OFFICE LEASE
Between
JACKSONVILLE CENTER, INC.,
Landlord,
and
AMERICA ONLINE, INC.,
Tenant
TABLE OF CONTENTS
1. Lease of Premises . . . . . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
3. Base Rent . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Additional Rent . . . . . . . . . . . . . . . . . . . . . 8
5. Use of Premises . . . . . . . . . . . . . . . . . . . . . 10
6. Tenant Improvements and Delivery of Possession. . . . . . 11
7. Services. . . . . . . . . . . . . . . . . . . . . . . . . 13
8. Condition and Care of Premises; Landlord's and Tenant's
Maintenance Obligations and Landlord's Refurbishment. . . 14
9. Surrender of Premises . . . . . . . . . . . . . . . . . . 16
10. Holding Over. . . . . . . . . . . . . . . . . . . . . . . 16
11. Rules and Regulations . . . . . . . . . . . . . . . . . . 17
12. Rights Reserved to Landlord . . . . . . . . . . . . . . . 17
13. Alterations . . . . . . . . . . . . . . . . . . . . . . . 18
14. Assignment and Subletting . . . . . . . . . . . . . . . . 18
15. Waiver of Certain Claims; Indemnity by Tenant and
Landlord. . . . . . . . . . . . . . . . . . . . . . . . . 20
16. Damage or Destruction by Casualty . . . . . . . . . . . . 21
17. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . 22
18. Default; Rights and Remedies. . . . . . . . . . . . . . . 23
19. Subordination.. . . . . . . . . . . . . . . . . . . . . . 26
20. Mortgagee Protection. . . . . . . . . . . . . . . . . . . 27
21. Insurance and Subrogation . . . . . . . . . . . . . . . . 28
22. Nonwaiver.. . . . . . . . . . . . . . . . . . . . . . . . 29
23. Estoppel Certificate. . . . . . . . . . . . . . . . . . . 30
24. Corporate Authority . . . . . . . . . . . . . . . . . . . 30
25. Real Estate Brokers . . . . . . . . . . . . . . . . . . . 30
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 30
27. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 31
28. Landlord. . . . . . . . . . . . . . . . . . . . . . . . . 32
29. Title and Covenant Against Liens. . . . . . . . . . . . . 32
30. Signage . . . . . . . . . . . . . . . . . . . . . . . . . 32
31. Exculpatory Provisions. . . . . . . . . . . . . . . . . . 33
32. Hazardous Substances. . . . . . . . . . . . . . . . . . . 33
33. Radon Gas . . . . . . . . . . . . . . . . . . . . . . . . 34
34. Competitors . . . . . . . . . . . . . . . . . . . . . . . 34
35. Tenant's Supplemental Equipment . . . . . . . . . . . . . 34
36. ADA Requirements. . . . . . . . . . . . . . . . . . . . . 37
37. Contingencies . . . . . . . . . . . . . . . . . . . . . . 37
Exhibit A Premises
Exhibit A-1 Premises depicting Phase 1 Space and Phase 2 Space
Exhibit A-2 Site Plan Showing Tenant's Parking Area
Exhibit A-3 Temporary Space
Exhibit B Rules and Regulations
Exhibit C Annual and Monthly Base Rent
Exhibit D Description of the Plans
OFFICE LEASE
THIS OFFICE LEASE (the "Lease"), made effective as of May 17,
1995 (the "Effective Date"), by and between JACKSONVILLE CENTER,
INC., a Florida corporation ("Landlord"), and AMERICA ONLINE, INC.,
a Delaware corporation ("Tenant").
WITNESSETH:
1. Lease of Premises; Option to Extend Term.
(a) Premises; Term. Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, the premises as outlined on
the floor plan attached hereto as Exhibit A (herein called
"Premises") on the first floor of the office building located at
One
Imeson Park Boulevard, Jacksonville, Florida, and known as One
Imeson
Place (herein called "Building"), which Premises is comprised of
the
"Phase 1 Space" and the "Phase 2 Space," both as shown on the floor
plan attached hereto as Exhibit A-1, for a term (herein called
"Initial Term") of seven (7) Lease Years (the term "Lease Year" is
defined below) commencing on the date(s) on which Landlord shall
deliver to Tenant possession of the Phase 1 Space of the Premises
or portions thereof in accordance with Section 6 hereof (herein
called "Commencement Date"), and ending seven (7) Lease Years
thereafter (herein called "Expiration Date"), unless sooner
terminated as provided herein, paying as rent therefor the sums
hereinafter provided, without any setoff, abatement, counterclaim
or deduction whatsoever except as specifically provided herein.
The
Premises shall also be deemed to include Tenant's exclusive right
to use up to 1,000 standard parking spaces within the area labeled
"Tenant's Parking Area" on the site plan attached hereto as Exhibit
A-2; provided, however, that Landlord reserves the right to
restripe
and/or reconfigure (but not relocate) Tenant's Parking Area from
time
to time so long as Tenant's Parking Area at all times includes no
less than 1,000 standard parking spaces and that any such
restriping
or reconfiguration does not unduly inconvenience Tenant and
Tenant's
employees, contractors and invitees or materially and adversely
affect Tenant's business. For purposes of this Section, "standard
parking spaces" shall mean parking spaces sufficiently large to
meet
the requirements of applicable code, including a sufficient number
of handicap spaces to meet the requirements of applicable code.
Tenant and Tenant's employees shall be entitled to park in all
areas
of the parking lot serving the Building not reserved for use by
other
tenants of the Building or otherwise restricted by Landlord from
time
to time in Landlord's sole discretion.
(b) Tenant's Option to Extend the Term. Provided that
Tenant is not in default of any term, condition or covenant
contained
in this Lease beyond any applicable grace or cure period at the
time
of exercise of the option to extend the Term, Tenant shall have the
option of renewing the term of this Lease for one (1) additional
period of three (3) Lease Years (the "Renewal Term") on the same
terms and conditions as provided herein. The Annual Base Rent and
Monthly Base Rent for the Renewal Term shall be as provided on
Exhibit C attached hereto and made a part hereof. (The Initial
Term
and the Renewal Term, if Tenant's renewal option is properly and
timely exercised, are together referred to herein as the "Term.")
Notice of the exercise of such option shall be given by Tenant to
Landlord in writing not later than two hundred seventy (270) days
prior to the expiration of the Initial Term. In the event that
Tenant shall fail to give timely and proper written notice of its
intent to exercise such option, Tenant shall be deemed irrevocably
to have waived any right to extend the Term.
2. Definitions. As used in this Lease:
(a) "Annual Base Rent" shall mean such amounts as are
listed on Exhibit C attached hereto and made a part hereof.
(b) "Monthly Base Rent" shall mean such amounts as are
listed on Exhibit C attached hereto and made a part hereof.
(c) "Permitted Use" shall mean general office uses,
including, but not limited to, a call center for technical customer
support, for billing and sales support and for such other related
office uses as are necessary to conduct Tenant's business. Tenant
may furnish the breakrooms within the Premises with refrigerators,
microwave ovens, dishwashers and other typical kitchen appliances,
other than conventional ovens, stoves, hot plates or other
appliances
that Landlord reasonably determines may create a safety risk.
(d) "Brokers" shall mean Phoenix Realty Group, Inc., as
Landlord's agent, and Locations for Lease, Inc., as Tenant's agent.
(e) "Initial Monthly Estimate" shall mean Seven Thousand
Three Hundred Ten and 56/100 Dollars ($7,310.56), which amount is
equal to the Rentable Area of the Premises multiplied by $.07917.
Notwithstanding the foregoing, until delivery of possession of the
Phase 2 Space to Tenant in accordance with the terms and provisions
of this Lease, the "Initial Monthly Estimate" shall mean Four
Thousand Two Hundred Eighty-Six and 58/100 Dollars ($4,286.58),
which
amount is equal to the Phase 1 Space Rentable Area multiplied by
$.07917.
(f) "Rentable Area of the Building" shall mean the sum
of the rentable areas on all floors of the Building computed by
measuring to the center line of the exterior wall on each entire
floor, excluding all common and public areas in the Building. No
deduction shall be made for Building columns or projections.
Rentable Area of the Building shall be deemed to be 1,640,134
square
feet; provided, however, that either party may elect, at its sole
cost and expense, to have the Building measured, in accordance with
the foregoing standards and within sixty (60) days of the Effective
Date, by a duly licensed architect reasonably acceptable to the
approved in writing by the other party, and the result of such
measurement shall, if different from the foregoing figure, be
deemed
to be the Rentable Area of the Building.
(g) "Rentable Area of the Premises" shall mean (A) as to
any portion of the Premises consisting of an entire floor, the area
of the entire floor measured to the center line of the exterior
walls; and (B) as to any portion of the Premises consisting of less
than an entire floor, the area measured from the center line of the
exterior wall to the center line of all demising partitions and to
the outside face of corridor partitions. No deduction shall be
made
for Building columns or projections. Rentable Area of the Premises
shall be deemed to be 92,340 square feet; Rentable Area of the
Phase
1 Space shall be deemed to be 54,144 square feet (the "Phase 1
Space
Rentable Area"); and Rentable Area of the Phase 2 Space shall be
deemed to be 38,176 square feet.
(h) "Rentable Area of the Building Office Space" shall
mean the area of all rentable office space in the Building measured
in accordance with the measurement standards for the Rentable Area
of the Premises. Rentable Area of the Building Office Space shall
be deemed to be 184,680 square feet.
(i) "Tenant's Proportionate Share" shall mean 5.63
percent, which is the Rentable Area of the Premises divided by the
Rentable Area of the Building; provided, however, that (i) with
respect to such Expenses that apply only to the office space within
the Building (including without limitation, chiller unit
maintenance
costs if such chiller unit(s) serve only the office space in the
Building), "Tenant's Proportionate Share" shall mean fifty percent
(50%), which is the Rentable Area of the Premises divided by the
Rentable Area of the Building Office Space, (ii) with respect to
such
Expenses that apply only to the Premises (including, without
limitation, air handler unit maintenance costs, if such handler
unit(s) serve only the Premises), "Tenant's Proportionate Share"
shall mean one hundred percent (100%), and (iii) with respect to
Expenses that apply to the parking areas of the Project, "Tenant's
Proportionate Share' shall mean sixty-two and one-half percent
(62.5%), which is the number of parking spaces to which Tenant is
entitled within Tenant's Parking Area (i.e., 1,000) divided by the
approximate total number of parking spaces in the Project (i.e.,
1,600). Landlord shall be entitled to make reasonable allocations
of Taxes and Expenses between the office space portion of the
Building and the warehouse space portion of the Building based on
information received from the Xxxxx County Property Appraiser's
office. In the event that the Xxxxx County Property Appraiser
separately values the Land, the office space portion of the
Building
and the warehouse space portion of the Building, Tenant's
Proportionate Share of Taxes shall equal fifty percent (50%) of the
Taxes allocable to the office space portion of the Building plus an
equitable portion of the Taxes allocable to the Land based on the
Rentable Area of the Premises and the area of Tenant's Parking
Area.
(j) "Adjustment Date" shall mean the first day of the
second Lease Year and the first day of each Lease Year thereafter.
(k) "Adjustment Year" shall mean the first Lease Year
and
each Lease Year thereafter.
(l) "Expenses" shall mean those costs and expenses paid
or incurred by or on behalf of Landlord for owning, operating,
maintaining, redecorating, with the exception of the Landlord's
Refurbishment (as provided in Section 8(e) to be completed by
Landlord at Landlord's expense as provided in Section 8(e) below,
and repairing the Building, the land owned by Landlord upon which
the Building stands and serving the Building (herein called the
"Land") and the personal property used in conjunction therewith
(said
Building, Land and personalty herein collectively called the
"Project"), including without limitation the cost of security and
security devices and systems, snow and ice and trash removal,
cleaning and sweeping, planting and replacing decorations, flowers
and landscaping, maintenance, repair and replacement of utility
systems with the exception of the replacement of the chiller units
for the office space of the Building, sprinkler system repair and
maintenance, electricity, steam, water, sewers, fuel, heating,
lighting, air conditioning, window cleaning, janitorial service,
insurance (including but not limited to, fire, extended coverage,
all risk, liability, worker's compensation, rent loss, or any other
insurance carried by the Landlord and applicable to the Project),
painting, uniforms, supplies, sundries, sales or use taxes on
supplies or services, cost of wages and salaries of all persons
engaged in the operation, maintenance and repair of the Project,
and
so-called fringe benefits (including social security taxes,
unemployment insurance taxes, cost for providing coverage for
disability benefits, cost of any pensions, hospitalization, welfare
or retirement plans, or any other similar or like expenses incurred
under the provisions of any collective bargaining agreement, or any
other cost or expense which Landlord pays or incurs to provide
benefits for employees so engaged in the operation, maintenance and
repair of the Project), assessments of property owners' association
for property within which the Project is located, the charges of
any
independent contractor who, under contract with the Landlord or its
representatives, does any of the work of operating, maintaining or
repairing of the Project, legal and accounting expenses (including,
but not limited to, such expenses as relate to seeking or obtaining
reductions in and refunds of real estate taxes) or any other
expense
or charge, whether or not hereinbefore mentioned, which, in
accordance with generally accepted accounting and management
principles, would be considered as an expense of owning, operating,
maintaining or repairing the Project. Expenses shall not include
any management fees, as Tenant's responsibility for payment of
management fees is provided in Section 4(g) below.
The following items shall be excluded from Expenses:
(i) Costs incurred in connection with the
original construction of the Building;
(ii) Costs of alterations or improvements of
Tenant's Premises pursuant to the Plans (as defined in Section 6),
the premises of other tenants or occupants of the Building or
vacant
leasable space in the Building, except in the case as required by
a governmental agency and for the health and welfare of occupants
of the Building or otherwise provided in this Lease. In such a
case,
the alterations or improvements will be amortized over their useful
life and passed through to tenants annually;
(iii) Depreciation of the Building or the
equipment serving the Building;
(iv) Interest and principal payments on
mortgages
and other debt costs, if any;
(v) Expenses resulting directly from the
negligence of Landlord, its agents, contractors or employees,
negligence will be that determined by a Court of Law;
(vi) Legal fees, space planners' fees, real
estate brokers' leasing commissions and advertising expenses
incurred
in connection with the leasing of the Building, except as
specifically provided herein;
(vii) Costs for which Landlord is reimbursed by
its insurance carrier, any tenant's carrier, any tenant, any
warrantor or other third party, except as specifically provided
herein (Landlord shall diligently and in good faith pursue all
insurance, breach of warranty or other claims which might result in
a reduction in Expenses payable by Tenant);
(viii) Any bad debt loss, rent loss, reserves for
bad debts or rent loss or legal fees incurred in collecting rent
from
other Building tenants;
(ix) The expense of additional services
provided
to other tenants in the Building and other benefits which are not
provided to Tenant, but which are provided to another tenant or
occupant of the Building;
(x) The wages of any employee who does not
devote substantially all of his or her time to the Building or
common
areas, except to the extent such wages are attributable to time
spent
by such employee in servicing and/or managing the Building or
common
areas;
(xi) Amounts paid as ground rental by Landlord,
if any;
(xii) Fees for services rendered to the Building
or common areas by entities controlled by or under common control
with Landlord to the extent such fees exceed the market rate
payable
for such services if rendered by unrelated third parties;
(xiii) Fines, penalties, late payment charges and
interest arising from the acts or inaction of Landlord;
(xiv) Costs of repairs or replacements caused by
the exercise of any condemnation rights by any public or
quasi-public
authority to the extent that Landlord receives compensation for
same
from the condemning authority;
(xv) Any charge for Landlord's income taxes,
excess profit taxes, franchise taxes or similar taxes on Landlord's
business;
(xvi) Salaries and other compensation paid to
executive employees above the grade of Building manager (including
profit sharing, bonuses and 401(K) savings plans) or who receive
compensation pursuant to the terms of the management agreement for
the Building, excepting those related to the management of the
Building and common areas; provided, however, that this exclusion
shall not be deemed to reduce the Additional Rent payable by Tenant
pursuant to Section 4(g);
(xvii) Any rent paid for Landlord's on-site
management or leasing office, or any other offices or spaces of
Landlord or any related entity;
(xviii) Costs and expenses of utilities for tenant
space in the Building;
(xix) Increased insurance premiums caused by any
other tenant's acts to the extent paid by such tenant, except in
the
case of increased insurance due to the use by Tenant, its parent
company, subsidiaries or merger company in the case of a sublease
or assignment of this Lease;
(xx) The costs associated with any concession
granted to other tenants in the Building (such as moving expenses,
lease assumptions, etc.);
(xxi) Legal fees incurred in disputes with
tenants
or in connection with the sale, financing or leasing of the
Building
or with respect to any bankruptcy proceedings involving Landlord or
any tenant other than Tenant;
(xxii) All payments, debt service, costs and
expenses directly related to the sale or financing of the Building;
(xxiii) The cost of any work performed (preparing
a tenant's space for occupancy, including painting and decorating
such space) or services provided (such as separately metered
electricity) for any tenant (including Tenant) at such tenant's
cost
or provided by Landlord without charge as an inducement to lease
(such as free rent or improvement allowance);
(xxiv) The cost of installing, operating and
maintaining any specialty service, such as an observatory,
broadcasting facility, luncheon club, retail store, sundry shop,
newsstand, or concession;
(xxv) The cost of any repairs, alterations,
additions, changes, replacements and the like which under generally
accepted accounting principles are properly classified as capital
expenditures, except in the case as required by a governmental
agency
and for the health and welfare of occupants of the Building. In
such
a case, the alterations or improvements will be amortized over
their
useful life and passed through to tenants annually;
(xxvi) Legal costs (including settlement or other
payments) related to disputes with contractors hired directly by
Landlord, except to the extent such costs are related to Tenant,
the
Premises, the Building or the Land;
(xxvii) Costs related to the leasing or purchase
of art, except to the extent such costs are consistent with
standards
maintained in comparable office buildings;
(xxviii) Costs, including all general overhead
expenses, incurred by Landlord in the operation of the business of
the legal entity that constitutes the Landlord to the extent that
the same is separate and apart from the operation of the Building;
(xxix) Costs arising from the presence within the
Building or the Project of hazardous materials, except to the
extent
such materials have been introduced by, or with the permission or
acquiescence of, Tenant, in which case Tenant shall pay 100% of
such
costs;
(xxx) Charitable or political contributions made
by Landlord;
(xxxi) Costs and expenses for janitorial service
for the Building, except for janitorial service with respect to the
common areas; and
(xxxii) So long as the Premises is located
exclusively on the first floor of the Building, the cost of
maintaining any elevators or escalators.
