OFFICE LEASE
This Office Lease ("Lease") made on February 15, 2006, by and between VSI
REAL ESTATE HOLDING, INC., a Florida corporation (hereinafter referred to as
"Landlord"), and VIASYS SERVICES, INC., a Florida corporation (hereinafter
referred to as "Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES AND TERM
Landlord does hereby demise and lease to Tenant, and Tenant accepts all
lease space ("Premises") in the building known as ______________________________
("Building"), located at 7750 Professional Place, in Tampa, Florida
("Property"), upon real property more particularly described in SCHEDULE A
annexed hereto and hereby made a part hereof (the "Land"), for a term commencing
on the 15th day of February, 2006, and ending on the 14th day of February, 2007
("Term"), unless sooner terminated as provided herein, subject to the agreements
herein contained.
ARTICLE 2
BASE RENT
Tenant shall pay to Landlord at the office of Landlord, or at such other
place as Landlord may designate, the annual "Base Rent" of One Hundred Fifty
Thousand and NO/100 Dollars ($150,000.00) in equal monthly installments of
Twelve Thousand Five Hundred and NO/100 Dollars ($12,500.00) each in advance on
the first day of each and every calendar month during the Term. If the Term
commences on a day other than the first day of a calendar month, or ends on a
day other than the last day of a calendar month, then the Base Rent for such
fractional month shall be prorated on the basis of 1/365th of the annual Base
Rent for each day of such fractional month. Base Rent shall be payable without
any prior demand therefor and without any deductions or setoffs whatsoever.
ARTICLE 3
RENT ADJUSTMENTS
Landlord and Tenant agree that the following rent adjustments shall be made
with respect to each calendar year of the Term, or portion thereof, including
the calendar year in which the Lease terminates, beginning with the Base Year,
which Base Year shall be the calendar year 2006.
A. Tenant shall pay to Landlord an amount equal to the amount of
Ownership Taxes due and payable or paid in any calendar year by Landlord,
beginning with the Base Year. Tenant's -
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Proportionate Share of such Ownership Taxes is agreed to be 100%.
"Ownership Taxes" shall mean all taxes of every kind and nature which
Landlord shall pay in respect of a calendar year, because of or in connection
with the ownership, leasing, and operation of the Building and the Property,
subject to the following:
(1) The amount of ad valorem real and personal property taxes
against Landlord's real and personal property to be included in Ownership Taxes
shall be the amount shown by the latest available tax bills required to be paid
in the calendar year in respect of which Ownership Taxes are being determined.
The amount of any tax refunds shall be deducted from Ownership Taxes in the year
they are received by Landlord;
(2) The amount of special taxes or special assessments to be
included shall be limited to the amount of the installments (plus any interest,
other than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the calendar year in respect of which
Ownership Taxes are being determined;
(3) The amount of any tax or excise levied by the State of
Florida, the City of Tampa, or any political subdivision of either, or any other
taxing body, on rents or other income from the Property to be included shall not
be greater than the amount which would have been payable on account of such tax
or excise by Landlord during the calendar year in respect of which Ownership
Taxes are being determined, had the income received by Landlord from the
Building [excluding amounts payable under this subparagraph (3)] been the sole
taxable income of Landlord for such calendar year;
(4) Ownership Taxes shall also include and transfer taxes, stamp
taxes or other taxes charged or levied upon this Lease or relating to this Lease
transaction;
(5) Ownership Taxes shall also include Landlord's reasonable costs
and expenses (including reasonable attorney's fees) in contesting or attempting
to reduce any Ownership Taxes; and
(6) There shall be excluded from Ownership Taxes all income taxes
[except those that may be included pursuant to subparagraph (3) above], excess
profits taxes, franchise, capital stock and inheritance or estate taxes.
B. Tenant shall pay to Landlord an amount equal to Tenant's
Proportionate Share of all Operating Expenses for any calendar year, beginning
with the Base Year. Tenant's Proportionate Share of such Operating Expenses is
agreed to be 100%.
"Operating Expenses" shall mean all expenses, costs, and disbursements
(other than Ownership Taxes) of every kind and nature that Landlord shall pay or
become obligated to pay in respect of a calendar year, because of or in
connection with the ownership, management, maintenance, repair, and operation of
the Building and the Property, except the following:
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(1) Costs of alterations of other tenant spaces, if any;
(2) Costs of capital improvements, except for such costs,
including interest thereon, as are reasonably amortized and determined by
Landlord, where one of the purposes of such capital improvements was to reduce
Operating Expenses;
(3) Depreciation, interest and principal payments on mortgages and
other debt costs, if any; and
(4) Real estate brokers' leasing commissions or compensation.
In the event the Building is not fully occupied during the Base Year or any
succeeding calendar year, the variable Operating Expenses for that year shall be
equitably adjusted to reflect the Operating Expenses as though the Building were
fully occupied.
C. Tenant shall pay to Landlord an amount equal to Tenant's
Proportionate Share of all Insurance Expenses incurred by Landlord for any
calendar year, beginning with the Base Year. Tenant's Proportionate Share of
such Insurance Expenses agreed to be 100%.
"Insurance Expenses" shall mean all premiums, costs and disbursements that
Landlord shall pay or become obligated to pay in respect of a calendar year,
because of or in connection with the insurance relating to the Building and/or
the Property, including, without limitation, all liability insurance carried by
Landlord and extended coverage insurance insuring the Building against fire and
such other risks as Landlord may decide to insure from time to time, at its sole
discretion.
D. In order to provide for current payments on account of Ownership
Taxes, Operating Expenses and Insurance Expenses payable in the Base Year,
Tenant agrees, at Landlord's request, to pay as additional rent Tenant's
Proportionate Share due for the ensuing calendar year as estimated by Landlord
from time to time, in twelve (12) monthly installments, each in an amount equal
to one-twelfth (1/12th) of Tenant's Proportionate Share so estimated by Landlord
commencing on the first day of the month following the month in which Landlord
notifies Tenant of the amount of such estimated Tenant's Proportionate Share.
If, as finally determined (whether in the succeeding calendar year at the time
of delivery of the annual report provided for in subparagraph E hereof, or in
the current calendar year when the final amount of any portion of Ownership
Taxes becomes known to Landlord), Tenant's Proportionate Share of Operating
Expenses, Ownership Taxes or Insurance Expenses shall be greater than or less
than the aggregate of all installments so paid on account to Landlord prior to
receipt of an invoice from Landlord, then Tenant upon receipt of such invoice
shall pay to Landlord the amount of such underpayment, or Landlord shall credit
Tenant for the amount of such overpayment, as the case may be. It is the
intention hereunder to estimate the amount of Ownership Taxes, Operating
Expenses and Insurance Expenses from time to time for each year and then to
adjust such estimate from time to time based on actual Ownership Taxes,
Operating Expenses and Insurance Expenses incurred or paid by Landlord.
