in such notice.
Tenant's business and trade fixtures, machinery and equipment, whether or
not attached to the Premises, and all furniture, furnishings and other articles
of movable personal property shall be and remain Tenant's property and may be
removed by Tenant prior to the expiration date of this Lease at Tenant's sole
cost and expense and Tenant shall repair and restore any damage caused by such
removal. Landlord agrees that Tenant shall not be required to remove any part of
the Landlord's Improvements and Tenant shall not be required to remove any
alteration, installation, addition or improvement made by or on behalf of
Tenant, after completion of the Landlord's Improvements, unless Landlord, at
that time it grants its approval to such alteration, installation or
improvement, notifies Tenant that the same must be removed at the end of the
Lease Term and provided that such change does not constitute a normal office
alteration,
41
installation, addition or improvement.
21. INDEMNITY.
---------
21.1 Indemnity of Landlord. Tenant shall pay and discharge, and shall
---------------------
defend, indemnify and hold Landlord (and Landlord's Affiliates and the
respective officers, directors, agents, employees, representatives, successors
and assigns of each), forever harmless from, against and in respect of all
obligations, settlements, liabilities, losses, damages, injunctions, suits,
actions, proceedings, fines, penalties, claims, liens, demands, costs, charges
and expenses of every kind or nature, including, without limitation, reasonable
fees of attorneys and other professionals, and disbursements which may be
imposed on, incurred by or asserted against the persons hereby required to be
indemnified (but not against any of the same to the extent that a negligent or
willful act or omission of any of such parties was the cause of the same),
arising directly or indirectly from or out of:
(a) any failure by Tenant to perform any of the agreements, terms,
covenants or conditions on Tenant's part to be performed under this Lease
Agreement;
(b) any wrongful act or negligence on the part of Tenant or its
Affiliates, or their respective agents, employees, contractors or invitees, or
any failure of Tenant to comply with any applicable Laws or with the directive
of any governmental authority that Tenant is required to comply with pursuant to
this Lease Agreement; or
(c) any other provision of this Lease Agreement which provides that
Tenant shall indemnify and/or hold harmless Landlord in respect of the matters
contained in such provision.
21.2. Indemnity of Tenant. Landlord shall pay and discharge, and shall
-------------------
defend, indemnify and hold Tenant (and Tenant's Affiliates and their respective
officers, directors, agents, employees, representatives, successors and assigns
of each) forever harmless from, against and in respect of all obligations,
settlements, liabilities, losses, damages, injunctions, suits, actions,
proceedings, fines, penalties, claims, liens, demands, costs, charges and
expenses of every kind or nature, including, without limitation, reasonable fees
of attorneys and other professionals, and disbursements which may be imposed on,
incurred by or asserted against the persons hereby required to be indemnified
(but not against any of the same to the extent that a negligent or willful act
or omission of any such parties was the cause of same), arising directly or
indirectly from or out of:
(a) any failure by Landlord to perform any of the agreements, terms,
covenants or conditions on Landlord's part to be performed under this Lease
Agreement;
(b) any wrongful act or negligence on the part of Landlord or its
Affiliates, or their respective agents, employees or contractors or invitees or
any failure of Landlord to comply with any applicable Laws or with the directive
of any governmental authority that Landlord is required to comply with pursuant
to this Lease Agreement; or
(c) any other provision of this Lease Agreement which provides that
Landlord shall indemnify and/or hold harmless Tenant in respect of the matters
contained in such provision.
21.3. Defense Provisions.
------------------
42
(a) Any party seeking indemnification under this Lease Agreement (the
"Indemnified Party") shall give notice to the party required to provide
indemnification hereunder (the "Indemnifying Party") promptly after the
Indemnified Party has actual knowledge of any claim as to which Indemnity may be
sought hereunder, and the Indemnified Party shall permit the Indemnifying Party
(at the expense of the Indemnifying Party) to assume the defense of any claim or
litigation resulting therefrom; provided, however that: (i) counsel for the
--------
Indemnifying Party who shall conduct the defense of such claim or litigation
shall be reasonably satisfactory to the Indemnified Party (The parties agree
that if any claim is covered by insurance that the insurance company counsel
shall be deemed to be satisfactory); (ii) the Indemnified Party may participate
in such defense, but only at the Indemnified Party's own cost and expense; and
(iii) the omission by the Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its indemnification obligations
hereunder except to the extent that such omission results in a failure of actual
notice to the Indemnifying Party and the Indemnifying Party is actually and
materially damaged as a result of such failure to give notice.