Notwithstanding anything contained in the above definition of
Expenses to the contrary:
(A) The cost of any capital improvements to the
Building made after the date of this Lease which reduce Expenses,
amortized over such reasonable period as Landlord shall determine,
shall be included in the Expenses, provided that the amortized
amount
included in Expenses is less than the reduction in Expenses
resulting
from the capital improvement.
(B) If any item of Expenses, though paid or
incurred
in one Lease Year, relates to more than one calendar year, at the
option of Landlord such item may be proportionately allocated among
such related Lease Years.
(m) "Taxes" shall mean real estate taxes, assessments
(whether they be general or special), sewer rents, rates and
charges,
transit taxes, taxes based upon leases or the receipt of rent, and
any other federal, state or local governmental charge, general,
special, ordinary or extraordinary (but not including income or
franchise taxes or any other taxes imposed upon or measured by the
Landlord's income or profits, except as provided herein), which may
now or hereafter be levied, assessed or imposed against the Land or
the Building. The Building and the Land are herein collectively
called the "Real Property." Tenant acknowledges and agrees that
all
or a portion of Taxes may be paid by Sears, Xxxxxxx and Co. for a
portion of the Term pursuant to the terms of a separate agreement
and that any such payment shall not affect Tenant's duties and
obligations hereunder for payment of Tenant's Proportionate Share
of Taxes. Landlord shall pay real estate taxes within the period
provided by statute for the maximum possible discount, and Landlord
shall compute the Tax Estimate, as defined herein, based on the
discounted rate.
Notwithstanding anything contained in the above definition of
Taxes to the contrary:
(i) If at any time the method of taxation then
prevailing shall be altered so that any new or additional tax,
assessment, levy, imposition or charge or any part thereof shall be
imposed upon Landlord in place or partly in place of any Taxes or
contemplated increase therein, or in addition to Taxes, and shall
be measured by or be based in whole or in part upon the Real
Property, the rents or other income therefrom (but not including
income or franchise taxes or any other taxes imposed upon or
measured
by the Landlord's income or profits or any leases of any part
thereof), then all such new taxes, assessments, levies, impositions
or charges or part thereof, to the extent that they are so measured
or based, shall be included in Taxes levied, assessed or imposed
against the Real Property to the extent that such items would be
payable if the Real Property were the only property of Landlord
subject thereto and the income received by Landlord from the Real
Property were the only income of Landlord.
(ii) Notwithstanding the year for which any
such
taxes or assessments are levied, (1) in the case of special taxes
or assessments which may be payable in installments, the amount of
each installment, plus any interest payable thereon, paid during an
Adjustment Year shall be included in Taxes for that year and (2) if
any taxes or assessments payable during an Adjustment Year shall be
computed with respect to a period in excess of twelve calendar
months, then taxes or assessments applicable to the excess period
shall be included in Taxes for that year. Except as provided in
the
preceding sentence, all references to Taxes "for" a particular
Adjustment Year shall be deemed to refer to Taxes levied, assessed
or otherwise imposed during such Adjustment Year without regard to
when such Taxes are payable.
(iii) Taxes shall also include any personal
property taxes (attributable to the Adjustment Year in which paid)
imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems or appurtenances used in connection with the
Real
Property or the operation thereof.
(n) "Lease Year" shall mean each of the seven one-year
(twelve calendar months) periods of the Initial Term and the three
one-year periods of the Renewal Term of the Lease, the first lease
year being that one-year period which commences on the Commencement
Date and ends on date which is one day prior to the one year
anniversary of the Commencement Date (the "First Lease Year").
3. Base Rent.
(a) Tenant shall pay the Annual Base Rent, as set forth
in Exhibit C, to Landlord for the Premises, payable in equal
monthly
installments in the amount of the Monthly Base Rent in advance on
the first day of the Term and on the first day of each calendar
month
thereafter of the Term. Tenant's obligation to pay Rent and
Additional Rent for the Phase 1 Space shall commence on the date of
delivery of possession of the Phase 1 Space in accordance with
Section 6(b)(i) (the "Phase 1 Space Rent Commencement Date"). If
the
Term shall begin on any date except the first day of a calendar
month, or shall end on any day except the last day of a calendar
month, then Monthly Base Rent for any such partial calendar month
within the Term shall be prorated based on a 30-day month.
Tenant's
obligation to pay Rent and Additional Rent for the Phase 2 Space
shall commence on the date of delivery of possession in accordance
with Section 6(b)(i) of the Phase 2 Space (the "Phase 2 Space Rent
Commencement Date"). If the Term shall end on any date except the
last day of a calendar month, then Monthly Base Rent shall be
prorated based on a 30-day month.
(b) Base Rent, Additional Rent (as hereinafter defined),
Tax and Expense Estimate (as hereinafter defined) and all other
amounts becoming due from Tenant to Landlord hereunder (herein
collectively called the "Rent") shall be paid in lawful money of
the
United States to Landlord at the office of Landlord at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, or as otherwise
designated from time to time by written notice from Landlord to
Tenant. The payment of Rent hereunder is independent of each and
every other covenant and agreement contained in this Lease, except
as specifically provided herein. Tenant shall pay all applicable
sales and use taxes on each installment or payment of Rent at the
time payment is made.
(c) Notwithstanding anything in this Lease to the
contrary, upon the delivery of the Phase 1 Space for occupancy in
compliance with the requirements of the Lease, including Sections
6 and 13, and until Landlord's delivery to Tenant of the Phase 2
Space in accordance with Sections 6 and 13, Monthly Base Rent for
Phase 1 Space shall be $24,816.00 and Annual Base Rent for the
first
Lease Year shall be adjusted accordingly and all Additional Rent
shall be determined on the basis of the Phase 1 Space Rentable
Area.
4. Additional Rent. In addition to paying the Base Rent
specified in Section 3 hereof, Tenant shall pay to Landlord as
Additional Rent the amounts (herein collectively called "Additional
Rent") determined to be the Tax Adjustment and Expense Adjustment
(both as hereinafter defined) in accordance with this Section 4:
(a) Computation of Additional Rent. Tenant shall pay as
Additional Rent for each Adjustment Year the following amounts:
(i) Tenant's Proportionate Share of Taxes for
such Adjustment Year (herein called the "Tax Adjustment"); plus
(ii) Tenant's Proportionate Share of Expenses
for such Adjustment Year (herein called the "Expense Adjustment").
Notwithstanding anything herein to the contrary, in no event
shall Tenant's Proportionate Share of Expenses other than any and
all expenses incurred in connection with the maintenance, repair
and
operation of the chiller unit(s) serving the Premises and the
common
areas of the Building (the "Chiller Expenses") and insurance
expenses
exceed (1) $.80 per square foot of Rentable Area of the Premises
during the Initial Term, or (2) $.93 per square foot of Rentable
Area
of the Premises during the Renewal Term. The foregoing limitations
of $.80 and $.93 per square foot shall not apply to Tenant's
Proportionate Share of Taxes, Tenant's Proportionate Share of
Chiller
Expenses or Tenant's Proportionate Share of insurance expenses or
to Tenant's obligation to pay same.
(b) Payments of Additional Rent; Tax and Expense
Estimate;
Projections. Tenant shall pay Additional Rent to Landlord in the
manner hereinafter provided.
(i) Tax Adjustment and Expense Adjustment.
The
aggregate of payments required to be made by Tenant on account of
Tax Adjustment and Expense Adjustment for any Adjustment Year until
the actual Tax Adjustment and Expense Adjustment for such
Adjustment
Year are determined is herein called "Tax and Expense Estimate".
(A) Landlord may, at any time and from time to
time prior to each Adjustment Date and from time to time during or
after the Adjustment Year in which such Adjustment Date falls,
deliver to Tenant a written notice or notices ("Projection Notice")
setting forth (1) Landlord's reasonable estimates, forecasts or
projections (collectively, the "Projections") of Taxes or Expenses
for such Adjustment Year, and (2) Tenant's Tax and Expense Estimate
(setting forth the Expense Adjustment component and the Tax
Adjustment component separately), being Tenant's Proportionate
Share
of the Projections.
(B) On or before the first day of the next
calendar month following Landlord's service of a Projection Notice,
and on or before the first day of each month thereafter, Tenant
shall
pay to Landlord, at the time and in the same manner as payment of
Base Rent, one-twelfth (1/12) of the Tax and Expense Estimate shown
in the Projection Notice. Within fifteen (15) days following
Landlord's service of a Projection Notice, to bring Tenant's
payments
of Tax and Expense Estimate current, Tenant shall also pay Landlord
a lump sum equal to the Tax and Expense Estimate shown in the
Projection Notice less (A) any previous payments on account of Tax
and Expense Estimate made during such Adjustment Year and (B)
monthly
installments on account of Tax and Expense Estimate not yet due and
payable for the remainder of such Adjustment Year. Until such time
as Landlord furnishes a Projection Notice for an Adjustment Year,
Tenant shall pay to Landlord a monthly installment of Tax and
Expense
Estimate on the first day of each month equal to the greater of the
latest monthly installment of Tax and Expense Estimate or
one-twelfth
(1/12) of Tenant's latest determined Tax Adjustment and Expense
Adjustment; provided, however, that the initial monthly installment
of Tax and Expense Estimate payable by Tenant beginning on the
Commencement Date, subject to change as herein provided, shall be
equal to the Initial Monthly Estimate. If the amount of the
Initial
Monthly Estimate is not shown in this Lease, then Landlord shall
furnish Tenant with the amount of the Initial Monthly Estimate on
or about the Commencement Date.
(c) Readjustments. The following readjustments with
regard to the Tax Adjustment and Expense Adjustment shall be made
by Landlord and Tenant:
(i) Within ninety (90) days following the end
of each Adjustment Year, Landlord shall submit to Tenant a
statement
showing the actual Expenses incurred in the prior Adjustment Year
according to major categories of expense, together with Tenant's
Proportionate Share of the actual Expenses, and a computation of
either Tenant's overpayment or underpayment of actual Expenses for
the prior Adjustment Year (the "Landlord's Statement"). For
purposes
of the foregoing, Taxes shall be deemed to accrue monthly, although
Taxes are paid annually. If there has been an underpayment by
Tenant
for the previous Adjustment Year, then Tenant shall, within thirty
(30) days after the date of Landlord's Statement, pay to Landlord
an amount equal to the underpayment, subject to any limitation as
set forth in the Lease. If Tenant has overpaid its proportionate
share of the Expenses, Landlord shall credit such excess to Rent
payable after the date of Landlord's Statement, or may, at its
option, credit such excess to any Rent theretofore due and owing,
until such excess has been exhausted. If this Lease shall expire
or be terminated prior to full application of such excess, Landlord
shall pay to Tenant the balance thereof not theretofore applied
against Rent and not reasonably required for payment of Rent for
the
Adjustment Year in which this Lease expires or is terminated,
subject
to Tenant's obligations under Section 4(e) hereof, provided Tenant
shall have vacated the Premises and otherwise surrendered the Prem-
ises to Landlord in accordance with this Lease and Tenant is not
then
in default under this Lease.
(ii) Following the end of each Adjustment Year
and after Landlord shall have determined the actual amount of Taxes
to be used in calculating the Tax Adjustment for such Adjustment
Year, Landlord shall notify Tenant in writing (any such notice
herein
called "Landlord's Statement") of such Taxes for such Adjustment
Year. If the Tax Adjustment owed for such Adjustment Year exceeds
the Tax Adjustment component of the Tax and Expense Estimate paid
by Tenant during such Adjustment Year, then Tenant shall, within
thirty (30) days after the date of Landlord's Statement, pay to
Landlord an amount equal to the excess of the Tax Adjustment over
the Tax Adjustment component of the Tax and Expense Estimate paid
by Tenant during such Adjustment Year. If the Tax Adjustment
component of the Tax and Expense Estimate paid by Tenant during
such
Adjustment Year exceeds the Tax Adjustment owed for such Adjustment
Year, then Landlord shall credit such excess to Rent payable after
the date of Landlord's Statement, or may, at its option, credit
such
excess to any Rent theretofore due and owing, until such excess has
been exhausted. If this Lease shall expire or be terminated prior
to full application of such excess, Landlord shall pay to Tenant
the
balance thereof not theretofore applied against Rent and not
reasonably required for payment of Rent for the Adjustment Year in
which this Lease expires, subject to Tenant's obligations under
Section 4(e) hereof, provided Tenant shall have vacated the
Premises
and otherwise surrendered the Premises to Landlord in accordance
with
this Lease and Tenant is not then in default under this Lease.
(iii) No interest or penalties shall accrue on
any amounts which Landlord is obligated to credit or pay to Tenant
by reason of this Section 4(c) or which Tenant may be obligated to
pay Landlord due to an underestimation and underpayment by Tenant
of the Expenses.
(d) Books and Records. Landlord shall maintain books
and
records showing Taxes and Expenses in accordance with sound
accounting and management practices. Tenant and its
representatives
and consultants shall have the right to examine and copy, at
Tenant's
own expense, such books and records showing Taxes and Expenses upon
reasonable prior notice and during normal business hours at any
time
within one hundred eighty (180) days following service of
Landlord's
Statement provided for in Section 4(c). Unless Tenant shall take
written exception to any item of Taxes or Expenses, specifying in
detail the reasons for such exception as to a particular item,
within
said one hundred eighty (180) days after service of Landlord's
Statement, Landlord's Statement shall be considered as final and
accepted by Tenant. Any examination shall not delay the timely
payment of Tenant's proportionate share of Expenses.