(E) Landlord agrees to keep books and records showing the Operating
Expenses in accordance with a system of accounts and accounting practices
consistently maintained on a year-
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to-year basis in compliance with such provisions of this Lease as may affect
such accounts.
Landlord shall deliver to Tenant after the close of each calendar year
(including the calendar year in which this Lease terminates) a report signed by
an officer or agent of Landlord. The report shall contain the following:
(1) The officer's or agent's statement that the books and records
covering the operation of the Building have been maintained in accordance with
the requirements in this subparagraph (E);
(2) The amount by which the Operating Expenses for such calendar
year exceed the Operating Expenses for the Base year; and
(3) The amount of Ownership Taxes and Insurance Expenses for such
calendar year.
In the event any rent adjustment results in a net increase in the rent due
Landlord, Tenant shall, and agrees to, pay to Landlord immediately following
Tenant's receipt of an invoice from time to time by Landlord an amount equal to
such rent adjustment for such prior calendar year or portion thereof.
F. The obligation of Tenant with respect to the payment of Base Rent
and rent adjustments due hereunder shall survive the termination of this Lease.
Any payment, refund, or credit made pursuant to this Section shall be made
without prejudice to any right of Tenant to dispute, or of Landlord to correct,
any items as billed pursuant to the provisions hereof. In the event this Lease
shall have been in effect for less than the full calendar year immediately
preceding Tenant's receipt of the invoices provided for in subparagraphs D and E
hereof, the rent adjustment shall be prorated. In no event shall any rent
adjustment result in a decrease in the Base Rent hereunder.
ARTICLE 4
USE
Tenant shall use and occupy the Premises for general office purposes and
for no other purpose whatsoever. Tenant shall not use or permit upon the
Premises anything that will invalidate any policies of insurance now or
hereafter carried on the Building, or that will increase the rate of insurance
on the Premises or on the Building. Tenant will pay all extra insurance premiums
that may be caused by the use Tenant shall make of the Premises. Tenant will not
use or permit upon the Premises anything that may be dangerous to life or limb.
Tenant will not in any manner deface or injure the Building or any part thereof
or overload the floors of the Premises. Tenant will not do anything or permit
anything to be done upon the Premises in any way tending to create a nuisance,
or tending to disturb any other tenant in the Building or the occupants of
neighboring property, or tending to injure the reputation of the Building.
Tenant will comply with all governmental, health, and police requirements and
regulations respecting the Premises. Tenant will not use the Premises
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for lodging or sleeping purposes or for immoral or illegal purposes. Tenant
shall not conduct nor permit to be conducted on the Premises any business that
is contrary to any of the laws of the United States of America or of the State
of Florida or that is contrary to the ordinances of the City of Tampa. Tenant
shall not at any time manufacture, sell, use, or give away, and shall not at any
time permit the manufacture, sale, use, or gift of any spirituous, fermented,
intoxicating, or alcoholic liquors or controlled substances on the Premises.
Tenant shall not at any time sell, purchase, or give away, or permit the sale,
purchase, or gift of, food in any form on the Premises.
ARTICLE 5
SERVICES
Landlord shall provide, at Landlord's expense, except as otherwise provided
and subject to applicable government regulations, the following services:
A. Air conditioning and heat to provide a temperature required, in
Landlord's reasonable judgment, for comfortable occupancy of the Premises under
normal business operations comparable to other first-class non-institutional
office buildings located in Tampa, Florida, daily from 8:00 A.M. to 6:00 P.M.
(Saturdays to 1:00 P.M.), Sundays and holidays excepted. Whenever
heat-generating machines or equipment installed by Tenant affect the temperature
otherwise maintained by Landlord in the Premises, or whenever the occupancy or
electrical load exceeds those standards set forth in the separate work letter
agreement signed by Landlord and Tenant, Landlord shall be relieved of
responsibility for maintaining the air conditioning standards set forth in such
work letter agreement, and in such event Landlord reserves the right at its
option to (1) require Tenant to discontinue use of such heat-generating machines
or equipment, or (2) install supplementary air conditioning units in the
Premises, the cost, installation, operation, and maintenance of which shall be
paid by Tenant to Landlord at such rates as Landlord charges from time to time
in the Building. Tenant agrees that at all times it will cooperate with Landlord
and abide by all regulations and requirements that Landlord may prescribe for
the proper functioning of the ventilating and air conditioning systems.
B. Water from City of Tampa mains for drinking, lavatory, and toilet
purposes drawn through fixtures installed by Landlord, or by Tenant with
Landlord's written consent, from regular Building supply at the prevailing
temperature. Tenant shall pay Landlord at rates fixed by Landlord for water
furnished for any other purpose. Tenant shall not waste or permit the waste of
water.
C. Janitor service (as outlined on Exhibit B attached hereto) in and
about the Premises, Saturdays, Sundays, and holidays excepted. Tenant shall not
provide any janitor services without Landlord's written consent, and then only
subject to supervision by Landlord and at Tenant's sole responsibility, and by a
janitor, contractor, or employees at all times satisfactory to Landlord, but not
as agent or servant of Landlord.
D. Adequate passenger elevator service at all times and freight
elevator service subject to scheduling by Landlord, both without operators.
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E. Electricity for the Premises shall not be furnished by Landlord, but
shall be furnished by the electric utility company serving the Building. Tenant
shall make all necessary arrangements with the utility company for metering and
paying for electric current furnished by it to Tenant, and Tenant shall pay for
all charges for electric current consumed on the Premises during the Term of
this Lease. Tenant agrees to purchase from Landlord, or its agent, all lamps,
bulbs, ballasts, and starters used in the Premises.
F. Such additional services on such terms and conditions as may be
mutually agreed upon by Landlord and Tenant.
All charges for any services shall be deemed rent reserved under this Lease
and shall be due and payable at the same time as the installment of rent with
which they are billed, or, if billed separately, shall be due and payable within
ten (10) days after such billing. In the event Tenant shall fail to make payment
for such services Landlord may, without notice to Tenant, discontinue any or all
such services, and such discontinuance shall not be held or pleaded as an
eviction or as a disturbance in any manner whatsoever of Tenant's possession, or
relieve Tenant from the payment of rent when due, or vary or change any other
provision of this Lease or render Landlord liable for damages of any kind
whatsoever.
Neither Landlord nor any company, firm, or individual operating,
maintaining, managing, or supervising the plant or facilities furnishing any of
the above services, nor any of their respective agents or employees, shall be
liable to Tenant, or any of Tenant's employees, agents, customers, or invitees
or anyone claiming through or under Tenant, for any damages, injuries, losses,
expenses, claims, or causes of action, because of any interruption or
discontinuance at any time for any reason in the furnishing of any of the above
services; nor shall any such interruption or discontinuance be deemed an
eviction or disturbance of Tenant's use or possession of the Premises or any
part thereof; nor shall any such interruption or discontinuance relieve Tenant
from full performance of Tenant's obligations under this Lease.