(b) The Indemnifying Party shall not, except with the consent of the
Indemnified Party, consent to entry of any judgment or administrative order or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to the Indemnified Party of a release
from all liability with respect to such claim or litigation.
(c) In the event that the Indemnifying Party does not accept the
defense of any matter as above provided, the Indemnified Party shall have the
full right to defend against any such claim or demand, and shall be entitled to
settle or agree to pay in full such claim or demand, in its sole discretion. Any
such defense, settlement or payment by the Indemnified Party shall not
constitute a waiver, release or discharge of the Indemnifying Party's
obligations under this Article, it being understood and agreed that any such
defense, settlement, or payment shall be without prejudice to the right of the
Indemnified Party to pursue remedies against the Indemnifying Party arising out
of or related to the Indemnifying Party's failure or refusal to defend the
Indemnified Party as required herein. Notwithstanding the foregoing, any
Indemnified Party shall have the right to settle any such action or proceeding
at any time, provided that it releases the Indemnifying Party from any further
indemnification obligation hereunder with respect to such settlement.
(d) The provisions of this Article shall survive the expiration or
sooner termination of this Lease.
22. MISCELLANEOUS PROVISIONS.
------------------------
22.1. Entry by Landlord. Upon at least one (1) business day's notice,
-----------------
Tenant agrees to permit Landlord and authorized representatives of Landlord to
enter upon the Demised Premises at all reasonable times during ordinary business
hours (or at other times, and upon such notice as is reasonable under the
circumstances, in bona fide emergency situations) for the purpose of inspecting
the same and making any necessary repairs to comply with any laws, ordinances,
rules, regulations or requirements of any public body, or the Board of Fire
Underwriters, or any similar body. Nothing herein contained shall imply any
duty upon the part of Landlord to do any such work which, under any provision of
this Lease Agreement, Tenant may be required to perform and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform the same. Landlord may, during the progress of any work, keep and
store upon the Demised Premises all necessary materials, tools and equipment.
Landlord agrees to use reasonable good faith efforts to minimize any
interference or disruption of Tenant's use of the Demised Premises. However,
Landlord shall not in any event be liable for inconvenience, annoyance,
disturbance,
43
loss of business or other damage to Tenant by reason of making repairs or the
performance of any work in or about the Demised Premises, or on account of
bringing material, supplies and equipment into, upon or through the Demised
Premises during the course thereof, and the obligations of Tenant under this
Lease Agreement shall not be thereby affected in any manner whatsoever.
22.2. Exhibition of Demised Premises. Upon prior appointment and at
------------------------------
least two (2) business' days notice, Landlord is hereby given the right during
usual business hours at any time during the Term to enter upon the Demised
Premises and to exhibit the same for the purpose of mortgaging or selling the
same. Tenant may, at is option, elect to require that one or more agents or
representatives of Tenant be present during all such activity. During the final
year of the Term or Renewal Term, if applicable, Landlord shall be entitled to
display on the Demised Premises, in such manner as to not unreasonably interfere
with Tenant's business, signs indicating that the Demised Premises are for rent
or sale and suitably identifying Landlord or its agent. Tenant agrees that such
signs may remain unmolested upon the Demised Premises and that Landlord may
exhibit said premises to prospective Tenants during said period as set forth
above.
22.3. Notices. All notices which are required or permitted hereunder must
-------
be in writing and shall be deemed to have been given, delivered or made, as the
case may be (i) when delivered by personal delivery or (ii) subject to
verification by the date of the return receipt, three (3) business days after
having been deposited in the United States Mail, certified or registered, return
receipt requested, sufficient postage affixed and prepaid, or (iii) subject to
verification of receipt by the courier service's record of delivery, one (1)
business day after having been deposited with an expedited overnight courier
service (such as, by way of example, but not limitation, U.S. Express Mail,
Federal Express or Purolator), addressed to the party to whom notice is intended
to be given at the address set forth below:
To Landlord: c/o Triad Properties Corporation
000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
With a copy to: Xxxxx Xxxx Development, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, XX
and
With a copy to: W. Xxxxxxxx Xxxxx, Esquire
Xxxx, Xxxx & Xxxxxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
To Tenant: Gartner Group, Inc.