(e) Proration and Survival. Following expiration or
termination of this Lease, Tenant shall pay any Additional Rent due
to Landlord within thirty (30) days after the date of Landlord's
Statement sent to Tenant. Without limitation on other obligations
of Tenant which shall survive the expiration of the Term, the
obligations of Tenant to pay Additional Rent provided for in this
Section 4 shall survive the expiration or termination of this
Lease.
(f) Repayment of Landlord's Contribution. In addition
to the foregoing amounts, Tenant shall pay to Landlord, as
Additional
Rent and together with each installment of Monthly Base Rent, an
amount sufficient to amortize the amount of the Landlord's
Contribution toward the Cost of the Tenant Improvements, as such
terms are defined in Section 6, over the seven (7) year Initial
Term
of this Lease in eighty-three (83) equal monthly installments, plus
interest at the rate of eleven and one-half percent (11 1/2%) per
annum. The computation of the amount of the repayment and the
commencement of the repayment shall be as follows:
(i) The amount of the Landlord's share of the
Cost of the Tenant Improvements to the Phase 1 Space shall be
determined no later than 10 days following the Phase 1 Space Rent
Commencement Date; the amortization of the repayment of that amount
shall assume that the repayment was due on the Phase 1 Space Rent
Commencement Date; within 10 days of the determination of the
amount,
Landlord shall provide Tenant with an amortization statement and a
repayment schedule, which shall be incorporated into an amendment
to this Lease and promptly executed by Landlord and Tenant; Tenant
shall commence repayment with the following installment of Base
Rent.
(ii) the amount of the Landlord's share of the
Cost of the Tenant Improvements of the Phase 2 Space shall be
determined no later than 10 days following the Phase 2 Space Rent
Commencement Date; the amortization of the repayment of that amount
shall assume that the repayment was due on the Phase 2 Space Rent
Commencement Date; within 10 days of the determination of the
amount,
Landlord shall provide Tenant with an amortization statement and a
repayment schedule, which shall be incorporated into an amendment
to this Lease and promptly executed by Landlord and Tenant; Tenant
shall commence repayment for the Phase 2 Space with the following
installment of Base Rent.
(g) Management Fees. In addition to the foregoing
amounts, Tenant shall pay to Landlord, as Additional Rent and
together with each monthly installment of Rent due hereunder an
amount equal to one and one-half percent (1 1/2%) of the sum of the
amount of the Monthly Base Rent and the monthly payment amount
under
Section 4(f) then currently due and payable as compensation for
Landlord's management of the Project.
(h) Additional Rent. All amounts payable by Tenant as
or on account of Additional Rent shall be deemed to be additional
rent due under this Lease.
5. Use of Premises.
(a) Tenant shall use and occupy the Premises for the
Permitted Use only and for no other use or purpose. Except as
otherwise provided in this Lease, Tenant shall, at its own risk and
expense, obtain all governmental licenses and permits necessary for
the Permitted Use.
(b) Tenant shall have access to the Building and the
Premises 24 hours per day and 365 days per year.
(c) Tenant shall have the right to install a
badge-locking
system or card-reading system for controlling access to the
Premises.
Tenant shall provide Landlord with a reasonable number of badges or
cards to enable Landlord to obtain access to the Premises.
6. Tenant Improvements and Delivery of Possession.
(a) Tenant Improvements.
(i) Landlord and Tenant agree that the
Premises
shall be improved in accordance with the plans and specifications
described on Exhibit D attached hereto and made a part hereof (the
"Plans"). These improvements are herein referred to as the "Tenant
Improvements." Landlord and Tenant have reviewed the Plans, and
both
parties believe that the Premises (including the doors and doorways
thereto), when improved in accordance with the Plans, shall comply
with the ADA (as defined in Section 36). In the event that, in the
permitting process, changes to the Plans are required to bring them
into compliance with the ADA or in the event that changes to the
Premises are required after the Tenant Improvements are completed
in order to obtain approval of the Fire Xxxxxxxx of the City of
Jacksonville, Landlord and Tenant shall share the costs of such
changes equally, and such costs shall be deemed to be part of the
"Cost" of the Tenant Improvements for purposes of Section 6(a)(ii).
Landlord intends to enter into a Construction Contract (herein so
called) with Dav-Lin Construction Co. (the "Contractor"), which
shall
have been approved by Landlord and Tenant. The Contract Sum (as
defined in the Construction Contract), shall include, inter alia,
the cost of dual obligee payment and performance bonds to be issued
to Landlord and Tenant by a surety satisfactory to Landlord and
Tenant, and the Construction Contract shall provide for a retention
that will be not be paid until the Premises are approved by the
Architect (as defined in the Construction Contract) and local
government authorities as being in compliance with the Plans and
applicable codes and laws. Landlord shall use reasonable efforts
to enforce the terms and provisions of the Construction Contract,
including the Contractor's warranty to repair or replace defective
work or work that is not in compliance with the Plans, and in the
event that Landlord fails to use such reasonable efforts, Tenant
shall be deemed a third party beneficiary of the Construction
Contract for the purpose of enforcing the Construction Contract.
(ii) The "Cost" of the Tenant Improvements will
be shared by Landlord and Tenant on an equal (50/50) basis, except
as provided in Section 6(a)(iii) below with respect to additional
costs resulting from changes to the Plans. The Cost to be shared
shall include the fees and expenses for the preparation of the
Plans,
together with the fees and expenses of an architect's normal
construction administration (including but not limited to,
inspections and approvals for payment of contractor draws,
additional
detailing and design that may be necessary, shop drawing review,
etc.) and the cost of the construction and of the Plans (including
the cost of the performance and payment bonds) and the cost of all
striping of the parking lot to prepare it for Tenant's use (the
"shared costs"). It is understood that the Cost shall include (a)
a fee to the Architect of approximately $13,500.00 for the
completion
of the plans and construction administration, which amount shall be
included in the anticipated Contract Sum of $2,003,012.00, and (b)
$3,092.98 for restriping costs, which amount shall not be included
in the Contract Sum. Landlord's share of the Cost of the Tenant
Improvements is herein referred to as the "Landlord's
Contribution."
(iii) If either Landlord or Tenant requests a
change to the Plans, then the cost of such change shall be borne by
the party making the request. All changes to the Plans requested
by either party shall be subject to the other party's reasonable
right of approval.
(iv) To fund the shared costs of the Cost of
the
Tenant Improvements, an interest bearing escrow account will be
established, funded initially by Landlord and Tenant each
depositing
$1,003,052.49 in the escrow account within three (3) business days
of the date of this Lease to cover the anticipated Cost of the
Tenant
Improvements of $2,006,104.98, which amount is the anticipated
Contract Sum plus the cost of restriping, as provided above. The
escrow account shall be with First American Title Insurance Company
in Jacksonville. In the event that the Landlord determines that
the
shared costs of the Cost of the Tenant Improvements exceed such
amount, Landlord and Tenant each shall deposit into the escrow
account on an equal (50/50) basis such additional amounts within
three (3) business days of such determination; provided, however,
that Landlord and Tenant each shall fund the cost of changes which
it has requested without contribution from the other party. The
escrowed funds will be released based upon draws by the Contractor,
which must be approved by the Architect based upon his inspection
of the construction of the Tenant Improvements and determination
that
the Tenant Improvements for which payment is sought have been
completed in accordance with the Plans or that such draw is
otherwise
consistent with the Construction Contract, and by Landlord.
Payment
of the Architect's invoices shall be mutually agreed upon by the
parties. After final completion of all of the Tenant Improvements,
unused funds for shared costs shall be returned to the parties pro
rata, with applicable interest, if any.
(b) Delivery of Possession:
(i) Landlord shall use reasonable efforts (a)
to deliver possession of the Phase 1 Space to Tenant on or before
July 1, 1995, substantially complete in all respects except for
installation of the air handler units and the bifold doors in the
training rooms, Tenant hereby agreeing that, notwithstanding
anything
in this Lease to the contrary, it shall accept possession of the
Phase 1 Space in such condition with Landlord agreeing to complete
installation of the air handler units and the bifold doors as soon
thereafter as reasonably possible, and (b) to deliver possession of
the Phase 2 Space to Tenant on or before August 15, 1995 (such
dates
are hereinafter referred to as the "Target Delivery Dates"). The
"date of delivery" shall mean the date when the Phase 1 Space shall
be substantially complete, except as provided above, as determined
by the Architect and approved for occupancy by the Fire Xxxxxxxx of
the City of Jacksonville. The Rent Commencement Date shall not be
delayed beyond the scheduled date for either the Phase 1 Space or
the Phase 2 Space if the delay is caused by any change orders to
the
Plans requested by Tenant or by any work within the Premises
performed by Tenant. Landlord shall cause the Contractor to
complete
expeditiously all punch-list work remaining as of the date of
delivery.
(ii) Tenant shall have the right of access to
each phase of the Premises at least 2 weeks prior to delivery to
perform certain pre-occupancy work, including the installation of
Tenant's telephone switch and lines, computer lines, electrical
lines, and any other equipment and wiring which Tenant determines
requires early installation. Landlord shall use reasonable efforts
to include in the Construction Contract a provision requiring the
Contractor to accommodate Tenant's pre-occupancy work in the
Premises
provided that Tenant's pre-occupancy work shall not hinder, impede
or delay the Contractor's work. Tenant shall provide Landlord with
a description of this work for inclusion in the Construction
Contract.
(iii) At substantial completion, to be certified
by the architect, a punch list will be prepared. The punch list
shall be completed expeditiously. This provision shall be included
in the Construction Contract.
(iv) From and after the date of this Lease
until
the sixtieth (60th) day after delivery of possession of the Phase
2 Space (the "Temporary Space Vacation Date"), Tenant shall be
entitled to use the space on the mezzanine of the Building shown on
the floor plan attached hereto as Exhibit A-3 (the "Temporary
Space")
for temporary training facilities. Tenant shall not be required to
pay any Rent for the use of such space other than for use of all
utilities. Tenant shall vacate the Temporary Space and not make
any
alterations or improvements to the Temporary Space without
Landlord's
prior written consent. Tenant shall remove any and all alterations
and improvements from the Temporary Space and return the Temporary
Space to its condition on the date of this Lease, all at Tenant's
sole cost and expense, by no later than the Temporary Space
Vacation
Date. Tenant shall indemnify Landlord and hold Landlord harmless
from and against any and all loss, cost or damage in connection
with
Tenant's use and occupancy of the Temporary Space.
7. Services.
(a) Provided that Tenant is not in default beyond any
applicable grace or cure period in the payment of Rent or any other
charges or amounts due hereunder, Landlord shall furnish the
following services to the Building and the Premises:
(i) Sanitary sewer service in common with
other
tenants into the applicable utility's lines and mains for lavatory
and toilet purposes.
(ii) Domestic water in common with other
tenants
from the applicable utility's mains for drinking, lavatory and
toilet
purposes drawn through fixtures installed by Landlord, or by Tenant
in the Premises with Landlord's written consent. Tenant shall pay
Landlord as Additional Rent for all domestic water and sanitary
sewer
service furnished to the Premises on the basis of the applicable
utility's rates from time to time and Tenant's usage as determined
by a flow meter. Tenant shall not waste or permit the waste of
water.
(iii) Electricity shall be furnished by Landlord
by arranging for electrical service furnished by the electric
utility
company serving the Building and the Premises. Tenant shall pay
Landlord as Additional Rent for all electricity furnished to or for
the benefit of the Premises on the basis of the applicable
utility's
rates (with no Landlord xxxx-up) from time to time and Tenant's
usage
as determined by a sub-meter which shall be installed as part of
the
construction of the Tenant Improvements. The electricity used for
the making of alterations or repairs in the Premises, or for the
operation of the heating, ventilating or air-conditioning systems
serving the Premises at all times, or for the operation of any
special or supplementary heating, ventilating or air-conditioning
systems which may be required for computer or data processing
equipment or for other special equipment or machinery installed by
or on behalf of Tenant, shall be paid for by Tenant pro rata.
Except
as otherwise provided in this Lease, Tenant shall make no material
alterations or additions to the electric equipment or appliances in
the Premises or the Building without the prior written consent of
Landlord in each instance. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity
of the feeders to the Building or the risers or wiring installed
thereon.
(iv) Air conditioning and ventilating, but not
heating.
(b) All charges for the actual cost (with no Landlord
xxxx-up) of water, sewer and electricity shall be due and payable
at the same time as the installment of Base Rent with which they
are
billed, or if billed separately, shall be due and payable within
ten
(10) days after Tenant receives Landlord's xxxx therefor. Failure
by Tenant to promptly pay Landlord's proper charges within five (5)
business days from when they are due shall be a Default under this
Lease and subject to Section 18. In addition, if Tenant shall fail
to pay such charges within thirty (30) days from when they are due
or in the event that Tenant is in default beyond any applicable
grace
or cure period for failing to pay Rent or any other charges or
amounts hereunder, Landlord shall have the right, in addition to
any
other remedies available to Landlord, to discontinue furnishing the
services, and no such discontinuance shall be deemed an eviction or
disturbance of Tenant's use of the Premises or render Landlord
liable
for damages or relieve Tenant from performance of Tenant's
obligations under this Lease.
(c) The Building and Land shall be managed and
maintained
in accordance with standards comparable to those of other
properties
in the Jacksonville, Florida area of the kind and quality of the
Building and Land.
(d) Tenant agrees that Landlord and its agents shall not
be liable in damages for failure to furnish or for delay in
furnishing any service when such failure or delay is occasioned by
any cause beyond the reasonable control of Landlord.
(e) Landlord agrees to use all reasonable efforts to
remedy any interruption of the foregoing services, except in the
event of discontinuation of services due to Tenant's default
hereunder as provided in subparagraph (b) above. In the event
Landlord fails to remedy the interruption of such services within
three (3) business days after receipt of Tenant's notice of such
interruption, Tenant shall have the right to abatement of Rent for
each day of interruption. In the event services are interrupted
such
that the Premises are substantially uninhabitable for more than
sixty
(60) calendar days after Landlord's receipt of a notice from Tenant
of the existence of such condition, then Tenant, as Tenant's sole
and exclusive remedy, shall be entitled to terminate this Lease
upon
written notice delivered to Landlord at any time prior to the
resumption of such services.
(f) Tenant agrees to cooperate fully with Landlord, at
all times, in abiding by all regulations and requirements which are
reasonably necessary for the proper functioning and protection of
all utilities and services and are reasonably necessary for the
operation of the Premises and the Building. Landlord and its
contractors shall have free access to any and all mechanical
installations, and Tenant agrees that there shall be no
construction
or partitions or other obstructions which might interfere with the
moving of the servicing equipment of Landlord to or from the
enclosures containing said installations. Tenant further agrees
that
neither Tenant nor its employees, agents, licensees, invitees or
contractors shall at any time tamper with, adjust or otherwise in
any manner affect Landlord's mechanical installations.
8. Condition and Care of Premises; Landlord's and Tenant's
Maintenance Obligations and Landlord's Refurbishment.
(a) Except to the extent set forth in the Lease,
Landlord
has made no promises to alter, remodel, improve, repair, decorate
or clean the Premises or any part thereof have been made, and no
representation respecting the condition of the Premises, the
Building
or the Land has been made to Tenant by or on behalf of Landlord,
except to the extent expressly set forth herein.
(b) Tenant shall notify Landlord of any damage to the
Premises, regardless of the cause of damage. Except for any damage
resulting from any wanton or negligent act of Landlord, or its
employees or agents and subject to the provisions of Section 16
hereof, Tenant shall at its own expense keep the Premises in good
repair and tenantable condition and, except if Landlord elects to
make such repairs at Tenant's expense as hereinafter provided,
shall
promptly and adequately repair all damage to the Premises caused by
Tenant or any of its employees, agents, licensees, invitees or
contractors, including replacing or repairing all damaged or broken
glass, fixtures and appurtenances resulting from any such damage,
under the supervision and with the approval of Landlord and within
any reasonable period of time specified by Landlord. Landlord may,
but shall have no obligation to, elect to make any or all repairs
on Tenant's behalf at Tenant's sole cost or, upon Tenant's request,
perform any such repairs at Tenant's sole cost. In either case,
Tenant shall pay the cost thereof, and in addition, Tenant shall
pay
to Landlord an amount equal to seven percent (7%) of such cost as
an overhead and supervision fee. If Tenant does not make repairs
promptly and adequately when required to do so, Landlord may, but
need not, make such repairs and replacements and Tenant shall pay
Landlord, on written demand, the cost thereof, and, in addition,
Tenant shall pay to Landlord on written demand, an amount equal to
seven percent (7%) of such cost as an overhead and supervision fee
and interest at the rate specified in Section 27(h) from the date
of such demand.