ARTICLE 6
POSSESSION
In the event the Premises are not completed and ready for occupancy on the
date above fixed for the commencement of the Term of this Lease, this Lease
shall nevertheless continue in full force and effect, and no liability shall
arise against Landlord out of any such delay beyond the abatement of rent until
the Premises are ready for occupancy; provided, however, there shall be no
abatement of rent if the space is not ready for occupancy because of the failure
to complete the installation of special equipment, fixtures, or materials
ordered by Tenant or due to any fault of Tenant. If Tenant shall enter
possession of all or any part of the Premises prior to the date fixed above for
the first day of the Term, all of the covenants and conditions of this Lease
shall be binding upon the parties hereto in respect of such possession the same
as if the first day of the Term had been fixed as of the date when Tenant
entered such possession, and Tenant shall pay to Landlord as rent for the period
prior to the first day of the Term of this Lease a proportionate amount of the
rent set forth in Article 2.
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ARTICLE 7
CONDITION OF PREMISES
Tenant's taking possession of the Premises shall be conclusive evidence as
against Tenant that the Premises were in good order and satisfactory condition
when Tenant took possession, except as to latent defects. No promise of Landlord
to alter, remodel, repair, or improve the Premises or the Building and no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, other than as may be contained herein or in a
separate work letter agreement signed by Landlord and Tenant.
ARTICLE 8
REPAIRS
Except as otherwise provided in Article 11 of this Lease and subject to the
provisions of Article 9 of this Lease, Tenant shall, at its sole cost and
expense, keep the Premises in good repair and tenantable condition during the
Term, and Tenant shall promptly arrange with Landlord at Tenant's sole cost and
expense for the repair of all damages to the Premises and for the replacement or
repair of all damaged or broken glass, fixtures, and appurtenances within any
reasonable period of time specified by Landlord, provided, however, that Tenant
shall not be required to repair or replace broken or damaged exterior window
glass, unless such replacement or repair is necessitated by the act, failure to
act, or neglect of Tenant, its servants, employees, agents, invitees, or guests.
If Tenant does not promptly make such arrangements, Landlord may, but need not,
make such repairs and replacements, and the costs paid or incurred by Landlord
for such repairs and replacements shall be deemed additional rent reserved under
this Lease due and payable forthwith. Landlord may, but shall not be required so
to do, enter the Premises at all reasonable times to make any repairs,
alterations, improvements, or additions, including, but not limited to, ducts
and all other facilities for heating and air conditioning service, as Landlord
shall desire or deem necessary for the safety, preservation or improvement of
the Building, or as Landlord may be required to do by any governmental authority
or by the order or decree of any court or by any other proper authority.
In the event Landlord or its agents or contractors shall elect or be
required to make repairs, alterations, improvements, or additions to the
Premises or the Building, Landlord shall be allowed to take into and upon the
Premises all material that may be required to make such repairs, alterations,
improvements, or additions and, during the continuance of any of said work, to
temporarily close doors, entryways, public space, and corridors in the Building
and to interrupt or temporarily suspend any services and facilities without
being deemed or held guilty of an eviction of Tenant or liable for damages to
Tenant's property, business, or person, and the rent reserved herein shall in no
way xxxxx while said repairs, alterations, improvements, or additions are being
made, and Tenant shall not be entitled to maintain any setoff or counterclaim
for damages of any kind against Landlord by reason thereof. Landlord may, at
its option, make all such repairs, alterations, improvements, or additions in
and about the Building and the Premises during ordinary business hours, but if
Tenant desires to have the same done at any other time, Tenant shall pay for
all overtime and additional expenses resulting therefrom.
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ARTICLE 9
ALTERATIONS
Tenant shall not, without the prior written consent of Landlord, make any
repairs, replacements, alterations, improvements, or additions to the Premises.
In the event Tenant desires to make any alterations, improvements or additions
pursuant to this Article 9, or any repairs or replacements pursuant to Article 8
of this Lease, Tenant shall, prior to commencing any such work:
(a) Submit to Landlord plans and specifications showing such work in
reasonable detail and obtain Landlord's prior written approval;
(b) Furnish Landlord with the names and addresses of all contractors
and copies of all contracts with such contractors, and obtain Landlord's prior
written approval;
(c) Provide Landlord with all necessary permits evidencing compliance
with all ordinances and regulations of the City of Tampa or any department or
agency thereof, and with the requirements of all statutes and regulations of the
State of Florida or any department or any agency thereof;
(d) Provide Landlord with certificates of insurance in forms and
amounts satisfactory to Landlord naming Landlord as an additional insured where
required by Landlord; and
(e) Comply with such other requests as Landlord may reasonably make in
connection with such work.
All such work shall, at Landlord's election, be subject to supervision by
Landlord, and Tenant shall promptly pay Landlord the reasonable cost of all such
supervision.
TENANT HEREBY AGREES TO PROTECT, DEFEND, INDEMNIFY, AND HOLD LANDLORD
HARMLESS FROM ANY AND ALL LIABILITIES OF EVERY KIND AND DESCRIPTION THAT MAY
ARISE OUT OF OR IN CONNECTION WITH SUCH REPAIRS, REPLACEMENTS, ALTERATIONS,
IMPROVEMENTS, OR ADDITIONS.
Upon completing any of such repairs, replacements, alterations,
improvements, or additions, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills covering all
labor and material expended and used. All repairs, replacements, alterations,
improvements, and additions shall comply with all insurance requirements and
with all ordinances and regulations of the City of Tampa or any department or
agency thereof and with the requirements of all statutes and regulations of the
State of Florida or of any department or agency thereof. All repairs,
replacements, alterations, improvements, and additions shall be constructed in a
good and workmanlike manner and only good grades of material shall be used.
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All alterations, improvements, additions, repairs, and replacements,
whether temporary or permanent in character, including, but not limited to, wall
coverings, carpeting and other floor coverings, special lighting installations,
built-in or attached shelving, cabinetry and mirrors, made by Landlord or Tenant
in or upon the Premises, shall become Landlord's property and shall remain upon
the Premises at the termination of this Lease by lapse of time or otherwise
without compensation to Tenant (excepting only Tenant's movable office
furniture, trade fixtures, and office equipment); provided, however, that
Landlord shall have the right to require Tenant to remove such alterations,
improvements, additions, repairs, or replacements at Tenant's sole cost and
expense in accordance with the provisions of Article 19 of this Lease.
