Exhibit 10.33
SUBLEASE AGREEMENT
Sublease Agreement made as of August 11, 2004, between Employers
Insurance Company of Wausau, a Wisconsin corporation (f/k/a Employers
Insurance of Wausau A Mutual Company) having a place of business c/o Liberty
Mutual Insurance Company, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("TENANT"), and Xxxxxxx GRP, Inc., a Delaware corporation having a usual
place of business at 0 Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000
("SUBTENANT"). This Sublease Agreement shall be referred to herein as the
"SUBLEASE".
Whereas, by a lease dated December 11, 1996, as amended by that certain
First Amendment to Office Lease dated April 28, 1997 (the "FIRST AMENDMENT")
(such lease, as it has been or may be further amended, and including any
rules or regulations that have been or may be promulgated thereunder, being
referred to herein as the "MAIN LEASE", a copy of which Main Lease is
attached hereto as EXHIBIT A), Glenborough Properties, L.P., a New York Stock
Exchange public company, as successor in interest to Opus South Corporation,
a Florida corporation ("LESSOR") leased certain space (the "TENANT'S
PREMISES") in the office complex located at 00000 Xxxxxxx Xxxxx, Xxxxx
Telecom Park, Temple Terrace, Florida (the "OFFICE COMPLEX"), to Tenant for a
term commencing on or about July 17, 1997, and ending on August 31, 2007, in
accordance with the Preamble and Article I of the Main Lease; and
Whereas, Tenant has agreed to sublease to Subtenant, pursuant to the
provisions of this Sublease, an area comprising approximately 11,306 rentable
square feet of space, and more particularly shown on the plan attached hereto
as EXHIBIT B (such subleased portion of the Tenant's Premises being referred
to herein as the "PREMISES") within a portion of the Tenant's Premises
consisting of 79,393 rentable square feet located within the Office Complex.
Tenant and Subtenant agree that the recitals above are true and correct as of
the date hereof.
Now, therefore, it is agreed between the parties hereto as follows:
1. AGREEMENT TO SUBLEASE FOR TERM. Tenant hereby subleases to Subtenant,
and Subtenant hereby takes and subleases from Tenant, the Premises for a term
beginning on the day following Subtenant's receipt of a copy of the executed
Consent (as defined in Section 40 below) from Tenant by facsimile or as
otherwise set forth in Section 34 below (the "COMMENCEMENT DATE") and ending
at 11:59 p.m. on August 30, 2007. As used in this Sublease, the term
"Tenant's Work" shall mean carpet cleaning and replacing broken ceiling tiles
in the Premises and painting the interiors walls of the Premises by Tenant.
Except for Tenant's Work, Tenant shall have no obligation to perform any work
to prepare the Premises for Subtenant's occupancy of the Premises and except
for Tenant's Work, Subtenant shall accept the Premises in AS IS condition. In
the event the Consent is not effective as of the date forty-five (45) days
from the date of this Sublease, then Subtenant or Tenant shall have the right
to terminate this Sublease upon fifteen (15) days prior written notice to the
other provided that the Consent is not effective within such fifteen (15) day
period. Upon such termination, Tenant shall return all sums paid by Subtenant
upon the execution of this Sublease, and, upon such return and except as
otherwise expressly provided herein, this Sublease shall terminate and the
parties shall have no further recourse against each other in connection with
this Sublease.
2. INCORPORATION OF MAIN LEASE.
a. Subtenant acknowledges that is has had a complete opportunity to
review the Main Lease. Except as otherwise expressly provided in this
Sublease, the provisions of the Main Lease are incorporated into and made a
part of this Sublease as they relate to the Premises and also to the Office
Complex and any land on which the Office Complex is located (the "LAND" and,
together with Office Complex, the "PROPERTY") which serve or are available to
occupants of the Premises pursuant to the Main Lease. The provisions of the
Main Lease which are so incorporated into this Sublease pursuant to the
preceding sentence shall, coincident with their incorporation, be amended so
that references in the Main Lease to "Lessor" and "Lessee" shall be deemed to
refer in this Sublease to Tenant and Subtenant, respectively, unless the
context indicates that such amendment should not be made or such amendment
would have an illogical effect on the provision being so amended. All uses of
the term "Sublease" in this Sublease shall be regarded as referring to this
Sublease, into which the Main Lease has been to incorporated. Subtenant
hereby covenants to Tenant and, if Lessor has consented to this Sublease, to
Lessor that, except as may be otherwise expressly provided in this Sublease,
Subtenant assumes, is bound by, shall comply with, and shall faithfully
perform all of the obligations of Tenant (as tenant) arising from and after
the date of this Sublease under the Main Lease that are incorporated into
this Sublease. The relationship between, and rights of, Subtenant and Tenant
shall, except as may be otherwise expressly provided in this Sublease, be
governed by the Main Lease, and, without limiting the generality of the
foregoing, Tenant shall have all of the rights granted to Lessor under the
Main Lease and be entitled to exercise such rights with respect to the
enforcement of the provisions of this Sublease and the termination of this
Sublease.