(c) This Lease does not grant any rights to light or air
over or about the real property of Landlord. Except as otherwise
provided in this Lease, Landlord specifically excepts and reserves
to itself the use of any roofs, the exterior portions of the
Premises, all rights to and the land and improvements below the
improved floor level of the Premises, to the improvements and air
rights above the Premises and to the improvements and air rights
located outside the demising walls of the Premises and to such
areas
within the Premises required for installation of utility lines and
other installations required to serve any occupants of the Building
and to maintain and repair same, and no rights with respect thereto
are conferred upon Tenant, unless otherwise specifically provided
herein.
(d) Landlord shall maintain in good order and repair the
following portions of the Project during the Term: the roof and
roof
membrane of the Building, the structural supports and load-bearing
walls of the Building, the foundation and floor slab of the
Building,
all utilities lines, mains and conduits to their point of entry
into
the Premises, the exterior of the Building, the common or public
areas in the Building, the Landlords's property and grounds
(including landscaping) about the Building, the chiller unit(s) and
air handler(s) serving the Premises and the public areas in the
Building, and Tenant's Parking Area, excepting any damage to any
such
components caused by the act or omission of Tenant or any subtenant
or their respective employees, agents, licensees, contractors or
invitees, in which event such damage shall be promptly repaired at
the expense of Tenant.
(e) Landlord's Refurbishment: Landlord hereby covenants
and agrees, at its sole cost and expense, to paint that portion of
the exterior of the Building immediately surrounding the main
entrance to the Building within one year of the Effective Date, and
promptly after the Effective Date to repair the steps to the main
entrance to the Building and to bring the existing handicap ramps
into compliance with the Americans with Disabilities Act 11 U.S.C.
12181 et seq. (the "ADA"), or construct new handicap ramps in
compliance with the ADA. In addition, prior to the Commencement
Date, Landlord shall restripe the parking lot to provide for
handicap
parking spaces in accordance with applicable code in the area shown
on Exhibit A-2. Tenant agrees to make all repairs to, and keep and
maintain in sightly appearance, good order, condition and repair
(including replacements necessary in Landlord's reasonable
judgment),
the Premises and every part thereof, except as otherwise
specifically
provided herein, including all utility, facilities and related
equipment within the Premises, plumbing, drain, waste and sewage
facilities within the Premises, including free flow up to the
common
sewer line, fixtures, and facilities and equipment for electricity,
heating, and air-conditioning, within the Premises, all in
compliance
with and as may be required by applicable building, zoning,
environmental, safety, fire and other laws and codes, including
legally required fire extinguishers and safety or health
improvements, except as otherwise specifically provided in this
Lease.
9. Surrender of Premises.
(a) At the termination of this Lease by lapse of time or
otherwise, or upon termination of Tenant's right of possession
without terminating this Lease, Tenant shall surrender possession
of the Premises to Landlord and deliver all keys to the Premises to
Landlord and make known to Landlord the combination of all locks of
vaults then remaining in the Premises, and shall, subject to the
following subparagraphs, return the Premises and all equipment and
fixtures of Landlord therein to Landlord in as good condition as
when
Tenant originally took possession, ordinary wear, loss or damage by
fire or other insured casualty, and damage resulting from the act
of Landlord or any of its respective employees and agents excepted,
failing which Landlord may restore the Premises and such equipment
and fixtures to such condition and Tenant shall pay the cost
thereof
to Landlord on demand.
(b) All installations, additions, partitions, hardware,
light fixtures, supplementary heating or air conditioning units,
non-trade fixtures and improvements, except movable furniture and
equipment belonging to Tenant, in or upon the Premises, whether
placed there by Tenant or Landlord, excepting Tenant's Supplemental
Equipment and Tenant's personal property and equipment, shall be
Landlord's property and shall remain upon the Premises upon
expiration of the Term or sooner termination of this Lease or
Tenant's possession hereunder, all without compensation, allowance
or credit to Tenant; provided, however, that if prior to such
expiration or termination or within ten (10) days thereafter
Landlord
so directs by written notice, Tenant, at Tenant's sole cost and
expense, shall promptly remove such of the installations,
additions,
partitions, hardware, light fixtures, supplementary heating or air
conditioning units, non-trade fixtures and improvements placed in
the Premises by Tenant as are designated in such notice and repair
any damage to the Premises caused by such removal, failing which
Landlord may remove the same and repair the Premises and Tenant
shall
pay the cost thereof to Landlord on written demand. All movable
furniture and equipment shall remain the property of Tenant and,
provided no continuing event of default exists hereunder with
respect
to Tenant's obligations, may be removed from the Premises at any
time
without Landlord's consent.
(c) Tenant shall leave in place any floor covering.
Tenant shall remove Tenant's furniture, machinery, safes, trade
fixtures and other items of movable personal property of every kind
and description from the Premises and restore any damage to the
Premises caused thereby, such removal and restoration to be
performed
prior to the expiration of the Term or no later than three (3) days
following the earlier termination of this Lease or Tenant's right
of possession, whichever might be earlier (and upon prior written
notice to Landlord, in the event such removal occurs after
termination of this Lease or Tenant's right to possession), failing
which Landlord may do so and thereupon the provisions of Section
18(f) shall apply.
(d) All obligations of Tenant under this Section 9 shall
survive the expiration of the Term or sooner termination of this
Lease.
10. Holding Over. If Tenant or any party claiming under
Tenant
remains in possession of the Premises or any part thereof after the
termination or expiration of this Lease, such holdover shall be
deemed to create a tenancy at will on a month-to-month basis
subject
to the terms and provisions of this Lease except that Monthly Base
Rent shall be one hundred twenty-five percent (125%) of the Monthly
Base Rent due prior to the commencement of such holdover unless and
until Landlord delivers written notice to Tenant that Landlord has
entered, or in good faith believes it is about to enter, into a
lease
for all or a portion of the Premises, in which event Monthly Base
Rent shall be, effective as of the sixtieth (60th) day after
Tenant's
receipt of such notice and as Landlord's exclusive monetary remedy,
two hundred percent (200%) of the Monthly Base Rent prior to the
commencement of such holdover. The foregoing shall not be
construed
to limit (i) Landlord's right to terminate such month-to-month
tenancy at will in accordance with Florida law or (ii) Landlord's
rights and remedies in accordance with this Lease and Florida law
to evict Tenant or otherwise terminate Tenant's possession of the
Premises in the event of such termination.
11. Rules and Regulations. Tenant agrees to observe and not
to interfere with the rights reserved to Landlord contained in
Section 12 hereof and elsewhere in this Lease, and agrees, for
itself, its employees, agents, invitees, licensees and contractors,
to comply with the rules and regulations set forth in Exhibit B
attached to this Lease, and elsewhere in this Lease, and such other
rules and regulations as shall be adopted by Landlord pursuant to
Section 12(h) or any other Section of this Lease. To the extent
that
the Rules and Regulations, current or amended, conflict with the
provisions of the rest of this Lease, the latter provisions shall
govern. Landlord agrees not to enforce such rules and regulations
selectively.
Any violation by Tenant, or by any of its employees, agents,
licensees, invitees or contractors, of any of the rules and
regulations contained in Exhibit B attached to this Lease or other
Section of this Lease, or as may hereafter be adopted by Landlord
pursuant to Section 12(h) or any other Section of this Lease, may
be restrained or treated as a default hereunder or both; but
whether
or not so restrained, Tenant acknowledges and agrees that it shall
be and remain liable for all damages, losses, costs and expenses
resulting from any violation by Tenant, or by any of its employees,
agents, licensees, invitees or contractors, of any of said rules
and
regulations. Nothing in this Lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce said rules
and regulations or the terms, covenants or conditions of any other
lease against any other tenant or any other person, although
Landlord
shall not enforce the rules and regulations selectively, and
Landlord
shall not be liable to Tenant for violation of the same by any
other
tenant, its employees, agents, licensees, invitees or contractors,
or by any other person.
12. Rights Reserved to Landlord. Landlord reserves the
following rights, exercisable without notice and without liability
to Tenant for damage or injury to property, person or business, and
without effecting an eviction or disturbance of Tenant's use or
possession or giving rise to any claim for setoff or abatement of
Rent or affecting any of Tenant's obligations under this Lease:
(a) To change the name of the Building.
(b) To install and maintain signs on the exterior and
interior of the Building.
(c) To retain at all times, and to use in appropriate
instances, pass keys to the Premises.
(d) To have access for Landlord and other tenants or
occupants of the Building to any mail chutes according to the rules
of the United States Postal Service.
(e) With reasonable notice to Tenant, except in case of
emergency when no notice shall be required, to enter the Premises
at reasonable hours for reasonable purposes, including without
limitation for inspection to meet Landlord's obligations under the
Lease.
(f) To require all persons entering or leaving the
Building during such hours as Landlord may from time to time
reasonably determine to identify themselves to security personnel
by registration or otherwise in accordance with Building security
control. Landlord shall not be liable in damages for any error
with
respect to admission to or eviction or exclusion from the Building
of any person. In case of fire, casualty, invasion, insurrection,
mob, riot, civil disorder, public excitement or other commotion, or
threat thereof, Landlord reserves the right to limit or prevent
access to the Building during the continuance of the same, shut
down
elevator service, activate elevator emergency controls, or
otherwise
take such action or preventive measures deemed necessary by
Landlord
for the safety or security of the tenants or other occupants of the
Building or the protection of the Building and the property in the
Building. Tenant agrees to cooperate in any reasonable safety or
security program developed by Landlord.
(g) To control access to the Building in a manner that
shall not unreasonably interfere with Tenant's rights hereunder.
(h) From time to time to make and adopt such rules and
regulations, in addition to or other than or by way of amendment or
modification of the rules and regulations contained in Exhibit B
attached to this Lease or other Sections of this Lease, or adopted
pursuant to this or other Sections of this Lease, including,
without
limitation, the right to prohibit all smoking in the Building, for
the protection or welfare of the Building or its tenants or
occupants, as Landlord may determine, and Tenant agrees to abide by
and comply with all such rules and regulations.
13. Alterations. After completion of all of the Tenant
Improvements as provided in Section 6 and as provided in the Plans,
Tenant shall not make any new alterations in or additions or
improve-
ments to the Premises ("Alterations") without Landlord's advance
written consent with shall not be unreasonably withheld,
conditioned,
or delayed, in each instance. All Alterations shall be at Tenant's
expense and shall comply with all insurance requirements and with
all ordinances and regulations of the municipality in which the
Building is located or any department or agency thereof, and with
the requirements of all statutes and regulations of the State in
which the Premises are located or of any subdivision, department or
agency thereof. All required working drawings and specifications
for Alterations shall be prepared by an architect, space planner or
engineers reasonably acceptable to Landlord at Tenant's expense.
14. Assignment and Subletting.
(a) Tenant shall not, without the prior written consent
of Landlord in each instance, which consent shall not be
unreasonably
withheld, conditioned, or delayed, subject to Section 14(e), either
prior or subsequent to the Commencement Date, (i) assign, transfer,
mortgage, pledge, hypothecate or encumber or subject to or permit
to exist upon or be subjected to any lien or charge, this Lease or
any interest under it, (ii) allow to exist or occur any transfer of
or lien upon this Lease or the Tenant's interest herein by
operation
of law, (iii) sublet the Premises or any part thereof, or (iv)
permit
the use or occupancy of the Premises or any part thereof for any
purpose not provided for under Section 5 of this Lease or by anyone
other than the Tenant and Tenant's employees. In no event shall
this
Lease be assigned or assignable by voluntary or involuntary
bankruptcy proceedings or otherwise, and in no event shall this
Lease
or any rights or privileges hereunder be an asset of Tenant under
any bankruptcy, insolvency or reorganization proceedings, except as
provided by law. Notwithstanding the foregoing, Tenant shall be
entitled to assign this Lease or sublet the Premises or a portion
thereof to an affiliate or a wholly owned subsidiary corporation of
Tenant without Landlord's consent. An "affiliate" is an entity in
which Tenant has no less than a fifty percent (50%) ownership
interest.
(b) Without thereby limiting the generality of the
foregoing provisions of this Section 14, Tenant expressly covenants
and agrees not to enter into any lease, sublease, license,
concession
or other agreement for use, occupancy or utilization of the
Premises
which provides for rental or other payment for such use, occupancy
or utilization based in whole or in part on the net income or
profits
derived by any person from the property leased, used, occupied or
utilized and that any such purported lease, sublease, license,
concession or other agreement shall be absolutely void and
ineffective as a conveyance of any right or interest in the
possession, use, occupancy or utilization of any part of the
Premises.
(c) No assignment, subletting, use, occupancy, transfer
or encumbrance or Landlord's consent thereto shall operate to
relieve
Tenant from any covenant or obligation hereunder except to the
extent, if any, expressly provided for in Landlord's consent or
other
writing, or be deemed to be a consent to or relieve Tenant from
obtaining Landlord's consent to any subsequent assignment,
subletting, use, occupancy, transfer or encumbrance by Tenant or
anyone claiming by, through or under Tenant. Tenant shall pay all
of Landlord's costs, charges and expenses, including without
limitation, reasonable attorneys' fees, incurred in connection with
any assignment, subletting, use, occupancy, transfer or encumbrance
made or requested by Tenant.
(d) Tenant shall, by notice in writing, advise Landlord
of its intention from, on and after a stated date (which shall not
be less than thirty (30) days after the date of the giving of
Tenant's notice to Landlord) to assign this Lease or sublet any
part
or all of the Premises for the balance or any part of the Term.
Tenant's notice shall include the name and address of the proposed
assignee or subtenant, a true and complete copy of the proposed
assignment or sublease and sufficient information as Landlord deems
necessary to permit Landlord to determine the financial
responsibility, experience and character of the proposed assignee
or subtenant.
(e) Landlord will not unreasonably withhold its consent
to Tenant's assignment of this Lease or subletting the space
covered
by its notice. Landlord shall not be deemed to have unreasonably
withheld its consent to a proposed assignment of this Lease or to
a proposed sublease of part or all of the Premises if its consent
is withheld because: (i) Tenant is then in default hereunder; (ii)
any notice of termination of this Lease or termination of Tenant's
possession shall have been given under Section 18 hereof; (iii)
either the portion of the Premises which Tenant proposes to
sublease,
or the remaining portion of the Premises, or the means of ingress
or egress to either the portion of the Premises which Tenant
proposes
to sublease or the remaining portion of the Premises, or the
proposed
use of the Premises or any portion thereof by the proposed assignee
or subtenant will violate any city, state or federal law, ordinance
or regulation, including, without limitation, any applicable
building
code or zoning ordinances; (iv) the proposed use of the Premises by
the proposed assignee or subtenant does not conform with the use
set
forth in Section 5 hereof; or (v) in the reasonable judgment of
Landlord the proposed assignee or subtenant is of a character or is
engaged in a business which would be deleterious to the reputation
of the Building or Landlord, or the proposed assignee or subtenant
is not sufficiently financially responsible or experienced to
perform
its obligations under the proposed assignment or sublease;
provided,
however, that the foregoing are merely examples of reasons for
which
Landlord may withhold its consent and shall not be deemed exclusive
of any permitted reasons for reasonably withholding consent,
whether
similar or dissimilar to the foregoing examples. Tenant agrees
that
all advertising by Tenant or on Tenant's behalf with respect to the
assignment of this Lease or subletting of any part of the Premises
must be approved in writing by Landlord prior to publication, which
approval shall not be unreasonably conditioned, withheld or
delayed.
(f) Landlord shall not share in any profits from any
subleasing or assignment, it being agreed, however, that Landlord
shall not be responsible for any deficiency if Tenant shall assign
this Lease or sublet the Premises or any part thereof at a rental
less than Rent provided for herein.