ARTICLE 10
COVENANT AGAINST LIENS
Nothing contained in this Lease shall authorize Tenant to do any act that
shall in any way encumber Landlord's title to the Building, Property, or
Premises, nor in any way subject Landlord's title to any claims by way of lien
or encumbrance, whether claimed by operation of law or by virtue of any express
or implied contract of Tenant, and any claim to a lien upon the Building,
Property, or Premises arising from any act or omission of Tenant shall attach
only against Tenant's interest and shall in all respects be subordinate to
Landlord's title to the Building, Property, and Premises. If Tenant has not
removed any such lien or encumbrance within fifteen (15) days after written
notice to Tenant by Landlord, Landlord may pay the amount necessary to remove
such lien or encumbrance without being responsible for making any investigation
as to the validity thereof, and the amount so paid shall be deemed additional
rent reserved under this Lease due and payable forthwith.
ARTICLE 11
DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY
If the Premises or the Building (including machinery and equipment used in
its operation) shall be destroyed or damaged by fire or other casualty, and if
the Premises or Building may be repaired and restored within one hundred twenty
(120) days (plus such additional time during which Landlord may be prevented
from completing the repairs for causes beyond its reasonable control) after such
damage, then Landlord shall have the option to: (a) repair and restore the same
with reasonable promptness, or (b) demolish the Building or cease its operation,
in which event this Lease shall automatically be canceled and terminated as of
the date of such damage. In the event any such damage not caused by the act or
neglect of Tenant, its agents, contractors, servants, employees, guests,
licensees, or invitees renders the Premises untenantable, in whole or in part,
and if this Lease shall not be canceled and terminated by reason of such damage,
then rent shall xxxxx during the period beginning with the date of such fire or
other casualty and ending with the date when Landlord's work in the Premises is
completed, such abatement to be in an amount bearing the same ratio to the total
amount of rent for such period as the untenantable portion of the Premises bears
to the entire Premises. Landlord's work shall not include the repair,
replacement, or
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restoration of Tenant's fixtures or tenant improvements, including, but not
limited to, special wall and floor coverings, special lighting fixtures,
built-in cabinets and bookshelves.
If such damage renders the Premises untenantable in whole or in part, and
if, in Landlord's judgment, such damage cannot reasonably be repaired and
restored within one hundred twenty (120) days (plus such additional time during
which Landlord may be prevented from completing the repairs for causes beyond
its reasonable control), either party shall have the right to cancel and
terminate this Lease as of the date of such damage, provided, however, that
Tenant may not elect to terminate this Lease if such damage was caused by the
act or neglect of Tenant, its agents, servants, employees, guests, licensees, or
invitees.
Any right to terminate or any other option provided for any party in this
Article 11 must be exercised by written notice to the other party served within
one hundred fifty (150) days after such damage shall have occurred.
ARTICLE 12
INSURANCE
In consideration of the leasing of the Premises at the rent stated in
Article 2, Landlord and Tenant agree to provide insurance and allocate the risk
of loss as follows:
Tenant, at its sole cost and expense, but for the mutual benefit of
Landlord (when used in this Article the term "Landlord" shall include Landlord
and its agents, servants, and employees) and Tenant (when used in this Article
the term "Tenant" shall include Tenant's agents, servants, and employees),
agrees to purchase and keep in force and effect during the Term hereof
insurance, under policies issued by insurers of recognized responsibility, on
its fixtures and tenant improvements, including, but not limited to, special
wall and floor coverings, special lighting fixtures, and built-in cabinets and
bookshelves, and on its merchandise, inventory, contents, furniture, equipment,
or other personal property located in the Premises, protecting Landlord and
Tenant from damage or other loss caused by fire or other casualty, including,
but not limited to, vandalism and malicious mischief, perils covered by extended
coverage, theft, sprinkler leakage, water damage (however caused), explosion,
malfunction or failure of heating and cooling or other apparatus, and other
similar risks in amounts not less than the full insurable replacement value of
such property. Such insurance shall provide that it is specific and not
contributory and shall name Landlord as an additional insured and shall contain
a replacement cost endorsement and a clause pursuant to which the insurance
carriers waive all rights of subrogation against Landlord with respect to losses
payable under such policies.
Landlord agrees to purchase and keep in force and effect insurance on the
Building against fire and such other risks as may be included in extended
coverage insurance from time to time available in an amount not less than the
greater of 80% of the full insurable value of the Building or the amount
sufficient to prevent Landlord from becoming a coinsurer under the terms of the
applicable policies. Such policies shall contain a replacement cost endorsement
and a clause pursuant to which the insurance carriers waive all rights of
subrogation against Tenant with respect to losses payable under such policies.
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By this section, Landlord and Tenant intend that the risk of loss or damage
as described above be borne by responsible insurance carriers, to the extent
above provided, and Landlord and Tenant hereby agree to look solely to, and to
seek recovery only from, their respective insurance carriers in the event of a
loss of a type described above, to the extent that such coverage is agreed to be
provided hereunder. For this purpose, any applicable deductible amount shall be
treated as though it were recoverable under such policies. Landlord and Tenant
agree that applicable portions of all monies collected from such insurance shall
be used toward the full compliance with the obligations of Landlord and Tenant
under this Lease in connection with damage resulting from fire or other
casualty.
ARTICLE 13
LIABILITY INSURANCE
Tenant shall, at Tenant's expense, maintain during the Term comprehensive
public liability insurance, contractual liability insurance, and property damage
insurance under policies issued by insurers of recognized responsibility, with
limits of not less than $2,000,000.00 for personal injury, bodily injury,
sickness, disease, or death or for damage or injury to or destruction of
property (including the loss of use thereof) for any one occurrence, and
$5,000,000.00 in the aggregate. Tenant's policies shall name Landlord, its
agents, servants, and employees as additional insureds.
ARTICLE 14
CONDEMNATION
If the whole or any part of the Premises or of the Building or Property
shall be taken or condemned by any competent authority for any public use or
purpose, or if any adjacent property or street shall be condemned or improved in
such manner as to require the use of any part of the Premises or of the
Building, the Term, at the option of Landlord, shall end upon the date when the
possession of the part so taken shall be required for such use or purpose, and
Landlord shall be entitled to receive the entire award without any payment to
Tenant. Current rent shall be apportioned as of the date of such termination.
ARTICLE 15
WAIVER OF CLAIMS AND INDEMNITY
Tenant agrees that, to the extent not expressly prohibited by law, Landlord
and its officers, agents, servants, and employees shall not be liable for (nor
shall rent xxxxx as a result of) any direct or consequential damage (including
damage claimed for actual or constructive eviction) either to person or property
sustained by Tenant, its servants, employees, agents, invitees, or guests due to
the Building or any part or any appurtenances thereof becoming out of repair, or
due to the happening of any accident in or about said Building, or due to any
act or neglect of any tenant or
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occupant of said Building or of any other person. This provision shall apply
particularly (but not exclusively) to damage caused by water, snow, frost,
steam, sewage, gas, sewer gas or odors or by the bursting, leaking, or dripping
of pipes, faucets, and plumbing fixtures, and shall apply without distinction as
to the person whose act or neglect was responsible for the damage, and whether
the damage was due to any of the causes specifically enumerated above or to some
other cause of an entirely different kind. Tenant further agrees that all of
Tenant's personal property in the Premises or the Building shall be at the risk
of Tenant only, and that Landlord shall not be liable for any damage thereto or
theft thereof. TENANT AGREES TO PROTECT, INDEMNIFY, AND SAVE LANDLORD AND ITS
OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, AND EXPENSES ARISING FROM INJURY TO PERSONS OR DAMAGE TO
PROPERTY ON THE PREMISES, OR IN OR ABOUT THE BUILDING ARISING OUT OF OR IN
CONNECTION WITH TENANT'S USE OR OCCUPANCY OF THE PREMISES OR TENANT'S ACTIVITIES
IN THE BUILDING.