b. Notwithstanding any of the foregoing provision of this Sublease to
the contrary, the following provision of the Main Lease are not incorporated
into or made a part of this Sublease:
Page 1 of the Main Lease;
ARTICLE I -- Base Rent (as amended by the First Amendment);
ARTICLE II -- Additional Rent (as amended by the First Amendment);
ARTICLE IV -- Possession of Premises;
ARTICLE VIII -- Alterations and Improvements (last paragraph only);
ARTICLE X -- Assignment and Subletting;
ARTICLE XIII -- Surrender of Premises (last paragraph only);
ARTICLE XVI (A) and (C) -- Miscellaneous;
ARTICLE XXI -- Tenant Improvements;
ARTICLE XXII -- Base Building;
ARTICLE XXIII -- Option to Renew;
ARTICLE XXIV -- Expansion Space Construction (as amended by the
First Amendment);
ARTICLE XXVI -- Arbitration;
ARTICLE XXVIII -- Signage;
ARTICLE XXIX -- Parking;
ARTICLE XXX -- Early Occupancy Rent;
ARTICLE XXXI -- Inspection of Books and Records;
ARTICLE XXXII -- Additional Provisions Regarding Assignment and Subletting;
ARTICLE XXXIII -- Property Acquisition Contingency;
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ARTICLE XXXIV -- Confirmation of Occupancy Date and Base Rent Commencement
Date;
ARTICLE XXXVII -- Tenant's Offset Rights;
ARTICLE XXXVIII -- Quiet Enjoyment;
ARTICLE XXXIX -- Self Insurance;
ARTICLE XL -- Rooftop Antenna or Dish;
ARTICLE XLI -- Lessee's Termination Option;
ARTICLE XLII -- Carpet Cleaning; and
Sections 4, 5, 6, 7, 10, 11 and 13 of First Amendment
3. SUBORDINATION TO MAIN LEASE AND CONFLICTS. Notwithstanding any other
provisions of this Sublease to the contrary, this Sublease, and the interest
of Subtenant in the Premises under this Sublease, shall in all respects be
subject and subordinate to all of the provisions of the Main Lease. To the
extent that any provision of this Sublease modifies or differs from any of
the provisions of the Main Lease, the provisions of this Sublease shall be
controlling, provided, however, that if any provision of this Sublease
violates the Main Lease, or asserts authority in one of the parties beyond
the authority provided to such party by the Main Lease, the provisions of the
Main Lease shall be deemed to limit the provisions hereof. Nothing in this
section shall, however, be deemed to confer upon Subtenant any greater rights
than those set forth in this Sublease or to limit any of Subtenant's
obligations under this Sublease. All of the rights granted to Subtenant
under this Sublease are limited to the extent that Tenant has reserved those
rights in the Main Lease. Tenant is hereby vested with full power and
authority to subordinate Subtenant's interest in the Premises under this
Sublease to any mortgage, deed of trust, ground or underlying lease, or other
lien or interest hereafter placed on the Premises, and Subtenant shall, upon
demand by Tenant, execute such further instruments to effect such
subordination as Tenant may request. Upon Subtenant's failure to execute any
such instrument, Tenant may execute any such instrument on Subtenant's behalf
and Subtenant hereby irrevocably appoints Tenant as Subtenant's attorney in
fact coupled with an interest for such purpose.
4. TERMINATION OF MAIN LEASE AND SUBLEASE. If this Sublease has not
previously terminated by its terms, this Sublease shall terminate upon the
termination of the Main Lease. If the Main Lease shall terminate for any
reason during the term of this Sublease, this Sublease shall simultaneously
terminate on the date of such termination of the Main Lease with the same
force and effect as if such termination date had been specified herein as the
termination date hereof.
5. RENT.
a. Except as otherwise expressly provided in this Sublease, commencing
on and as of the Commencement Date, and continuing throughout the term of
this Sublease, Subtenant shall pay to Tenant, as rent, base rent (the "BASE
RENT") in accordance with the schedule set forth below as part of this
subsection. Unless Tenant instructs Subtenant otherwise in writing, Subtenant
shall make such payments in advance on or before the first (1st) day of the
month. Subtenant shall make such payments without notice, demand, abatement,
deduction, counterclaim, or setoff.
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BASE RENT SCHEDULE
Base Rent per Annual Base Monthly
Period r.s.f. Rent Installment
Commencement Date--August 31, 2005... $11.00 $124,366.00 $10,363.83
September 1, 2005--August 31, 2006... $12.00 $135,672.00 $11,306.00
September 1, 2006--August 30, 2007... $13.00 $146,978.00 $12,248.17
Notwithstanding the foregoing, Subtenant shall be entitled to an abatement of
Base Rent for sixty (60) days following the Commencement Date.
b. Electrical service supplied to the Premises for normal office usage
is included as part of Base Rent. In the event Subtenant shall use
electricity in excess of normal office usage, as reasonably determined by
Tenant, Subtenant shall pay to Tenant the cost of such excess service within
thirty (30) days after Tenant has delivered to Subtenant an invoice therefor.
