Exhibit 10(E)
OFFICE LEASE
Between
LEXIN CELEBRATION, LLC
as Landlord
and
VOX COMMUNICATIONS CORP.
as Tenant
Dated
January 25, 2005
DOWNTOWN CELEBRATION
CELEBRATION, FLORIDA
TABLE OF CONTENTS
Page
----
1. DEFINITION ............................................................ 1
2. TERM .................................................................. 8
3. CONSTRUCTION OF PREMISES .............................................. 8
4. UTILITIES ............................................................. 11
5. SIGNAGE ............................................................... 12
6. USE AND OPERATION OF PREMISES ......................................... 12
7. ENVIRONMENTAL COMPLIANCE .............................................. 14
8. SECURITY DEPOSIT ...................................................... 15
9. RENT .................................................................. 15
10. COMMON PROPERTY ....................................................... 17
11. COMMON EXPENSES ....................................................... 18
12. ADVERTISING AND PROMOTION ............................................. 21
13. INSURANCE ............................................................. 22
14. DAMAGE OR DESTRUCTION ................................................. 24
15. ALTERATIONS AND REMOVALS .............................................. 25
16. MAINTENANCE AND REPAIRS ............................................... 26
17. LANDLORD'S RIGHT TO INSPECT ........................................... 28
18. ASSIGNMENT AND TRANSFER; SUBLETTING ................................... 28
19. LANDLORD'S INTEREST NOT SUBJECT TO LIENS .............................. 29
20. EMINENT DOMAIN ........................................................ 30
21. SUBORDINATION AND ATTORNMENT .......................................... 31
22. END OF TERM ........................................................... 33
23. INDEMNITY ............................................................. 34
24. DEFAULT; LANDLORD'S LIEN .............................................. 34
25. NO ABATEMENT OF RENT .................................................. 38
26. NOTICES ............................................................... 39
27. MISCELLANEOUS ......................................................... 40
EXHIBIT "A" - Graphic Depiction of Downtown Celebration Property
EXHIBIT "B" - Downtown Celebration Site Plan
EXHIBIT "C" - Premises Floor Plan
EXHIBIT "D" - Tenant's Work
EXHIBIT "D-1" - Landlord's Work
EXHIBIT "E" - Permitted Use of Premises
EXHIBIT "F" - Downtown Celebration Office Building Rules and Regulations
EXHIBIT "G" - Guaranty
EXHIBIT "H" - Downtown Celebration Common Expenses - List of Items and
Charges
EXHIBIT "I" - Extension Option
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OFFICE LEASE
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THIS OFFICE LEASE (this "Lease") is made and entered into by and between
LEXIN CELEBRATION LLC, a Delaware limited liability company authorized to
transact business in the State of Florida ("Landlord"), and VOX COMMUNICATIONS
CORP., a Delaware corporation authorized to transact business in the State of
Florida ("Tenant"), who covenant and agree as follows:
W I T N E S S E T H:
--------------------
Subject to the terms and conditions of this Lease, Landlord leases to
Tenant and Tenant hires from Landlord the Premises. In addition to all other
rights which it has under this Lease, Landlord expressly reserves all rights
relative to the Building which are not expressly and specifically granted to
Tenant under this Lease.
Landlord and Tenant covenant and agree:
BASIC LEASE PROVISIONS
1. Definitions: The following terms, as used in this Lease, shall have the
following meanings in this Lease and all exhibits to this Lease.
1.1. Definitions.
ADA: (See Section 3.4)
Additional Rent: (See Section 9.3 and Section 11.1)
Address for Notices: If to Landlord:
Lexin Celebration LLC
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: Property Manager
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Lexin Celebration LLC
c/o Lexin Capital LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Tenant:
Vox Communications Corp.
000 Xxxxxxxxxxx Xxxxxx Xxxxx # 000
Xxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000 0000
Telephone: (000) 000 0000
Address for Payments: Lexin Celebration LLC
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx 00000
Allocated Percentage Share
of Building Common Expenses: 5.90% (See Section 11.4), which
percentage the parties acknowledge has
been agreed upon for all purposes
herein, unless adjusted as provided in
Section 1.3, Section 11.4 or Section
11.5.
Allocated Percentage Share
of the Designated Office
Share of Downtown
Celebration Common Expenses: 2.02% (See Section 11.2), which
percentage the parties acknowledge has
been agreed upon for all purposes
herein, unless adjusted as provided in
Section 11.2 or Section 11.5.
Allocated Percentage Share
of Downtown Celebration
Office Common Expenses: 2.02% (See Section 11.3), which
percentage the parties acknowledge has
been agreed upon for all purposes
herein, unless adjusted as provided in
Section 11.3, or Section 11.5.
Alteration: (See Section 15.1)
Association: Celebration Non-Residential Owners
Association, Inc., a Florida
not-for-profit corporation.
Association Declaration: Declaration of Covenants, Conditions
and Restrictions for Celebration
Non-Residential Properties, recorded
in Official Records Book 1248, Page
28, of the Public Records of Osceola
County, Florida, as supplemented by
the Supplemental Declaration of
Covenants, Conditions and Restrictions
for Celebration Nonresidential
Properties, recorded on September 22,
1995 in Official Records Book 1282,
Page 628, Public Records of Osceola
County, Florida, as the same may have
been and may hereafter be amended,
supplemented and/or modified from time
to time.
Attractions: (see Theme Park definition)
Base Rent: Annual Base Rent Annual
Per Lease Year: Per Sq. Ft Base Rent
--------------- ---------- ---------
1 $18.00 34,272.00
2-3 inclusive (See Section 9.1)
4-8 inclusive (See Exhibit "I")
Broker: None (See Section 28.10)
Building: The office building in which the
Premises is located within Downtown
Celebration located at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx.
Building Common Expenses: (See Section 11.4)
CDD: Celebration Community Development
District, a unit of special purpose
government created pursuant to the
provisions of Chapter 190, Florida
Statutes.
CPI: (See Section 9.1)
CPI Index: (See Section 9.1)
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Commencement Date: February 1, 2005
Common Expenses: (See Section 11.1)
Common Property: The Downtown Celebration Buildings,
together with certain land and common
facilities and improvements as the
same may now or hereafter be located,
constructed, developed, or relocated
on the Downtown Celebration Property
and which is available for the
non-exclusive common and joint use and
benefit of Landlord, Tenant, and all
other tenants, owners, and occupants
of Downtown Celebration and their
respective employees, agents,
licensees, customers, and invitees.
Common Property may include, but not
be limited to, all roofs and other
exterior and structural elements of
Downtown Celebration Buildings,
elevators, stairways, sidewalk
entrances, hallways, corridors,
interior walkways, entrances and exits
to Downtown Celebration, service
roads, parking areas owned by
Landlord, loading areas, lighting
systems, lawn and landscaping areas,
irrigation systems, ponds, lakes, and
drainage systems, utility lines, pipe
systems and facilities (excluding
those, if any, owned by utility
companies providing such utility
services to Downtown Celebration), and
signs and signage facilities owned by
Landlord.
Condenser Water System: Shall mean the central condenser water
system serving the Downtown
Celebration Buildings and shall
include a central cooling tower,
condenser water supply and return
lines and other related equipment.
Default Rate: The lesser of: (i) 18% per annum; or
(ii) the highest rate of interest then
allowable pursuant to Florida law.
Deposit: Four Thousand Two Hundred Eigthy-Five
and 00/100 Dollars ($4,285.00)
Designated Office Share of
Downtown Celebration Common
Expenses: (See Section 11.2)
Downtown Celebration: A mixed-used district located on the
Downtown Celebration Property which
may include, but not be limited to,
such uses as retail shopping,
restaurants, professional offices,
residential apartments, and other
uses.
Downtown Celebration
Building(s): Multi-tenant mixed-used buildings,
both attached and detached, single
level and multi-level, located within
Downtown Celebration.
Downtown Celebration Common
Expenses: (See Section 11.2 and Exhibit "H")
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Downtown Celebration Office
Common Expenses: (See Section 11.3)
Downtown Celebration
Property: A portion of the real estate project
known as Celebration, Florida, and as
generally depicted on Exhibit "A"
attached to this Lease.
Downtown Celebration
Site Plan: The schematic site plan of Downtown
Celebration as depicted on Exhibit
"B", a copy of which is attached to
this Lease.
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Entertainment Company: Any person or entity engaged in the
business of owning (which shall mean
owning a ten percent (10%) or greater
interest in), managing or operating
one (1) or more Theme Parks.
Event of Default: (See Section 25)
Execution Date: The date when the last one of Landlord
and Tenant has signed and delivered
this Lease.
Extension Option: (See Exhibit "I")
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Extension Option Term: (See Exhibit "I")
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Guarantor: (See Section 24.1)
Hazardous Materials: (See Section 7.1)
Holidays: (See Exhibit "F")
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HVAC System(s): Shall mean the heating, ventilating
and air conditioning system(s),
including ducted supply, distribution
and return air through an open ceiling
plenum, installed by Landlord in
Downtown Celebration Buildings
intended to be occupied by one (1) or
more Office Tenants.
Landlord's Work: (See Section 3.1 and Exhibit "D-1")
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Lease Year: A period comprised of twelve (12)
consecutive calendar months. The first
"Lease Year" shall commence on the
first day of the first month following
the month in which the Commencement
Date occurs (hereinafter the "Lease
Year Commencement Date") and shall
expire on the day immediately
preceding the first anniversary of the
Lease Year Commencement Date
(hereinafter the "Lease Year
Termination Date"). Notwithstanding
the foregoing, if the Commencement
Date should fall on the first day of a
month, such date shall be deemed the
Lease Year Commencement Date and the
date which immediately precedes the
first anniversary of the Lease Year
Commencement Date shall be deemed the
Lease Year Termination Date. Each
succeeding Lease Year shall commence
on the day after the Lease Year
Termination Date of the preceding
Lease Year and shall continue for
twelve (12) consecutive calendar
months.
Office Tenant: (See Section 11.3)
Operating Hours: (See Section 6.3)
Permitted Name: Vox Communications, subject to the
provisions of Exhibit "E".
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Permitted Use: (See Section 6.1 and Exhibit "E")
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Plans and Specifications: (See Section 3.2)
Plan Submittal Date: On or before the date which is thirty
(30) days after the Execution Date.
Possession Date: The date on which possession of the
Premises is first made available to
Tenant by Landlord.
Possession Notice: (See Section 3.1)
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Premises: The Premises shall consist of and
include that portion of interior space
within the first and second floors of
the "Building" located at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000 and
known as Unit (or Suite) 120 and 225
as shown on the Downtown Celebration
Site Plan attached hereto as Exhibit
"B" and shall be configured
approximately as shown on the Premises
Floor Plan attached hereto as Exhibit
"C", together with all rights,
privileges, and easements appurtenant
thereto.
Premises Floor Plan: The schematic floor plan of the
Premises as depicted on Exhibit "C"
attached to this Lease.
Projected Possession Date: February 1, 2005
Rent (or Rents): Base Rent and all other monies and
sums due to Landlord from Tenant
hereunder as Additional Rent.
Rentable Floor Area: One Thousand Nine Hundred Four (1,904)
square feet, which square footage the
parties acknowledge has been agreed
upon for all purposes herein.
Restricted Uses: (See Section 6.1)
Signs: (See Section 5.1)
Taking: (See Section 20.1)
Tenant's Share: (See Sections 11.2, 11.3 and 11.4)
Tenant's Work: (See Section 3.3 and Exhibit "D")
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Tenant's Work Completion
Date: On or before the date which is sixty
(60) days after the Possession Date
(See Section 3.8)
Term or Lease Term: Three (3) years, subject to the
provisions of Section 2.1
Termination Date: The day immediately preceding the
third (3rd) anniversary of the first
Lease Year Commencement Date.
Theme Park: (a) all facilities, the primary
business of which is offering rides or
amusement devices, including, without
limitation, attractions, game arcades,
rides and shows, virtual reality
and/or other similar entertainment
devices and other entertainment
elements, regardless of whether an
admission fee is charged (collectively
"Attractions"); and (b) any and all
areas and facilities (including,
without limitation, resorts, shopping
areas, golf courses and restaurants)
associated, and/or commonly marketed,
with such Attractions.
1.2. Demise. Landlord, for and in consideration of the Rents herein
reserved and required to be paid by Tenant and of the covenants, promises and
agreements herein contained and required to be kept, observed and performed by
Tenant, does hereby demise, let and lease unto Tenant, and Tenant, for and in
consideration of the foregoing demise by Landlord and of the covenants, promises
and agreements herein contained and required to be kept, observed and performed
by Landlord, does hereby hire, lease and take as Tenant from Landlord, the
Premises for the Term and for the Permitted Use set forth on Exhibit "E"
attached hereto and made a part hereof, and for no other use or purpose, and on
those terms and conditions hereinafter specified in this Lease.
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1.3. Premises.
1.3.1. The Premises shall include only the space and appurtenances
specifically demised and granted in this Lease, with Landlord hereby
specifically excepting and reserving for and unto itself, the roof, the air
space above the roof, the space and ground below the floor, the dividing walls
between the Premises and the adjoining premises within the Building, if any, and
the exterior walls of the Premises, if the Premises occupies less than the
entire Building, and the Building, including the storefront, and including the
right to install, maintain, use, repair and replace conduits, utility lines,
wires, pipes and duct work in and through the Premises. Landlord and Tenant
agree that the Rentable Floor Area stated in Section 1 of this Lease shall be
used in the calculation of Base Rent and other sums as appropriate under this
Lease, notwithstanding any variation of the actual rentable floor area of the
Premises from such Rentable Floor Area.
1.3.2. Landlord shall have the right, either before the commencement
of or during the Term, upon not less than thirty (30) days written notice to
Tenant, to change the location of the Premises to another location within the
Building or another Downtown Celebration Building, provided that the new
location is reasonably similar in size. If Tenant is occupying the Premises when
Landlord exercises its rights hereunder, Landlord, at its expense, shall remove,
relocate and reinstall Tenant's equipment (including telephones), furniture and
fixtures in the new premises, and redecorate the new premises so that they will
substantially resemble the former Premises. Upon completion of the change in
location of the Premises, the parties shall execute an amendment to this Lease
which sets forth the new description of the Premises and amends any other terms
of this Lease, if any, required to be amended as a result of the relocation of
the Premises.
1.4. Quiet Enjoyment. Landlord covenants and agrees that so long as Tenant
shall timely pay all Rents due to Landlord from Tenant hereunder and keep,
observe and perform all covenants, promises and agreements on Tenant's part to
be kept, observed and performed hereunder, Tenant shall and may peacefully and
quietly have, hold and occupy the Premises free of any interference from
Landlord; subject, however, to each of the terms, provisions and conditions of
this Lease.