56 Top Xxxxxxx Xxxx
X.X. Xxx 00000
44
Stamford, Conn 06904-2212
Attn: Director of Real Estate
With a copy to: Gartner Group, Inc.
56 Top Xxxxxxx Xxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
Attn: Corporate Counsel
or at such other place as the parties may from time to time designate by written
notice to each other.
22.4. Quiet Enjoyment. Landlord covenants and agrees that Tenant, upon
---------------
paying the Base Rent and Additional Rent, and upon observing and keeping the
covenants, agreements and conditions of this Lease Agreement on its part to be
kept, observed and performed, shall lawfully and quietly hold, occupy and enjoy
the Demised Premises (subject to the provisions of this Lease Agreement) during
the term of this Lease Agreement without hindrance or molestation by Landlord or
by any person or persons claiming under Landlord.
22.5. Landlord's Continuing Obligations. The term "Landlord," as used in
---------------------------------
this Lease Agreement so far as covenants or obligations on the part of Landlord
are concerned, shall be limited to mean and include only the owner or owners at
the time in question of the fee of the Demised Premises, and in the event of any
transfer or transfers or conveyance (with respect to which Landlord shall
provide at least ten (10) days advance notice and such notice shall at a minimum
include information regarding the identity and ownership of the prospective
grantee or and a copy of the agreement evidencing Landlord's assignment and the
grantee's assumption of Landlord's obligations hereunder) the then grantor shall
be automatically freed and relieved from and after the date of such transfer or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease Agreement thereafter
to be performed, provided that any funds in the hands of such Landlord or the
then grantor at the time of such transfer, in which Tenant has an interest,
shall be turned over to the grantee, and any amount then due and payable to
Tenant by Landlord or the then grantor under any provision of this Lease
Agreement shall be paid to Tenant. Notwithstanding the foregoing, if Tenant has
pending at any time prior to the effective date of such transfer any action or
suit against the transferring "Landlord" hereunder, the foregoing is not
intended and shall not be deemed or construed to prevent or impair the pendency
of such action or suit or the rights of Tenant with respect thereto. The
covenants and obligations contained in this Lease Agreement on the part of
Landlord shall, subject to the aforesaid, be binding on Landlord's successors
and assigns, during and in respect of their respective successive periods of
ownership. Nothing herein contained shall be construed as relieving Landlord of
its obligations under Article 2 of this Lease Agreement, or releasing Landlord
from any obligation to complete the cure of any breach by Landlord during the
period of its ownership of the Demised Premises.
22.6. Estoppel. Landlord and Tenant shall, each without charge at any time
--------
and from time to time, (but not more than three (3) times in a Lease Year)
within ten (10) days after written request by the other party, certify by
written instrument, duly executed, acknowledged and delivered to any mortgagee,
assignee of a mortgagee, proposed mortgagee, or to any purchaser or proposed
purchaser, or to any other person dealing with Landlord, Tenant or the Demised
Premises:
(a) That this Lease Agreement is unmodified and in full force and
effect (or, if there have been modifications, that the same is in full force and
effect, as modified, and stating the
45
modifications);
(b) The dates to which the Rent or Additional Rent or Tenant's Direct
Obligations under Section 6.3(c) have been paid in advance;
(c) Whether or not there are then existing any breaches or defaults
by such party or the other party known by such party under any of the covenants,
conditions, provisions, terms or agreements of this Lease Agreement, and
specifying such breach or default, if any, or any setoffs or defenses against
the enforcement of any covenant, condition, provision, term or agreement of this
Lease Agreement upon the part of Landlord or Tenant as the case may be, to be
performed or complied with (and, if so, specifying the same and the steps being
taken to remedy the same); and
(d) Such other statements or certificates as the requesting party may
reasonably request.