As used in this subsection 5(b), "normal office usage" shall mean usage of
electricity by Subtenant as the same occupant density as in Tenant's Premises
and for office operations and equipment substantially similar to Tenant's
office operations and equipment. Tenant may determine the amount of such
additional consumption by a survey of standard or average tenant usage of
electricity in the Tenant's Premises performed by a reputable consultant
selected by Tenant and reasonably approved and paid for by Subtenant.
c. Under this Sublease, payments of Base Rent constitute payments of
rent. Any other payments that are required to be paid by Subtenant to Tenant
under this Sublease shall be deemed to be additional rent payable hereunder
by Subtenant to Tenant, and shall, unless otherwise expressly provided in
this Sublease, be due and payable on the later to occur of that date (i)
which is ten (10) days after Subtenant's receipt of an invoice therefor from
Tenant, or (ii) on which the next payment by Subtenant of Base Rent is due.
d. The late payment provisions of the Main Lease shall apply to any
payments that are deemed hereunder to be rent and that arrive later than the
last day on which rent may be paid by Tenant under the Main Lease without
incurring a late payment penalty or other charge of any kind under the Main
Lease.
e. Base Rent for the first month of the term shall be paid upon
execution of this Sublease. If the term of this Sublease begins or ends on
any day other than the first day of a calendar month, then all amounts to be
paid by Subtenant to Tenant under this Sublease for the resulting fractions
of a full calendar month shall be prorated on a per diem basis.
f. Except as otherwise expressly provided in this Sublease, all payments
to be made by Subtenant pursuant to this Sublease shall be made to Tenant in
United States legal tender and addressed to Liberty Mutual Insurance Company,
Attn: Senior Manager, Financial Analysis, Corporate Real Estate, Mail Stop
01F, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
6. DELIVERY OF POSSESSION AND ADJUSTMENT OF TERM. Notwithstanding any
other provisions of this Sublease to the contrary, if for any reason
whatsoever, Tenant is unable to deliver possession of the Premises to
Subtenant on the Commencement Date with Tenant's Work
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complete, then (a) Tenant shall not be liable to Subtenant for any direct or
indirect damages or expenses, including without limitation consequential
damages, incurred by Subtenant which arise out of such inability to so
deliver possession on the Commencement Date, (b) this Sublease shall remain
in full force and effect, (c) the Commencement Date shall automatically be
adjusted to the date on which Tenant delivers possession of the Premises to
Subtenant with Tenant's Work complete, and (d) Tenant shall use reasonable
efforts to deliver possession of the Premises to Subtenant on the earliest
possible date. If the Commencement Date, as so adjusted, has not occurred by
that date which is thirty (30) days following the effective date of the
Consent, for any reason other than a Force Majeure (as hereinafter defined)
or the actions or failure to act of Subtenant, Subtenant shall have the right
to terminate this Sublease upon fifteen (15) days prior written notice to
Tenant provided that the Premises are not delivered to Subtenant with Tenant's
Work complete within such fifteen (15) days period. Upon such termination,
Tenant shall return all sums paid by Subtenant upon the execution of this
Sublease, and, upon such return and except as otherwise expressly provided
herein, this Sublease shall terminate and the parties shall have no further
recourse against each other in connection with this Sublease.
7. USE OF PREMISES. Subtenant shall use the Premises for office purposes
and for no other purpose, subject to all covenants and agreements set forth
herein and in the Main Lease.
8. PARKING. Tenant shall make available to Subtenant parking spaces
available to Tenant under the Main Lease at the rate of five (5) spaces per
1,000 rentable square feet. All parking hereunder shall be on a non-reserved
basis in common with others.
9. SUBTENANT IDENTIFICATION. Tenant shall arrange, at Tenant's sole
cost, for Subtenant's name to be included, in the Office Complex standard
format, in the Office Complex directories maintained by Lessor for the
identification of the Office Complex's occupants and at the entrance to
Subtenant's suite. Any subsequent changes or alterations to such signage
shall be at Subtenant's sole cost and expense.
10. CONDITION OF PREMISES AND IMPROVEMENT WORK. Except for Tenant's
Work, Subtenant takes the Premises in "as is" condition, and Tenant does not
warrant or make any representation concerning the adequacy or sufficiency for
Subtenant's present or future purposes of the Premises, the Office Complex,
any improvements in or to the Premises or the Office Complex, any common
areas in or appurtenant to the Office Complex, any equipment, facilities,
fixtures, or furnishings in the Premises or the Office Complex, or the real
estate of which the aforementioned items constitute a part. Subtenant shall
be responsible, at its sole expense, for any improvement work that is may
require on or relating to the Premises, including without limitation the
construction of walls in or entrances to the Premises. Subtenant may not
undertake any improvement work on or relating to the Premises, including
without limitation any construction activities, except in compliance with
this Sublease, and Subtenant shall in each instance perform such work only
after having obtained both of the individual prior written consents of Tenant
and Lessor, including to all plans, drawings, and specifications relating to
such work.
11. MAINTENANCE OF PREMISES. Subtenant shall, at its sole expense, keep
the Premises and the equipment, facilities, fixtures, and furniture therein
neat, clean, and in as good condition and repair as when Subtenant first was
granted access to the Premises, reasonable wear
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and tear and damage by casualty excepted, and shall perform, except as
otherwise provided in Section 2(b) above, all obligations of Tenant under the
Main Lease with respect to Subtenant's activities in and about the Premises
and the Office Complex. Except as otherwise expressly provided in this
Sublease, (a) Tenant shall not now or at any time in the future by required
to make any expenditure whatsoever with respect to the Premises and does not
assume any obligation to perform the terms, conditions, or covenants that
are, under the Main Lease, to be performed by Lessor, and (b) if Lessor
should fail to perform any of such terms, conditions, or covenants, Tenant
shall be under no obligation or liability whatsoever to Subtenant arising out
of such failure to perform by Lessor.