2. TERM.
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2.1. Term. Unless sooner terminated as elsewhere provided in this Lease,
the Term of this Lease shall be as set forth in Section 1 of this Lease, and
shall commence at 12:01 a.m. on the Commencement Date and shall cease, terminate
and expire at 11:59 p.m. on the Termination Date.
2.2. Early Termination. If and only if: (i) Tenant shall not then be in
default under the terms of the Lease; (ii) neither Tenant nor any of Tenant's
Affiliates shall then be in default under any other agreement between Tenant or
any of Tenant's Affiliates and Landlord and any of Landlord's Affiliates; and
(iii) Landlord and Tenant execute and deliver a valid lease for another space
that is owned and/or managed by Landlord, and which space has a Rentable Floor
Area in excess of One Thousand Nine Hundred Four (1,904) square feet, then, upon
the execution and delivery of such new lease, Landlord hereby agrees to
terminate the Lease.
2.3. Commencement Date; Possession.
2.3.1. The Term of this Lease shall commence on the Commencement
Date as defined in Section 1 hereof. Possession of the Premises shall be
delivered by Landlord and accepted by Tenant on the Possession Date. If the
Commencement Date is delayed because of failure to complete any alteration or
construction work or for any other reason not attributable to fault on the part
of Tenant, or if Landlord is unable to deliver possession of the Premises on the
Commencement Date by reason of the holding over of any prior tenant, Tenant
shall not be required to commence payment of rent until the Commencement Date
has occurred and Landlord has delivered possession of the Premises to Tenant.
However, nothing set forth in this section will operate to extend the Lease Term
and rent abatement will be the full extent of Landlord's liability to Tenant on
account of the delay. Landlord shall determine the Commencement Date as provided
in Section 1.1 and shall notify Tenant of the date so determined. Tenant shall,
if Landlord so requests, thereafter execute a letter confirming the Commencement
Date and the expiration date of this Lease.
2.3.2. Notwithstanding that the Commencement Date shall be
established in the manner and on the date provided in this Section 2.3, Tenant
and Landlord acknowledge and agree that this Lease is binding upon them as of
the Execution Date, and all obligations of Tenant, other than the obligation to
pay Rents, shall commence as of the Execution Date.
2.4. Acceptance of Possession. At the time this Lease is executed, Tenant
certifies that it has inspected the Premises and accepts the same in its
existing "AS IS" "WHERE IS" condition except for Landlord's Work as provided in
Exhibit "D-1" attached hereto. Upon substantial completion of Landlord's Work,
Landlord shall notify Tenant in writing that possession of the Premises is being
delivered to Tenant (the "Possession Notice"). Landlord's Work shall be deemed
substantially complete when the work is completed in such a fashion as to enable
Tenant to begin performance of Tenant's Work. A certificate by Landlord's
architect
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certifying that substantial completion of Landlord's Work has occurred shall be
binding and conclusive upon Tenant. Landlord shall have no responsibility or
liability for any damage to or loss of property as a result of theft, vandalism
or other act causing damage to the Premises.
3. CONSTRUCTION OF PREMISES.
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3.1. Tenant's Plans and Specifications. Not later than the Plan Submittal
Date, Tenant shall submit to Landlord for its review and approval, and, if
necessary, resubmit the same from time to time within fifteen (15) days after
receipt of written notice of disapproval thereof from Landlord, until the same
are approved by Landlord, detailed drawings and plans and specifications of and
for all interior improvements to be constructed and installed by Tenant in the
Premises as Tenant's Work, including, without limitation, a layout, lighting
plan, interior finish and material samples, typical display technique, if
applicable, interior and exterior signage plans and specifications, store front,
and any work or equipment to be done or installed by Tenant affecting any
structural, mechanical or electrical part of the Premises, the Building, or any
other portion of Downtown Celebration, and also showing all Trade Fixtures to be
installed therein by Tenant (the "Plans and Specifications"). The Plans and
Specifications shall be prepared by a licensed architect. Tenant shall not
commence the construction and installation of any of Tenant's Work or Trade
Fixtures unless and until Landlord shall give its written consent and approval
to the Plans and Specifications, which consent Landlord may grant or withhold in
its sole and absolute discretion. Upon Tenant's receipt of: (i) Landlord's
approval of the Plans and Specifications; and (ii) the Possession Notice, Tenant
shall promptly thereafter, and at its sole cost and expense, diligently seek and
obtain all necessary building permits and governmental approvals required to
enable Tenant to construct Tenant's Work.
3.2. Tenant's Work. Within fifteen (15) days following the later of: (a)
the Possession Date; or (b) Tenant's receipt of written notice from Landlord
approving the Plans and Specifications, Tenant shall, at its expense, and to the
extent necessary, commence the construction and installation within the interior
of the Premises of those improvements more particularly listed and described on
the schedule of work to be accomplished by Tenant attached hereto as Exhibit
"D-1" ("Tenant's Work"). Tenant shall cause all of Tenant's Work to be completed
and a certificate of occupancy issued therefore, on or before Tenant's Work
Completion Date. Tenant warrants and represents to Landlord that all such
Tenant's Work will be of first-class quality and shall be performed in a good
and workmanlike manner and in conformance with all applicable laws, ordinances,
requirements, orders, directions, rules and regulations of all governmental
authorities, and in accordance with the Plans and Specifications. The contractor
selected by Tenant to perform Tenant's Work shall be approved by Landlord in
writing prior to commencement of construction, and the construction contract to
be executed by Tenant and its contractor for Tenant's Work shall expressly
provide that contractor must deliver to Tenant and Landlord, prior to
commencement of construction, a payment and performance bond for the full amount
of the contract price and in the form prescribed by Section 713.23 (c), Florida
Statutes, as amended from time to time, which bond shall name Landlord as a
joint obligee. The payment and performance bond must be issued by a surety
insurer authorized to do business in the state of Florida. Simultaneously with
the construction and installation, or immediately following the completion of
Tenant's Work, as aforesaid, but in any event not later than the Commencement
Date, Tenant shall cause to be installed within the Premises all trade fixtures
reasonably required for the operation, as conducted by Tenant, of the business
contemplated by this Lease to be operated on, in and from the Premises,
including those trade fixtures, if any, contemplated, shown and described on the
Plans and Specifications (the "Trade Fixtures"). Trade Fixtures so installed in
the Premises by Tenant shall be new and of first-class quality and workmanship.
Tenant shall not install, or allow to be installed, any work of "visual art" (as
described in 17 U.S.C. ss. 101 - 113 et seq. or successor statutes) in which is
incorporated in or made part of the Building without Landlord's express prior
written consent, which consent may be withheld at Landlord's sole and absolute
discretion, and if granted, such consent shall be upon such terms and conditions
as Landlord shall prescribe.
3.3. Construction Process. The provisions of this Article 3 and of Article
15, and Exhibit "D" to this Lease, shall apply to the improvement of the
Premises in the first instance, and any future modifications, alteration or
renovations to the Premises, and, unless clearly inapplicable, to all
reconstruction or restoration performed pursuant to any other portion of this
Lease by Tenant. Landlord's approval of the Plans and Specifications, if any,
shall not be construed as approval of the structural adequacy or integrity of
the work detailed therein, or of the conformity of the same to applicable
building codes and other legal requirements; it being agreed that Tenant shall
indemnify, defend, save and hold Landlord harmless from and against, and
reimburse Landlord for, any and all obligations, damages, injunctions, suits,
fines, penalties, demands, claims, costs, expenses, actions, liabilities, suits,
proceedings and losses of whatever nature (including, without limitation,
Attorneys' Fees and court costs), arising therefrom. Any work which does not
conform with the Plans and Specifications, if so required by Landlord or by law,
shall be removed or reconstructed by Tenant, at Tenant's sole cost and expense.
3.4. Compliance With Laws. Before the commencement of Tenant's Work, if
any, the Plans and Specifications shall be filed with and approved by all
governmental departments or authorities having or claiming jurisdiction of or
over the Premises or the
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Building, if required by such departments or authorities, and with any public
utility companies having an interest therein, if required by such utility
companies. In any such work (and all other work performed within the Premises by
Tenant) Tenant shall comply with all applicable laws, ordinances, requirements,
orders, directions, rules and regulations of the federal, state, county and
municipal governments (including, without limitation, the Americans With
Disabilities Act of 1990, the Florida Americans With Disabilities Accessibility
Implementation Act, and the related implementing regulations, codes, rules and
guidelines as may be amended from time to time (collectively, the "ADA"), and of
all other governmental authorities having or claiming jurisdiction of or over
the Premises or the Building or any part of either, and of all their respective
departments, bureaus and offices, and with the requirements and regulations, if
any, of such public utilities, of the insurance underwriting board or insurance
inspection bureau having or claiming jurisdiction, or of any other body
exercising similar functions, and of all insurance companies then writing
policies covering the Building or any part thereof. There shall be no
encroachment on any street right-of-way, sidewalk or on any adjoining premises,
including, without limitation, the Common Property, by any of the Tenant's Work.
All of Tenant's Work shall be performed at Tenant's cost and expense and free of
any expense to Landlord and free of any liens on Landlord's fee simple interest
or on Tenant's leasehold interest in the Premises.
3.5. Construction Schedule. Prior to the commencement of Tenant's Work,
Tenant shall furnish to Landlord a detailed construction schedule and
thereafter, shall promptly notify Landlord of any substantial changes therein.
If there should at any time be a stoppage of work in excess of, or anticipated
by Tenant to be in excess of, fifteen (15) days and such stoppage was not
provided for in the construction schedule, Tenant shall promptly provide
Landlord with written notice thereof, together with a statement of the reason or
reasons therefore. Landlord may declare that an Event of Default by Tenant has
occurred if all work on constructing Tenant's Work ceases for more than thirty
(30) consecutive days or if all construction work is not completed as of the
"Tenant's Work Completion Date" as set forth on the construction schedule (the
Force Majeure article hereof shall be inapplicable to the provisions of this
Section for a period in excess of thirty (30) days in the aggregate). Tenant
recognizes that, from time to time, there may be other on-going activities in
the Building or in other portions of Downtown Celebration, and if so, Tenant
agrees to coordinate Tenant's Work with such other activities so as not to
interfere with such other on-going activities. Landlord shall have the right to
inspect any of Tenant's Work at all times during normal working hours and to
send to the Premises for that purpose (at its own expense) such architects,
engineers and other technical persons as it may deem necessary so long as such
inspections and persons maintained at the Premises do not unreasonably interfere
with Tenant's Work (but Landlord shall not thereby assume any responsibility for
the proper performance of the work in accordance with the terms of this Lease,
nor any liability arising from the improper performance thereof).
3.6. Completion. Upon substantial completion of Tenant's Work in
accordance with the Plans and Specifications, Tenant shall procure and provide
Landlord with a copy of: (i) a certificate of occupancy from the appropriate
governmental authorities verifying the substantial completion thereof as
aforesaid; and (ii) a certificate from the architect(s) in charge of Tenant's
Work verifying that Tenant's Work has been completed in accordance with the
Plans and Specifications. The issuance of the foregoing shall not be deemed to
relieve Tenant of its obligation under the terms of this Lease to complete any
such work in accordance with the Plans and Specifications. Promptly following
completion of Tenant's Work, Tenant shall deliver to Landlord a complete set of
"as built" drawings for the Premises detailing all of Tenant's Work.
3.7. Obligations of Tenant Prior to and Upon Entry. Prior to entering the
Premises, Tenant shall furnish to Landlord evidence of insurance coverage as
required in Article 13 hereof, and, in addition, shall deliver to Landlord
satisfactory proof that all workmen of Tenant, if any, and all of its
contractors and subcontractors entering upon the Premises, shall be covered by
workers' compensation insurance as required by law. Landlord may require Tenant,
before entering upon the Premises for performance of Tenant's Work, to give to
Landlord proof reasonably satisfactory to Landlord of Tenant's financial ability
to complete and fully pay for Tenant's Work prior to opening for business, or,
in lieu thereof, either: (a) to furnish to Landlord a bond in an amount
satisfactory to Landlord, written by a surety company acceptable to Landlord,
guaranteeing the completion of Tenant's Work free of all liens; or (b) to
deposit in escrow with Landlord (without any obligation on the part of Landlord
to pay interest thereon), the estimated sum required to complete Tenant's Work,
in which event Landlord will disburse such sums as Tenant's Work is performed in
the Premises.
3.8. Additional Remedies - Failure to Complete Tenant's Work. If Tenant
fails to complete Tenant's Work, if any, on or before the Tenant's Work
Completion Date, Landlord may, at its option, in addition to and not in
limitation of Landlord's other remedies, enter upon the Premises and either: (a)
restore the Premises to the condition it was in before Tenant began completing
Tenant's Work; or (b) do whatever is required to complete Tenant's Work,
including, in either case, but not limited to, taking possession of all
materials, plans, tools, fixtures, machines and other equipment situated
therein, and proceeding with all of Tenant's contracts, using Tenant's
contractors, and Landlord shall have no liability to Tenant for any loss or
damage resulting in any way from such action by Landlord, and Tenant agrees to
pay promptly upon demand any expense incurred by Landlord in taking such action,
with interest thereon, at the Default Rate, if not so paid on demand.
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4. UTILITIES.
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4.1. Landlord's Election to Supply. Landlord shall exercise reasonable
efforts to cause the appropriate utility companies to provide reasonable
quantities of electricity and water sufficient to meet the Permitted Use. The
cost of reasonable usage (i.e. consumption) of such utilities shall be included
in "Building Common Expenses" in accordance with Section 11.4; provided,
however, that Landlord reserves the right to separately meter or submeter the
same and collect from Tenant (in addition to Building Common Expenses), as
Additional Rent, the amount, if any, by which Tenant's consumption of these
utilities exceeds the average square foot consumption of electricity and water
in other leased premises in the Building. In addition, Landlord shall have the
right to install check-meters in the Premises or the Building (as appropriate)
from time to time in order to determine the amount of Tenant's actual
consumption of utilities. In the event Landlord shall elect or be required to
install in the Premises or the Building, individual meters, submeters or other
devices to measure any or all of the utilities consumed in the Premises, Tenant
shall pay to Landlord the costs and expenses incurred for said meters and the
installation thereof in the Premises.
4.2. Interruption of Utility Services. Notwithstanding anything to the
contrary contained in this Lease, Landlord shall have no liability or
responsibility for any loss or damage occasioned by any interruption or failure
in the supply of any utility services to the Premises or occasioned by any
required termination of such utility services necessary to effect repairs or
improvements or occasioned by any other interruption or cessation of such
utility services for any cause or reason. No such interruption, termination or
cessation of utility services shall relieve Tenant of any of its duties and
obligations pursuant to this Lease, including, without limitation, its
obligation to pay all Rents as and when the same shall be due.