(g) If Tenant shall assign this Lease as permitted
herein,
the assignee shall expressly assume all of the obligations of
Tenant
hereunder in a written instrument satisfactory to Landlord and
furnished to Landlord not later than fifteen (15) days prior to the
effective date of the assignment. If Tenant shall sublease the
Premises as permitted herein, Tenant shall obtain and furnish to
Landlord, not later than fifteen (15) days prior to the effective
date of such sublease and in form satisfactory to Landlord, the
written agreement of such subtenant to the effect that the
subtenant
will attorn to Landlord, at Landlord's option and written request,
in the event this Lease terminates before the expiration of the
sublease.
(h) If Tenant is a corporation (other than a corporation
whose stock is traded through a national or regional exchange or
over-the-counter), any transaction or series of transactions
(including without limitation any dissolution, merger,
consolidation
or other reorganization of Tenant, or any issuance, sale, gift,
transfer or redemption of any capital stock of Tenant, whether
voluntary, involuntary or by operation of law, or any combination
of any of the foregoing transactions) resulting in the transfer of
control of Tenant, other than by reason of death, shall be deemed
to be transfer of Tenant's interest under this Lease for the
purpose
of Sections 14(a) and 14(c). If Tenant is a partnership, any
transaction or series of transactions (including without limitation
any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by
operation of law, or any combination of any of the foregoing
transactions) resulting in the transfer of control of Tenant, other
than by reason of death, shall be deemed to be a transfer of
Tenant's
interest under this Lease for the purposes of Sections 14(a) and
14(c). The term "control, as used in this Section 14(h) means the
power to directly or indirectly direct or cause the direction of
the
management or policies of Tenant. If Tenant is a private
corporation, a change or series of changes in ownership of stock
which would result in direct or indirect change in ownership by the
stockholders or an affiliated group of stockholders of less than
fifty percent (50%) of the outstanding stock as of the date of the
execution and delivery of this Lease shall not be considered a
change
of control.
15. Waiver of Certain Claims; Indemnity by Tenant and
Landlord.
(a) Tenant acknowledges and agrees that the Building, in
addition to including office uses, includes a substantial
warehousing
operation, and that Tenant shall have no claim due to such
warehousing operation and any disruption of Tenant's business
caused
by the existing warehousing operation or any comparable use of
other
portions of the Building; provided, however, that the foregoing
shall
not be construed to insulate Landlord from liability in the event
that Landlord permits other portions of the Building to be used in
a manner that are substantially more disruptive to Tenant than the
existing warehousing operation. If any damage to the Premises or
the Building or any equipment or appurtenance therein, whether
belonging to Landlord or to other tenants or occupants of the
Building, results from any act or neglect of Tenant, its employees,
agents, licensees, invitees or contractors, Tenant shall be liable
therefor and Landlord may at its option repair such damage and
Tenant
shall upon demand by Landlord reimburse Landlord for all costs of
such repairs and damages in excess of amounts, if any, paid to
Landlord under insurance covering such damages plus a fee to cover
Lessor's administrative expenses in an amount equal to seven
percent
(7%) of all such costs and interest on all such amounts at the rate
specified in Section 27(h) accruing from the date of such demand.
All personal property belonging to Tenant or any occupant of the
Premises that is in the Building or the Premises shall be there at
the risk of Tenant or other person only, and Landlord shall not be
liable for damage thereto or theft or misappropriation thereof,
except as provided in subparagraph (d) of this Section 15.
(b) Tenant agrees to indemnify and hold Landlord, the
managing agent of the Real Property, and their respective agents,
partners and employees, harmless against all loss, damages,
liabilities, claims, liens, costs and expenses, including without
limitation reasonable attorneys' fees, in connection with injuries
to any persons or damage to or theft or misappropriation or loss of
property occurring in or about the Premises, arising from Tenant's
occupancy of the Premises, or the conduct of its business or from
any activity, work, or thing done, permitted or suffered by Tenant
in or about the Premises, or from any breach or default on the part
of Tenant in the performance of any covenant or agreement on the
part
of Tenant to be performed pursuant to the terms of this Lease, or
due to any other act or omission of Tenant, or any of its
employees,
agents, licensees, invitees or contractors.
(c) Notwithstanding the foregoing provisions of this
Section 15, but subject to the provisions of Section 21(b), no
agreement of Tenant in this Section 15 shall be deemed to exempt
Landlord from liability or damages for injury to persons or damage
to property caused by or resulting from the negligence of Landlord,
its agents, servants or employees, in the operation or maintenance
of the Premises or Building.
(d) Landlord agrees to indemnify and hold Tenant, and
its
directors, officers, employees, shareholders, invitees, agents and
representatives, harmless against all loss, damages, liabilities,
claims, liens, costs and expenses, including without limitation
reasonable attorneys' fees, in connection with injuries to any
persons or damage to or theft or misappropriation or loss of
property
occurring in or about the common areas of the Building, arising
from
any negligence of Landlord in or about the common areas of the
Building or for any breach or default on the part of Landlord in
the
performance of any covenant or agreement on the part of Landlord to
be performed pursuant to the terms of this Lease or due to any
other
act or omission of Tenant, or any of its employees, agents,
licensees, invitees or contractors.
(e) Notwithstanding anything in this Lease to the
contrary, in no event shall the provisions of this Lease, including
without limitation those of this Section 15 and those of Section
18,
be construed to entitle either Landlord or Tenant to consequential
damages.
16. Damage or Destruction by Casualty.
(a) If the Premises or the Building shall be damaged by
fire or other casualty and if such damage does not render all or a
substantial portion of the Premises or the Building untenantable,
then Landlord shall proceed with reasonable promptness to repair
and
restore the Premises or the Building so as to render the Premises
tenantable, subject to reasonable delays for insurance adjustments
and delays caused by matters beyond Landlord's reasonable control,
and also subject to zoning laws and building codes then in effect.
If any such damage renders all or a substantial portion of the
Premises or the Building untenantable, Landlord shall, with
reasonable promptness after the occurrence of such damage, estimate
the length of time that will be required to substantially complete
the repair and restoration of the Premises or the Building, as the
case may be, necessitated by such damage and shall by notice advise
Tenant of such estimate. If it is so estimated that the amount of
time required to substantially complete such repair and restoration
will exceed two hundred seventy (270) days from the date such
damage
occurred, then either Landlord or Tenant (but as to Tenant, only if
all or a substantial portion of the Premises are rendered
untenantable and the estimated time required to substantially
complete such repair or restoration of the Premises will exceed
such
two hundred seventy (270) day period) shall have the right to
terminate this Lease as of the date of such damage by giving notice
to the other at any time within twenty (20) days after Landlord
gives
Tenant the notice containing said estimate (it being understood
that
Landlord may, if it elects to do so, also give such notice of
termination together with the notice containing said estimate).
Unless this Lease is terminated as provided in the preceding
sentence, Landlord shall proceed with reasonable promptness to
repair
and restore the Building or the Premises so as to render the
Premises
tenantable, subject to reasonable delays for insurance adjustments
and delays caused by matters beyond Landlord's reasonable control,
and also subject to zoning laws and building codes then in effect.
Landlord shall have no liability to Tenant, and Tenant shall not be
entitled to terminate this Lease (except as hereinafter provided)
if such repairs and restoration are not in fact completed within
the
time period estimated by Landlord, as aforesaid, or within said two
hundred seventy (270) days. However, if the Premises are not
substantially repaired or restored within eighteen (18) months
after
the date of such fire or other casualty, then either party may
terminate this Lease, effective as of the date of such fire or
other
casualty, by giving written notice to the other party not later
than
thirty (30) days after the expiration of said eighteen (18) month
period, but prior to substantial completion of repair or
restoration.
Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section 16 to repair
or restore any portion of improvements, additions or alterations
made
by or on behalf of Tenant in the Premises or improvements, except
as provided in the Plans; (ii) Landlord shall not be obligated (but
may, at its option, so elect) to repair or restore the Premises or
Building if the damage is due to an uninsurable casualty or if
insurance proceeds are insufficient to pay for such repair or
restoration, or if any Mortgagee (defined in Section 19) applies
proceeds of insurance to reduce its loan balance, and the remaining
proceeds, if any, available to Landlord are not sufficient to pay
for such repair or restoration; and (iii) Tenant shall not have the
right to terminate this Lease pursuant to this Section 16 if the
damage or destruction was caused by the intentional or negligent
act
of Tenant, its agents or employees.
(b) In the event any such fire or casualty damage
renders
the Premises untenantable and if this Lease shall not be terminated
pursuant to the foregoing provisions of this Section 16 by reason
of such damage, then Rent shall xxxxx during the period beginning
with the date of such damage and ending with the date when Landlord
substantially completes its repair or restoration required
hereunder.
Such abatement shall be in an amount bearing the same ratio to the
total amount of Rent for such period as the portion of the Premises
being repaired and restored by Landlord and not theretofore
delivered
to Tenant from time to time bears to the entire Premises. In the
event of termination of this Lease pursuant to this Section 16,
Rent
shall be apportioned on a per diem basis and be paid to the date of
the fire or casualty.
(c) In the event of any such fire or other casualty, and
if the lease is not terminated pursuant to the foregoing provisions
of this Lease, Tenant shall repair and restore any portion of
alterations, additions or improvements made by or on behalf of
Tenant
in the Premises which Landlord is not required to restore pursuant
to Section 16(a)(i) hereof.
17. Eminent Domain. If the entire Building or a substantial
part thereof or any part thereof which includes all or a
substantial
part of the Premises, shall be taken or condemned by any competent
authority for any public or quasi-public use or purpose, the Term
of this Lease shall end upon and not before the earlier of the date
when the possession of the part so taken shall be required for such
use or purpose or the effective date of the taking, and without
apportionment of the award to or for the benefit of Tenant. If any
condemnation proceeding shall be instituted in which it is sought
to take or damage any part of the Real Property, the taking of
which
would, in Landlord's opinion, prevent the economical operation of
the Building, or if the grade of any street or alley adjacent to
the
Building is changed or any such street or alley is closed by any
competent authority, and such taking, damage, change of grade or
closing makes it necessary or desirable to remodel the Building to
conform to the taking, damage, changed grade or closing, Landlord
shall have the right to terminate this Lease upon not less than
ninety (90) days, written notice to Tenant prior to the date of
termination designated in the notice. In either of the events
above
referred to, Rent at the then current rate shall be apportioned on
a per diem basis and be payable to the date of the termination. No
money or other consideration shall be payable by Landlord to Tenant
for the right of termination. Tenant shall have no right to claim
or share in any condemnation award, whether for a total or partial
taking, for loss of Tenant's leasehold or improvements or other
loss
or expenses, or in any judgment for damages caused by any change of
grade or street or alley closing.
18. Default; Rights and Remedies.
(a) The occurrence of any one or more of the following
matters constitutes a Default by Tenant under this Lease:
(i) Failure by Tenant to pay any Base Rent or
Additional Rent within five (5) business days after the date when
said rent is due and owing under the Lease;
(ii) Failure by Tenant to pay, within ten (10)
business days after Tenant's receipt of written notice thereof to
Tenant, any other moneys required to be paid by Tenant under this
Lease;
(iii) Failure by Tenant to observe or perform
any
of the covenants in respect of assignment, subletting or other
transfer of Tenant's interest under this Lease set forth in Section
14;
(iv) Failure by Tenant to cure forthwith,
promptly and with diligence after receipt of notice from Landlord,
any hazardous condition which Tenant has created or permitted in
violation of law or of this Lease;
(v) Failure by Tenant to observe or perform
any
other covenant, agreement, condition or provision of this Lease, if
such failure shall continue for thirty (30) days after written
notice
thereof from Landlord to Tenant, unless a cure would take longer
and
Tenant has begun to cure within 30 days and diligently pursues it
to completion;
(vi) The levy upon execution or the attachment
by legal process of the leasehold interest of Tenant, or the filing
or creation of a lien in respect of such leasehold interest, which
lien shall not be released or discharged within ten (10) business
days from the date of such filing;
(vii) Tenant vacates or abandons the Premises or
fails to take possession of the Premises when available for
occupancy
(the transfer of a substantial part of the operations, business and
personnel of Tenant to some other location being deemed, without
limiting the meaning of the term "vacates or abandons", to be a
vacation or abandonment within the meaning of this clause (vii),
unless Tenant thereafter continues to pay the Rent due under this
Lease;
(viii) Tenant becomes insolvent or bankrupt or
admits in writing its inability to pay its debts as they mature, or
makes an assignment for the benefit of creditors, or applies for or
consents to the appointment of a trustee or receiver for Tenant or
for the major part of its property;
(ix) A trustee or receiver is appointed for
Tenant or for the major part of its property and is not discharged
within sixty (60) days after such appointment;
(x) Bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings for
relief under any bankruptcy law, or similar law for the relief of
debtors, are instituted (A) by Tenant or (B) against Tenant and are
allowed against it or are consented to by it or are not dismissed
within sixty (60) days after such institution; or
(xi) Any matter described elsewhere in this
Lease
as a Default and Tenant fails to cure such Default for thirty (30)
days after written notice thereof from Landlord to Tenant, unless
a cure would take longer and Tenant has begun to cure within 30
days
and diligently pursues it to completion.
(b) If a Default occurs, Landlord shall have the rights
and remedies hereinafter set forth, which shall be distinct,
separate
and cumulative and shall not operate to exclude or deprive Landlord
of any other right or remedy allowed it at law or in equity or
elsewhere in this Lease:
(i) Landlord may terminate this Lease by
giving
to Tenant written notice of Landlord's election to do so, in which
event the Term of this Lease shall end, and all right, title and
interest of Tenant hereunder shall expire, on the date stated in
such
notice;
(ii) Landlord may terminate the right of Tenant
to possession of the Premises without terminating this Lease by
giving written notice to Tenant that Tenant's right of possession
shall end on the date stated in such notice, whereupon the right of
Tenant to possession of the Premises or any part thereof shall
cease
on the date stated in such notice; and
(iii) Landlord may enforce the provisions of
this
Lease and may enforce and protect the rights of Landlord hereunder
by a suit or suits in equity or at law for the specific performance
of any covenant or agreement contained herein, and for the
enforcement of any other appropriate legal or equitable remedy,
including without limitation injunctive relief, and for the
accelerated payment of all moneys due or to become due from Tenant
under any of the provisions of this Lease.
(c) If Landlord exercises any of the remedies provided
for in subparagraphs (i) and (ii) of the foregoing Section 18(b),
Tenant shall surrender possession of and vacate the Premises and
immediately deliver possession thereof to Landlord, and Landlord
may
re-enter and take complete and peaceful possession of the Premises
by process of law, full and complete license so to do being hereby
granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary, without
being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer, and without relinquishing Landlord's right to
Rent or any other right given to Landlord hereunder or by law or in
equity.
(d) If Landlord terminates the right of Tenant to
possession of the Premises without terminating this Lease, such
termination of possession shall not release Tenant, in whole or in
part, from Tenant's obligation to pay the Rent hereunder for the
full
Term. In addition and regardless of whether Landlord terminates
Tenant's right of possession to the Premises, Landlord shall have
the right, from time to time, to recover from Tenant, and Tenant
shall remain liable for, all Rent and any other sums thereafter
accruing as they become due under this Lease during the period from
the date of such notice of termination of possession to the stated
end of the Term. In any such case, Landlord shall use reasonable
efforts to mitigate its damages, but Landlord shall not be required
to accept any tenant offered by Tenant or to observe any
instructions
given by Tenant with regard to any reletting. Also, in any such
case, Landlord may make repairs, alterations and additions in or to
the Premises and redecorate the same to the extent deemed by
Landlord
necessary or desirable, and in connection therewith Landlord may
change the locks to the Premises, and Tenant shall upon written
demand pay the cost thereof together with Landlord's expenses of
reletting. Landlord may collect the rents from any such reletting
and apply the same first to the payment of the expenses of reentry,
redecoration, repair and alterations and the expenses of reletting,
and second to the payment of Rent herein provided to be paid by
Ten-
ant, and any excess or residue shall operate only as an offsetting
credit against the amount of Rent due and owing or paid as a result
of acceleration or as the same thereafter becomes due and payable
hereunder, but the use of such offsetting credit to reduce the
amount
of Rent due Landlord, if any, shall not be deemed to give Tenant
any
right, title or interest in or to such excess or residue and any
such
excess or residue shall belong to Landlord solely; provided that in
no event shall Tenant be entitled to a credit on its indebtedness
to Landlord in excess of the aggregate sum (including Base Rent and
Additional Rent) which would have been paid by Tenant for the
period
for which the credit to Tenant is being determined, had no Default
occurred. No such re-entry, repossession, repairs, alterations,
additions or reletting shall be construed as an eviction or ouster
of Tenant or as an election on Landlord's part to terminate this
Lease, unless a written notice of such intention is given to
Tenant,
or shall operate to release Tenant in whole or in part from any of
Tenant's obligations hereunder, and Landlord may, at any time and
from time to time, xxx and recover judgment for any deficiencies
from
time to time remaining after the application from time to time of
the proceeds of any such reletting.