12. TENANT'S OBLIGATIONS LIMITED. The Main Lease specifies certain
obligations, representations, and warranties of Lessor thereunder.
Notwithstanding the incorporation of the Main Lease into this Sublease as
provided elsewhere herein or any other provisions of this Sublease to the
contrary, (a) Tenant is not obligated to perform, or guarantee the
performance by Lessor of, Lessor's obligations under the Main Lease,
including Lessor's obligations pursuant to Article VI (Insurance) of the Main
Lease, and Lessor's representations and warranties in the Main Lease are not
to be considered the representations and warranties of Tenant under this
Sublease, (b) Tenant shall have no liability for any damage, loss, claim,
liability, or expense arising out of the failure of Lessor to perform its
obligations under the Main Lease, the breach by Lessor of its representations
and warranties under the Main Lease, the acts or omissions of Lessor, or any
other circumstance or event beyond Tenant's control. Upon written notice from
Subtenant to Tenant of Lessor's failure to so perform its obligations or of
Lessor's breach of such representations and warranties, Tenant should notify
Lessor to that effect and demand Lessor's performance or rectification of
such breach. Tenant should have no further obligation beyond making demands
as aforesaid. Tenant shall have no obligation to Subtenant for any default
under this Sublease that results from the default or any other act of Lessor
under the Main Lease. The performance by Tenant of its obligations hereunder
shall be conditioned upon the performance by Lessor of its obligations under
the Main Lease. In any circumstance in which Tenant's consent is required
under this Sublease and Tenant has agreed herein not to unreasonably withhold
or delay such consent, and in which a corresponding consent of Lessor is
required pursuant to the Main Lease in order to avoid having the Tenant's
consent constitute a breach of the Main Lease, then Tenant shall not be
deemed to have unreasonably withheld or delayed its content if such
corresponding consent of Lessor has not been obtained.
13. NOTICE FROM LESSOR OF DEFAULT. If Tenant shall receive notice from
Lessor of any default occurring under the Main Lease with respect to the
Premises, or if there is a default by Subtenant hereunder, Tenant shall
notify Subtenant of such default and provide Subtenant with a period from the
date of such notification by Tenant in which to cure such default, which
period shall be three (3) days for a monetary default and eight (8) days for
a non-monetary default, provided however that if the nature of the
non-monetary default is such that it cannot be cured within the eight (8) day
period, no default shall be deemed to exist if Subtenant commences the curing
of the default promptly within such eight (8) day period and thereafter
diligently prosecutes the same to completion (but in no event shall such
extended cure period exceed twenty-five (25) days from Tenant's
notification). If any such default by Subtenant remains uncured after Tenant
has given Subtenant notice and an opportunity to cure as aforesaid, Tenant
shall have, in addition to any other rights and remedies available to Tenant,
the right but not any obligation to cure such default and recover from
Subtenant as additional rent all expenses,
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including without limitation reasonable attorneys' fees, incurred by Tenant
in connection with such cure, together with interest thereon until paid at
the maximum rate permitted under applicable law. In the event of such an
uncured default by Subtenant, Tenant also shall have all rights afforded as a
landlord at law and in equity under
Florida law and all of the rights and
remedies in its dealings with Subtenant as Lessor has under the Main Lease,
including without limitation Article XIV of the Main Lease, in its dealings
with Tenant in the event of a default by Tenant under the Main Lease. All
damages and expenses, including without limitation reasonable attorneys'
fees, incurred by Tenant in connection with any such cure, together with
interest thereon until paid at the maximum rate permitted under applicable
law, shall be paid by Subtenant to Tenant, as additional rent hereunder,
immediately upon Tenant's demand therefor. No remedy or election hereunder
shall be deemed exclusive, but shall, whenever possible, be cumulative with
all other remedies at law or in equity. The expiration or termination of this
Sublease and/or the termination of Subtenant's right to possession of the
Premises shall not relieve Subtenant of liability under any indemnity
provisions of this Sublease as to matters occurring or accruing during the
term of the Sublease or by reason of Subtenant's occupancy of the Premises.
14. INSURANCE. Subtenant shall, at its sole expense, obtain and maintain
insurance policies, issued by insurers acceptable to Tenant and authorized to
do business in the State of
Florida, which provide the types and amounts of
insurance coverage that Tenant is required to obtain and maintain under the
Main Lease (including without limitation the applicable waivers of
subrogation). Tenant shall use the proceeds of such policies in the manner
required of Tenant under the Main Lease. Subtenant shall name Tenant and
Lessor as additional named insureds under all such policies. Such policies
shall be primary and non-contributing with any insurance maintained by Tenant
and shall provide that they shall not be canceled or modified without thirty
(30) days' prior written notice to Tenant. A certificate of the insurer
evidencing the existence and amount of each of such required insurance
policies shall be delivered by Subtenant to Tenant before the date on which
Subtenant is first given access to or possession of the Premises, and
thereafter within twenty (20) days after any written request from Tenant.
With respect to each of such required insurance policies, Subtenant shall
provide Tenant with proof of renewal or qualified replacement insurance
policies at least ten (10) days before termination of the insurance policy
that was previously in effect. All of such insurance policies shall be
maintained throughout the term of this Sublease.