It is the intention of the parties hereto that any statement delivered pursuant
to this Section 23.6 may be relied upon by any of such parties dealing with
Landlord, Tenant or the Demised Premises.
22.7. Delivery of Corporate Documents. In the event that Tenant is a
-------------------------------
corporation, Tenant shall, without charge to Landlord, at any time and from time
to time (but not more than two (2) times in any Lease Year) within ten (10) days
after written request by Landlord, deliver to Landlord, in connection with any
proposed sale or mortgage of the Demised Premises, the following instruments and
documents:
(a) Certificate of Good Standing in the state of incorporation of
Tenant issued by the appropriate state authority and bearing a current date
(such certificate shall be deemed to bear a current date if issued on any date
after the most recent mandatory reporting date to avoid potential revocation of
corporate charter or authorization to do business); and
(b) A copy of Tenant's certificate of incorporation and any
amendments thereof, as such documents appear in the public records.
22.8. Short Form Lease. Upon not less than ten (10) days prior written
----------------
request by either party, the parties hereto agree to execute and deliver to each
other a Short Form Lease, in recordable form, setting forth the follows:
(a) The date of this Lease Agreement;
(b) The parties to this Lease Agreement;
(c) The Term;
(d) The legal description of the Demised Premises; and
(e) Such other matters reasonably requested by either party to be
stated therein.
22.9. Severability. If any covenant, condition, provision, term or
------------
agreement of this Lease Agreement shall, to any extent, be held invalid or
unenforceable, the remaining covenants, conditions, provisions, terms and
agreements of this Lease Agreement shall not be affected thereby, but each
covenant,
46
condition, provision, term or agreement of this Lease Agreement shall be valid
and in force to the fullest extent permitted by law. This Lease Agreement shall
be construed and be enforceable in accordance with the laws of the state in
which the Demised Premise are located.
22.10. Successors and Assigns. The covenants and agreements herein
----------------------
contained shall bind and inure to the benefit of Landlord, its successors and
assigns, and Tenant and its successors and assigns (provided that Tenant has
complied with the applicable terms of Section 17).
22.11. Captions. The caption of each section of this Lease Agreement is
--------
for convenience and reference only, and in no way defines, limits or describes
the scope or intent of such or of this Lease Agreement.
22.12. Relationship of Parties. This Lease Agreement does not create
-----------------------
the relationship of principal and agent, or of partnership, joint venture, or of
any association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of landlord and tenant.
22.13. Entire Agreement. All preliminary and contemporaneous negotiations
----------------
are merged into and incorporated in this Lease Agreement. This Lease Agreement
together with the Exhibits contains the entire agreement between the parties and
shall not be modified or amended in any manner except by an instrument in
writing executed by the parties hereto.
22.14. No Merger. There shall be no merger of this Lease Agreement or the
---------
leasehold estate created by this Lease Agreement with any other estate or
interest in the Demised Premises by reason of the fact that the same person,
firm, corporation or other entity may acquire, hold or own directly or
indirectly, (i) this Lease Agreement or the leasehold interest created by this
Lease Agreement of any interest therein, and (ii) any such other estate or
interest in the Demised Premises, or any portion thereof. No such merger shall
occur unless and until all persons, firms, corporations or other entities having
an interest (including a security interest) in (1) this Lease Agreement or the
leasehold estate created thereby, and (2) any such other estate or interest in
the Demised Premises, or any portion thereof, shall join in a written instrument
expressly effecting such merger and shall duly record the same.
22.15. Possession and Use. Tenant acknowledges that the Demised Premises
------------------
are the property of Landlord and that Tenant has only the right to possession
and use thereof upon the covenants, conditions, provisions, terms and agreements
set forth in this Lease Agreement.
22.16. No Surrender During Lease Term. No surrender to Landlord of this
------------------------------
Lease Agreement or of the Demised Premises, or any portion thereof, or any
interest therein, prior to the expiration of the term of this Lease Agreement
shall be valid or effective unless agreed to and accepted in writing by Landlord
and consented to in writing by all contract vendors and mortgagees, and no act
or omission by Landlord or any representative or agent of Landlord, other than
such a written acceptance by Landlord consented to by all contract vendors and
the mortgagees, as aforesaid, shall constitute an acceptance of any such
surrender.