(e) In the event of the termination of this Lease by
Landlord as provided for by subparagraph (i) of Section 18(b),
Landlord shall be entitled to recover from Tenant all the fixed
dollar amounts of Rent accrued and unpaid for the period up to and
including such termination date, as well as all other additional
sums
payable by Tenant, or for which Tenant is liable or in respect of
which Tenant has agreed to indemnify Landlord under any of the
provisions of this Lease, which may be then owing and unpaid, and
all costs and expenses, including without limitation court costs
and
reasonable attorneys' fees incurred by Landlord in the enforcement
of its rights and remedies hereunder, and in addition, Landlord
shall
be entitled to recover as damages for loss of the bargain and not
as a penalty (i) the aggregate sum which at the time of such
termination represents the excess, if any, of the present value on
the aggregate rents at the same annual rate for the remainder of
the
Term as then in effect pursuant to the applicable provisions of
Sections 3 and 4 of this Lease, over the then present value of the
then aggregate fair rental value of the Premises for the balance of
the Term, such present value to be computed in each case on the
basis
of a seven percent (7%) per annum discount from the respective
dates
upon which such rentals would have been payable hereunder had this
Lease not been terminated; and (iii) any damages in addition
thereto,
including reasonable attorneys' fees and court costs, which
Landlord
shall have sustained by reason of the breach of any of the
covenants
of this Lease other than for the payment of rent.
(f) All property removed from the Premises by Landlord
pursuant to any provisions of this Lease or by law may be handled,
removed or stored by Landlord at the cost and expense of Tenant,
and
Landlord shall in no event be responsible for the value,
preservation
or safekeeping thereof. Tenant shall pay Landlord for all expenses
incurred by Landlord in such removal and for storage charges for
such
property so long as the same shall be in Landlord's possession or
under Landlord's control. All such property not removed from the
Premises or retaken from storage by Tenant within thirty (30) days
after the end of the Term, however terminated, shall, at Landlord's
option, be conclusively deemed to have been conveyed by Tenant to
Landlord as by xxxx of sale, without further payment or credit by
Landlord to Tenant.
(g) In the event that at any time during the term of
this
Lease either Landlord or Tenant shall institute any action or
proceeding against the other relating to the provisions of this
Lease, or any default hereunder, the unsuccessful party in such
action or proceeding agrees to reimburse the successful party for
the reasonable expenses of attorneys' fees and paralegal fees and
disbursements incurred therein by the successful party. Such
reimbursement shall include all legal expenses incurred prior to
trial, at trial and at all levels of appeal and post judgment
proceedings.
(h) Landlord shall be in default under this Lease if
Landlord fails to perform any obligation under this Lease and such
failure continues for thirty (30) days after Tenant's written
notice
or such additional period as may be necessary to perform any such
obligation provided that Landlord has commenced such performance
within the thirty (30) day period and pursues such performance
diligently thereafter. In the event of such default, Tenant may
elect either (i) to cure such default and receive reimbursement
from
Landlord for the Tenant's actual, reasonable expenses incurred in
curing such default (including an amount equal to seven percent
[7%]
of such expenses as an overhead and supervision fee), and in the
event that Landlord fails to reimburse Tenant for such expenses
within fifteen (15) days of Tenant's written demand, Tenant shall
be entitled to offset such costs against Rent, or (ii) to enforce
Landlord's obligations under this Lease, but in no event shall
Tenant
be entitled to terminate this Lease except as specifically provided
in Section 7 or to seek damages, actual or consequential, except to
the extent of Tenant's actual, reasonable expenses incurred in
curing
Landlord's default as provided above.
(i) Landlord and Tenant hereby waive trial by jury in
any
action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of
or in any way connected with this Lease or any claim of injury or
damage. In the event that Landlord commences any proceedings for
non-payment of Rent, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceedings. This shall
not, however, be construed as a waiver of Tenant's right to assert
such claims in any separate action brought by Tenant. However,
Tenant shall not move to consolidate any such separate action with
any action brought by Landlord for Rent or possession or both.
19. Subordination.
(a) Landlord may have heretofore or may hereafter
encumber
with a mortgage the Building, the Land, the Real Property or any
interest therein, and may have heretofore and may hereafter sell
and
lease back the Land, or any part of the Real Property, and may have
heretofore or may hereafter encumber the leasehold estate under
such
lease with a mortgage or trust deed. (Any such mortgage or trust
deed is herein called a "Mortgage" and the holder of any such
mortgage is herein called a "Mortgagee". Any such lease if the
underlying land is herein called a "Ground Lease" and the lessor
under any such lease is herein called a "Ground Lessor". Any
Mortgage which is a first lien against the Building, the Land, the
Real Property, the leasehold estate under a Ground Lease or any
interest therein is herein called a "First Mortgage" and the holder
or beneficiary of any First Mortgage is herein called a "First
Mortgagee".) Landlord hereby warrants and represents that the
Building, Land and Real Property are not encumbered by a Mortgage
or Ground Lease as of the date of this Lease.
(b) If requested by a Mortgagee or Ground Lessor, Tenant
will either (i) subordinate its interest in this Lease to said
Mortgage or Ground Lease, and to any and all advances made
thereunder
and to the interest thereon, and to all renewals, replacements,
supplements, amendments, modifications and extensions thereof, or
(ii) make certain of Tenant's rights and interest in this Lease
superior thereto; and Tenant will promptly execute and deliver such
agreement or agreements as may be reasonably required by such
Mortgagee or Ground Lessor; provided, however, Tenant covenants it
will not subordinate this Lease to any Mortgage other than a First
Mortgage without the prior written consent of the First Mortgagee.
Tenant may condition delivery of any instrument subordinating
Tenant's interest in this Lease to a Mortgage or a Ground Lease
upon
receipt of a non-disturbance and attornment agreement on the
Mortgagee's or Ground Lessor's standard form which shall be
reasonably satisfactory to Tenant.
(c) It is further agreed that (a) if any Mortgage shall
be foreclosed, or if any Ground Lease be terminated, (i) the
liability of the Mortgagee or purchaser at such foreclosure sale or
the liability of a subsequent owner designated as Landlord under
this
Lease shall exist only so long as such Mortgagee, purchaser or
owner
is the owner of the Building, Land or Real Property, and such
liability shall not continue or survive after further transfer of
ownership; and (ii) upon request of the Mortgagee, if the Mortgage
shall be foreclosed, Tenant will attorn, as Tenant under this
Lease,
to the purchaser at any foreclosure sale under any Mortgage or upon
request of the Ground Lessor, if any Ground Lease shall be
terminated, Tenant will attorn as Tenant under this Lease to the
Ground Lessor, and Tenant will execute such instruments as may be
necessary or appropriate to evidence such attornment; and (b) this
Lease may not be modified or amended so as to reduce the Rent or
shorten the term provided hereunder, or so as to adversely affect
in any other respect to any material extent the rights of the
Landlord, nor shall this Lease be canceled or surrendered, without
the prior written consent, in each instance, of the First Mortgagee
or any Ground Lessor.
(d) Should any prospective First Mortgagee or Ground
Lessor require a modification or modifications of this Lease, which
modification or modifications will not cause an increased cost or
expense to Tenant or in any other way materially and adversely
change
the rights and obligations of Tenant hereunder, in the reasonable
judgment of Tenant, then and in such event, Tenant agrees that this
Lease may be so modified and agrees to execute whatever documents
are required therefor and deliver the same to Landlord within ten
(10) days following the request therefor. Should any prospective
Mortgagee or Ground Lessor require execution of a short form of
lease
for recording (containing, among other customary provisions, the
names of the parties, a description of the Premises and the Term of
this Lease), Tenant agrees to execute such short form of lease and
deliver the same to Landlord within ten (10) days following the
request therefor.
(e) If Tenant fails within ten (10) days after written
demand therefor to execute and deliver any instruments as may be
necessary or proper to effectuate any of the covenants of Tenant
set
forth above in this Section 19, Tenant hereby makes, constitutes
and
irrevocably appoints any one of Landlord or its beneficiaries as
its
attorney in fact (such power of attorney being coupled with an
interest) to execute and deliver any such instruments for and in
the
name of Tenant.
20. Mortgagee Protection. Tenant agrees to give any First
Mortgagee, by registered or certified mail, a copy of any notice or
claim of default served upon the Landlord by Tenant, provided that
prior to such notice Tenant has been notified in writing (by way of
service on Tenant of a copy of an assignment of Landlord's
interests
in leases, or otherwise) of the address of such First Mortgagee.
If required by the Mortgage, Tenant further will agree that if
Landlord shall have failed to cure such default within twenty (20)
days after such notice to Landlord (or if such default cannot be
cured or corrected within that time, then such additional time as
may be necessary if Landlord has commenced within such twenty (20)
days and is diligently pursuing the remedies or steps necessary to
cure or correct such default), then the First Mortgagee shall have
an additional thirty (30) days within which to cure or correct such
default (or if such default cannot be cured or corrected within
that
time, then such additional time as may be necessary if such First
Mortgagee has commenced within such thirty (30) days and is
diligently pursuing the remedies or steps necessary to cure or
correct such default, including the time necessary to obtain
possession if possession is necessary to cure or correct such
default) before Tenant may exercise any right or remedy which it
may
have on account of any such default of Landlord.
21. Insurance and Subrogation.
(a) Tenant shall carry insurance during the entire Term
hereof and any extension thereof insuring Tenant, and insuring
Landlord, the managing agent for the Real Property and their
respective agents, partners and employees, as their interests may
appear, with terms, coverages and in companies reasonably
satisfactory to Landlord, Tenant shall maintain the following
coverages in the following amounts:
(i) Public liability insurance with the broad
form comprehensive general liability endorsement, including
contractual liability insurance covering Tenant's indemnity
obligations hereunder, in an amount not less than $1,000,000
combined
single limit per occurrence, together with umbrella and excess
liability coverage of $5,000,000.
(ii) "All risk" physical damage insurance
including fire, sprinkler leakage, vandalism and extended coverage
for the full replacement cost of all additions, improvements and
alterations to the Premises (except to the extent that such are
contemplated by the Plans) and of all office furniture, trade
fixtures, office equipment, merchandise and all other items of
Tenant's property on the Premises.
(iii) Business interruption or extra expense
insurance with limits not less than those carried by a prudent
tenant.
(iv) Worker's compensation insurance in the
amounts required by applicable law.
Tenant shall, prior to the commencement of the Term and from
time to time during the Term, furnish to Landlord policies or
certificates evidencing the foregoing insurance coverage. Tenant's
policies shall state that such insurance coverage may not be
reduced,
canceled or not renewed without at least thirty (30) days' prior
written notice to Landlord and Tenant (unless such cancellation is
due to non-payment of premium, and in that case only ten (10) days'
prior written notice shall be sufficient).
(b) During the entire Term of this Lease, Landlord shall
maintain the following coverages in the following amounts, naming
Tenant as an additional insured:
(i) Public liability insurance with the broad
form comprehensive general liability endorsement, including
contractual liability insurance covering Tenant's indemnity
obligations hereunder, in an amount not less than $1,000,000
combined
single limit per occurrence, together with umbrella and excess
liability coverage of $5,000,000.
(ii) "All risk" physical damage insurance
including fire, sprinkler leakage, vandalism and extended coverage
for the full replacement cost of physical damage insurance on the
Building, including all mechanical and electrical equipment
therein,
and the Land, together with adequate Boiler and Machinery coverage.
(iii) Business interruption or extra expense
insurance in amounts not in excess of those carried by a prudent
landlord.
(iv) Worker's compensation insurance in the
amounts required by applicable law.
Landlord shall, prior to the commencement of the Term and from
time to time during the Term, furnish to Tenant policies or
certificates evidencing the foregoing insurance coverage.
Landlord's
policies shall state that such insurance coverage may not be
reduced,
canceled or not renewed without at least thirty (30) days' prior
written notice to Tenant and Landlord (unless such cancellation is
due to non-payment of premium, and in that case only ten (10) days'
prior written notice shall be sufficient).
(c) Landlord and Tenant agree to have all fire and
extended coverage and material damage insurance which may be
carried
by either of them endorsed with a clause providing that any release
from liability of or waiver of claim for recovery from the other
party or any of the parties named as additional insureds entered
into
in writing by the insured thereunder prior to any loss or damage
shall not affect the validity of said policy or the right of the
insured to recover thereunder, and Landlord's and Tenant's policies
shall provide further that the insurer waives all rights of
subrogation which such insurer might have against any of the named
insureds. Without limiting any release or waiver of liability or
recovery contained in any other Section of this Lease but rather in
confirmation and furtherance thereof, Landlord waives all claims
for
recovery from Tenant, and Tenant waives all claims for recovery
from
Landlord and the managing agent of the Real Property and their
respective agents, partners, servants and employees for any loss or
damage to any of its property insured under valid and collectible
insurance policies to the extent of any recovery collectible under
such insurance policies.
Notwithstanding the foregoing or anything contained in this
Lease to the contrary, any release or any waiver of claims shall
not
be operative, nor shall the foregoing endorsements be required, in
any case where the effect of such release or waiver is to
invalidate
insurance coverage or invalidate the right of the insured to
recover
thereunder or increase the cost thereof (provided that in the case
of increased cost the other party shall have the right, within ten
(10) days following written notice, to pay such increased cost,
thereby keeping such release or waiver in full force and effect).
(d) Tenant and Landlord shall comply with all applicable
laws and ordinances, all orders and decrees of court and all
requirements of other governmental authority, and shall not
directly
or indirectly make any use of the Premises or the Building or the
Land which may thereby be prohibited or be dangerous to person or
property or which may jeopardize any insurance coverage, or may
increase the cost of insurance or require additional insurance
coverage. Notwithstanding the foregoing if Tenant shall make any
use of the Premises which may increase or has increased the cost of
Landlord's insurance, Tenant shall pay the cost of such increased
insurance upon demand.
22. Nonwaiver. No waiver of any condition expressed in this
Lease shall be implied by any neglect of Landlord or Tenant to
enforce any remedy on account of the violation of such condition,
whether or not such violation be continued or repeated
subsequently,
and no express waiver shall affect any condition other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated. It is agreed that no receipt of moneys
by Landlord from Tenant after the termination in any way of the
Term
or of Tenant's right of possession hereunder or after the giving of
any notice shall reinstate, continue or extend the Term or affect
any notice given to Tenant prior to the receipt of such moneys. It
is also agreed that after the service of notice or the commencement
of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any moneys due, and the payment of
said moneys shall not waive or affect any said notice, suit or
judgment.
23. Estoppel Certificate. Tenant agrees that from time to
time
upon not less than ten (10) days' prior request by Landlord, or any
existing or prospective First Mortgagee or Ground Lessor, and
Tenant
will cause any subtenant, licensee, concessionaire or other
occupant
of the Premises claiming by, through or under Tenant to, complete,
execute and deliver to Landlord or Landlord's designee or to any
First Mortgagee or Ground Lessor, a written estoppel certificate
certifying (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the lease as
modified is in full force and effect and identifying the
modifications); (b) the date upon which Tenant began paying Rent
and
the dates to which the Rent and other charges have been paid; (c)
that the Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail; (d) that
the
Premises have been completed in accordance with the terms hereof
and
Tenant is in occupancy and paying Rent on a current basis with no
rental offsets or claims; (e) that there has been no prepayment of
Rent other than that provided for in this Lease; (f) that there are
no actions, whether voluntary or otherwise, pending against Tenant
under the Bankruptcy Code or the bankruptcy laws of any state; and
(g) such other matters as may be required by the Landlord, First
Mortgagee, or Ground Lessor, including, without limitation, any
other
information concerning the status of this Lease or the parties,
performance hereunder reasonably requested by the party to whom
such
estoppel certificate is to be addressed. Tenant's failure to
complete, execute and deliver any such estoppel certificate within
the aforesaid ten (10) day period shall be deemed to be a Default
under Section 18 of this Lease.