ARTICLE 16
NONWAIVER
No waiver of any condition expressed in this Lease shall be implied by any
neglect of Landlord to enforce any remedy on account of the violation of such
condition, if 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. 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 being 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 rent or other
sums due, and such payment shall not waive or affect said notice, suit, or
judgment.
ARTICLE 17
WAIVER OF NOTICE
Except as provided in Article 18 hereof, Tenant hereby expressly waives the
service of any notice of intention to terminate this Lease or to reenter the
Premises and waives the service of any demand for payment of rent or possession
and waives the service of any other notice or demand prescribed by any statute
or other law.
ARTICLE 18
LANDLORD'S REMEDIES
If default shall be made in the payment of the rent or any installment
thereof, or in the payment of any other sum required to be paid by Tenant under
this Lease, or under the terms of any
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other agreement between Landlord and Tenant, and such default shall continue for
ten (10) days after written notice to Tenant, or if default shall be made in the
performance of any of the other covenants or conditions Tenant is required to
observe and perform, and such default shall continue for thirty (30) days after
written notice to Tenant, or if the interest of Tenant in this Lease shall be
levied on under execution or other legal process, or if any petition shall be
filed by or against Tenant to declare Tenant a bankrupt or to delay, reduce, or
modify Tenant's debts or obligations, or if any petition shall be filed or other
action taken to reorganize or modify Tenant's capital structure, if Tenant be a
corporation or other entity, or if Tenant be declared insolvent according to
law, or if any assignment of Tenant's property shall be made for the benefit of
creditors, or if a receiver or trustee is appointed for Tenant or its property,
or if Tenant shall abandon or vacate the Premises during the Term of this Lease,
then Landlord may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease and thereupon at its option may, without notice
or demand of any kind to Tenant or any other person, have any one or more of
the following described remedies in addition to all other rights and remedies
provided at law or in equity:
(a) Landlord may terminate this Lease and the Term created hereby,
in which event Landlord may forthwith repossess the Premises and be entitled to
recover forthwith as damages a sum of money equal to the value of the Base Rent
and rent adjustments provided to be paid by Tenant for the balance of the stated
Term of the Lease, less the fair rental value of the Premises for said period,
and any other sum of money and damages owed by Tenant to Landlord.
(b) Landlord may terminate Tenant's right of possession and may
repossess the Premises by forcible entry or detainer suit or otherwise, without
demand or notice of any kind to Tenant and without terminating this Lease, in
which event Landlord may, but shall be under no obligation so to do, relet all
or any part of the Premises for such rent and upon such terms as shall be
satisfactory to Landlord (including the right to relet the Premises for a term
greater or lesser than that remaining under the Term of this Lease and the right
to relet the Premises as a part of a larger area and the right to change the
character or use made of the Premises). For the purpose of such reletting,
Landlord is authorized to decorate or to make any repairs, changes, alterations,
or additions in or to the Premises that may be necessary or convenient, and if
Landlord shall fail or refuse to relet the Premises, or if the Premises are
relet and a sufficient sum shall not be realized from such reletting after
paying all of the costs and expenses of such decorations, repairs, changes,
alterations, and additions, and the expenses of such reletting and of the
collection of the rent accruing therefrom to satisfy the rent provided for in
this Lease to be paid, then Tenant shall pay to Landlord as damages a sum equal
to the amount of the Base Rent and rent adjustments reserved in this Lease for
such period or periods, or, if the Premises have been relet, Tenant shall
satisfy and pay any such deficiency upon demand therefor from time to time, and
Tenant agrees that Landlord may file suit to recover any sums falling due under
the terms of this paragraph and any other sums due under this Lease from time to
time, and that no suit or recovery of any portion due Landlord hereunder shall
be any defense to any subsequent action brought for any amount not theretofore
reduced to judgment in favor of Landlord.
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ARTICLE 19
SURRENDER OF POSSESSION
A. On or before the date this Lease and the Term hereby created
terminate, or on or before the date Tenant's right of possession terminates,
whether by lapse of time or at the option of Landlord, Tenant shall:
(1) Restore the Premises to the same condition they were in at
the beginning of the Term (except as otherwise provided in Article 11 of this
Lease) and remove those alterations, improvements, or additions installed for or
during Tenant's occupancy, whether installed by Landlord or Tenant, or acquired
by Tenant from former tenants, which Landlord shall request Tenant to remove;
(2) Remove from the Premises and the Building all of Tenant's
personal property; and
(3) Surrender possession of the Premises to Landlord in a clean
condition free of all rubbish and debris.
B. If Tenant shall fail or refuse to restore the Premises to the
above-described condition on or before the above-specified date, Landlord may
put the Premises in such condition and recover from Tenant Landlord's cost of so
doing. Without limiting the generality of the foregoing, Tenant agrees to pay
Landlord, upon demand, the cost of restoring the walls, ceilings, and floors of
the Premises to the same condition that existed prior to the date of the
commencement of any alterations, improvements, or additions made by or for
Tenant's occupancy (or a prior tenant's occupancy, if such alterations,
improvements, or additions were acquired by Tenant from a former tenant) of the
Premises. If Tenant shall fail or refuse to comply with Tenant's duty to remove
all personal property from the Premises and the Building on or before the
above-specified date, the parties hereto agree and stipulate that Landlord may,
at its election:
(1) Treat such failure or refusal as an offer by Tenant to
transfer title to such personal property to Landlord, in which event title
thereto shall pass under this Lease as a xxxx of sale to and vest in Landlord
absolutely without any cost either by setoff, credit allowance, or otherwise,
and Landlord may remove, sell, donate, destroy, store, discard, or otherwise
dispose of all or any part of said personal property in any manner that Landlord
shall choose; or
(2) Treat such failure or refusal as conclusive evidence on which
Landlord shall be entitled absolutely to rely and act, that Tenant has forever
abandoned such personal property, and, without accepting title thereto, Landlord
may, at Tenant's expense, remove, store, destroy, discard, or otherwise dispose
of all or any part thereof in any manner that Landlord shall choose without
incurring liability to Tenant or to any other person. In no event shall Landlord
ever become or accept or be charged with the duties of a bailee (either
voluntary or involuntary) of any of Tenant's personal property, and the failure
of Tenant to remove all personal property from the Premises and the Building
shall forever bar Tenant from bringing any action or from asserting any
liability against Landlord with respect to any such property Tenant fails to
remove. If Tenant shall fail or refuse to surrender possession of the Premises
to Landlord on or before the above-specified date, Landlord may forthwith
re-enter the Premises and repossess itself thereof as of its former
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estate and remove all persons and effects therefrom, using such force as may be
necessary, without being guilty of any manner of trespass or forcible entry or
detainer.