22.17. Surrender of Demised Premises. At the expiration of the Term,
-----------------------------
Tenant shall surrender the Demised Premises in the same condition as the same
were in upon delivery of possession thereto at the Commencement Date reasonable
wear and tear excepted and damage by fire or other casualty excepted as provided
in this Lease Agreement, and shall surrender all keys to the Demised Premises to
Landlord at the place then fixed for the payment of Base Rent and shall inform
Landlord of all combinations on locks, safes and vaults, if any. Tenant shall
at such time remove all of its property therefrom and all alterations
47
and improvements placed thereon by Tenant if so requested by Landlord as
provided in Section 20.1 above. Tenant shall repair any damage to the Demised
Premises caused by such removal, and any and all such property not so removed
shall, at Landlord's option, become the exclusive property of Landlord or be
disposed of by Landlord, at Tenant's cost and expense, without further notice to
or demand upon Tenant. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of this Lease Agreement. All
property of Tenant which Tenant is obligated to remove that is not removed
within thirty (30) days after the last day of the Term shall be deemed
abandoned. Tenant hereby appoints Landlord its agent to remove all property of
Tenant from the Demised Premises upon termination of this Lease Agreement and to
cause its transportation and storage for Tenant's benefit, all at the sole cost
and risk of Tenant and Landlord shall not be liable for damage, theft,
misappropriation or loss thereof and Landlord shall not be liable in any manner
in respect thereto. Tenant shall pay all costs and expenses of such removal,
transportation and storage. Tenant shall reimburse Landlord upon demand for any
expenses incurred by Landlord with respect to removal or storage of abandoned
property and with respect to restoring said Demised Premises to good order,
condition and repair.
22.18. Holding Over. In the event Tenant remains in possession of the
------------
Demised Premises after expiration of this Lease Agreement, and without the
execution of a new lease, it shall be deemed to be occupying the Demised
Premises as a Tenant from month to month, subject to all the provisions,
conditions and obligations of this Lease Agreement insofar as the same can be
applicable to a month-to-month tenancy, except that the Base Rent shall be
escalated to one hundred twenty-five percent (125%) of the then current Base
Rent for the Demised Premises.
22.19. Survival. All obligations (together with interest or money
--------
obligations at the Maximum Rate of Interest) accruing prior to expiration of the
Term shall survive the expiration or other termination of this Lease Agreement.
22.20. Attorneys' Fees. In the event of any litigation or judicial
---------------
action in connection with this Lease Agreement or the enforcement thereof, the
prevailing party in any such litigation or judicial action shall be entitled to
recover all costs and expenses of any such judicial action or litigation
(including, but not limited to, actual attorneys' and paralegals' fees
reasonably incurred) from the other party.
22.21. Landlord's Limited Liability. Tenant agrees to look solely to
----------------------------
Landlord's interest in the Demised Premises and the Project, and all profits,
rents and sales proceeds arising therefrom for recovery of any monetary judgment
from Landlord, it being agreed that Landlord (and if Landlord is a partnership,
its partners, whether general or limited, and if Landlord is a corporation, its
directors, officers or shareholders) shall not be personally liable for any
monetary judgment or deficiency decree or judgment against Landlord.
22.22. Broker's Commissions. All negotiations relative to this Lease
--------------------
Agreement and the Demised Premises have been conducted by and between Landlord
and Tenant without the intervention of any person or other party as agent or
broker except for Xxxxxxx & Xxxxxxxxx of Florida, Inc. and Xxxxx * Xxxx *
Xxxxxx, Inc. (collectively, the "Brokers"). Landlord, pursuant to separate
agreements or arrangements with the Brokers, shall be responsible for any and
all fees or commissions due and payable to the Brokers arising out of this Lease
Agreement in any way and Tenant shall have no liability therefor. Except with
respect to the fees and commissions of the Brokers to be paid for by Landlord as
aforesaid, Landlord and Tenant warrant and represent to each other that there
are and will be no broker's commissions or fees payable in connection with this
Lease Agreement or the demise of the Demised Premises by reason of their
respective dealings, negotiations or communications. Landlord and Tenant
48
(except with respect to the Brokers as aforesaid) shall and do each hereby
indemnify, defend and hold harmless the other from and against the claims,
demands, actions and judgments against any and all brokers, agents and other
intermediaries alleging a commission, fee or other payment to be owing by reason
of their respective dealings, negotiations or communications in connection with
this Lease Agreement or the demise of the Demised Premises.