4.3. Heating and Air Conditioning Service. Landlord, as part of its
development and construction of Downtown Celebration, has installed the
Condenser Water System and the HVAC System. Notwithstanding the foregoing,
Landlord shall not be obligated to furnish additional heating and/or air
conditioning for computers or special equipment, and in no event warrants
against damage to same or the condition of same. Landlord shall not be liable to
Tenant for any interruption or failure in the supply of heating or air
conditioning service and no interruption, termination or cessation thereof shall
relieve Tenant of any of its duties and obligations pursuant to this Lease,
including, without limitation, its obligation to pay all Rents as and when the
same shall be due.
5. SIGNAGE. Tenant shall neither place or maintain nor suffer to be placed or
maintained (i) any sign, lettering or advertising matter (herein sometimes
referred to collectively as "Signs") on the exterior of the Premises or on the
glass of any window or door of the Premises, or (ii) Tenant shall not paint or
decorate any part of the exterior of the Premises, or any part of the interior
of the Premises which shall be visible from the exterior thereof or from the
Common Property, without, in each instance, first obtaining Landlord's written
approval, which approval Landlord may withhold in its sole and absolute
discretion. Initial placement of, and any modifications to, or replacements of,
such Signs shall be at the sole cost and expense of Tenant. If Tenant fails to
comply with this Section, Landlord shall have the right, in addition to, and not
in limitation of, its other rights and remedies, to remove the same and restore
the Premises to the condition in which the same were prior to such act, and the
cost of such removal and/or restoration shall be paid by Tenant as Additional
Rent on demand. Tenant also agrees that it shall not place or maintain any
free-standing Signs or sign standards or other advertising or promotional
materials or media within or upon any of the Common Property (including, without
limitation, any exterior sidewalks, hallways or walkways of the Building)
without the prior written consent and approval of Landlord, which consent and
approval Landlord may withhold in its sole and absolute discretion. Any
flashing, beacon, strobe, chaser or other forms of special attention-getting
lighting are prohibited. Additionally, Tenant shall not conduct or stage within
or from the Premises or upon or from the Common Property, or permit any third
party to conduct or stage within or from the Premises or upon or from the Common
Property, any advertising or promotional or other media events without the prior
written consent and approval of Landlord, which consent and approval Landlord
may withhold in its sole and absolute discretion. Tenant shall maintain all
Signs in a neat, clean and orderly fashion and in good condition and repair at
all times. At the end of the Term or earlier termination of this Lease, Tenant
shall, at its expense, remove all of its Signs from the Building and, upon
removal thereof, at its expense, repair any damage to the Premises and said
Building caused by such removal.
6. USE AND OPERATION OF PREMISES.
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6.1. Permitted Use. Tenant shall continuously use and occupy the Premises
solely and exclusively for the Permitted Use and for absolutely no other use or
purpose whatsoever. All uses other than the Permitted Use are "Restricted Uses".
In the event that Tenant or any of its agents or employees shall fail to comply
with the foregoing provisions of this Section 6.1, the same shall constitute an
Event of Default by Tenant of its obligations under this Lease and then Tenant
shall, without affecting or limiting any of the rights and remedies otherwise
available to Landlord pursuant to the terms and provisions of this Lease,
indemnify, defend, save and hold Landlord harmless from and against, and
reimburse Landlord for, any and all obligations, damages, injunctions, suits,
fines, penalties,
9
demands, claims, costs, expenses, actions, liabilities,
proceedings and losses of whatever nature (including, without limitation,
Attorneys' Fees), arising from such failure to so comply with the provisions of
this Section 6.1.
6.2. Name. Throughout the term of this Lease, Tenant shall operate and
conduct its business on, in and from the Premises under the Permitted Name and
under no other name or trade name without the prior written consent and approval
of Landlord, which consent or approval may be withheld in Landlord's sole and
absolute discretion, it being expressly acknowledged and agreed to by Landlord
and Tenant that the use by Tenant of the Permitted Name has established,
developed and attached to that name or trade name considerable name recognition
and customer goodwill, and that the continued use of that name or trade name is
a material consideration for and inducement to Landlord's execution of this
Lease and its demise of the Premises to Tenant.
6.3. Continuous Operation; Hours of Operation. The actual opening and
continuous operation of Tenant's business permitted by the Permitted Use upon
the Premises is a material consideration for and inducement to Landlord's
execution of this Lease and demise of the Premises to Tenant. Accordingly, there
shall be no abandonment or vacancy of the Premises, or cessation or
discontinuance of the operation of Tenant's business or change in the
above-described Permitted Use of the Premises, without the prior written consent
and approval of Landlord, which consent or approval may be withheld in
Landlord's sole and absolute discretion. Tenant shall operate its business in
the Premises (except when impracticable due to casualty or eminent domain)
Monday through Friday of each week between the hours of 9:00 a.m. to 5:00 p.m.
("Operating Hours"). At Tenant's election, Tenant may also operate its business
in the Premises Saturday and Sunday of each week any time between the hours of
9:00 a.m. to 5:00 p.m.
6.4. Compliance with Laws. The Premises and all business operations
conducted by Tenant on, in and from shall at all times be in compliance with all
applicable laws, ordinances, statutes, rules, regulations, orders, directions
and requirements of federal, state, county and municipal governments (including,
without limitation, the ADA) and of all other governmental agencies or
authorities having or claiming jurisdiction over the Premises or the business
activities conducted thereon, therein or therefrom, and of all of their
respective departments, bureaus, agencies or officers, and of any insurance
underwriting board or insurance inspection bureau having or claiming such
jurisdiction or any other body exercising similar functions and of all insurance
companies from time to time selected by Landlord to write policies of insurance
covering the Building and/or other portions of Downtown Celebration and any
business or business activity conducted therein or therefrom.
6.5. Compliance with Rules. The Premises and all business operations
conducted by Tenant on, in and from the Premises from time to time shall at all
times be in compliance with rules and regulations promulgated by (i) Landlord
for and with respect to the operation of the Premises and Downtown Celebration,
and (ii) the Association for and with respect to the operation of the Premises
and Downtown Celebration pursuant to the provisions of the Association
Declaration as the same may be changed, amended or modified from time to time.
The failure of Tenant to comply with, abide by or conform to, said rules and
regulations following written notice of failure by Landlord to Tenant, shall
constitute an Event of Default by Tenant under this Lease. Landlord shall not be
liable or responsible to Tenant for the violation of any such rules and
regulations by any other tenant of Downtown Celebration or any other person or
party, and the failure to enforce any such rules and regulations against Tenant
or any other tenant of Downtown Celebration shall not constitute a waiver of
Landlord's right to do so, nor shall it be deemed a default by Landlord
hereunder, or excuse compliance therewith by Tenant. Tenant shall and hereby
agrees to indemnify, defend, save and hold Landlord harmless from and against,
and reimburse Landlord for, any and all obligations, damages, injunctions,
suits, fines, penalties, demands, claims, costs, expenses, actions, liabilities,
proceedings and losses of whatever nature (including, without limitation,
Attorneys' Fees), incurred by Landlord arising directly or indirectly from, on
account, or by reason of Tenant's failure to comply with any applicable rules
and regulations. A copy of the existing Downtown Celebration rules and
regulations promulgated by Landlord are attached hereto as Exhibit "F". A copy
of any existing rules and regulations promulgated by the Association may be
obtained from the Association.
6.6. CDD and Association. Tenant acknowledges that the real property upon
which Downtown Celebration is located is encumbered by the Association
Declaration and that Landlord, as owner of Downtown Celebration, is a member of
the Association. Tenant further acknowledges that Downtown Celebration is
located in the CDD. Accordingly, pursuant to the provisions of Section 11.2
hereof, Tenant agrees to pay its proportionate share of the assessments levied
against Landlord by the Association pursuant to the Association Declaration for
the operation, maintenance and management of the real and personal property
owned or operated by the Association, as well as the taxes and assessments
levied against Landlord by the CDD for the establishment, operation, maintenance
and management of the improvements undertaken by the CDD.
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7. ENVIRONMENTAL COMPLIANCE.
-------------------------
7.1. No Storage or Disposal. Tenant shall not install, store, use, treat,
transport or dispose (or permit or acquiesce in the installation, storage, use,
treatment, transportation, discharge or disposal by Tenant, its agents,
employees, independent contractors, or subtenants) on the Premises, the
Building, the Common Property or any other portions of Downtown Celebration any:
(a) asbestos in any form; (b) urea formaldehyde foam insulation; (c)
transformers or other equipment which contain dielectric fluid containing levels
of polychlorinated biphenyls in excess of 50 parts per million; or (d) any other
chemical, material, air pollutant, toxic pollutant, waste, or substance which is
regulated as toxic or hazardous or exposure to which is prohibited, limited or
regulated by the Resource Conservation Recovery Act, the Comprehensive and
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Clean Air Act, and/or
the Clean Water Act or any other federal, state, county, regional, local or
other governmental authority or which, even if not so regulated, may or could
pose a hazard to the health and safety of the occupants of the Premises or any
other portions of Downtown Celebration, and which is either: (i) in amounts in
excess of that permitted or deemed safe under applicable law; or (ii) in any
manner which is prohibited or deemed unsafe under applicable law. (The
substances referred to in (a), (b), (c) or (d) are collectively referred to
hereinafter as "Hazardous Materials"). Tenant shall, at Tenant's own expense,
comply with any presently existing or hereafter enacted laws relating to
Hazardous Materials (collectively, "Cleanup Laws"). In furtherance and not in
limitation of the foregoing, Tenant shall, at Tenant's own expense, make all
submissions to, provide all information to, and comply with all requirements of
the appropriate governmental authority (the "Authority") under the Cleanup Laws
and shall promptly supply Landlord with copies of any notices, correspondence
and submissions made by Tenant to or received by Tenant from any governmental
authorities concerning environmental matters or Hazardous Materials. Should any
Authority require that a cleanup plan be prepared and that a cleanup be
undertaken because of the existence of Hazardous Materials which were installed,
stored, used, treated, transported, disposed of or discharged in the Building or
on the Premises, or on any portion of the Common Property or any other portion
of Downtown Celebration by Tenant, its agents, employees, independent
contractors or subtenants during the Term of this Lease, Tenant shall, at
Tenant's own expense, prepare and submit the required plans and financial
assurances and carry out the approved plans in accordance with such Cleanup Laws
and to Landlord's satisfaction. At no expense to Landlord, Tenant shall promptly
provide all information requested by Landlord for preparation of affidavits or
other documents required by Landlord to determine the applicability of the
Cleanup Laws to the Building, the Premises, or any such portion of the Common
Property or any other portion of Downtown Celebration, as the case may be, and
shall sign the affidavits promptly when requested to do so by Landlord. Tenant
shall indemnify, defend, save and hold Landlord harmless from and against, and
reimburse Landlord for, any and all obligations, damages, injunctions, fines,
penalties, demands, claims, costs, expenses, actions, liabilities, suits,
proceedings and losses of whatever nature (including, without limitation,
Attorneys' Fees), and all cleanup or removal costs and all actions of any kind
arising out of or in any way connected with the installation, storage, use,
treatment, transporting, disposal or discharge of Hazardous Materials in the
Building or on the Premises, or on any portion of the Common Property or any
other portion of Downtown Celebration by Tenant, its agents, employees,
independent contractors or subtenants during the Lease Term; and from all fines,
suits, procedures, claims and actions of any kind arising out of Tenant's
failure to provide all information, make all submissions and take all steps
required by the Authority under the Cleanup Laws or any other environmental law.
7.2. Survival. Tenant's liability pursuant to the terms of this Article
shall survive the expiration or earlier termination of this Lease.
8. SECURITY DEPOSIT
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8.1. The Deposit. Tenant has, concurrently with the execution of this
Lease, deposited with Landlord, and Landlord hereby acknowledges receipt of, the
Deposit in the amount set forth in Section 1.1 of this Lease, which shall be
held by Landlord, without accrual of interest for the benefit of Tenant,
throughout the Term (except as otherwise provided herein), as partial security
for the faithful performance by Tenant of all the terms and provisions of this
Lease to be kept, observed and performed by Tenant. The Deposit shall not be
pledged, assigned, transferred, mortgaged or otherwise encumbered by Tenant
without the express prior written consent of Landlord, which consent may be
granted or withheld in Landlord's sole and absolute discretion, and any such act
on the part of Tenant shall be without force and effect and shall not be binding
upon Landlord. Any funds paid by Tenant to Landlord as a Deposit pursuant o the
terms of this Lease may be commingled with other funds of Landlord and need not
be placed in trust, deposited in escrow or otherwise held in a segregated
account.
8.2. Application of Deposit. If any of the Rents herein reserved or any
other sum of money payable by Tenant to Landlord hereunder shall be overdue or
unpaid, or should Landlord make payments or advances on behalf of Tenant, or
should Tenant fail to perform any of the terms of provisions of this Lease, then
Landlord, at its option and without prejudice to any other right or remedy which
Landlord may have on account thereof, may appropriate and apply the entire
Deposit, or so much thereof as may be necessary to compensate of reimburse
Landlord for the payment of any Base Rent, Additional Rent, or other sum due
from Tenant to Landlord hereunder, or for any loss or damage sustained by
Landlord due to such failure, breach, or default on the part of Tenant,
11
including, without limitation, Attorneys' Fees incurred by Landlord on account
thereof, and Tenant shall forthwith, upon demand of Landlord, restore the
Deposit to the original amount thereof, as aforesaid. Failure to so restore the
Deposit shall constitute an Event of Default of Tenant's obligations under this
Lease.
8.3. Return of Deposit. If Tenant shall fully comply with, abide by, and
perform each and every one of the terms and provisions of this Lease during the
term hereof and promptly pay to Landlord all Rents and all other sums payable
hereunder by Tenant to Landlord as they become due, any portion of the Deposit
not appropriated or applied by Landlord in accordance with the provisions of
this Article shall be returned to Tenant, without interest, within thirty (30)
days after the end of the Term of this Lease. Landlord shall not be required to
return the Deposit, nor shall interest accrue, unless and until the Tenant has
delivered to Landlord properly completed tax reporting documents (including,
without limitation, a validly issued taxpayer identification number for Tenant
and a Form W-9).
8.4. Third Party Claims on Deposit. In the event of bankruptcy or other
creditor debt proceedings against Tenant which result in a third party claim on
the Deposit, the Deposit shall be deemed to be first applied to the payment of
Rents and other sums due Landlord for all periods prior to the filing of such
proceedings.
8.5. Transfer of Deposit. Landlord may deliver the Deposit to a purchaser
or transferee of Landlord's interest in the Building or any other portion of
Downtown Celebration in the event that such interest be sold or otherwise
transferred or conveyed, and Landlord shall thereupon be discharged from any
further liability or obligation to Tenant with respect to the Deposit.