ARTICLE 20
HOLDING OVER
Tenant shall pay to Landlord double the Base Rent plus adjustments then
applicable for each month or portion thereof Tenant shall retain possession of
the Premises or any part thereof after the termination of this Lease, whether by
lapse of time or otherwise, and also shall pay all damages sustained by Landlord
on account thereof. The provisions of this Article shall not operate as a waiver
by Landlord of any right of re-entry hereinbefore provided. At the option of
Landlord, expressed in a written notice to Tenant and not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one (1)
year.
ARTICLE 21
COSTS, EXPENSES, AND ATTORNEY'S FEES
In case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall pay all costs,
expenses, and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation. Tenant shall also pay all costs, expenses and
reasonable attorney's fees that may be incurred or paid by Landlord in enforcing
Tenant's covenants and agreements in this Lease.
ARTICLE 22
COMPLIANCE WITH LAWS
Tenant and Landlord shall operate the Premises and Building respectively in
compliance with all applicable federal, state, and municipal laws, ordinances,
and regulations, including, without limitation, those relating to the
environment or the health and safety of persons in the Building or Premises, and
shall not, knowingly, directly or indirectly make any use of the Premises or
Building that is prohibited by any such laws, ordinances, or regulations.
ARTICLE 23
CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord shall have 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, constructive or actual, or
disturbance of Tenant's use or possession or giving rise to any claim for
setoff or abatement of rent:
(a) To change the Building's name or street address.
15
(b) To install, affix, and maintain any and all signs on the exterior
and interior of the Building.
(c) To designate and approve, prior to installation, all types of
window shades, blinds, drapes, and other similar equipment, and to control all
internal lighting that may be visible from the exterior of the Building.
(d) To designate, restrict, and control all sources from which Tenant
may obtain ice, drinking water, towels, toilet supplies, shoe shining, catering,
food and beverages, or like or other services to the Premises, and, in general,
to reserve to Landlord the exclusive right to designate, limit, restrict, and
control any business and any service in or to the Building and its tenants.
(e) To show the Premises to prospective tenants at reasonable hours
during the last twelve (12) months of the Term and, if vacated during such
period, to decorate, remodel, repair, and otherwise prepare the Premises for
reoccupancy without affecting Tenant's obligation to pay rent.
(f) To retain at all times, and to use in appropriate instances, keys
to all doors within and into the Premises. No locks shall be changed without the
prior written consent of Landlord.
(g) To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building or any
part thereof, and for such purposes to enter upon the Premises, and, during the
continuance of any of said work, to temporarily close doors, entryways, public
space, and corridors in the Building and to interrupt or temporarily suspend
Building services and facilities, all without abatement of rent or affecting any
of Tenant's obligations hereunder, so long as the Premises are reasonably
accessible.
(h) To have and retain a paramount title to the Premises free and clear
of any act of Tenant purporting to burden or encumber it.
(i) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(j) To approve the weight, size, and location of safes and other heavy
equipment and bulky articles in and about the Premises and the Building (so as
not to overload the floors of the Premises), and to require all such items and
furniture to be moved into and out of the Building and Premises only at such
times and in such manner as Landlord shall direct in writing. Any damages done
to the Building or Premises or to other tenants in the Building by taking in or
putting out safes, furniture, and other items or from overloading the floor in
any way, shall be paid by Tenant. Furniture, boxes, merchandise, or other bulky
articles shall be transported within the Building only upon or by vehicles
equipped with rubber tires and shall be carried only in the freight elevators
and at such times as the management of the Building shall require. Movements of
Tenant's property into or out of the Building and within the Building are
entirely at the risk and responsibility of Tenant, and Landlord reserves the
right to require permits before allowing any such property to be moved
into or out of the Building.
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(k) To prohibit the placing of vending or dispensing machines of any
kind in or about the Premises without the prior written consent of Landlord.
(l) To have access for Landlord and other tenants of the Building to
any mail chutes located on the Premises according to the rules of the United
States Post Office.
(m) To change the arrangement or location of entrances, passageways,
doors and doorways, corridors, stairs, toilets, and other public service
portions of the Building not contained within the Premises or any part thereof.
(n) To close the Building after regular working hours and on Saturdays,
Sundays, and legal holidays subject, however, to Tenant's right to admittance,
under such regulations as Landlord may prescribe from time to time, which may
include by way of example, but not of limitation, that persons entering or
leaving the Building identify themselves to Building personnel by registration
or otherwise, and that said persons establish their right to enter or leave the
Building.
Landlord may enter upon the Premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of Tenant's use or possession, and without being liable in any
manner to Tenant.
ARTICLE 24
ESTOPPEL
Tenant agrees that from time to time upon not less than ten (10) days'
prior request by Landlord, Tenant, or Tenant's duly authorized representative
having knowledge of the following facts, will deliver to Landlord a statement in
writing 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); (b) the dates to which the rent and other charges have
been paid; and (c) that Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail.
ARTICLE 25
RULES AND REGULATIONS
Tenant agrees to observe the reservations to Landlord in Article 23 hereof
and agrees for itself, its employees, agents, servants, clients, customers,
invitees, licensees, and guests to observe and comply at all times with the
following rules and regulations and with such reasonable modifications thereof
and additions thereto as Landlord may from time to time make for the Building,
and that failure to observe and comply with such reservations, rules, and
regulations shall constitute a default under this Lease:
(a) Any sign, lettering, picture, notice, or advertisement installed
within Tenant's
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Premises that is visible to the public from within the Building shall be
installed at Tenant's cost and in such manner, character, and style as Landlord
may approve in writing. No sign, lettering, picture, notice, or advertisement
shall be placed on any outside window or in a position visible from outside the
Building.
(b) Tenant shall use neither the name of the Building (except as the
address of its business) nor pictures of the Building in advertising or other
publicity without Landlord's prior written consent.
(c) Tenant shall not encumber or obstruct sidewalks, entrances,
passages, courts, corridors, vestibules, halls, elevators, stairways, or other
common areas in and about the Building. Tenant shall not place objects against
glass partitions or doors or windows that would be unsightly from the Building
corridors or from the exterior of the Building, and will promptly remove same
upon notice from Landlord.