24. Corporate Authority. Landlord and Tenant each (a)
represents and warrants that this Lease has been duly authorized,
executed and delivered by and on behalf of Landlord's and Tenant's
respective corporations and constitutes the valid and binding
agreement of the parties hereto in accordance with the terms hereof
and (b) if either party so requests, the other party shall deliver
to it, concurrently with the delivery of this Lease, certified
resolutions of the board of directors (and shareholders, if
required)
authorizing the party's execution and delivery of this Lease and
the
performance of its obligations hereunder.
25. Real Estate Brokers. Tenant represents and warrants that
Tenant has directly dealt with and only with the Brokers in
connection with this Lease and agrees to indemnify and hold
Landlord,
harmless from all losses, damages and liabilities, claims, liens,
costs and expenses including, without limitation, reasonable
attorneys' fees, arising from any claims or demands of any other
broker or brokers or finders or any commission alleged to be due
such
other broker or brokers or finders claiming to have dealt with
Tenant
in connection with this Lease. Landlord shall be solely
responsible
for any commission due the Brokers pursuant to the terms and
provisions of a separate agreement.
26. Notices. All notices to or demands upon Landlord or
Tenant
desired or required to be given under any of the provisions hereof
shall be in writing. Any notices or demands from Landlord to
Tenant
shall be mailed by United States registered or certified mail,
return
receipt requested, or sent by nationally recognized courier service
such as Federal Express or Airborne, addressed to Tenant at 0000
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X.
Xxxxx,
General Counsel and Vice President. Any notices or demands from
Landlord to Tenant may be signed by Landlord, the managing agent
for
the Real Property or any agent of any of them. Any notices or
demands from Tenant to Landlord shall be mailed by registered or
certified mail, return receipt requested, or sent by a nationally
recognized courier service such as Federal Express or Airborne,
addressed to Landlord at Landlord's address for payment of Rent.
Either party may, upon notice to the other, change its address for
receipt of notices or demands. All notices to or demands upon
Landlord or Tenant shall be deemed served at the time the same were
posted.
27. Miscellaneous.
(a) Each provision of this Lease shall extend to and
shall
bind and inure to the benefit not only of Landlord and Tenant, but
also their respective heirs, legal representatives, successors and
assigns, but this provision shall not operate to permit any
assignment, subletting, mortgage, lien, charge, or other transfer
or encumbrance contrary to the provisions of this Lease.
or of any of its conditions or provisions shall be
binding upon
Landlord unless in writing signed by Landlord.
(c) Submission of this instrument for examination shall
not constitute a reservation of or option for the Premises or in
any
manner bind Landlord, and no lease or obligation on Landlord shall
arise until this instrument is signed and delivered by Landlord and
Tenant; provided, however, the execution and delivery by Tenant of
this Lease to Landlord or the managing agent or leasing agent of
the
Real Property shall constitute an irrevocable offer by Tenant to
lease the Premises on the terms and conditions herein contained,
which offer may not be revoked for thirty (30) days after such
delivery.
(d) The word "Tenant" whenever used herein shall be
construed to mean Tenants or any one or more of them in all cases
where there is more than one Tenant; and the necessary grammatical
changes required to make the provisions hereof apply either to
corporations or other organizations, partnerships or other
entities,
or individuals, shall in all cases be assumed as though in each
case
fully expressed. In all cases where there is more than one person
or entity comprising Tenant, the liability of each shall be joint
and several.
(e) Clauses, plats, exhibits and riders, if any, affixed
to this Lease are made an integral part hereof.
(f) The headings of Sections are for convenience only
and
do not limit, expand or construe the contents of the Sections.
(g) Time is of the essence of this Lease and of each and
all provisions thereof.
(h) All amounts (including, without limitation, Base
Rent
and Additional Rent) owed by Tenant to Landlord pursuant to any
provision of this Lease shall bear interest from the date due until
paid at the annual rate equal to the lesser of eighteen percent
(18%)
per annum or the highest non-usurious rate permitted by law.
(i) The invalidity of any provision of this Lease shall
not impair or affect in any manner the validity, enforceability or
effect of any other provisions of this Lease.
(j) All understandings and agreements, oral or written,
heretofore made between the parties hereto and any of their agents
are merged in this Lease, which alone fully and completely
expresses
the agreement between Landlord and Tenant.
(k) Without limiting the provisions of Section 5 or any
other provisions of this Lease, if Landlord fails to perform timely
any of the terms, covenants and conditions of this Lease on
Landlord's part to be performed, and such failure is due in whole
or in part to any strike, lockout, labor trouble, civil disorder,
inability to procure materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel
shortages, accidents, casualties, acts of God, acts caused directly
or indirectly by Tenant (or Tenant's employees, agents, licensees,
invitees or contractors) or any other cause beyond the reasonable
control of Landlord, then Landlord shall not be deemed in default
under this Lease as a result of such failure.
(l) Any rights, reserved or granted to Landlord
hereunder
may be exercised by Landlord, its beneficiaries or the managing
agent
for the Real Property or their respective agents, employees,
contractors or designees.
(m) Any payment received from Tenant may be applied by
Landlord at any time against any obligation due and owing by Tenant
under this Lease, notwithstanding any statement appearing on or
referred to in any remittance from Tenant or any prior application
of such payment. If a petition under the Bankruptcy Code is
initiated within ninety (90) days after receipt by Landlord of any
such payment, the payment shall be deemed applicable to any unpaid
obligations then due in the inverse order of their maturity.
28. Landlord. The term "Landlord" as used in this Lease
means
only the owner of Landlord's interest in the Premises from time to
time. In the event of any assignment, conveyance or sale, once or
successively, of Landlord's interest in the Premises or any
assignment of this Lease by Landlord, said Landlord making such
sale,
conveyance or assignment shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder
accruing after such sale, conveyance or assignment, and Tenant
agrees
to look solely to such purchaser, grantee or assignee with respect
thereto. A mortgagee (or assignee under an assignment in
connection
with a Mortgage) shall not be deemed such a purchaser, grantee or
assignee under this Section 31(a), unless and until the foreclosure
of any Mortgage or the conveyance or transfer of Landlord's
interest
under this Lease in lieu of foreclosure, and then subject to the
provisions of Section 19. This Lease shall not be affected by any
such assignment, conveyance or sale, and Tenant agrees to attorn to
the purchaser, grantee or assignee.
29. Title and Covenant Against Liens. Landlord's title is
and
always shall be paramount to the title of Tenant, and nothing in
this
Lease contained shall empower Tenant to do any act which can, shall
or may encumber the title of Landlord. Tenant covenants and agrees
not to suffer or permit any lien of mechanics or materialmen to be
placed upon or against the Premises, the Building, the Land or
against the Tenant's leasehold interest in the Premises and, in
case
of any such lien attaching, to immediately pay and remove same.
Tenant has no authority or power to cause or permit any lien or
encumbrance of any kind whatsoever, whether created by act of
Tenant,
operation of law or otherwise, to attach to or be placed upon the
Premises, the Building or the Land, and any and all liens and
encumbrances created by Tenant shall attach only to Tenant's
interest
in the Premises. If any such liens so attach and Tenant fails to
pay and remove the same within ten (10) days after written demand
by Landlord, such failure shall be an event of Default hereunder,
and Landlord, at its election, may pay and satisfy the same, and in
such event the sums so paid by Landlord, with interest from the
date
of payment at the rate set forth in Section 27(h) hereof for
amounts
owed Landlord by Tenant, shall be deemed to be Additional Rent due
and payable by Tenant immediately upon written notice from
Landlord.
30. Signage. With Landlord's prior written consent, which
shall not be unreasonably withheld, and subject to compliance with
all applicable codes and the other terms and provisions of this
Lease, Tenant shall be entitled to erect Tenant's signage on the
exterior face of the Building and/or on a pylon to be erected on
the
Land in a location specified by Landlord and pursuant to signage
specification approved by Landlord in writing; provided, however,
in no event shall Tenant be entitled to mount any signage or other
apparatus whatsoever on the roof of the Building or to may any
penetrations of the roof membrane for any reason whatsoever or make
or perform any alterations or improvements in any way affecting the
roof or the roof membrane.
31. Exculpatory Provisions. It is expressly understood and
agreed by and between the parties hereto, anything herein to the
contrary notwithstanding, that each and all of the representations,
warranties, covenants, undertakings and agreements herein made on
the part of any Landlord while in form purporting to be the
representations, warranties, covenants, undertakings and agreements
of such Landlord are nevertheless each and every one of them made
and intended, not as personal representations, warranties,
covenants,
undertakings and agreements by such Landlord, or for the purpose or
with the intention of binding such Landlord personally, but are
made
and intended for the purpose only of subjecting such Landlord's
interest in the Premises and the Real Property to the terms of this
Lease and for no other purpose whatsoever, and in case of default
hereunder by such Landlord (or default through, under or by any of
its beneficiaries, or any of the agents or representatives of said
beneficiaries), Tenant shall look solely to the interests of such
Landlord in the Premises and the Real Property.
32. Hazardous Substances.
(a) Tenant agrees not to generate, store, use, treat or
dispose of, nor to allow, suffer or permit the generation, storage,
use treatment or disposal of, any "Hazardous Waste" or "Hazardous
Substance" (as those terms are defined in Resource Conservation and
Recovery Act, 42 U.S.C., Section 6901, et seq., as amended
("RCRA"),
or the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C., Section 9601, et seq., as amended
("CERCLA"), and any rules and regulations now or hereafter
promulgated under either of such acts) or any pollutants or other
contaminant (including, without limitation, petroleum-related
products) on, in, from or about the Premises, Building or the Real
Property, except in strict accordance with applicable laws and
regulations and following written notice of same to Landlord.
Tenant
shall and hereby does indemnify and hold Landlord harmless from and
against any and all loss, damages, expenses, fees, claims, costs
and
liabilities (including, but not limited to, attorneys' fees and
costs
of litigation) arising out of or in any manner related to the
"release" or "threatened release" of, and for any clean-up
responsibility imposed upon owner under any federal, state or local
law, ordinance, rule or regulations now or hereafter in effect,
with
respect to, any "Hazardous Waste" or "Hazardous Substance", or any
pollutant, or other contaminant (including, without limitation,
petroleum-related products) or environmental condition on, in from
or about the Premises, Building or the Real Property or any portion
thereof, which release or threatened release of pollutant or
environmental condition arises out of act of Tenant or is in any
manner related to Tenant's use or occupancy of the Premises,
Building
or Real Property an Tenant, its agents, employees, contractors or
invitees. Tenant shall not be responsible for and shall have no
liability with regard to any "Hazardous Waste" or "Hazardous
Substance" or other pollutant or other contaminant or environmental
condition established to be in, on, under or about the Building or
the Land on the date of this Lease.
(b) Landlord hereby warrants and represents that it has
no actual, present knowledge or any "Hazardous Waste" or "Hazardous
Substance" in, on, under or about the Building or the Land except
as describe in that certain Preliminary Groundwater Investigation
dated May 3, 1994, prepared by Dames & Xxxxx and addressed to
Landlord. In the event that any "Hazardous Waste" or "Hazardous
Substance" or other pollutant or other contaminant or environmental
condition is found in the Premises and/or the Building or the Land,
Landlord shall remove and/or encapsulate and/or remedy the same, as
required by applicable law at its sole cost and expense and shall
otherwise comply with all federal, state and local rules,
regulations, laws, statutes or ordinances pertaining thereto and
Tenant shall have the right to obtain reimbursement from Landlord
for all damages suffered by Landlord as a result of the presence
and
removal of such Hazardous Waste" or "Hazardous Substance" or other
pollutant or other contaminant or environmental condition.
Landlord
shall and hereby does indemnify and hold Tenant harmless from and
against any and all loss, damages, expenses, fees, claims, costs
and
liabilities (including, but not limited to, attorneys' fees and
costs
of litigation) arising out of or in any manner related to the
"release" or "threatened release" of, and for any clean-up
responsibility imposed upon owner under any federal, state or local
law, ordinance, rule or regulations now or hereafter in effect,
with
respect to, any "Hazardous Waste" or "Hazardous Substance", or any
pollutant, or other contaminant (including, without limitation,
petroleum-related products) or environmental condition on, in from
or about the Premises, Building or the Real Property or any portion
thereof existing as of the date Tenant takes occupancy of the Phase
1 Space and the date Tenant takes occupancy of the Phase 2 Space,
or which Landlord arises out of act of Landlord or is in any manner
related to Landlord's use or occupancy of the Premises, Building or
Real Property, or Landlord,its agents, employees, contractors or
invitees introduces into the Premises, the Building or the land
upon
which it is situated, which release or threatened release of
pollutant or environmental condition. Landlord shall not be
responsible for and shall have no liability with regard to any
"Hazardous Waste" or "Hazardous Substance" or other pollutant or
other contaminant or environmental condition established to have
been
introduced by Tenant in, on, under or about the Building or the
Land.
33. Radon Gas. Section 404.056(7), Florida Statutes,
requires
the following disclosure: Radon is a naturally occurring
radioactive
gas that, when it has accumulated in building in sufficient
quantities, may present health risks to persons who are exposed to
it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from
your county public health unit.
34. Competitors. Landlord hereby agrees and covenants that,
so long as Landlord has not delivered notice to Tenant either
terminating this Lease or terminating Tenant's right to possession
of the Premises, or both, due to a Default, Landlord shall not
knowingly (i) enter into any Lease of space within the Building
with
any direct competitor of America Online, Inc. ("AOL") or (ii)
permit
any sign or other advertising by a direct competitor of AOL to be
placed on the Building or on the Land. For purposes of the
foregoing
covenant, a "direct competitor of AOL" shall be defined as an
enterprise whose primary business is providing computerized on-line
data and information services to subscribers and whose use of space
in the Building or advertising facilities on the Building or the
Land
is directly related to such business.
35. Tenant's Supplemental Equipment.
(a) Throughout the Lease Term, Tenant shall have the
right
to install and maintain, in locations in the Premises, in and on
the
Building and on the property adjacent to the Building, that are
reasonably acceptable to Landlord, satellite dishes, antennae and
other communications equipment (the "Communications Equipment"),
subject to the following conditions:
(i) Tenant, at its sole cost and expense,
shall
procure all necessary governmental permits and licenses for the
installation, maintenance and/or use of the Communications
Equipment,
and shall at all times comply with all requirements of laws,
ordinances and rules of all public authorities and insurance
companies and all orders, rules and regulations of any public
authority, which shall impose any order or duty upon Landlord or
Tenant with respect to or affecting the Communications Equipment or
arising out of Tenant's use or manner of use thereof.
(ii) Tenant shall promptly pay and discharge
all
out-of-pocket costs and expenses incidental to and/or connected
with
the furnishing, installation, maintenance and operation of, the
Communications Equipment.
(iii) Installation of the Communications
Equipment
shall be at Tenant's sole expense. Tenant shall obtain Landlord's
prior written consent, which shall not be unreasonably withheld,
conditioned or delayed, as to the location of the Communications
Equipment and the manner in which such installation work is to be
done. All plans and specifications concerning such installation
shall be subject to Landlord's prior written approval, which
approval
shall not be unreasonably withheld, conditioned or delayed. In no
event shall the Communications Equipment be located on the roof of
the Building, and in no event shall Tenant disturb the roof
membrane
or make any other penetration on the roof or the exterior facade of
the Building.