9. RENT.
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9.1. Rent. Each Lease Year throughout the Term, Tenant shall pay to
Landlord, in lawful money of the United States of America, without any prior
demand by Landlord and without any deduction or set-off, as rent hereunder, a
combination of Base Rent and Additional Rent. All such payments of Rent shall be
made at the time, in the manner and in the amounts hereinafter specified in this
Article 8.1 and in Article 11 by check payable to Landlord mailed or delivered
to Landlord at the Address for Payments or to such other person or at such other
address as Landlord may hereafter designate by written notice to Tenant. Tenant
shall and hereby agrees to pay to Landlord during each Lease Year an annual
guaranteed minimum sum as base rent (the "Base Rent") as set forth in Section
1.1 of this Lease. Base Rent for the Lease Term shall commence as of, and be due
and payable in full on the Commencement Date. However, at the option and for the
convenience of Tenant, and so long as Tenant shall not be in default of its
obligations under this Lease, the Base Rent for each Lease Year may be paid by
Tenant to Landlord in equal monthly installments, in advance, on the first (1st)
day of each calendar month during the Lease Term. If the Commencement Date is
not on the first day of a calendar month, Base Rent due for the period between
the Commencement Date and the first (1st) day of the next succeeding calendar
month shall be prorated on a per diem basis at the monthly installment rate
specified in Section 1.1. Additionally, as applicable, Base Rent for the last
month of the Lease Term shall be prorated on a per diem basis.
9.1.1. Commencing in the second Lease Year, and for each succeeding Lease
Year, the Base Rent payable by Tenant shall be increased by the greater of (i)
three percent (3%); or (ii) that sum (but in not event less than the Base Rent
payable for the preceding Lease Year), which is derived by multiplying the Base
Rent payable for the preceding Lease Year by a fraction, the numerator of which
shall be the "CPI Index" (as defined below) in effect for the calendar month
which is two (2) calendar months prior to the calendar month in which the first
day of the Lease Year for which the adjustment is to be made occurs and the
denominator of which shall be the "CPI Index" in effect for the calendar month
which is two (2) calendar months prior to the calendar month in which the Lease
Year Commencement Date occurs. The term "CPI Index", as used herein, shall mean
the Consumer Price Index for All Urban Consumers (CPI-U) - U.S. Average, All
Items (1982-1984 = 100), published by the Bureau of Labor Statistics of the U.S.
Department of Labor ("CPI"); provided, however, that if the CPI shall be
discontinued, the CPI Index shall be the index of Consumer Prices in the U.S.
most closely comparable to the discontinued CPI Index, after making such
adjustments in items included or method of computation as may be prescribed by
the agency publishing the same, or as otherwise may be required to compensate
for changes subsequent to the Lease Year Commencement Date. In the event a
comparable substitute index is not available, then the price index used in
making the CPI-based adjustments provided for in this Lease shall be the
successor thereto, compiled and published by an agency of the United States
government, which determines the purchasing power of the dollar. If Landlord
determines that there is no such index compiled and published by an agency of
the United States government, then a nationally recognized firm of independent
certified public accountants designated by Landlord shall select a successor
price index, government or private, which best reflects changes in the
purchasing power of the dollar, and the decision of said accountants in
selecting such successor price index to be used hereunder shall be final and
binding upon the parties. Landlord shall pay the fees of said accountants
payable in respect of their selection of such successor price index. In the
event the base reference year used in computing the CPI is changed during the
Term, the 1982-84 = 100 index published concurrently by the Bureau of Labor
Statistics shall continue to be used in the calculation of
12
adjustments hereunder; provided, however, that in the event the Bureau of Labor
Statistics ceases to currently publish the 1982-84 = 100 index, then the
adjustments provided for in this Lease shall be calculated based upon the new
base year index, and in such event Landlord shall apply a conversion factor to
such new index for the purpose of making such new index as comparable as
practicable with the prior base year index. Such conversion factor shall be
obtained from the Bureau of Labor Statistics if in fact the Bureau of Labor
Statistics publishes such a conversion factor, otherwise a nationally recognized
firm of certified public accountants designated by Landlord shall select a
conversion factor.
9.2. Late Payments. If Tenant shall fail to pay when due any Rents or any
other sums due by Tenant to Landlord under or pursuant to this Lease, in
addition to and not in limitation of any other rights or remedies of Landlord,
such unpaid amounts shall bear interest at the Default Rate and, in addition,
Tenant shall pay on each occasion, as Additional Rent, a fee equal to five
percent (5%) of the past due sum for administrative expenses associated with the
collection and processing of late payments. In the event that any check received
by Landlord on account of any Rent required to be paid by Tenant hereunder, or
any other sums required to be paid by Tenant hereunder, is returned by the bank
for insufficient funds, in addition to any other right or remedy available to
Landlord hereunder as a result of Tenant's default, Tenant shall pay Landlord a
"Returned Check Fee" equal to five percent (5%) of the face amount of the check,
to reimburse Landlord for costs and expenses incurred by Landlord in connection
with such returned check. If more than twice during the Term of this Lease any
check(s) delivered to Landlord by Tenant is (are) returned by the bank for
insufficient funds, Landlord may, at its option, on or after the third
occurrence of such an event, declare that an Event of Default has occurred
hereunder and proceed to exercise all of its rights and remedies set forth
herein, or at law or in equity, and without being required to provide notice to
Tenant or any opportunity to cure such default by Tenant, which would otherwise
be required by Section 25.5 hereof. Tenant's obligation to pay Rent is a
covenant independent of Landlord's obligations under this Lease.
9.3. Additional Rent. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become
obligated to Landlord under this Lease for any sum other than Base Rent, the
amount thereof, together with interest thereon at the Default Rate, shall be
deemed to constitute additional rent (the "Additional Rent"), whether or not the
same be so designated, and shall be due and payable by Tenant to Landlord
simultaneously with the next succeeding monthly installment of Base Rent or at
such other time as may be expressly provided in this Lease for the payment of
the same.
9.4. Sales Tax. In addition to the Base Rent, Additional Rent and any
other sums or amounts required to be paid by Tenant to Landlord pursuant to the
provisions of this Lease, Tenant shall also pay to Landlord the amount of any
applicable sales, use or excise tax on any such Rents or other sums or amounts
so paid by Tenant to Landlord, whether the same be levied, imposed or assessed
by the State of Florida or any other federal, state, county or municipal
governmental entity or agency. Any such sales, use or excise taxes shall be paid
by Tenant to Landlord at the same time that each of the Base Rent, Additional
Rent or any other sum or amount with respect to which such taxes are payable are
paid by Tenant to Landlord.
9.5. Net Rents. It is the express intention of Landlord and Tenant that
all Rents for which provision is made in this Lease shall be net rents, such
that Tenant shall pay and Landlord shall receive the same in addition to and
free from any and all costs, charges, expenses and damages that, and which by
the provisions of this Lease, are made expressly, although in general terms,
payable by Tenant; specifically including, without limitation, Tenant's agreed
upon share of those taxes, insurance premiums and operating expenses to which
references are made in Article 11 of this Lease. All Rents and other payments
due to Landlord from Tenant under this Lease shall be due and payable and shall
be paid by Tenant to Landlord free from and without regard to any and all
claims, demands or set-offs of any nature whatsoever which Tenant may have or
allege to have against Landlord, and all such payments shall, upon receipt by
Landlord, be and remain the sole and absolute property of Landlord.
9.6. No Guaranty of Business Success. Tenant acknowledges and agrees that
neither Landlord nor any of its Affiliates has made (and further that Landlord
and its Affiliates hereby absolutely disclaim) any promise, guaranty,
representation or warranty of any kind or nature whatsoever with respect to the
success or failure of the business to be conducted by Tenant within the
Premises, including, without limitation, the maximum or minimum amount of Sales
that may be received by Tenant at any time during the Term or the advertising or
marketing activities or promotional exposure that Landlord may provide with
respect to the Premises (it being acknowledged and agreed by the parties that,
except as may be expressly provided otherwise in this Lease, neither Landlord
nor its Affiliates shall have any obligation or duty whatsoever to advertise,
market or promote the Premises in any manner). Furthermore, Tenant acknowledges
and agrees, that: (i) Landlord and its Affiliates are actively engaged in the
business of developing Downtown Celebration; (ii) one or more of such businesses
in Downtown Celebration could be competitive with respect to the Premises (it
being understood and agreed that no territoriality rights or exclusivities have
been granted by Landlord to Tenant under this Lease or under any other
agreement); and (iii) Landlord and its Affiliates shall be absolutely entitled,
notwithstanding any term, provision or duty (whether expressed or implied) on
the part of Landlord, to make decisions and to take such actions and courses of
dealings with respect to such business interests of Landlord (and its
Affiliates) as Landlord (and its Affiliates) deems appropriate in its
discretion,
13
irrespective of whether any such decision, action or course of dealing may be in
the best interests of the Premises in particular. As a material inducement to
Landlord to enter into this Lease, Tenant, for itself and its Affiliates, hereby
waives and releases Landlord, its Affiliates and their respective officers,
directors, shareholders, agents, contractors and employees from and against any
claim (whether present or future) for loss, damage or expense of any kind or
nature arising out of or with respect to any matter acknowledged or agreed to by
Tenant in this Section.
9.7. Survival. The provisions of this Article 8.1 which, by their context
or application, are intended to do so, shall survive the expiration or earlier
termination of this Lease.
10. COMMON PROPERTY.
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10.1. Tenant's Right to Use Common Property. Tenant shall have and
Landlord hereby grants to Tenant and its employees, customers, patrons,
suppliers, licensees and invitees, during the Term of this Lease, the
non-exclusive right, privilege and license to use and enjoy the Common Property
in common with Landlord and all others entitled to such use, including, without
limitation, all tenants of Downtown Celebration and their respective employees,
customers, patrons, suppliers, licensees and invitees; subject, however, at all
times, to the rules and regulations promulgated by Landlord and/or the
Association from time to time, and to the terms and provisions of this Lease,
and subject further to Landlord's right to grant to tenants within Downtown
Celebration the exclusive right to use portions of the Common Property for
signage and advertising purposes and for the construction, installation,
maintenance and repair of trash/garbage dumpster facilities to serve the
premises leased by such tenants and the businesses operated by such tenants, or
such other use as Landlord may deem necessary in its sole and absolute
discretion. Notwithstanding the foregoing, Landlord shall have the right and
option to grant to third parties the exclusive right to conduct any business or
render any service in or to any portion of Downtown Celebration, including,
without limitation, the Building in which the Premises is located, provided such
exclusive right shall not operate to exclude Tenant from the use expressly
permitted in this Lease. In the event that Landlord deems it necessary to
discourage non-customer use or prevent the acquisition of public rights in
Downtown Celebration, or prevent a dedication thereof or the accrual of any
rights to any person or to the public therein, and, in particular, with respect
to any portion of the Common Property, Landlord may, from time to time,
temporarily close all or portions of the Common Property, erect private boundary
markers, or take such other steps as it deems appropriate in its sole and
absolute discretion for that purpose and no such action shall be deemed to
constitute or considered as an eviction or disturbance of Tenant's quiet
enjoyment or possession of the Premises so long as such steps are accomplished
without substantial disruption of Tenant's business. Landlord reserves the
right, from time to time and at any time in its sole and absolute discretion, to
perform maintenance, repairs and alterations to, and reduce or expand the size
of, Downtown Celebration and its various improvements and component parts; to
change the name, size, number, design, configuration, location and legal
description of any Buildings located within Downtown Celebration, including,
without limitation, that of the Building, and to build additional stories
thereon and erect in connection with any construction thereof, temporary
scaffolds and other construction aids (provided, however, that access to the
Premises by Tenant shall not be denied) and to thereby change the size,
configuration, location and legal description of the Common Property. Landlord
also reserves the right to change the size, configuration, layout and pedestrian
or vehicular traffic circulation pattern of all facilities and improvements from
time to time located, developed and constructed on the Common Property, and to
enter into, modify and terminate easements and other agreements pertaining to
the maintenance and use of the parking areas and other portions of the Common
Property. Landlord further reserves the right to install and operate music
program services and loud speaker systems within the Common Property. Tenant
agrees to cooperate with Landlord with respect to Landlord's exercise of any of
the foregoing rights.
10.2. Management of Common Property. The Common Property shall at all
times be subject to the exclusive management and control of Landlord. Landlord
shall manage, operate and maintain (or cause to be managed, operated and
maintained) the Common Property and all facilities and improvements from time to
time located, developed and constructed thereon specifically including, without
limitation, all lawn, landscaping and planting areas, in a first-class manner
and state and condition of appearance and repair, and the cost thereof shall be
deemed to be a Downtown Celebration Common Expense, Building Common Expense or
Downtown Celebration Office Common Expense, as applicable. Landlord hereby
reserves, and shall at all times hereafter have, the right, in its sole and
absolute discretion, to delegate the management of the Common Property by
contract to a third party of its choice.
10.3. Employee Parking. Landlord shall have the right, from time to time,
to designate within the Common Property certain areas of Downtown Celebration
for tenant and tenant employee parking, and Tenant agrees that Tenant and its
employees shall not thereafter park in any portion of Downtown Celebration
except those areas so designated by Landlord. In order to facilitate the
enforcement of such restriction on Tenant and employee parking, Tenant agrees
that it shall, upon Landlord's request, furnish and provide to Landlord the
automobile license tag numbers of all Tenant and employee vehicles.
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11. COMMON EXPENSES.
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11.1. Tenant's Payment of Common Expenses.
11.1.1 During each month of the Term of this Lease commencing in the
first month in which Base Rent is payable by Tenant, Tenant shall pay to
Landlord, as Additional Rent, in advance and simultaneously with each monthly
installment of Base Rent, and without demand, deduction or set-off, one-twelfth
(1/12) of: (i) Tenant's Share of the Designated Office Share of the Downtown
Celebration Common Expenses; (ii) Tenant's Share of the Building Common
Expenses; and (iii) Tenant's Share of the Downtown Celebration Office Common
Expenses (the foregoing expenses, specifically excluding real estate taxes,
property insurance and utilities, shall be collectively referred to as the
"Common Expenses") (all as more particularly described in Sections 11.2, 11.3
and 11.4 below), together with all applicable sales and use taxes thereon, if
any, for each respective year during which the Term of this Lease occurs, based
upon estimates thereof made by Landlord from time to time. Landlord shall
provide Tenant with estimates of such expenses at or prior to the Commencement
Date. Initially, Tenant shall pay such amounts based upon such estimates. Such
estimates may be revised at any time and from time to time, and shall take into
account the actual amount of Downtown Celebration Common Expenses, Downtown
Celebration Office Common Expenses and Building Common Expenses, respectively,
for all previous years, if available, together with Landlord's estimate of
anticipated Downtown Celebration Common Expenses, Downtown Celebration Office
Common Expenses and Building Common Expenses, respectively, for the current
year. Should the Downtown Celebration Common Expenses, Downtown Celebration
Office Common Expenses or Building Common Expenses be underestimated for any
period, Tenant shall pay to Landlord, upon demand, any deficiency between the
estimated installments with respect thereto previously made by Tenant to
Landlord and the actual Downtown Celebration Common Expenses, Downtown
Celebration Office Common Expenses and the Building Common Expenses and
thereafter, Tenant shall pay the revised Tenant's Share of Downtown Celebration
Common Expenses, Downtown Celebration Office Common Expenses and Building Common
Expenses in equal monthly installments as hereinabove provided. Any excess
payments made by Tenant shall be respectively credited against the
installment(s) of Downtown Celebration Common Expenses, Downtown Celebration
Office Common Expenses or Building Common Expenses next coming due.