15. COMPLIANCE WITH LAWS. Subtenant shall use the Premises only in a
manner that is in compliance with all of the requirements with respect to the
Premises which are imposed or issued by (a) governmental authorities that
have jurisdiction over the Premises, and/or (b) insurance companies that have
issued insurance policies covering the Premises and/or persons using or
anticipated to use the Premises. Subtenant shall indemnify Tenant against,
and hold Tenant harmless from, any damage, loss, claim, liability, or
expense, including without limitation reasonable attorneys' fees, arising out
of Subtenant's failure to comply with this section.
16. NO WASTE OR NUISANCE. Subtenant shall not commit or suffer to be
committed any waste upon the Premises or any nuisance or other action which
may disturb the quiet enjoyment of any other tenant or occupant in the Office
Complex.
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17. HAZARDOUS WASTE. Subtenant's use of the Premises shall not involve
or result in the use, generation, manufacturing, transportation, storage,
handling, or disposal of, or the performance of any activity in connection
with, any "hazardous substance" or "hazardous waste", as these terms are
defined under federal, state, and local laws and regulations, of types or in
quantities that (a) are not permitted under applicable laws and regulations,
or (b) would, under such laws and regulations, subject Tenant or the Premises
to any claim or liability, including without limitation any damages,
penalties, or fines, or any liens on the Premises or the Office Complex or
any part thereof. Subtenant shall indemnify Tenant and Lessor against, and
hold Tenant and Lessor harmless from, any damage, loss, claim, liability, or
expense, including without limitation reasonable attorneys' fees, arising
out of any claim or charge made by federal, state or local government
entities or private parties concerning violations and/or alleged violations
of such laws and regulations or any related applicable court orders or common
law which were caused or alleged to be caused by Subtenant or its officers,
employees, contractors, agents, or invitees in connection with the use of the
Premises by such party or parties.
18. DEFAULT BY SUBTENANT. Subtenant shall do nothing that will subject
the Main Lease to termination by Lessor under the provisions of the Main
Lease. If Subtenant is in default under the provisions of the Main Lease,
Tenant shall be entitled, but not obligated, to cure such default on behalf
of and for the account of Subtenant, in which case all damages and expenses,
including without limitation reasonable attorneys' fees, incurred by Tenant
in connection with such cure, together with interest thereon until paid at
the maximum rate permitted under applicable law, shall be paid by Subtenant
to Tenant, as additional rent hereunder, immediately upon Tenant's demand
therefor. By so curing any such default of Subtenant on behalf of and for the
account of Subtenant, Tenant shall not be deemed to have waived any of its
rights or released Subtenant from any of its obligations under this Sublease.
Tenant shall, however, also be entitled to cure such default on its own
account to preserve its interest in and under the Main Lease, and may
terminate this Sublease by reason of such default of Subtenant if Subtenant
does not pay to Tenant, as additional rent hereunder, all damages and
expenses, including without limitation reasonable attorneys' fees, incurred
by Tenant in connection with such cure, together with interest thereon until
paid at the maximum rate permitted under applicable law, within ten (10) days
after demand therefor. In the event that the Main Lease is terminated by
Lessor by reason of Subtenant's default, Subtenant shall indemnify Tenant
against, and hold Tenant harmless from, all damages and expenses that Tenant
may become liable to pay under the Main Lease resulting from such default,
plus all other expenses relating thereto, including without limitation
reasonable attorneys' fees and the full expense (including the value of the
work required to be done by Tenant's personnel) of relocating Tenant to new
leased premises as a replacement for the Tenant's Premises, which new leased
premises shall be at least equivalent to the Tenant's Premises in terms of
size, quality of location, and quality of construction.
19. TENANT'S RIGHT OF ENTRY. In addition to any right of entry to the
Premises that Tenant may have under the provisions of the Main Lease, Tenant
reserves the right to enter the Premises during regular business hours upon
reasonable prior notice to Subtenant to determine whether Subtenant is in
compliance with this Sublease. Subtenant shall indemnify Tenant against, and
hold Tenant harmless from, any damage, loss, claim, liability, or expense,
including without limitation reasonable attorneys' fees, arising out of the
delay or inability of Tenant in gaining such entry to the Premises which
resulted from the actions of Subtenant or the functioning or malfunctioning
of any equipment or other property installed on the Premises by
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Subtenant, including without limitation any security system. Subtenant
releases Tenant and its officers, employees, contractors, agents, and
invitees from any claim or liability for injury to persons (including without
limitation death) or property damage arising out of the functioning or
malfunctioning of any equipment or other property installed on the Premises,
including without limitation any security system, unless due to the gross
negligence or intentional misconduct of Tenant or its agents, employees or
contractors.
20. SUBLEASING, ASSIGNMENT, OR TRANSFER. Subtenant shall not have the
right to sublease, assign, or transfer the Premises or any portion thereof,
and shall not suffer or permit the Premises or any portion thereof to be
subleased, assigned, or transferred by operation of law or otherwise.
21. INDEMNIFICATION. Subtenant shall indemnify Tenant against, and hold
Tenant harmless from, any damage, loss, claim, liability, or expense,
including without limitation reasonable attorneys' fees, arising out of (a)
any claim by Lessor under the Main Lease arising from the act or omission of
Subtenant and/or its officers, employees, contractors, agents, or invitees, and
(b) any claim for injury to persons (including without limitation death) or
property damage arising out of (i) the occupancy and use of the Premises
by Subtenant and/or its officers, employees, contractors, agents, or
invitees, and/or (ii) the use of any other area of the Tenant's Premises or
Office Complex, including those areas to which Subtenant has been provided
access pursuant to the terms and conditions of Section 43 of this Sublease, by
Subtenant and/or its officers, employees, contractors, agents, or invitees.