22.23. Covenants, Representations and Warranties.
-----------------------------------------
(a) Landlord. Landlord represents and warrants to Tenant, and
--------
covenants and agrees with Tenant, the following:
(i) Landlord is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Florida;
(ii) All material information and data furnished to Tenant
by Landlord or its agents with respect to the Project is true, correct, complete
and not misleading in any material respect;
(iii) Landlord, and the undersigned signatories executing
this Lease Agreement on behalf of Landlord, are duly authorized and empowered to
enter into this Lease Agreement with Tenant;
(b) Tenant. Tenant represents and warrants to Landlord, and
-------
covenants and agrees with Landlord, the following:
(i) Tenant is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware; and
(ii) Tenant, and the undersigned signatures executing this
Lease Agreement on behalf of Tenant, are duly authorized and empowered to enter
into this Lease Agreement with Landlord.
(iii) All material information and data furnished to Landlord
by Tenant or its agents with respect to Tenant is correct and complete and not
misleading in any material respect.
22.24. Landlord's Permission, Consent or Approval. Whenever in this
------------------------------------------
Lease Agreement Landlord's or Tenant's permission, consent or approval is
required, then, except to the extent otherwise expressly provided, such
permission, consent or approval shall not be unreasonably withheld, delayed or
conditioned. Furthermore, except as otherwise expressly provided herein, in the
event that Landlord fails to respond to any written request for consent or
approval within thirty (30) days after the giving of such request, then such
request shall be deemed to have been approved.
22.25. FORUM AND VENUE FOR LEGAL PROCEEDINGS/WAIVER OF JURY TRIAL. ANY
----------------------------------------------------------
LEGAL PROCEEDING OF ANY NATURE BROUGHT BY EITHER PARTY AGAINST THE OTHER TO
ENFORCE ANY RIGHT OR OBLIGATION UNDER THIS LEASE AGREEMENT, OR ARISING OUT OF
ANY MATTER PERTAINING TO THIS LEASE AGREEMENT, SHALL EXCLUSIVELY BE SUBMITTED
FOR TRIAL, WITHOUT JURY, BEFORE ANY COURT SITTING IN XXX COUNTY, STATE OF
FLORIDA HAVING SUBJECT MATTER JURISDICTION. THE PARTIES CONSENT AND SUBMIT TO
THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT AND AGREE TO ACCEPT SERVICE OF
PROCESS OUTSIDE THE STATE OF FLORIDA IN ANY MATTER TO BE SUBMITTED TO ANY SUCH
49
COURT PURSUANT HERETO, AND EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY REGARDING
ANY SUCH MATTER.