11.2 Downtown Celebration Common Expenses.
11.2.1 For purposes of this Lease, the term "Designated Office Share
of Downtown Celebration Common Expenses" shall be an amount equal to twenty-five
percent (25%) of the "Downtown Celebration Common Expenses". The "Downtown
Celebration Common Expenses" shall include all the costs, expenses and
disbursements of every kind and nature incurred by Landlord, directly or
indirectly, by virtue of or in connection with owning, operating, managing,
maintaining, repairing and replacing the Downtown Celebration Property including
all Downtown Celebration Buildings located therein and including the Common
Property (excepting only: (i) debt service (principal and interest) on any
mortgage encumbering the Downtown Celebration Property, paid or incurred by
Landlord; and (ii) Building Common Expenses). The Downtown Celebration Common
Expenses shall specifically include, without limitation, those items and charges
described on Exhibit "H" attached hereto.
11.2.2 "Tenant's Share" of the Designated Office Share of the
Downtown Celebration Common Expenses shall be equal to the Allocated Percentage
Share of the Designated Office Share of the Downtown Celebration Common Expenses
(as set forth in Section 1 of this Lease), multiplied by the actual amount of
the Designated Office Share of the Downtown Celebration Common Expenses. Tenant
acknowledges that Tenant's Allocated Percentage Share of the Designated Office
Share of Downtown Celebration Common Expenses is based upon the proportion that
the Rentable Floor Area bears to the total rentable floor area of improvements
within Downtown Celebration that are leased, or currently intended to be leased
to Office Tenants (as hereinafter defined). The Designated Office Share of
Downtown Celebration Common Expenses is based upon Landlord's determination of
the equitable allocation, based on benefit received, of the Downtown Celebration
Common Expenses among the various types of tenants intended to occupy Downtown
Celebration.
11.2.3 With respect to the taxes and assessments levied by the CDD
against Landlord, as set forth on Exhibit "H", Landlord has the option to elect,
from time to time in its sole and absolute discretion, to include less than all
of the taxes and assessments imposed by the CDD and otherwise includable in the
computation of the Downtown Celebration Common Expenses. Landlord's election to
include less than all of the taxes and assessments in any given Lease Year shall
not in any way affect or bar Landlord's right to include up to the entire amount
of taxes and assessments imposed by the CDD in any subsequent Lease Year.
11.3 Downtown Celebration Office Common Expenses. As provided in Section
11.1 of this Lease, Tenant also agrees to pay to Landlord "Tenant's Share" of
the total costs and expenses (other than Downtown Celebration Common Expenses)
incurred by Landlord in operating, maintaining, managing, repairing and
replacing all or any portion of the Downtown Celebration Property that is
attributable to, or is for the exclusive benefit of, only the Office Tenants of
Downtown Celebration (the "Downtown Celebration
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Office Common Expenses"). For purposes of this Lease, an "Office Tenant" shall
be any tenant, or Landlord, that operates an office in Downtown Celebration or
who is deemed by Landlord, in Landlord's sole discretion, to be an Office
Tenant. The items and charges comprising the Downtown Celebration Office Common
Expenses shall specifically include, without limitation, the cost for trash
removal, janitorial and customary office cleaning services for all the Office
Tenants in Downtown Celebration. "Tenant's Share" of the Downtown Celebration
Office Common Expenses shall be equal to the Allocated Percentage Share of
Downtown Celebration Office Common Expenses (as set forth in Section 1.1 of this
Lease), multiplied by the actual amount of such Downtown Celebration Office
Common Expenses. Tenant acknowledges that Tenant's Allocated Percentage Share of
Downtown Celebration Office Common Expenses is based upon the proportion that
the Rentable Floor Area bears to the gross square footage of all leasable area
of all existing or proposed improvements within Downtown Celebration that are
leased, or intended by Landlord to be leased to Office Tenants. Notwithstanding
the foregoing, in the event any Downtown Celebration Office Common Expense
benefits some but not all of the Office Tenants of Downtown Celebration,
Landlord reserves the right to adjust Tenant's Allocated Percentage Share of
Downtown Celebration Office Common Expenses, so that such expense is fairly and
equitably allocated and borne by only those Office Tenants who actually benefit
from such expense.
11.4 Building Common Expenses. As provided in Section 11.1 of this Lease,
Tenant also agrees to pay to Landlord, Tenant's Share of the total costs and
expenses (other than Downtown Celebration Common Expenses and Downtown
Celebration Office Common Expenses) incurred by Landlord, directly or
indirectly, by virtue of or in connection with its owning, operating, managing,
maintaining, repairing and replacing all or any portion of the Building that is
attributable to, or is for the exclusive or primary benefit of all the tenants
of the Building, but not Downtown Celebration generally (the "Building Common
Expenses"). The items and charges comprising the Building Common Expenses shall
specifically include, without limitation, all utility costs and expenses for the
Building and the costs and expenses for maintaining, repairing and replacing the
structural walls, roof and foundation of the Building and all carpeting, tile or
other floor coverings, wall coverings, and light fixtures in the common areas of
the Building, if any. "Tenant's Share" of the Building Common Expenses shall be
equal to the Allocated Percentage Share of Building Common Expenses (as set
forth in Section 1 of this Lease), multiplied by the actual amount of such
Building Common Expenses (not including any Building Commercial Common
Expenses). Tenant acknowledges that Tenant's Allocated Percentage Share of
Building Common Expenses is based upon the proportion that the Rentable Floor
Area bears the total rentable floor area within the Building. Notwithstanding
the foregoing, in the event any Building Common Expense benefits some but not
all the tenants of the Building, Landlord reserves the right to adjust Tenant's
Allocated Percentage Share of Building Common Expenses (and the corresponding
allocated shares of the other tenants in the Building), so that the cost of such
Common Expense is fairly and equitably allocated and borne by only the tenant or
tenants in the Building who actually benefit from such Common Expense.
11.5 Change of Designated Office Share of Downtown Celebration Common
Expenses and Tenant's Allocated Percentage Shares. Tenant acknowledges that the
Designated Office Share of Downtown Celebration Common Expenses is based on the
projected relative proportion of the area within Downtown Celebration intended
to be devoted to retail, office and apartment uses and Landlord's determination
of the relative benefit to be derived by each class of tenant from the Downtown
Celebration Common Expenses.
11.5.1 Tenant further acknowledges that Tenant's Allocated
Percentage Share of the Designated Office Share of Downtown Celebration Common
Expenses, Tenant's Allocated Percentage Share of Building Common Expenses, and
Tenant's Allocated Percentage Share of Downtown Celebration Office Expenses are
based on the Rentable Floor Area in relation to the total rentable floor area of
leasable areas in: (a) improvements intended to be leased to Office Tenants in
Downtown Celebration, as to Tenant's Allocated Percentage Share of the
Designated Office Share of Downtown Celebration Common Expenses and as to
Tenant's Allocated Percentage Share of Downtown Celebration Office Common
Expenses; and (b) the Building, as to the Building Common Expenses.
11.5.2 Notwithstanding the foregoing, Landlord shall have the right,
all times and from time to time, to change the Designated Office Share of
Downtown Celebration Common Expenses, Tenant's Allocated Percentage Share of the
Designated Office Share of the Downtown Celebration Common Expenses, Tenant's
Allocated Percentage Share of Building Common Expenses, and Tenant's Allocated
Percentage Share of the Downtown Celebration Office Common Expenses or the
method of allocation, in any manner which Landlord may, in its discretion, deem
to be a fairer or more equitable allocation thereof, or if Landlord deems an
adjustment to be desirable due to a change in the actual or projected leasable
area within Downtown Celebration or the Building, or due to a change in the
proposed uses of such leasable areas.
11.6 Cleaning Services. Landlord shall remove trash generated by Tenant
from the Premises in the ordinary course of its business (in accordance with the
Permitted Use) and place the trash in dumpsters provided on the Common Property
behind the Premises. Additionally, Landlord shall provide janitorial service and
cleaning in and about the Premises as a portion of the Building Common Expenses
to Tenant. Landlord shall also provide, as a portion of the Building
16
Common Expenses, insect and pest control service for the Premises not less than
monthly. Tenant shall be responsible for the costs associated with the disposal
of any hazardous waste (and biomedical waste, if applicable) which is produced
or generated by Tenant in connection with the operation of Tenant's business in
the Premises.
11.7 Fire Monitoring. Landlord may elect, from time to time, to provide,
or cause others to provide, monitoring of an automated fire detection system
which is integrated into the fire sprinkler system that is a part of the
Premises, and the cost therefor shall be a Downtown Celebration Common Expense
as provided in Section 11.211.2 of this Lease. If and to the extent that
Landlord elects to provide, or cause others to provide, the fire monitoring
service for the Premises, Tenant acknowledges that Landlord shall not, by virtue
of having elected to provide such service, be deemed to have accepted any
responsibility or liability in the event of any malfunction of the fire
monitoring system or service or in the event of any negligence of any party in
the operation and monitoring of the fire monitoring service, and Landlord shall
not, by virtue of having elected to provide such service, be liable for and
Tenant shall indemnify, defend and hold harmless Landlord from and against any
damage, loss, injury, claim, action, cost or expense (of any nature) that may be
sustained as the result of any fire that may hereafter occur in the Premises or
any alleged or actual failure of the fire monitoring system to prevent or
minimize any damage resulting therefrom.
12. ADVERTISING AND PROMOTION.
--------------------------
12.1. Exclusive Rights Granted to Landlord. In consideration of this Lease
and other good and valuable consideration, the receipt of which is hereby
acknowledged, Tenant hereby acknowledges The Disney Company and its Affiliates
and the Theme Parks owned by said Affiliates, for the Term of this Lease,
including all extension periods, if any, the exclusive right to be the only
Entertainment Company and Theme Parks identified or represented to the public in
any manner at, in, from or in connection with the Premises, or any services,
research, products, materials or facilities identified with the Premises or
distributed or sold from the Premises, or to sponsor, in any manner, any portion
of the Premises or any facilities, services, programs, improvements or events
related thereto.
12.2. Prohibited Marketing Activities. In furtherance and not in
limitation of Section 12.1, Tenant acknowledges and agrees that neither Tenant
nor any of Tenant's Affiliates may, during the Term of this Lease, including all
extension periods, if any, directly or indirectly engage in any promotional,
sponsorship, joint marketing, cross promotional, advertising or similar
relationships, events or programs (collectively "Marketing Activities") with any
Theme Park (other than a Theme Park owned by The Disney Company and its
Affiliates with Landlord's approval) or Entertainment Company (other than any of
The Disney Company and its Affiliates). Furthermore, Tenant shall not permit any
Theme Park (other than a Theme Park owned by any of The Disney Company and its
Affiliates) or any Entertainment Company (other than any of The Disney Company
and its Affiliates) to engage, directly or indirectly, in any Marketing
Activities at, in from or in connection with the Premises or with or identifying
Tenant, any of Tenant's Affiliates or the Premises, nor shall Tenant fail to
make reasonable efforts to prohibit or prevent any such prohibited Marketing
Activities.
13. INSURANCE.
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13.1. Insurance by Tenant. Throughout the Lease Term, Tenant shall, at its
sole cost and expense, maintain in full force and effect the following types and
amounts of insurance coverage:
13.1.1. Liability Insurance. Tenant shall provide and keep in full
force and effect a policy or policies of comprehensive automobile insurance
covering owned, non-owned, hired or rented automotive equipment and commercial
general liability and property damage insurance with each providing coverage
against liability for personal injury, death and property damage and each having
a combined single limit of not less than TWO MILLION DOLLARS ($2,000,000.00)
with respect to injuries, deaths or damages in any one occurrence, and with
deductible amounts not exceeding TEN THOUSAND DOLLARS ($10,000.00) for each
occurrence. Said insurance, and any and all other liability insurance maintained
by Tenant in excess of or in addition to that required hereunder, shall include
protection for, and, in addition to Tenant, shall name as an additional insured,
the Association, Landlord (and, if such insurance providing protection for the
following is available, Landlord's property manager, Landlord's parent company,
their related, affiliated and subsidiary companies, and the officers, directors,
agents, employees and assigns of each) and any lender or ground landlord
hereafter holding any interest in Downtown Celebration, the effect of which will
insure it (and, if available, them) in respect of any and all loss or liability
resulting from personal injury, bodily injury (including death) or property
damage arising or occurring upon, or in connection with, or by reason of the use
and occupancy of the Premises or by reason of the operation of the business
contemplated by this Lease to be conducted by Tenant upon, within and from the
Premises (and, if insurance covering the acts or omissions of the following is
available, by any person controlling, controlled by or under common control with
Tenant or by
17
Tenant's subtenants and concessionaires). Landlord reserves the right to specify
higher liability limits or additional insurance coverage from time to time to
meet reasonably anticipated loss exposure, or to reflect changes in the value of
the Premises.
13.1.2. Workers' Compensation and Employer's Liability Insurance.
Tenant shall provide and keep in full force and effect workers' compensation
insurance, in a form and with coverage limits not less than as prescribed by the
laws of the State of Florida, and employers' liability insurance in an amount
equal to the greater of TWO MILLION DOLLARS ($2,000,000.00) or the minimum
amount required by law.
13.1.3. Builder's Risk Insurance. Tenant shall, prior to the
commencement of and during any construction work on the Premises (but, in the
event Landlord is obligated to construct the Tenant Improvements, excluding the
period during which Landlord is constructing such Tenant Improvements), and as
often as Tenant may construct, replace, reconstruct, restore or make a
substantial alteration to, any improvement thereon, provide and keep in full
force and effect builders' risk insurance in accordance with the requirements of
this Article for the full replacement cost of such work.
13.1.4. Property Insurance. Tenant shall provide and keep in full
force and effect a policy of fire, windstorm and other perils generally included
under extended coverage insurance (including coverage for water damage and
sprinkler leakage) in an amount adequate to cover the replacement cost of all
interior improvements (including, without limitation, the Tenant Improvements)
made in the Premises and Tenant's Trade Fixtures, inventory and other contents
located in the Premises from time to time. Such policy shall name Landlord as an
additional insured and as the loss payee thereunder. All insurance or
condemnation proceeds resulting from the taking, destruction or damage to
interior improvements (including, without limitation, the Tenant Improvements)
and Trade Fixtures shall be paid to and may be retained by Landlord, except as
otherwise expressly provided herein.