Subject to Subtenant's waiver of subrogation, Tenant shall indemnify
Subtenant against and hold Subtenant harmless from any damage, loss, claim,
liability, or expense, including without limitation reasonable attorneys'
fees, arising out of injury to persons (including without limitation death) or
property damage due to the gross negligence or intentional misconduct of
Tenant within Tenant's Premises.
22. TENANT NOT LIABLE. In no event shall Tenant or any of its officers,
employees, contractors, agents, or invitees be liable for any damage,
loss, claim, liability, or expense sustained by Subtenant or any of its
officers, employees, contractors, agents, or invitees (or anyone claiming
through them or on their behalf) resulting directly or indirectly from (a) any
latent defect in the Premises or the Office Complex, or in any equipment,
facilities, fixtures, or furniture located therein, or (b) any accident or
other occurrence in or about the Premises or the Office Complex unless due to
the gross negligence or intentional misconduct of Tenant or its agents,
employees or contractors, or (c) any negligent acts or omissions of any
owner, tenant, or other occupant of the Office Complex (other than Tenant
with respect to its own activities on the Premises) or of any invitee or
other person in the Office Complex. All property placed in the Premises by
Subtenant or any of its officers, employees, contractors, agents, or invitees
shall be so placed at the sole risk of such party, and Tenant shall have no
liability whatsoever for any damage thereto unless due to the gross negligence
or intentional misconduct of Tenant or its agents, employees or contractors.
23. COVENANT OF QUIET ENJOYMENT. Tenant convenants that for so long as
Subtenant makes timely payment of the Base Rent and additional rent due under
this Sublease and timely performs all of Subtenant's other obligations under
this Sublease, Subtenant may peaceably and quietly have, hold, and enjoy the
Premises throughout the term (until and unless terminated) of this Sublease,
subject to the other provisions of this Sublease, provided, however, that
Subtenant
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has no right, and by this Sublease is granted no right, to exercise any right
to extend or renew the term or any right to expand the Premises which may be
or have been granted by Lessor to Tenant under the Main Lease.
24. SURRENDER OF PREMISES. Unless otherwise instructed by Tenant at
least thirty (30) days prior to the termination of the term hereof,
Subtenant shall at its own expense and before the end of the term hereof (a)
remove the demountable walls shown on EXHIBIT D attached hereto and all
fixtures, equipment, partitions, and other improvements to the Premises
installed by Subtenant which can be removed without materially damaging the
Premises, (b) remove all alterations and improvements to the Premises
installed by Subtenant which were not consented to by Tenant and/or Lessor
(as the case may be) as required under this Sublease and the Main Lease, (c)
remove all alterations and improvements to the Premises installed by
Subtenant as requested by Tenant and/or Lessor (as the case may be) at the
time that any plans for such work are approved by same, provided that such
request shall not unreasonably be made, (d) repair all damage resulting from
the initial installation or subsequent removal of the items specified in the
three preceding clauses, and close all floor, ceiling, and roof openings
caused by Subtenant, (e) restore any alterations or improvements to the
Premises made by Tenant which were in existence on the Commencement Date to
the condition in which such alterations or improvements existed on the
Commencement Date, reasonable wear and tear and damage by casualty excepted,
and (f) restore and surrender the Premises to Tenant in as good condition and
repair as the Premises were in at the Commencement Date, reasonable wear and
tear and damage by casualty excepted. All property of Subtenant remaining on
the Premises after the termination of the term hereof shall be deemed to have
been abandoned by Subtenant, provided, however, that if any such property so
remains on the Premises and the removal of such property would impose an
expense on Tenant, then, at Tenant's election, Tenant shall be entitled, but
not obligated, to remove such property on behalf of and for the account of
Subtenant, in which case all expenses so incurred by Tenant in connection
therewith shall be paid by Subtenant to Tenant, as additional rent hereunder,
immediately upon Tenant's demand thereof.
25. HOLDING OVER BY SUBTENANT. If Subtenant (including without
limitation any subtenant, successor or assignee of Subtenant) holds over and
remains in possession of the Premises or any part thereof beyond the
termination of the term of this Sublease, (a) unless and until Tenant and
Subtenant have otherwise expressly agreed, such holding over shall under no
circumstances be deemed to constitute a tenancy at will, a month-to-month
tenancy, or any other form of tenancy, and, instead, such holding over shall
be regarded as occurring over Tenant's objection, and Subtenant shall be (i)
a trespasser without any right to occupy the Premises, (ii) a tenant at
sufferance, or (iii) a holdover tenant, whichever is deemed by the law of the
pertinent jurisdiction to hold the least rights to, or estate in, the
Premises, (b) Subtenant shall pay to Tenant, as a charge for the occupancy of
the Premises objected to by Tenant, an amount equal to (i) the combined total
of the Base Rent and all other payments required under this Sublease, at the
rates at which such payments were being made by Subtenant during the month
immediately preceding the termination of the term of this Sublease,
multiplied by (ii) one hundred fifty percent (150%) (provided, however, said
one hundred fifty percent shall be reduced to one hundred twenty-five percent
(125%) during the first sixty (60) days of any such holdover), and such
payments shall be made on the same schedule and in accordance with the same
procedures as were in effect concerning such payments prior to the
commencement of such holding over, (c) in addition to and without limiting
any other rights and remedies that Tenant may have on
10
account of such holding over, Subtenant shall pay to Tenant all direct,
indirect, and consequential damages, costs, and expenses incurred by Tenant
as a result of such holding over, including without limitation any costs and
expenses that Lessor charges to Tenant on account thereof (including without
limitation the holdover amounts set forth in Article XIII of the Main Lease),
and (d) indemnify Tenant against, and hold Tenant harmless from, any damage,
loss, claim, liability, or expense, including without limitation reasonable
attorney's fees, arising out of such holding over.