(d) Tenant shall not make noises, cause disturbances or use or operate
any electrical or electronic devices or other devices that emit sound or other
waves or disturbances, or create odors, any of which may be offensive to other
tenants and occupants of the Building, or that would interfere with the
operations of any device or equipment or radio or television broadcasting or
reception from or within the Building or elsewhere, and shall not place or
install any projections, antennae, aerials, or similar devices inside or outside
of the Premises.
(e) Tenant shall not make any room-to-room canvass to solicit business
from other tenants in the Building and shall not exhibit, sell or offer to sell,
use, rent, or exchange any item or service in or from the Premises, unless
ordinarily embraced within Tenant's use of the Premises specified herein.
(f) Tenant shall not waste electricity or water and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning, and shall refrain from attempting to
adjust any controls other than room thermostats installed for Tenant's use.
Tenant shall keep public corridor doors closed.
(g) Door keys for doors in the Premises will be furnished at the
commencement of the Term by Landlord and no additional locks shall be placed
upon any doors of the Premises, and no locks shall be changed without the prior
written consent of Landlord. Tenant shall not permit any duplicate keys to be
made and shall purchase any duplicate keys only from Landlord. Upon termination
of this Lease, Tenant shall surrender all keys to the Premises and to the
Building and give to Landlord the explanation or the combination of all locks,
safes, and vault doors in the Premises.
(h) Tenant assumes full responsibility for protecting its space from
theft, robbery, and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured. Tenant shall cooperate and
participate in all security programs affecting the Building.
(i) Peddlers, solicitors, and beggars shall be reported to the office
of the Building or as Landlord otherwise requests.
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(j) Tenant shall not, without Landlord's written consent, put up or
operate any stove, air conditioning, machinery, or mechanical devices upon the
Premises or carry on any mechanical business of a nature not directly related to
Tenant's permitted use of the Premises. Tenant shall not use oil or burning
fluids for heating, warming, or lighting. No explosives or other articles deemed
extra hazardous shall be brought into the Premises.
(k) No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, or janitorial work in the Premises. Tenant
shall not contract for any work or service that might involve the employment of
labor incompatible with the Building employees or employees of contractors doing
work or performing services by or on behalf of Landlord.
(l) Tenant shall not xxxx or prepare food in the Premises.
(m) Tenant shall, at its expense, provide light for employees or
contractors of Landlord while doing janitor service, cleaning, making repairs or
alterations, or doing other work in the Premises.
(n) All telegraph, telephone, signal, alarm, electrical connections, or
other utility or service connections that Tenant may desire shall be first
approved by Landlord in writing before the same are installed, shall be made at
the expense of Tenant, and the location of all wires and the work in connection
therewith shall be subject to the direction of Landlord.
ARTICLE 26
MISCELLANEOUS
Landlord and Tenant further covenant with each other that:
(a) All rights and remedies of Landlord under this Lease shall be
cumulative, and none shall exclude any other rights and remedies allowed by law.
(b) All payments becoming due under this Lease or under any work order
or other agreement relating to the Premises shall be considered as rent and, if
unpaid when due, shall bear interest at the rate of eighteen percent (18.0%) per
annum or the highest rate allowed by applicable law, whichever is lower, until
paid.
(c) The word "Tenant" wherever used herein shall be construed to mean
tenants 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, and other forms of business entity, or individuals, men or women,
shall in all cases be assumed as though in each case fully expressed.
(d) Each of the provisions of this Lease shall extend to and shall, as
the case may require, bind or inure to the benefit, not only of Landlord and of
Tenant, but also of their respective
19
heirs, legal representatives, successors, and assigns, provided this clause
shall not permit any assignment contrary to the provisions of Article 28 hereof.
(e) All of the representations and obligations of Landlord are
contained herein, and no modification, waiver, or amendment of this Lease or of
any of its conditions or provisions shall be binding upon Landlord unless in
writing signed by Landlord or by a duly authorized agent of Landlord empowered
by a written authority signed by Landlord.
(f) Submission of this instrument for examination shall not bind
Landlord in any manner, and no lease or obligation on Landlord shall arise until
this instrument is signed and delivered by Landlord and Tenant.
(g) No rights to light or air over any property, whether belonging to
Landlord or any other person, are granted to Tenant by this Lease.
(h) Sectional headings in this Lease are solely for convenience of
reference and shall not in any way limit or amplify the terms and provisions
hereof.
ARTICLE 27
RIGHT TO SHIFT LOCATION OF PREMISES
At any time hereafter, Landlord may substitute for the Premises other
premises (herein referred to as "the new premises"), provided the new premises
shall be similar to the Premises in area and use for Tenant's purposes. If
Tenant is already in occupancy of the Premises, then in addition:
(a) Landlord shall pay the expense of Tenant for moving from the
Premises to the new premises and improving the new premises so that they are
substantially similar to the Premises;
(b) Such move shall be made during evenings, weekends, or otherwise so
as to incur the least inconvenience to Tenant; and
(c) Landlord shall first give Tenant at least thirty (30) days' notice
before making such change.
ARTICLE 28
ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, (i) assign
this Lease or any part thereof or any interest hereunder; (ii) permit any
assignment of this Lease or any part thereof by operation of law; (iii) sublet
the Premises or any part thereof; or (iv) permit the use of the Premises or any
part thereof by any parties other than Tenant, its agents, and its employees.
Tenant shall, by notice in writing, advise Landlord of its intention from, on
and after a stated date (which shall not
20
be less than thirty [30] days after the date of Tenant's notice), to assign this
Lease or any part thereof or to sublet any part or all of the Premises for the
balance or any part of the Term. Tenant's notice shall include all of the terms
of the proposed assignment or sublease (whether contained in such assignment or
sublease or in separate agreements) and shall state the consideration therefor.
In such event, Landlord shall have the right, to be exercised by giving written
notice to Tenant within thirty (30) days after receipt of Tenant's notice, to
recapture the space described in Tenant's notice, and such recapture notice
shall, if given, cancel and terminate this Lease with respect to the space
therein described as of the date stated in Tenant's notice. Tenant's notice
shall state the name and address of the proposed assignee or subtenant and a
true and complete and fully executed copy of the proposed assignment or
sublease, and any and all other agreements relating thereto, shall be delivered
to Landlord with Tenant's notice. If Tenant's notice shall cover all of the
Premises, and Landlord shall have exercised its foregoing recapture right, the
Term of this Lease shall expire and end on the date stated in Tenant's notice as
fully and completely as if that date had been herein definitely fixed for the
expiration of the Term. If, however, this Lease be canceled with respect to less
than the entire premises, Base Rent and rent adjustments reserved herein shall
be adjusted on the basis of the number of square feet retained by Tenant in
proportion to the number of square feet contained in the Premises, as described
in this Lease, and this Lease as so amended shall continue thereafter in full
force and effect.