13.1.5. Plate Glass Insurance. Tenant shall keep and maintain in
force during the Term hereof, plate glass insurance upon the windows and doors
of the Premises in amounts which reasonably assure that there will be sufficient
proceeds to replace all plate glass in the windows and doors of the Premises.
13.1.6. Business Interruption Insurance. Tenant shall provide, keep
and maintain business interruption insurance in amounts sufficient to prevent
Tenant from becoming a co-insurer thereof, and to assure the continuance of the
operating income and profit of Tenant's business during any period in which
Tenant is unable to conduct such business in the Premises, or any part thereof,
by reason of loss or damage.
13.1.7. Other Insurance/Higher Limits. Tenant shall provide, keep
and maintain in full force and effect such other insurance for such risks and in
such amounts as may from time to time be commonly insured against in the case of
business operations similar to those contemplated by this Lease to be conducted
by Tenant at, in and from the Premises. Landlord reserves the right to specify
higher liability limits or additional insurance coverage (than those set forth
herein) from time to time to meet reasonably anticipated loss exposure, or to
reflect changes in the value of the Premises.
13.2. Carriers and Features. All insurance policies required to be carried
by Tenant as provided in this Article shall be issued by fiscally responsible
insurance companies (having a Best Rating of not less than A+VIII) authorized
and licensed to do business in the State of Florida and each policy shall
provide that it is primary, noncontributory insurance as respects any other
valid and collectible insurance which Tenant or Landlord may possess and that
any other insurance which either does possess shall be considered excess
insurance only. All such policies shall be for periods of not less than one (1)
year and Tenant shall renew the same at least thirty (30) days prior to the
expiration thereof. All such policies shall include the insurer's unconditional
agreement to provide not less than thirty (30) days' written notice to Landlord
prior to any cancellation thereof or any change reducing coverage thereunder.
Any insurance coverage required by this Article may be effected by means of a
policy or policies of blanket insurance covering the Premises and other
premises; provided, however, that any such blanket policy shall specify therein,
or Tenant shall furnish Landlord with a written statement from the insurer or
its agent specifying, the amount of the total insurance allocated to the
Premises and confirmation that losses occasioned by Tenant at other facilities
will not diminish the amount of insurance coverage available for the Premises
below the amount required herein. In the event Tenant shall fail to procure
insurance required under this Article and/or shall fail to maintain the same in
full force and effect continuously during the Term of this Lease, Landlord shall
be entitled, but shall not be obligated, to procure the same and Tenant shall
immediately reimburse Landlord for such premium expense, with interest, as
Additional Rent. Additionally, Landlord shall have the right, at Landlord's
option, to treat such failure by Tenant to procure required insurance as an
Event of Default hereunder.
13.3. Payment of Premiums. Tenant shall pay the premiums (on not less than
a quarterly basis) for all insurance policies which Tenant is obligated to carry
under this Article and, at least five (5) days prior to the date any such
insurance must be in effect,
18
deliver to Landlord a copy of the policy or policies, or a certificate or
certificates thereof, along with evidence that the premiums therefor have been
paid for at least the next ensuing quarter-annual period. Tenant shall also
deliver to Landlord copies of all policies, or certificates thereof, of all
policies of liability insurance maintained by Tenant in excess of or in addition
to the insurance required by this Article. Tenant agrees not to keep upon the
Premises any articles or goods which may be prohibited by the standard form of
fire and extended coverage insurance policy. In the event that the insurance
premiums applicable to fire and extended coverage insurance covering the
Building shall be increased by reason of any use of the Premises made by Tenant,
Tenant shall pay to Landlord as Additional Rent, the amount of the increase in
the insurance premium occasioned by such use. Each of Landlord and Tenant will
cooperate with the other party in connection with the processing of claims and
the collection of any insurance proceeds that may be payable in the event of
loss or claim under any of the above-described policies of insurance and execute
and deliver to the insurers such proofs of loss and other documents as may be
required for the recovery of the proceeds of any such insurance.
13.4. Insurance by Landlord. Landlord shall maintain fire and extended
coverage insurance on the Building in an amount not less than 80% of the
replacement cost of the Building and commercial general liability insurance
relating to the Building and its appurtenances in an amount not less than $3
million per occurrence. In addition, Landlord may, at its option, maintain
coverages in excess of the minimum limits set forth in this section and
additional coverages as specified in the definition of Operating Expenses. The
total cost of all insurance maintained by Landlord under this Section shall be
included in Operating Expenses.
13.5. Waiver of Subrogation. Tenant agrees that if any property owned by
it and located in the Premises shall be stolen, damaged or destroyed by an
insured peril, Landlord shall not have any liability to Tenant, nor to any
insurer of Tenant, for or in respect of such theft, damage or destruction, and
Tenant shall require all policies of risk insurance (including those referenced
in Sections 13.1.3, 13.1.4, 13.1.5, 13.1.6) carried by it on its property in the
Premises to contain or be endorsed with a provision in and by which the insurer
designated therein shall waive its right of subrogation against Landlord. Tenant
hereby waives any and all right of recovery which it might otherwise have
against Landlord, its agents and employees, for loss or damage to Tenant
Improvements and/or any of the contents, merchandise, inventory, furniture,
furnishings, fixtures and any other property of Tenant contained within the
Premises whether or not removable by Tenant under the provisions of this Lease,
to the extent that the same are covered by Tenant's insurance or would have been
covered had Tenant maintained the insurance required under this Article 13 to be
maintained by Tenant, notwithstanding that such loss or damage may result from
the negligence or fault of Landlord, its agents or employees and Tenant shall
cause the insurers issuing policies of insurance under this Article 13 to waive
any right of subrogation with respect thereto. Tenant shall insure against all
such losses as hereinabove provided in this Article 13 of this Lease.
14. DAMAGE OR DESTRUCTION.
----------------------
14.1. Partial Destruction. If, during the Term of this Lease, the Premises
shall be damaged or destroyed, in part, by fire, windstorm or other hazard or
casualty normally covered by policies of fire and extended coverage insurance
carried by Landlord, but the Premises nonetheless remain sufficient and
suitable, in the reasonable judgment of Landlord, for the continued operation of
the business contemplated by this Lease to be conducted thereon, therein and
therefrom such that the Premises is not effectively rendered untenantable
thereby, Tenant shall give Landlord immediate notice thereof and, subject to the
provisions of Section 27.9 of this Lease, Landlord shall, at its expense,
promptly cause such damage or destruction to be repaired, reconstructed or
replaced, as necessary, but only to the extent of Landlord's original
construction obligations pursuant to this Lease and not, however, including any
of Tenant's Trade Fixtures or Tenant leasehold improvements, to substantially or
as nearly as practicable to the character and condition thereof immediately
prior to such occurrence (subject, however, to any changes required by zoning
and building laws then in existence) and the Rent payable hereunder during such
period shall not be abated.
14.2. Total Destruction. If the Premises shall be so damaged or destroyed
as to render it, in the reasonable judgment of Landlord, wholly untenantable by
reason of such occurrence, as aforesaid, Landlord shall, at its own expense, to
the extent Landlord receives adequate insurance proceeds, cause such damage or
destruction to be repaired, reconstructed or replaced, as necessary, but only to
the extent of Landlord's original construction obligations pursuant to this
Lease and not, however, including any of Trade Fixtures or Tenant leasehold
improvements, to substantially or as nearly as practicable to the character and
condition thereof immediately prior to such occurrence (subject, however, to any
changes required by zoning and building laws then in existence) and the Rent
payable hereunder during such period shall not be abated; provided however, that
Landlord shall have the right, to be exercised by notice in writing delivered to
Tenant within sixty (60) days from the date of the occurrence of such damage or
destruction, to elect not to repair, replace or reconstruct the destroyed
Premises, and in such event, this Lease and the tenancy hereby created shall
cease as of the date of such occurrence, and the Rent shall be adjusted as of
such date.
14.3. Limitation of Landlord's Obligation; Tenant's Obligation.
Notwithstanding anything to the contrary contained herein, in no event shall
Landlord be obligated to expend for such repairs, reconstruction or replacement
an amount in excess of the
19
insurance proceeds recovered on account of any such damage or destruction.
Moreover, Landlord shall not be liable for delays occasioned by adjustment or
losses with insurance carriers or by any other cause so long as Landlord shall
proceed in good faith and with due diligence. Tenant, at its sole cost and
expense, shall be responsible for the repair, replacement and reconstruction of
all items which would have initially have been considered part of Tenant
Leasehold Improvements (including, without limitation, all the Trade Fixtures
and its other furniture, furnishings and equipment). Tenant shall commence the
performance of the foregoing repair, replacement and restoration promptly upon
delivery to it of possession of Premises and shall diligently prosecute the same
to completion immediately following the reconstruction of Landlord's
obligations, all such work to be completed within a reasonable period of time
not to exceed ninety (90) days following the date of delivery of possession of
the Premises to Tenant. Following the completion of, and payment for, all work
required to be performed by Landlord under this Article 14, Landlord shall
disburse to Tenant from any remaining net insurance proceeds received by
Landlord from policies of insurance maintained by Tenant under Section 13 above,
as repair, replacement and reconstruction of Tenant's work progresses, such sums
as are reasonably necessary to enable Tenant to perform Tenant's work; provided,
however, that Landlord shall in no event be required to expend any of its own
funds in connection with the repair, replacement or reconstruction of Tenant's
work. Any net insurance proceeds remaining after Tenant shall have satisfied its
obligations under this Article 14 shall be retained as the sole property of
Landlord.
14.4. Destruction of Building or Downtown Celebration. Anything contained
hereinabove to the contrary notwithstanding, in the event that fifty percent
(50%) or more of the rentable area of Downtown Celebration, or fifty percent
(50%) or more of the rentable area of the Building, shall be damaged or
destroyed by any fire or casualty, or if Landlord's mortgagee requires the
insurance proceeds to be applied to the mortgage debt, then, whether or not the
Premises shall have been damaged by such casualty, Landlord shall have the right
(but not the obligation) to terminate this Lease by giving written notice of
such termination to Tenant within ninety (90) days after such casualty. Upon the
giving of such notice to Tenant, the Term of this Lease shall expire by lapse of
time upon the thirtieth (30th) day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord in accordance with the
provisions of Article 22 of this Lease.
15. ALTERATIONS AND REMOVALS.
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15.1. Alterations. Except as otherwise required herein, Tenant shall not
make any alterations, additions, remodeling, improvements, or work of any kind
or nature (herein referred to collectively as "Alteration") of or to the
interior or the exterior of the Premises or cut or drill into the Premises or
install any awning, canopy, antenna, fixture, furniture, apparatus, equipment or
device of any kind (herein referred to collectively as "Fixtures") in or upon
the interior or the exterior of the Premises, without the prior written consent
of Landlord, which consent Landlord may withhold in its sole and absolute
discretion, except for the installation in the interior of the Premises of
unattached, movable trade fixtures and furniture which may be installed without
drilling, cutting or otherwise defacing the Premises (herein referred to as
"Removable Trade Fixtures"). Removable Trade Fixtures and Fixtures (subject to
obtaining Landlord's approval of the installation thereof) installed by Tenant
shall be new. In furtherance and not in limitation of the foregoing, Tenant
shall not make or permit to be made any alteration or change to or otherwise
interfere or permit any interference with the operation of the Condenser Water
System, HVAC System, the sprinkler system (if any) and any other Building
systems which may now or hereafter be installed in the Premises. Tenant shall
submit to Landlord for its review and approval, complete plans and
specifications for any proposed Alteration at the time approval is sought, and
if necessary, resubmit the same from time to time, within fifteen (15) days
after receipt of written notice of disapproval thereof from Landlord, until the
same are approved by Landlord. All work to be completed by Tenant with respect
to any Alteration shall be completed in the manner set forth in this Lease.
Anything contained herein to the contrary notwithstanding, if anything done or
suffered to be done by Tenant in, upon or about the Premises shall cause any
damage to any such system, Tenant shall promptly notify Landlord and shall, at
Landlord's option, either repair such damage or pay to Landlord, upon demand and
as Additional Rent, the cost to Landlord of repairing the same. Tenant shall
comply with all applicable federal, state, county and local laws and ordinances
(including, without limitation, the ADA) and all rules and regulations of any
governmental authority having jurisdiction over the Premises.
15.2. Ownership of Fixtures. All Alterations made and all Fixtures
installed in or to the Premises (except Removable Trade Fixtures), including,
without limitation, heating and air conditioning equipment, lighting fixtures,
store front, ceiling, wall treatment, floor covering, plumbing and electrical
systems and fixtures shall become the property of Landlord upon the expiration
or earlier termination of this Lease, without any compensation therefor to
Tenant, and shall not be removed by Tenant at or before the expiration or
earlier termination of this Lease unless Landlord shall give notice to Tenant to
remove any or all of the same, in which event Tenant shall remove such of said
Alterations and Fixtures as may be specified by Landlord in Landlord's notice to
Tenant and Tenant shall repair all damage caused by such removal and restore the
Premises to their original order and condition.
15.3. Ownership of Removable Trade Fixtures. All Removable Trade Fixtures
installed in the Premises by Tenant shall remain the property of Tenant and
shall be removed by Tenant at the expiration or earlier termination of this
Lease; provided that
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Tenant shall not at such time be in default hereunder and provided further that
Tenant shall repair all damage caused by such removal and restore the Premises
to its original order and condition. Any Removable Trade Fixtures not removed by
Tenant at the expiration or earlier termination of this Lease (including,
without limitation, a termination of this Lease by Landlord) shall be and become
the property of Landlord without any obligation on the part of Landlord to pay
compensation therefor to Tenant, unless Landlord shall give notice to Tenant to
remove any or all of the same, in which event Tenant shall remove such of said
Removable Trade Fixtures as may be specified in Landlord's notice to Tenant.
Should Tenant fail to remove any Alterations or Fixtures (including, without
limitation, Removable Trade Fixtures) and/or fail to restore the Premises as
required under Section 15.2 or Section 15.3 hereof, Landlord may do so, in which
event Tenant shall pay to Landlord the cost and expense thereby incurred as
Additional Rent, plus interest thereon at the Default Rate, which sums shall be
payable on demand.
16. MAINTENANCE AND REPAIRS.
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16.1. Tenant's Obligation. Except for those portions of the Premises which
shall be maintained, repaired and replaced by the Landlord as provided in
Section 16.2 of this Lease, Tenant shall, at all times during the Term of this
Lease, at its sole cost and expense, maintain, repair and replace the Premises,
and all portions and components thereof, and keep the same in good and safe
order, condition and repair, including, without limitation, all interior
partitions, windows, doors, glass, floor coverings, walls and other Tenant
Leasehold Improvements, including, without limitation, all electrical, lighting,
plumbing, heating, air conditioning or other fixtures and equipment which are
installed within the Premises (on which Tenant shall maintain a service and
maintenance contract for regular service inspection, and emergency and
extraordinary repair of the air conditioning units(s) on the Premises, with a
qualified and fully licensed contractor acceptable to Landlord). In furtherance
thereof, Tenant shall make all necessary and desirable repairs and replacements
to the Premises and all portions and components thereof, ordinary and
extraordinary, however the necessity or desirability for repairs and
replacements shall occur, and whether or not necessitated by wear, tear,
obsolescence or defects, patent or latent, or otherwise and shall use all
reasonable precautions to prevent waste, damage or injury to the Premises.