26. FIRE, CASUALTY, AND EMINENT DOMAIN. With respect to any damage or
destruction by fire or other casualty, or any taking by eminent domain, the
provisions of the Main Lease shall govern, and Tenant shall have the right,
without Subtenant's consent, to make, in Tenant's sole discretion, whatever
elections are provided to Tenant under the Main Lease. Notwithstanding the
foregoing, if the Premises are partially or totally damaged by fire or other
casualty, and to the extent that, pursuant to the terms of the Main Lease,
Tenant receives a corresponding abatement applicable to the Premises,
Subtenant shall receive an abatement of Rent corresponding to the abatement
received by Tenant under the Main Lease and applicable to the portion of the
Premises damaged.
27. FORCE MAJEURE. This Sublease and the obligation hereunder of
Subtenant to pay Base Rent and to perform under all other provisions of this
Sublease shall in no way be affected, impaired, or excused because Tenant is
unable to fulfill any of the obligations that, under this Sublease, are
expressly or implicitly to be performed by Tenant if Tenant is delayed or
prevented from so doing by reason of accident, inclement weather, fire,
flood, strike, other labor dispute, war, act of God, act of government, or
any other cause beyond the control of Tenant (such events being collectively
referred to herein as a "FORCE MAJEURE").
28. SECURITY DEPOSIT. Tenant acknowledges receipt from Subtenant of a
security deposit in the amount of $12,248.17 (the "Security Deposit") to be
held by Tenant during the term of this Sublease (including any extensions) as
security for Subtenant's performance of its obligations hereunder, including
without limitation the surrender of possession of the Premises to Tenant as
herein provided, which Security Deposit shall be returned to Subtenant thirty
(30) days after the termination of this Sublease provided that there has been
no default in Subtenant's performance of its obligations under this Sublease.
In no instance shall the amount of the Security Deposit be considered a
measure of liquidated damages. All or any part of the Security Deposit may be
applied by Tenant in total or partial satisfaction of any obligation or
default hereunder by Subtenant. The application of all or any part of the
Security Deposit to any obligation or default of Subtenant under this
Sublease shall not deprive Tenant of, or constitute a waiver by Tenant of,
any other rights or remedies to which Tenant may be entitled.
29. BROKER OR BROKERS. Each party represents and warrants to the other
that it has dealt with no broker or agent in connection with this Sublease
other than CB Xxxxxxx Xxxxx, Inc. and CLW Real Estate Services Group, Inc.,
and each party covenants that it shall indemnify the other party against, and
hold the other party harmless from, any damage, loss, claim, liability, or
expense, including without limitation reasonable attorneys' fees, arising out
of any breach by the party making such covenant of the foregoing
representation and warranty. Tenant acknowledges and agrees that any broker's
fees due to either or both of such agents shall be at the sole expense
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of Tenant pursuant to separate agreements, and only if, as, and when this
Sublease is unconditionally executed and delivered by Tenant and Subtenant.
30. SUCCESSORS AND ASSIGNS. This Sublease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, and legal representatives, provided, however, that this
provision shall not operate to permit any subleasing, assignment, mortgage,
lien, charge, or other transfer or encumbrance that is contrary to the
provisions of this Sublease.
31. SUBTENANT TO ATTORN TO LESSOR. In the event that the Main Lease is
terminated for any reason other than the election by Tenant to terminate the
Main Lease pursuant to any right of election possessed by Tenant under the
Main Lease, then at Lessor's election Subtenant shall attorn to Lessor and
this Sublease shall be deemed to be and shall become a direct lease between
Lessor and Subtenant.
32. TIME OF THE ESSENCE. Time is of the essence of each provision of
this Sublease.
33. INTERPRETATION OF INDEMNIFICATIONS. Except as otherwise expressly
provided in this Sublease, any obligations of Subtenant to indemnify and hold
harmless another party pursuant to the provisions of this Sublease and/or the
Main Lease (insofar as this Sublease incorporates the Main Lease) shall be
deemed and interpreted to be obligations in favor of both Tenant and Lessor
and their respective successors and assigns.
34. NOTICES. Unless otherwise expressly provided in this Sublease, any
notice, demand, approval, or other communication required or permitted to be
given hereunder shall be in writing and be deemed to have been sufficiently
given for all purposes hereunder if hand delivered with written proof of
delivery, mailed by U.S. Postal Service certified or registered mail with
postage prepaid and return receipt requested, or sent via a reputable
commercial overnight delivery service with shipment prepaid and written proof
of delivery, and addressed to the parties at the addresses for each of them
that are specified below, which addresses may be changed by the giving of
notice as provided in this section:
If to Tenant: Liberty Mutual Insurance Company
Attn: Senior Manager, Financial Analysis
Corporate Real Estate, Mail Stop 01F
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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If to Subtenant: Before Commencement Date:
Xxxxxxx GRP, Inc.