If Landlord, upon receiving Tenant's notice with respect to any such space,
shall not exercise its right to recapture as aforesaid, and if Tenant is not in
default under the terms of this Lease, Landlord will not unreasonably withhold
its consent to Tenant's assignment of the Lease or subletting such space to the
party identified in Tenant's notice, provided, however, that in the event
Landlord consents to any such assignment or subletting, and as a condition
thereto, Tenant shall pay to Landlord one hundred percent (100%) of all profit
derived by Tenant from such assignment or subletting. For purposes of the
foregoing, profit shall be deemed to include, but shall not be limited to, the
amount of all rent or other consideration payable by such assignee or sublessee
in excess of the Base Rent, and rent adjustments payable by Tenant under this
Lease. If a part of the consideration for such assignment or subletting shall be
payable other than in cash, the payment to Landlord of its share of such noncash
consideration shall be in such form as is satisfactory to Landlord. Tenant
shall, and hereby agrees that it will, furnish to Landlord upon request from
Landlord a complete statement, certified by an independent certified public
accountant, setting forth in detail the computation of all profit derived and to
be derived from such assignment or subletting, such computation to be made in
accordance with generally accepted accounting principles. Tenant agrees that
Landlord or its authorized representatives shall be given access at all
reasonable times to the books, records, and papers of Tenant relating to any
such assignment or subletting, and Landlord shall have the right to make copies
thereof. The percentage of Tenant's profit due Landlord hereunder shall be paid
to Landlord within two (2) days of receipt by Tenant of all payments made from
time to time by such assignee or sublessee to Tenant.
For purposes of the foregoing any change in the partners of Tenant, if
Tenant is a partnership, or, if Tenant is a corporation, any transfer of any or
all of the shares of stock of Tenant by sale, assignment, operation of law, or
otherwise, resulting in a change in the present control of such corporation by
the person or persons owning a majority of such shares as of the date of this
Lease, shall be deemed to be an assignment within the meaning of this Article
28.
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If Tenant is a limited liability company, any transfer of any or all
interest in the company by sale, assignment, operation of law, or otherwise,
resulting in a change in the present control of such company by the person or
persons owning a majority of interest in the company as of the date of this
Lease, shall be deemed to be an assignment within the meaning of this Article
28.
Any subletting or assignment hereunder shall not release or discharge
Tenant of or from any liability, whether past, present, or future, under this
Lease, and Tenant shall continue to be fully liable thereunder. Any subtenant or
assignee shall agree in a form satisfactory to Landlord to comply with and be
bound by all of the terms, covenants, conditions, provisions, and agreements of
this Lease to the extent of the space sublet or assigned, and Tenant shall
deliver to Landlord promptly after execution an executed copy of each such
sublease or assignment and an agreement of compliance by each such subtenant or
assignee. Tenant agrees to pay to Landlord, on demand, all reasonable costs
incurred by Landlord in connection with any request by Tenant for Landlord to
consent to any assignment or subletting by Tenant. Any sale, assignment,
mortgage, transfer, or subletting of this Lease that is not in compliance with
the provisions of this Article shall be of no effect and void.
ARTICLE 29
NOTICE
All notices to be given by one party to the other under this Lease shall be
in writing, mailed or delivered as follows:
(a) To Landlord: ___________________________________
___________________________________
___________________________________
Attn: ____________________________
Or to such other address designated by notice to Tenant after the
commencement of the Term.
(b) To Tenant: ___________________________________
___________________________________
___________________________________
Attn: ____________________________
Or to such other address designated by notice to Landlord after the
commencement of the Term, or, at Landlord's election, to Tenant at the Premises.
Mailed notices shall be sent by United States certified or registered mail,
postage prepaid. Such notices shall be deemed to have been given upon posting in
the United States mail.
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ARTICLE 30
DEFAULT UNDER OTHER LEASE
If the term of any other Lease made by Tenant for any premises in the
Building shall be terminated after the making of this Lease, because of any
default by Tenant under such other Lease, Landlord, at its option, may terminate
this Lease by written notice to Tenant.
ARTICLE 31
CONVEYANCE BY LANDLORD
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof to another person, such
other person shall in its own name thereupon be and become Landlord hereunder
and shall assume fully in writing and be liable for all liabilities and
obligations of this Lease to be performed by Landlord that first arise after the
date of conveyance, and such original Landlord or successor owner shall, from
and after the date of conveyance, be free of all liabilities and obligations not
theretofore incurred.
ARTICLE 32
SUBORDINATION OF LEASE
The rights of Tenant under this Lease shall be and are subject and
subordinate at all times to the lien of any deeds of trust, mortgage, or
mortgages now or hereafter encumbering the Property and the Building, or both,
and to all advances made or hereafter to be made upon the security thereof and
to all renewals, modifications, consolidations, replacements, and extensions
thereof. This Article is self-operative, and no further instrument of
subordination shall be required. In confirmation of such subordination Tenant
shall promptly execute such further instruments as may be requested by Landlord.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact for Tenant with
full power and authority to execute and deliver in the name of Tenant any such
instrument or instruments. Tenant, at the option of any mortgagee, agrees to
attorn to such mortgagee in the event of a foreclosure sale or deed in lieu
thereof.
ARTICLE 33
RIGHTS OF DESIGNATED THIRD PARTIES
In the event of any act or omission by Landlord that would give Tenant the
right to terminate the Lease or to claim a partial or total eviction from the
Premises, Tenant shall not exercise any such right (a) until it has notified in
writing the Trustee under any Deed of Trust, and the Mortgagee under any
Mortgage (if the name and address of such entity shall previously have been
furnished by written notice to Tenant) of such act or omission, and (b) until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice, and the Trustee under such Deed of Trust or
Mortgagee under such Mortgage shall not with reasonable diligence have commenced
and continued to remedy such act or omission or caused the same to be remedied.
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ARTICLE 34
BROKERS
Tenant represents and warrants to Landlord that neither it nor its officers
or agents nor anyone acting on its behalf has dealt with any real estate broker
other than _________________, whose address is _____________________, and whose
phone and fax are ________ and _________, respectively, in the negotiation or
making of this Lease, and Tenant agrees to indemnify and hold harmless Landlord
from the claim or claims of any other broker or brokers claiming to have
interested Tenant in the Building or Premises or claiming to have caused Tenant
to enter into this Lease.
LANDLORD: TENANT:
VSI REAL ESTATE HOLDING, INC., VIASYS SERVICES, INC.,
a Florida corporation a Florida corporation
By: By:
----------------------------- --------------------------------
Name: Name:
-------------------------- ------------------------------
Title: Title:
-------------------------- ------------------------------
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SCHEDULE A
Prior Instrument Reference: Volume or Book ___________, Page ___________,
Document No. ___________, of the Recorder of Hillsborough County, Florida.
[ATTACH LEGAL DESCRIPTION OF LAND]
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