22.26. Arbitration. Any dispute with respect to the current
-----------
determination of market rent as set forth in clause (y) of Section 1.3(a) shall
be determined by Landlord and Tenant with Landlord and Tenant promptly
attempting to agree upon an appraiser (Only Appraiser) who shall determine the
"then current fair market rental value for the Demised Premises." If Landlord
and Tenant do not agree upon the Only Appraiser within thirty (30) days after
such applicable time period, Landlord shall designate an appraiser (First
Appraiser) and Tenant shall designate an appraiser (Second Appraiser). The First
Appraiser and Second Appraiser designated shall meet within ten (10) days after
said fifteen (15) day period, and, if within thirty (30) days after said ten
(10) day period has expired, the First Appraiser and Second Appraiser shall not
have agreed upon the "then current fair market rental value for the Demised
Premises", then the First Appraiser and Second Appraiser shall then appoint a
Third Appraiser and if they are unable to agree upon such Third Appraiser within
ten (10) days of the expiration of said last thirty (30) day period, then the
Third Appraiser shall be selected by a court located in Xxx County, Florida or
if said court fails or refuses to select, then by the manner provided for in the
Florida Arbitration Code. The Third Appraiser shall be instructed that his
appraisal shall be made in thirty (30) days after his appointment. If any
appraiser fails or refuses or is unable to act or if either Landlord or Tenant
fails or refuses to appoint a required appraiser, then a new appraiser shall be
appointed in his stead which appointment shall be made as herein provided for
the appointment of the Third Appraiser if the First Appraiser or Second
Appraiser are unable to agree. Landlord and Tenant shall each pay its own
expenses and, if there is more than one appraiser, then Landlord and Tenant
shall pay the fees and expenses of the First Appraiser and Second Appraiser
respectively. The fees and expenses of the Third Appraiser or of the Only
Appraiser, if there is only one appraiser, shall be borne equally by Landlord
and Tenant. Any appraiser designated to serve will be a disinterested party,
shall be qualified to determine the "then current fair market rental value for
the Demised Premises," shall be a member of American Institute of Real Estate
Appraisers (or any successor association or body of comparable standing), and
shall have been actively engaged in the appraisal of office real estate in the
Tampa area for a period of not less than five (5) years immediately prior to his
appointment. If there is an Only Appraiser, then the decision of such appraiser
shall be final and binding upon Landlord and Tenant. If there are two
appraisers, then the decision of such two appraisers will be final and binding
on Landlord and Tenant. If there are three appraisers, then the "then current
fair market rental for the Demised Premises" shall be the arithmetic average of
the then current fair market rental for the Demised Premises determined by the
two appraisers having the closest appraisal values and such determination and
average and shall be final and binding on Landlord and Tenant.
22.27. Counterparts; Expiration of Lease Agreement; "Effective Date".
------------------------------------------------------------
This Lease Agreement may be executed in separate counterparts, each of which
shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument. This Lease Agreement shall be null, void
and of no effect unless it is fully executed by Landlord and Tenant, without
modification (except for mutually agreed upon and initialed changes), and either
(i) at least one fully executed original Lease Agreement has been delivered to
both parties at or before 5:00 p.m. (Eastern Time) on July 30,1997, or (ii) at
or before 5:00 p.m. (Eastern Time) on July 30, 1997 the parties shall have
exchanged executed counterpart signature pages with transmittal letters from
their respective legal counsels confirming that the Lease Agreement has been
deemed fully executed (facsimile transmission of such signature pages and
letters shall be acceptable), provided that the parties agree to cause at least
one fully executed original Lease Agreement will be delivered to both parties
within two (2) business days thereafter. Subject to the immediately preceding
sentence, the"Effective Date" of this Lease Agreement shall mean the later of
the two dates set forth below the respective signatures of Landlord and Tenant.
50
22.28 Access. Tenant, its employees and agents, shall have access to the
------
Demised Premises twenty-four (24) hours a day and seven (7) days a week, except
to the extent prohibited or restricted by Force Majeure Events.
22.29 Protection of Laws. Notwithstanding anything which may be contained
------------------
in the Lease to the contrary, Tenant shall be afforded the full protection
afforded a tenant under the law governing the relationship between landlords and
tenants in the state wherein the Demised Premises are situated.
22.30 OSHA/Tight Building Syndrome. Landlord represents and warrants that,
----------------------------
to the best of its present knowledge, the Demised Premises and the Building
comply with the applicable safety and health standards in effect pursuant to the
Federal Occupational Safety and Health Act, as amended, Environmental Protection
Act (including U.S. Environmental Protection Agency -- Official Pesticides and
Toxic Substances Guidance for Controlling Asbestos-Containing Materials in
Buildings, EPA 560/5-85024 (June, 1985, as revised from time to time) and all
applicable state and local safety and health laws. Subject to Section 11.1,
Landlord covenants to maintain the Demised Premises and the Building in such a
manner as to assure continued compliance with such laws and standards and agrees
to promptly make such repairs or renovations as may be necessary to meet any new
or modified requirement. Landlord agrees to pay, hold harmless and indemnify
Tenant from and against any all losses, damages, claims, suits, actions,
judgments, and costs (including reasonable attorneys' fees) which may arise or
grow out of injury, claim of injury or death of persons or damage to property
attributable to the presence in the Building or Demised Premises (or the land on
which the Building is situate) of any hazardous or toxic substance.