Tenant agrees that it shall keep the inside and outside of all glass in doors
and windows of the Premises clean, and replace promptly, at its own expense, any
plate glass or window glass of the Premises which may become cracked or broken
with glass of a like kind and quality. Tenant also agrees not to place or
maintain any merchandise or other articles on the exterior sidewalk(s) adjacent
to the Premises or elsewhere on the exterior thereof; not to permit
accumulations of garbage, trash, rubbish and other refuse on the interior or the
exterior of the Premises; to keep such refuse in proper containers (whether or
not in a trash room maintained by Tenant) in the interior of the Premises until
removed and to remove all garbage, trash or rubbish from the Premises and to
otherwise maintain the Premises in a clean, orderly and sanitary condition free
of insects, rodents, vermin and other pests and to obtain and maintain a service
contract with a reputable pest control contractor reasonably acceptable to the
Landlord. Notwithstanding the foregoing, all repairs and maintenance to be
performed with respect to electrical, lighting, plumbing, heating, air
conditioning or other fixtures or equipment which might, in the reasonable
judgment of Landlord, affect the electrical, lighting, plumbing, HVAC System,
sprinkler system or other Building systems shall be performed, at Landlord's
election, either by Landlord (at Tenant's sole cost and expense as Additional
Rent) or by a contractor approved by Landlord (in Landlord's reasonable
discretion) (at Tenant's sole cost and expense as Additional Rent). Tenant
shall, not later than the Commencement Date, provide Landlord with written
copies of service and maintenance contracts entered into by Tenant, including,
without limitation, those for service and maintenance of all HVAC Systems
serving the Premises, for Landlord's review and approval. Any breach by Tenant
of such obligations shall, at Landlord's option, constitute an Event of Default
hereunder.
16.2. Landlord's Obligation. Landlord shall keep, maintain, repair and
replace the exterior of the Premises (except those exterior portions and
components thereof which are to be maintained and repaired by Tenant, as
hereinabove provided in Section 16.1), all structural elements of the Premises
and Building (whether interior or exterior and including, without limitation,
the foundations, supporting columns, load bearing walls, floors and floor slab
and the roof structure), the Condenser Water System and the HVAC System, and all
Building Systems in good condition and repair, ordinary wear and tear excepted,
and shall have the right of entry onto the Premises at all times for the purpose
of performing same. All costs associated therewith shall be either a Building
Common Expense, or a Downtown Celebration Common Expense, as applicable. In no
event, however, shall Landlord be liable for damages or injuries arising from
the failure to make said repairs, nor shall Landlord be liable for damages or
injuries arising from defective workmanship or materials in making any such
repairs. Landlord shall have no obligation to repair until a reasonable time
after the receipt by Landlord of written notice of the need for repairs. Tenant
waives the provision of any law, or any right Tenant may have under common law,
permitting Tenant to make any repair at Landlord's expense. In no event shall
Landlord be required to make any repairs to, or replacements of, the Condenser
Water System, the HVAC System, the exterior or structural elements of the
Premises, including, without limitation, the roof over the Premises, any
Building systems or any other portion of the Premises, the Building or Downtown
Celebration, if necessitated by reason of acts or omissions of Tenant, its
employees, agents, contractors, customers, licensees, or invitees, and if
Landlord shall elect to perform any such repairs, Landlord may add the cost of
such repairs to the Rents otherwise due pursuant to this Lease and the same
shall be due and payable on demand as Additional Rent. In addition, Landlord
shall not be required to maintain, or to make any repairs to, or replacements
of, any improvements, fixtures or equipment installed within the
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Premises, and if Landlord shall elect to maintain or to repair and replace the
same as provided in Section 16.1 above, or if Landlord shall be requested to
maintain, repair or replace the same by Tenant (and Landlord shall elect, in its
sole and absolute discretion, to do so), Landlord may add the cost of such
repairs to the Rents otherwise due and payable under this Lease and the same
shall be due and payable on demand as Additional Rent.
17. LANDLORD'S RIGHT TO INSPECT. Landlord and its agents shall have the right to
enter upon the Premises at any reasonable time to inspect the operation,
sanitation, safety, maintenance and use of the same, or any portions of the
same, and to assure itself that Tenant is in full compliance with its
obligations under this Lease, to conduct from time to time an ADA inspection or
audit of the Premises, and Tenant agrees to cooperate in the conduct of such
investigation or audit. If any investigation or audit detects a violation of
Tenant's obligation to comply and to keep the Premises in compliance with the
requirements of this Lease, then Tenant shall bear the cost and take whatever
action is necessary to comply, and bring the Premises into compliance with this
Lease and any fee or cost incurred by Landlord for such investigation or audit
shall be borne by Tenant and shall be paid by Tenant as Additional Rent under
this Lease on demand by Landlord. Further, if Tenant fails to keep the Premises
in compliance with the requirements of this Lease (including, without
limitation, the requirement that the Premises be in compliance with the ADA),
then Landlord may take whatever action is necessary to bring the Premises into
compliance, and Tenant agrees to provide Landlord access to the Premises and
pay, as Additional Rent, on demand, all costs incurred by Landlord in bringing
the Premises into compliance. Landlord, however, shall have no affirmative
obligation to bring the Premises into compliance and nothing herein shall be
construed as creating such an obligation on Landlord.
18. ASSIGNMENT AND TRANSFER; SUBLETTING.
------------------------------------
18.1. Landlord's Consent Required. Tenant shall not voluntarily,
involuntarily, or by operation of law, assign, transfer, pledge, mortgage,
sublease or otherwise encumber this Lease or any interest of Tenant herein, in
whole or in part, nor sublet the whole or any part of the Premises, nor permit
the Premises or any part thereof to be used or occupied by others (including,
without limitation, licensees and concessionaires), without first obtaining, in
each and every instance, the prior written consent of Landlord, which consent
Landlord may withhold in its sole and absolute discretion. Any consent by
Landlord to an assignment or other encumbrance of this Lease or to any
subletting or use or occupancy of the Premises by others shall apply only to the
specific transaction thereby authorized and shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or other encumbrance of
this Lease or subletting or use or occupancy of the Premises by others.
18.2. Effect of Assignment or Sublease by Tenant.
18.2.1. If this Lease or any interest herein is assigned or
otherwise encumbered, or if the Premises or any part thereof is sublet or used
or occupied by anyone other than Tenant, without Landlord's prior written
consent having been obtained thereto, Landlord may nevertheless collect all
Rents due under this Lease from the assignee, sublessee, user or occupant, and
apply the net amount collected to the Rents herein reserved, and no such
collection shall be deemed a waiver of Tenant's violation of the covenants
contained herein or an acceptance of the assignee, subtenant, user or occupant
as Tenant hereunder, or constitute a release of Tenant from the further
performance by Tenant of the terms and provisions of this Lease.
18.2.2. If this Lease or any interest of Tenant herein is assigned
or encumbered or if the whole or any part of the Premises is sublet or used or
occupied by others, after having obtained Landlord's prior written consent
thereto, Tenant shall nevertheless remain liable for the full performance of all
obligations required to be performed by Tenant under this Lease and Tenant will
require any assignee to execute and deliver to Landlord an assumption of
liability agreement in form satisfactory to Landlord including, without
limitation, an assumption by assignee of all of the obligations of Tenant and
the assignee's ratification of and agreement to be bound by all of the
provisions of this Lease.
18.3. Corporate or Partnership Tenant. In the event Tenant is a
corporation or limited liability company, any dissolution, merger, consolidation
or other reorganization of such entity or any pledge of or any issuance, sale or
other transfer of a controlling percentage of the corporate stock or membership
interests of Tenant (whether in a single transaction or cumulatively) shall
constitute an assignment of this Lease for all purposes of this Article. The
term "Controlling Percentage," as used herein, shall mean the ownership of stock
or membership interests possessing, or having the right to exercise, at least
fifty-one percent (51%) of the total combined voting power of all the classes of
issued and outstanding stock or membership interests of such entity entitled to
vote for the election of directors (or managers), whether such ownership be
direct ownership, or indirect ownership through ownership of stock or membership
interests of another entity. This Section 18.3 shall not apply whenever Tenant
is a corporation, the outstanding voting stock of which is listed on a
recognized security exchange.
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If Tenant is a partnership or joint venture, and if at any time
during the Term hereof or any extension or renewal thereof the person or persons
or entity or entities who at the time of the execution of this Lease own the
general partners' interest cease to own the general partners' interest (except
as a result of transfers by bequest or inheritance) or additional general
partner(s) are added, such change of ownership shall constitute an assignment of
this Lease for all purposes of this Article. As to any corporate or limited
liability company partners or joint venturers of Tenant, any dissolution,
merger, consolidation or other reorganization of such entity or any pledge of or
any issue, sale or other transfer of a controlling percentage of the corporate
stock or membership interests of such partner or joint venturer (whether in a
single transaction or cumulatively) shall constitute an assignment of this Lease
for all purposes of this Article.
18.4. Guarantee. Upon the occurrence of any assignment or sublease by
Tenant pursuant to the provisions of Section 18.1 hereof, as a condition to said
assignment or sublease: (i) the original Tenant hereunder, and any individual or
entity guarantors of Tenant's obligations hereunder, shall jointly guarantee all
of the obligations of said assignee for the remainder of the Term of this Lease;
and (ii) the principal shareholders, partners or members of said assignee (and
if such principal shareholders, partners or members are corporations or entities
without substantial net worth, as reasonably determined by Landlord, the
individuals ultimately controlling and owning a controlling interest in said
entities) shall personally guarantee all of the obligations of assignee under
this Lease without limitation for the balance of the Term of this Lease.
19. LANDLORD'S INTEREST NOT SUBJECT TO LIENS.
-----------------------------------------
19.1. Liens. The interest of Landlord in the Premises shall not be subject
in any way to any liens, including construction liens, for improvements to or
other work performed in the Premises by or on behalf of Tenant. Tenant shall
have no power or authority to create any lien or permit any lien to attach to
the present estate, reversion, or other estate of Landlord (or the interest of
any ground lessor) in the Premises, Building, or Downtown Celebration and all
mechanics, materialmen, contractors, artisans, and other parties contracting
with Tenant or its representatives or privies as to the Premises or any part of
the Premises are charged with notice that they must look to the Tenant to secure
payment of any xxxx for work done or material furnished or for any other purpose
during the Lease Term. These provisions are made with express reference to
Section 713.10, Florida Statutes. Notwithstanding these provisions, Tenant, at
its expense, shall cause any lien filed against the Premises, Building, or
Downtown Celebration for work or materials claimed to have been furnished to
Tenant to be discharged of record or properly transferred to a bond under
Section 713.24, Florida Statutes, within ten days after notice to Tenant.
Further, Tenant agrees to indemnify, defend, and save Landlord harmless from and
against any damage or loss, including reasonable attorneys' fees, incurred by
Landlord as a result of any liens or other claims arising out of or related to
work performed in the Premises by or on behalf of Tenant. Tenant shall notify
every contractor making improvements to the Premises that the interest of the
Landlord in the Premises shall not be subject to liens for improvements to or
other work performed in the Premises by or on behalf of Tenant. Tenant shall
execute, acknowledge, and deliver without charge a short form of lease or notice
in recordable form containing a confirmation that the interest of Landlord in
the Premises, Building, or Downtown Celebration shall not be subject to liens
for improvements or other work performed in the Premises by or on behalf of
Tenant. If a short form of lease or notice is executed, it shall expressly
provide that it shall be of no further force or effect after the last day of the
Lease Term or on the filing by Landlord of an affidavit that the Lease Term has
expired or this Lease has been terminated or that the Tenant's right to
possession of the Premises has been terminated.
19.2. Notices of Commencement. Prior to commencement by (or on behalf of)
Tenant of any work on the Premises for which a Notice of Commencement is
required pursuant to Chapter 713, Florida Statutes (or its successor), Tenant
shall record such a notice in the office of the Clerk of the Circuit Court,
Osceola County, Florida, identifying Tenant as the party for whom such work is
being performed and requiring the service of copies of all notices, liens or
claims of lien upon Landlord. Any such Notice of Commencement shall clearly
reflect that the interest of Tenant in the Premises is that of a leasehold
estate and shall also clearly reflect that the interest of Landlord as the fee
simple owner of the Premises shall not be subject to construction liens on
account of the work which is the subject of such Notice of Commencement. A copy
of any such Notice of Commencement shall be furnished to and approved by
Landlord and its attorneys prior to the recording thereof, as aforesaid.
20. EMINENT DOMAIN.
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20.1. Premises.
20.1.1. In the event of a taking by any public or quasi-public
authority under the power of eminent domain, condemnation or expropriation or in
the event of a conveyance in lieu thereof (which events are herein collectively
referred to as a "Taking") of the whole of the Premises, then this Lease shall
terminate, such termination to be effective, at the option of Landlord, upon the
date title to the Premises vests in the condemning authority or the date when
Tenant is required to yield possession thereof.
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20.1.2. In the event of a Taking of less than twenty five percent
(25%) of the Premises, then this Lease shall terminate only as to the part taken
as of the date Tenant is required to yield possession thereof.
20.1.3. In the event of a Taking of more than twenty five percent
(25%) of the Premises, if the portion of the Premises remaining after such
Taking shall be unsuitable for conduct of the Permitted Use, then Landlord and
Tenant shall each have the right to terminate this Lease by written notice given
to the other within sixty (60) days after the date Tenant is required to
surrender possession of the part of the Premises so taken.
20.1.4. If there shall be a Taking of any part of the Premises, and
this Lease is not terminated as set forth in Sections 20.1, 20.1.2 or 20.1.3
hereof, then:
20.1.4.(a) This Lease shall continue in full force and effect,
except that the Base Rent shall be reduced to be that amount which bears the
same base proportion to the Base Rent in effect immediately prior to such Taking
as the floor area of the Premises remaining after such Taking bears to the floor
area of the Premises immediately preceding such Taking, such reduction to
commence as of the date that Tenant is required to surrender possession of the
part taken; and
20.1.4.(b) Upon receipt of the compensation awarded or payment
made for such Taking, Landlord shall commence to restore that portion of the
Premises remaining to as near to its former condition as the circumstances will
permit; provided, however, that Landlord shall in no event be required to expend
funds in excess of the compensation awarded to Landlord for such repairs and
alterations. If Landlord's award is insufficient to pay for the restoration,
Tenant shall be responsible for the remaining cost and expense of such
restoration. Tenant, at Tenant's expense, shall make all necessary repairs and
alterations to, and restoration of all Alterations, Fixtures and Signs made or
installed by Tenant and all floor coverings, furniture, equipment and
decorations.