0 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
After Commencement Date:
Xxxxxxx GRP, Inc.
0 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
With a simultaneous copy to:
Xxxx, Xxxx & Xxxxx LLC
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
35. WAIVERS. No waiver by any party of a breach of any provision of this
Sublease, and no failure by any party to exercise any right or remedy
relating to a breach of any provision of this Sublease, shall (a) constitute
a waiver or relinquishment for the future of such provision, (b) constitute a
waiver of or consent to any subsequent breach of such provision, or (c) bar
any right or remedy of such party relating to any such subsequent breach. The
exercise by any party of any right or election under this Sublease shall not
preclude such party from exercising any other right or election that it may
have under this Sublease.
36. SUBLEASE TERMINOLOGY. Except as otherwise expressly provided in this
Sublease, capitalized terms used but not defined herein shall have the
meanings assigned to them in the Main Lease. Wherever it is required by, or
appears to be logically sensible in, the context of the language used in this
Sublease, singular numbers and terms shall include the corresponding plural
numbers and terms, masculine terms shall include the corresponding feminine
and neuter terms, and the term "person" shall include "corporation",
"company", "firm", "organization", "association", "entity", and analogous
terms. Captions and headings in this Sublease are used for convenience of
reference only, do not form a part of this Sublease, and shall not affect in
any way the meaning or interpretation of this Sublease.
37. INVALID PROVISIONS. If any provision of this Sublease, or the
application of such provision to any party or circumstance, is found by a
court of competent jurisdiction to be invalid or unenforceable, (a) the
remainder of this Sublease shall not be affected and shall remain in full
force and effect, (b) such invalid provision or application shall be deemed
to be stricken from this Sublease, and (c) the parties shall use good faith
efforts to preserve the intent of this Sublease by substituting a reasonably
comparable provision for the benefit of the party or parties that the invalid
or unenforceable provision was intended to benefit.
38. ENTIRE AGREEMENT. This Sublease constitutes the entire agreement
between the parties as to the subject matter hereof and supersedes all prior
agreements as the subject matter hereof. No statement, representation,
promise, or inducement as to the subject matter hereof which is not included
in this Sublease shall be binding upon the parties. This Sublease may not be
amended, revised, extended, or otherwise modified except by a written
instrument signed by Tenant and Subtenant.
39. GOVERNING LAW. This Sublease shall be governed by and construed in
accordance with the laws of the State of
Florida, except for the portion of
such laws having to do with conflicts of laws.
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40. LESSOR'S CONSENT AS CONDITION PRECEDENT. This Sublease, and the
rights and obligations of all parties hereto, are subject to the condition
precedent that Lessor consent in writing to this Sublease ("Consent"), which
Consent must be in form and substance satisfactory to Tenant in its sole
discretion. Such Consent by Lessor may be provided either by its endorsement
set forth as a part of this Sublease or in a separate document.
41. AUTHORITY. Subtenant represents and warrants (a) that it is a valid
existing corporation licensed to do business in the State of
Florida and (b)
that it has the power and authority to execute and deliver the Sublease and
perform its obligations thereunder. Tenant represents and warrants (a) that
it is a valid existing corporation licensed to do business in the State of
Florida and (b) that it has the power and authority to execute and deliver
the Sublease and perform its obligations thereunder.
42. EXHIBITS. All Exhibits and attachments attached hereto are
incorporated herein by this reference:
EXHIBIT A -- Main Lease
EXHIBIT B -- Plan of Premises
EXHIBIT C -- Common Room
EXHIBIT D -- Demountable Walls
43. COMMON MEETING ROOMS. Subtenant shall be entitled to use the common
break/meeting room, as shown on the plan attached as EXHIBIT C in accordance
with the terms and provisions hereof and the Main Lease. Subtenant's use of
the common break/meeting room shall be subject to availability in Tenant's
sole discretion and shall be coordinated in advance with Tenant's designated
representative responsible for programming of said common break/meeting room.
Tenant shall coordinate use of the common break/meeting room in a
non-discriminatory manner between Subtenant and other tenants of the Office
Complex.
44. DEFAULT BY LESSOR. If Lessor shall default in any of its obligations
to Tenant with respect to the Premises, upon the written request of
Subtenant, Tenant shall use commercially reasonable efforts to enforce
Tenant's rights with respect to the Premises against Lessor, as requested in
writing by Subtenant.
45. MAIN LEASE. Tenant represents to Subtenant that as of the date
hereof, to the best of Tenant's actual knowledge without prior investigation,
the Main Lease is in full force and effect and Tenant has not received any
notice of material default or breach of the Main Lease from Lessor.
[signatures on following page]
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Witness the execution hereof under seal as of the date first written
above.
SUBTENANT:
XXXXXXX GRP, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
TENANT:
EMPLOYERS INSURANCE COMPANY
OF WAUSAU
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Manager, Financial Analysis
SEE ATTACHED FOR LANDLORD'S CONSENT TO SUBLEASE
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