Landlord represents and warrants that, to the best of its present
knowledge, the Demised Premises and the Building are serviced with sufficient
air handling capacity so as to provide adequate ventilation and fresh air to the
Building and to the Premises, the parties recognizing that certain new buildings
are affected by "tight building syndrome" where the air handling equipment does
not provide sufficient fresh air to the occupants, resulting in complaints of
nausea, headache, eyestrain, and other ailments.
22.31 Access by Individuals with Disabilities. Landlord represents and
---------------------------------------
warrants that, to the best of its present knowledge, the Demised Premises and
the Building will, upon Substantial Completion, comply with all applicable laws
and regulations dealing with access by individuals with disabilities, including
Title III of the Americans with Disabilities Act, Public Law 10 1 -336 (July,
1990) as revised from time to time. To the extent that the Demised Premises are
not fully accessible to any disabled employees or invitees or Tenant and subject
to Section 11.1, Landlord shall take all reasonable steps to modify the Building
and/or the Demised Premises so as to offer full accessibility. If required
modifications are in excess of standards imposed by applicable law and
regulations, and Landlord is thus unwilling to proceed, then Tenant, at its sole
expense, may make such modifications to the Building and /or the Demised
Premises as it deems necessary or desirable to permit access by any such
employees or invitee.
22.32 Parking. Except to the extent prohibited or restricted by Force
-------
Majeure Events, Landlord shall provide Tenant with at least 312 parking spaces
on the Land for the exclusive use of its employees and/or invitees.
22.33 Communications Equipment. Tenant may, at its option, install and
------------------------
maintain a radio antenna, satellite dish or similar communicating mechanism, on
or about the Land and Building at a location mutually agreed upon by the parties
hereto and identified on a plot plan which each of the parties hereto shall
initial upon the execution of the Lease. In the event the parties hereto fail to
designate a location for Tenant's communications equipment, Tenant may locate
its communications equipment
51
anywhere on or about the Building or common areas about the Building, so long as
the installation and the use thereof do not violate any federal, state, county,
or local law, rule or regulation or restrictive covenants. Tenant shall, upon
the expiration or earlier termination of the Term hereof, remove its
communications equipment and repair any damage cause as a result of removal.
22.34 Contingency. Landlord has entered into a Deposit Receipt and
-----------
Sales Agreement dated July 8, 1997, (the "Contract") with Bay Colony - Gateway,
Inc. (the "Seller") to purchase the Land on or before July 31, 1997. If Landlord
does not purchase the Land pursuant to the Contract, this Lease Agreement shall
automatically and immediately terminate and neither Landlord nor Tenant shall
have any obligations to the other under this Lease.
22.35 Waiver of Statutory Landlord's Lien. Landlord hereby agrees to
-----------------------------------
waive its statutory Landlord's lien under Chapter 83 of the Florida Statutes.
IN WITNESS WHEREOF, intending to be legally bound and with the specific
intent that this Lease Agreement constitute an instrument under seal, each of
the parties hereto has caused this Lease Agreement to be duly executed as of the
Effective Date.
Signed, sealed and delivered
in the presence of
LANDLORD:
XXXXX TRIAD FT. XXXXX I, LTD,
a Florida limited partnership
By: Triad Properties Holdings-Florida L.L.C., a
Florida limited liability company, its
general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------- (SEAL)
Name: /s/ [ILLEGIBLE] Name: Xxxxx X. Xxxxxxx
-------------------- -------------------------------------
Title: Manager
------------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------- (SEAL)
Name: /s/ [ILLEGIBLE] Name: Xxxxxxx X. Xxxxxx
-------------------- -------------------------------------
Title: Manager
------------------------------------
Date signed by Landlord:
July ____, 1997
TENANT:
GARTNER GROUP, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: /s/ [ILLEGIBLE] Name: Xxxx X. Xxxxxx
-------------------- -------------------------------------
Title: VP PROD, DELIVERY & ADMIN
------------------------------------
Name: /s/ Xxxxx X. Sat Date signed by Landlord:
-------------------- July 30, 1997
52