(iv) Tenant, at its sole cost and expense,
shall
maintain the Communications Equipment in a clean and safe manner
throughout the entire Term, and shall comply with all applicable
laws, ordinances and regulations. In addition, all repairs to the
Building made necessary by reason of the furnishing, installation,
maintenance or operation of the Communications Equipment or any
replacements thereof shall be at Tenant's sole cost. Upon
expiration
or termination of this Lease, Tenant agrees that it will promptly
remove the Communications Equipment and any wiring or accessories
associated with the Communications Equipment and shall promptly
repair any damage to the Building caused by the installation or
removal of the Communications Equipment and related equipment, all
at its sole cost and expense.
(v) Tenant, at its sole cost and expense,
shall
maintain such insurance as is appropriate with respect to the
installation, operation and maintenance of the Communications
Equipment or as Landlord may otherwise require and shall provide
Landlord with evidence of such insurance prior to installation.
Landlord shall have no liability on account of any damage to or
interference with the operation of the Communications Equipment,
except that which is caused by the negligence or wilful misconduct
by Landlord or its agents or by the failure of Landlord to observe
any of the terms and conditions of the Lease.
(b) Throughout the Term, Tenant shall have the right to
install, operate and maintain an auxiliary generator (the
"Generator") to service Tenant's electric power needs in the
Premises, subject to the following conditions:
(i) If the Generator is not entirely situated
within the Premises, then the location of such Generator shall be
subject to Landlord's written approval, and shall be screened from
view in a manner and with materials reasonably required by
Landlord.
In no event shall the Generator be located on the roof of the
Building, and in no event shall Tenant disturb the roof membrane or
make any other penetration on the roof or the exterior facade of
the
Building.
(ii) Tenant, at its sole cost and expense,
shall
procure all necessary governmental permits and licenses for the
installation, maintenance and/or use of the Generator, and shall at
all times comply with all requirements of laws, ordinances and
rules
of all public authorities and insurance companies and all orders,
rules and regulations of any public authority, which shall impose
any order or duty upon Landlord or Tenant with respect to or
affecting the Generator or arising out of Tenant's use or manner of
use thereof.
(iii) Tenant shall promptly pay and discharge
all
out-of-pocket costs and expenses incidental to and/or connected
with
the furnishing, installation, maintenance, operation and removal of
the Generator.
(iv) Installation of the Generator shall be at
Tenant's sole expense. Tenant shall obtain Landlord's prior
consent,
which shall not be unreasonably withheld, conditioned or delayed,
to the manner in which such installation work is to be done. All
plans and specifications concerning such installation shall be
subject to Landlord's prior written approval, which approval shall
not be unreasonably withheld, conditioned or delayed.
(v) Tenant, at its sole cost and expense,
shall
maintain the Generator in a clean and safe manner throughout the
entire Lease Term, and shall comply with all applicable laws,
ordinances and regulations. In addition, all repairs to the
Building
made necessary by reason of the furnishing, installation,
maintenance, operation or removal of the Generator or any
replacements thereof shall be at Tenant's sole cost. Upon
expiration
or termination of this Lease, Tenant agrees that it will promptly
remove the Generator and any wiring or accessories associated with
the Generator and shall promptly repair any damage to the Building
or the Project caused by the installation or removal of the
Generator
and related equipment, all at its sole cost and expense.
(vi) Tenant shall, at its sole cost and
expense,
maintain such insurance as is appropriate with respect to the
installation, operation and maintenance of the Generator or as
Landlord may otherwise require and shall provide Landlord with
evidence of such insurance prior to installation. Landlord shall
have no liability on account of any damage to or interference with
the operation of the Generator, except that which is caused by the
negligence or wilful misconduct by Landlord or its Agents or by the
failure of Landlord to observe any of the terms and conditions of
the Lease.
(c) Throughout the Term, Tenant shall have the right to
install, operate and maintain, supplemental HVAC units (the "HVAC
Equipment"), subject to the following conditions:
(i) Tenant, at its sole cost and expense,
shall
procure all necessary governmental permits and licenses for the
installation, maintenance and/or use of the HVAC Equipment, and
shall
at all times comply with all requirements of laws, ordinances and
rules of all public authorities and insurance companies and all
orders, rules and regulations of any public authority, which shall
impose any order or duty upon Landlord or Tenant with respect to or
affecting the HVAC Equipment or arising out of Tenant's use or
manner
of use thereof.
(ii) Tenant shall promptly pay and discharge
all
out-of-pocket costs and expenses incidental to and/or connected
with
the furnishing, installation, maintenance and operation of the HVAC
Equipment.
(iii) Installation of the HVAC Equipment shall
be at Tenant's sole expense. Tenant shall obtain Landlord's prior
consent, which shall not be unreasonably withheld, conditioned or
delayed, to the locations of the HVAC units and the manner in which
such installation work is to be done. All plans and specifications
concerning such installation shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably
withheld,
conditioned or delayed.
(iv) Tenant, at its sole cost and expense,
shall
maintain the HVAC Equipment in a clean and safe manner throughout
the entire Lease Term, and shall comply with all applicable laws,
ordinances and regulations. In addition, all repairs to the
Building
made necessary by reason of the furnishing, installation,
maintenance, operation or removal of the HVAC Equipment or any
replacements thereof shall be at Tenant's sole cost. Upon
expiration
or termination of this Lease, Tenant agrees that it will promptly
remove the HVAC Equipment and any wiring, conduit or accessories
associated with the HVAC Equipment and shall promptly repair any
damage to the Building or the Project caused by the installation or
removal of the HVAC Equipment and related equipment, all at its
sole
cost and expense.
(v) Tenant shall, at its sole cost and
expense,
maintain such insurance as is appropriate with respect to the
installation, operation and maintenance of the HVAC Equipment or as
Landlord may otherwise require and shall provide Landlord with
evidence of such insurance prior to installation. Landlord shall
have no liability on account of any damage to or interference with
the operation of the HVAC Equipment, except that which is caused by
the negligence or wilful misconduct by Landlord or its Agents or by
the failure of Landlord to observe any of the terms and conditions
of the Lease.
(vi) Tenant, at its sole cost and expense,
shall
cause the utilities used by the HVAC Equipment to be separately
metered and shall pay for such utilities.
(d) Throughout the Lease Term, Tenant shall have the
right
to install, maintain and remove fiber cabling and other
telecommunications wiring within the plenum above the drop ceiling.
36. ADA Requirements. Tenant shall be solely responsible for
assuring that any Alterations to the Premises other than the Tenant
Improvements shall comply in all respects with the Americans with
Disabilities Act, 11 U.S.C. Section 12181, et seq. (the "ADA"), and
Tenant shall indemnify Landlord and hold Landlord harmless from and
against any and all loss, cost or damage (including, without
limitation, reasonable attorneys' fees and costs through any
appellate proceedings) resulting from any claim, complaint, action,
order, directive, decree or finding that the Premises or any
portion
thereof as a result of any alterations by Tenant do not comply with
the ADA. Landlord shall be solely responsible for assuring that
the
public and common areas of the office space in the Building shall
comply in all respects with the ADA, and Landlord shall indemnify
Tenant and hold Tenant harmless from and against any and all loss,
cost or damage (including, without limitation, reasonable
attorneys'
fees and costs through any appellate proceedings) resulting from
any
claim, complaint, action, order, directive, decree or finding that
such areas do not comply with the ADA. Where alterations made by
either Landlord or Tenant following the date of this Lease trigger
"path of travel" requirements under the ADA, the party making such
alterations shall be responsible for satisfying such requirements.
37. Contingencies. The rights and obligations of Landlord
and
Tenant hereunder shall be contingent upon (i) Landlord's entering
into the Construction Contract with the Contractor within four (4)
business days of the date hereof, (ii) Landlord's and Tenant's each
depositing into escrow the initial amount of $1,003,052.98 pursuant
to Section 6(a)(iv) within the period provided therein, and (iii)
issuance by the City of Jacksonville, within ten (10) days of the
date of this Lease, of a building permit for the Tenant
Improvements.
In the event that any or all of the foregoing contingencies are not
satisfied within the applicable period(s), either party may
terminate
this Lease at any time thereafter, until satisfaction of all such
contingencies, upon written notice to the other party.
IN WITNESS WHEREOF, this Lease was executed as of the
Effective
Date.
Signed, sealed and delivered
in the presence of: LANDLORD:
JACKSONVILLE CENTER, INC., a
Florida corporation
/S/ XXXX GLANTON______________ By:__/S/ ARIS NEWTON__________
Name: Xxxx Glanton____________ Name:__Aris Newton__________
Title:_President____________
/S/ XXXX FLEMING______________
Name:_Dawn Fleming____________
TENANT:
AMERICA ONLINE, INC., a Delaware
corporation
_/S/ XXXXXX BURKE_____________ By:_/S/ XXXXXXX J LEADER______
Name:_Sheila Burke____________ Name:_Lennert J Leader______
Title:_Senior V.P & CFO_____
_/S/ STUART M WEINSTEIN_______
Name:_Stuart M Weinstein______
5132-002-267396.08
EXHIBIT A
PREMISES
EXHIBIT A-1
PREMISES DEPICTING PHASE 1 SPACE AND PHASE 2 SPACE
EXHIBIT A-2
SITE PLAN SHOWING TENANT'S PARKING AREA
EXHIBIT A-3
TEMPORARY SPACE
EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, walks, plaza entries, corridors,
concourses,
ramps, staircases, escalators and elevators shall not be obstructed
or used for any purpose other than ingress and egress to and from
the Premises. No bicycle or motorcycle shall be brought into the
Building or kept on the Premises without the consent of Landlord.
2. No freight, furniture or bulky matter of any description
will be received into the Building or carried into the elevators
except in such a manner, during such hours and using such elevators
and passageways as may be approved by Landlord, and then only
having
been scheduled in advance. Any hand trucks, carryalls or similar
appliances used for the delivery or receipt of merchandise or
equipment shall be equipped with rubber tires, side guards and such
other safeguards as Landlord shall require.
3. Landlord shall have the right to prescribe the weight,
position and manner of installation of safes and/or other heavy
equipment which shall, if considered necessary by Landlord, be
installed in a manner which shall insure satisfactory weight
distribution. All damage done to the Building by reason of a safe
or any other article of Tenant's office equipment being on the
Premises shall be repaired at the expense of Tenant. The time and
manner of moving safes and/or other heavy equipment shall be
subject
to prior approval by Landlord.
4. Only persons authorized by Landlord will be permitted to
furnish ice, drinking water, towels, barbering, shoe shining, floor
polishing and other similar services to Tenant on the Premises, and
only at hours and under regulations fixed by Landlord.
5. Tenant, or the employees, agents, servants, visitors or
licensees of Tenant shall not at any time, place, leave or discard
any rubbish, paper, articles or objects of any kind whatsoever
outside the doors of the Premises or in the corridors or
passageways
of the Building. No animals or birds shall be brought or kept in
or about the Building.
6. Landlord shall have the right to prohibit any advertising
about the Building by Tenant which, in Landlord's opinion, tends to
impair the reputation of the Building or its desirability for
offices, and upon written notice from Landlord, Tenant will refrain
from or discontinue such advertising.
7. Tenant shall not place, cause or allow to be placed any
sign or lettering whatsoever, at, in, about or upon the Premises,
except in and at such places as may be designated by Landlord and
consented to by Landlord in writing. All lettering and graphics on
corridor doors shall conform to the standard prescribed by
Landlord.
8. Canvassing, soliciting or peddling in the Building is
prohibited and Tenant shall cooperate to prevent same.
9. All persons in or entering the Building shall be required
to comply with the security policies of the Building. Landlord
will
provide all security services for the Building, provided that if
Tenant desires any additional security service for the Premises,
Tenant shall have the right (with the advance written consent of
Landlord) to obtain such additional service at Tenant's sole cost
and expense.
10. Only workmen approved by Landlord may be employed for
repairs, installation, alterations, painting, material moving and
other similar work that may be done on the Premises.
11. Except as otherwise provided in the Lease, Tenant shall
not do any cooking or conduct any restaurant, luncheonette or
cafeteria for the sale or service of food or beverages to its
employees or to others, or permit the delivery of any food or
beverage to the Premises, except by such persons delivering the
same
as shall be approved by Landlord and only under regulations fixed
by Landlord. Tenant may, however, operate a kitchen by and for its
employees in accordance with the terms and provisions of this
Lease.
12. Tenant shall not bring or permit to be brought or kept in
or on the Premises any inflammable, combustible, corrosive,
caustic,
poisonous or explosive fluid, material, chemical or substance, or
cause or permit any odors to permeate in or emanate from the
Premises.
13. Tenant shall not xxxx, paint, drill into, or in any way
deface any part of the Building or the Premises. No boring,
cutting
or stringing of wires shall be permitted, except with the prior
written reasonable consent of Landlord. Tenant shall not install
any resilient tile or similar floor covering in the Premises except
with the prior approval of Landlord.
14. No locks or bolts of any kind, other than Tenant's
badge-lock system shall be placed on any door in the Building or
the
Premises and no lock on any door therein shall be changed or
altered
in any respect. Landlord shall furnish two keys for each lock on
doors in the Premises and shall, on Tenant's request and at
Tenant's
expense, provide additional duplicate keys. All keys shall be
returned to Landlord upon the termination of this Lease. Landlord
may be at all times keep a pass key to the Premises. All entrance
doors to the Premises shall be left closed at all times, and left
locked when the Premises are not in use.
15. Tenant shall give immediate notice to Landlord in case of
accidents in the Premises or in the Building or of defects therein
or in any fixtures or equipment, or of any known emergency in the
Building.
16. Tenant shall not use the Premises or permit the Premises
to be used for photographic, multilith or multigraph reproduction
except in connection with its own business.
17. Tenant shall not use or permit any portion of the
Premises
to be used as an office for a public stenographer or typist, offset
printing, the sale of liquor or tobacco, a xxxxxx or manicure shop,
an employment bureau, a doctor's or dentist's office, a dance or
music studio, any type of school, or for any use other than those
specifically granted in this Lease.
18. Tenant shall not advertise for laborers giving the
Premises
as an address, nor pay laborers at a location in the Premises. The
foregoing shall not be deemed to prohibit Tenant from advertising
for and hiring employees consistent with Tenant's Permitted Use.
19. [DELETED]
20. Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which such floor
was
designed to carry and which is allowed by law. Business machines
and mechanical equipment belonging to Tenant which cause noise,
vibration or any other nuisance that may be transmitted to the
structure or other portions of the Building or to the Premises, to
such a degree as to be objectional to Landlord or which interfere
with the use or enjoyment by other tenants of their premises or the
public portions of the Building, shall be placed and maintained by
Tenant, at Tenant's expense, in settings of cork, rubber or spring
type vibration eliminators sufficient to eliminate noise and
vibration.
21. No draperies, shutters or other covering may be installed
by Tenant between the Building Standard window covering and the
exterior windows or walls. Installation and use of lighting which
is visible from the exterior of the Building, except for Building
Standard lights, are subject to the prior written approval of
Landlord.
22. Except as otherwise provided in the Lease, Tenant shall
not place, install or operate within the Premises or any other part
of the Building any engine, stove or machinery, or conduct
mechanical
operations therein, without the written consent of Landlord.
23. No portion of the Premises or any other part of the
Building shall at any time be used or occupied as sleeping or
lodging
quarters.
EXHIBIT C
ANNUAL AND MONTHLY BASE RENT
Lease Year of Term Annual Base Rent Monthly Base Rent
1
$507,870.00* $42,322.50*
2
$525,645.45 $43,803.79
3
$544,043.04 $45,336.92
4
$563,084.55 $46,923.71
5
$582,792.51 $48,566.04
6
$603,190.24 $50,265.85
7
$624,301.90 $52,025.16
* These provisions and amounts notwithstanding, Tenant shall be
obligated to pay only the Base Rent for Phase 1 Space, as set
forth in Section 3(c) of the Lease, prior to the delivery of
Phase 2 Space in accordance with the requirements of the
Lease.
Renewal Option Term
8
$646,152.47 $53,846.04
9
$668,767.81 $55,730.65
10
$692,174.68 $57,681.22
EXHIBIT D
DESCRIPTION OF PLANS
Plans prepared by Architectural Associates dated April 30, 1995
under
Job No. 9502801 consisting of 2 pages, A-1 and A-2.