20.2. Downtown Celebration Parking. Notwithstanding the provisions of
Section 21.2 or any other provision of this Lease to the contrary, in the event
of a Taking of more than ten percent (10%) of: (i) the leasable ground floor
area of all of the Building; or (ii) the parking areas in Downtown Celebration,
Landlord shall have the right, at its option, to terminate this Lease effective,
at the option of Landlord, either upon the date title vests in the condemning
authority, or upon the date Landlord is required to deliver possession of the
part taken or conveyed, by giving written notice of such termination to Tenant
prior to such date.
20.3. Waiver of Right to Compensation. In the event of any Taking of the
Premises, the Building, the Common Property, or any other portion of Downtown
Celebration, whether whole or partial, all compensation awarded or payments made
for the Taking of the fee and leasehold estate, as damages or otherwise, shall
belong to and be the property of Landlord, except that Tenant shall be entitled
to recover from the condemning authority, but not from Landlord, such amounts as
may be separately awarded to Tenant for removal expenses, business relocation
damages and moving expenses under the laws of the State of Florida, provided no
such claim of Tenant shall diminish or adversely affect Landlord's award. Tenant
hereby assigns to Landlord all right, title and interest of Tenant in and to any
compensation awarded or payment made for leasehold damages and/or diminution in
the value of Tenant's leasehold estate. Whenever there is a dispute as to the
percentage of any Taking, the determination of Landlord's architect shall be
conclusive and binding upon the parties hereto.
21. SUBORDINATION AND ATTORNMENT.
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21.1. Subordination. This Lease, Tenant's interest hereunder and Tenant's
leasehold interest in and to the Premises are hereby agreed by Tenant to be and
are hereby made junior, inferior, subordinate and subject, in right, title,
interest, lien, encumbrance, priority and all other respects, to any mortgage or
mortgages or any ground lease, if Landlord should now or at any time hereafter
hold its interest in Downtown Celebration, or any part thereof, as a lessee
under a ground lease, now or hereafter in force and effect upon or encumbering
any or all, or any combination, of the Premises, the Building, the Common
Property and any other portion of the Downtown Celebration Property, or any
parts thereof, and to all future modifications, extensions, renewals,
consolidations and replacements of, and all amendments and supplements to any
such ground lease, mortgage or mortgages, and upon recording of any such ground
lease, mortgage or mortgages, the same shall be deemed to be prior in dignity,
lien and encumbrance to this Lease, Tenant's interest hereunder and Tenant's
leasehold interest in and to the Premises irrespective of the dates of
execution, delivery or recordation of any such mortgage or mortgages. The
foregoing subordination provisions of this Section 21.1 shall be automatic and
self operative without the necessity of the execution of any further instrument
or agreement of subordination on the part of Tenant. However, if Landlord, any
ground lessor or the holder or proposed holder of any such mortgage or mortgages
shall request that Tenant execute and deliver any further instrument or
agreement of subordination of this Lease, Tenant's interest hereunder or
Tenant's leasehold interest in the Premises to any such ground lease, mortgage
or mortgages in confirmation or furtherance of or in addition to the foregoing
subordination provisions of this Section 21.1, Tenant shall promptly execute and
deliver the same to the requesting party.
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If, within thirty (30) days following Tenant's receipt of a written request by
Landlord or the holder or proposed holder of any such ground lease, mortgage or
mortgages, Tenant shall fail or refuse or shall have not executed any such
further instrument or agreement of subordination, for whatever reason, Tenant
shall be in breach and default of its obligation to do so and of this Lease and
Landlord shall be entitled thereupon to exercise any and all remedies available
to Landlord pursuant to this Lease or otherwise provided by law, including,
without limitation, the cancellation and termination of this Lease without
incurring any liability to Tenant on account thereof. The provisions of this
Section 21.1 are material considerations for and an inducement to the execution
of this Lease by Landlord and its demise of the Premises to Tenant. Accordingly,
any breach or default by Tenant of its covenants and obligations hereunder shall
be deemed to be and constitute a material and substantial breach and default of
this Lease by Tenant. Tenant does hereby make, constitute and appoint Landlord
as Tenant's attorney-in-fact with full power to execute and deliver in the name
of Tenant any instrument referred to in this Section 21.1. The aforesaid power
of attorney is given as security, coupled with an interest and is irrevocable.
Landlord agrees not to execute or deliver any such instrument under such power
unless Tenant fails to execute and deliver such instrument within thirty (30)
days after requested, as provided in Section 21.1.
21.2. Attornment. Tenant shall and hereby agrees to attorn, and be bound
under all of the terms, provisions, covenants and conditions of this Lease, to
any successor of the interest of Landlord under this Lease for the balance of
the Term of this Lease remaining at the time of the succession of such interest
to such successor. In particular, in the event that any proceedings are brought
for the foreclosure of any mortgage encumbering any or all, or a combination of,
the Premises, the Building, the Common Property and any other portion of the
Downtown Celebration Property, Tenant shall attorn to the purchaser at any such
foreclosure sale and recognize such purchaser as Landlord under this Lease,
subject, however, to all of the terms and conditions of this Lease. Tenant
agrees that neither the purchaser at any such foreclosure sale nor the
foreclosing mortgagee shall have any liability for any act or omission of
Landlord, be subject to any offsets or defenses which Tenant may have as claim
against Landlord, or be bound by any advance Rents which may have been paid by
Tenant to Landlord for more than the current period in which such Rents come
due.
21.3. Lease of Downtown Celebration by Landlord. In the event Landlord is,
at the time of execution hereof, the owner of the fee title to the Downtown
Celebration Property and Landlord shall, at any time hereafter, convey the fee
title in the Downtown Celebration Property or part thereof, and then lease from
the grantee the Downtown Celebration Property, or part thereof, and if the
Premises shall be included in Landlord's leasehold estate, or if Landlord shall,
at any time hereafter, convey a ground lease of the Downtown Celebration
Property, or part thereof, to a third party and the Premises is included in the
ground lessee's leasehold estate, Tenant shall thereupon become and shall be
deemed to be, for all purposes, a sub-tenant of Landlord or the ground lessee
respectively, and Tenant's leasehold estate shall be automatically subordinated
to such lease or ground lease. If Landlord's or ground lessee's leasehold estate
shall at any time expire or be terminated and the then owner of the fee title in
the Downtown Celebration Property shall, at its sole option, so request, Tenant
will attorn to and recognize the then current owner of the Downtown Celebration
Property as Landlord under this Lease for the balance of the then remaining Term
of this Lease, subject to all the terms of this Lease and will execute,
acknowledge and deliver to such owner, without charge, such instruments of
attornment as may be requested by such owner, and Tenant shall not be entitled
to assert against such owner, any offsets or defenses which Tenant may have or
claim against Landlord, or be bound by any advance Rents paid by Tenant to
Landlord for more than the current period in which such Rents come due.
21.4. Sale of Downtown Celebration by Landlord. Landlord shall have the
unrestricted right to transfer and assign, in whole or in part, all of its
rights and obligations hereunder and in the Building or any or all of the
Downtown Celebration Property, and in such event and upon such transfer,
Landlord shall be released from any further obligations hereunder, and Tenant
agrees to look solely to such successor-in-interest of Landlord for the
performance of such obligations.
22. END OF TERM.
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22.1. Surrender of Premises. Tenant shall, on the last day of the Term of
this Lease or upon the sooner termination thereof, peaceably and quietly
surrender and deliver the Premises to Landlord "broom clean" in good order,
condition and repair, reasonable wear and tear and damage by fire or other
casualty excepted, and free and clear of liens and encumbrances.
22.2. Title to Leasehold Improvements. In addition to the provisions of
Article 15 regarding the ownership of the Alterations and Fixtures upon the
expiration of the Term or sooner termination of this Lease, whichever shall
first occur, all leasehold improvements, whether originally constructed
installed, delivered or placed in the Premises by Landlord or Tenant, shall
remain in the Premises as part thereof and as the property of Landlord, and
title thereto shall thereupon, and without further act of either party, vest in
Landlord. However, if requested by Landlord, Tenant shall promptly thereafter
execute and deliver to Landlord such deed or xxxx of sale as Landlord may
reasonably require, provided that no covenant, warranty, representation or other
liability of Tenant shall be contained therein. Notwithstanding the foregoing
provisions of this Section 22.2, if requested to do so by Landlord, Tenant
shall, at its
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expense, within the last thirty (30) days of the expiration of the Term or
immediately upon any earlier termination of this Lease, remove any or all of
such items, as requested by Landlord, from the Premises and promptly repair any
damage to the Premises resulting from such removal. In the event that Tenant
shall not remove such items following Landlord's request to do so, Landlord may
remove the same for the account of Tenant, and Tenant shall promptly reimburse
Landlord for the cost of such removal as Additional Rent upon demand.
22.3. Holding Over. If Tenant or any other person or party shall remain in
possession of the Premises or any part thereof following the expiration of the
Term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, at the option of Landlord, the
person or party remaining in possession shall be deemed to be a tenant at
sufferance, and during any such holdover, the Rents payable under this Lease by
such tenant at sufferance shall be double the rate or rates in effect
immediately prior to the expiration of the Term or earlier termination of this
Lease. In addition, Tenant agrees to pay monthly: (i) one-twelfth (1/12) of the
taxes payable for the calendar year in which the expiration occurs; (ii) the
Downtown Celebration Common Expenses and Building Common Expenses, payable for
such month; (iii) the cost of insurance for which Tenant would have been
responsible if this Lease had been renewed on the same terms contained herein;
(iv) all sales taxes assessed against such items; and (v) any and all Additional
Rent otherwise payable by Tenant hereunder. In no event, however, shall such
holding over be deemed or construed to be or constitute a renewal or extension
of this Lease.
23. INDEMNITY.
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23.1. Indemnification of Landlord. Tenant shall defend, indemnify, save
and hold Landlord (and Landlord's parent company, their related, affiliated and
subsidiary companies, and the officers, directors, agents, employees and assigns
of each of those parties whom Tenant is required within this parenthetical
phrase to name as additional insureds under Tenant's liability policy pursuant
to Section 13.1) and the Association harmless from and against, and reimburse
such parties for, any and all obligations, damages, injunctions, suits, fines,
penalties, demands, claims, costs, expenses, actions, liabilities, proceedings
and losses of whatever nature (including, without limitation, Attorneys' Fees
and court costs), incurred by the persons hereby required to be indemnified,
arising directly or indirectly from or out of:
23.1.1. any failure by Tenant to perform any of the terms,
provisions, covenants or conditions of this Lease on Tenant's part to be
performed;
23.1.2. any accident, injury or damage to person or property which
shall happen at, in or upon the Premises, however occurring, including, without
limitation, any claims against any third party providing fire monitoring
services to the Premises;
23.1.3. any matter or thing growing out of the condition,
occupation, maintenance, alteration, repair, use or operation by any person of
the Premises, or the operation of the business contemplated by this Lease to be
conducted thereon, thereat, therein, or therefrom, including, without
limitation, the sale of any product, merchandise or service;
23.1.4. any failure of Tenant to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any governmental
authority;
23.1.5. any failure of Tenant to comply with the requirements of the
ADA;
23.1.6. any contamination of the Premises, the Building, the Common
Property, or any other portion of Downtown Celebration, occasioned by the use,
transportation, storage, disposal or discharge thereon, therein or therefrom of
any Hazardous Materials, whether by Tenant or by any agent or invitee of Tenant;
or
23.1.7. any discharge of biomedical, toxic or hazardous sewage or
waste materials from the Premises into any sanitary sewer system serving the
Premises, the Building, the Common Property, or any other portion of Downtown
Celebration, whether by Tenant or by any agent of Tenant.
Tenant's indemnity obligations under this Article and elsewhere in this Lease
arising prior to the termination, assignment or expiration of this Lease shall
survive any such termination, assignment or expiration.
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24. Notice of Claim or Suit. Tenant shall promptly notify Landlord of any claim,
action, proceeding or suit instituted or threatened against Landlord of which
Tenant receives notice or of which Tenant acquires knowledge. In the event
Landlord is made a party to any action for damages or other relief against which
Tenant has indemnified Landlord, as aforesaid, Tenant shall defend Landlord, pay
all costs and shall provide effective counsel to Landlord in such litigation or,
at Landlord's option, shall pay all Attorneys' Fees incurred by Landlord in
connection with its own defense or settlement of said litigation.
25. DEFAULT; LANDLORD'S LIEN.
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25.1. Event of Default. In addition to any other provision of this Lease
that expressly provides that a particular event shall constitute an "Event of
Default" by Tenant under this Lease, each of the following events shall
constitute an "Event of Default" hereunder by Tenant and shall constitute a
breach of this Lease and shall be subject to the notice provisions set forth in
Section 25.5 hereof (except as may be expressly stated therein):
25.1.1. If, at any time during the Term of this Lease, Tenant, or
any guarantor of any of Tenant's obligations hereunder (a "Guarantor") or any
partner of Guarantor, or any principal of any Guarantor, or any franchisor of
rights to Tenant relating to the Permitted Use of the Premises (a "Franchisor")
(collectively "Related Parties" and individually, a "Related Party"), shall file
in any court, pursuant to any statute of either the United States or of any
State, a petition in bankruptcy or insolvency, or for reorganization or
arrangement, or for the appointment of a receiver or trustee of all or any
portion of Tenant's or any Related Parties' property, including, without
limitation, its leasehold interest in the Premises, or if Tenant or any Related
Party shall make an assignment for the benefit of its creditors or petitions for
or enters into an arrangement with its creditors.
25.1.2. If, at any time during the Term of this Lease, there shall
be filed against Tenant or any Related Party, in any courts pursuant to any
statute of the United States or of any State, a petition in bankruptcy or
insolvency, or for reorganization, or for the appointment of a receiver or
trustee of all or a portion of Tenant's or any Related Party's property,
including, without limitation, its leasehold interest in the Premises.
25.1.3. If Tenant's leasehold interest in the Premises or property
therein shall be seized under any levy, execution, attachment or other process
of court, or if Tenant's leasehold interest in the Premises is sold by judicial
sale.
25.1.4. If Tenant shall fail to pay, when due, any Rents payable
hereunder or portion thereof, or any other sum due to Landlord from Tenant
hereunder.
25.1.5. If the Premises or any portion thereof are used or permitted
to be used for any Restricted Uses or other purpose, or for the conduct of any
business or activity not permitted by this Lease, or Tenant, at any time during
the Term of this Lease, fails to comply with standards of quality control which
may be established by Landlord, at Landlord's sole and absolute discretion, from
time to time.
25.1.6. If Tenant removes or attempts to remove, or manifests an
intention to remove, Tenant's property from or out of the Premises, other than
in the usual and ordinary course of Tenant's business, without the prior written
consent and approval of Landlord and without having first paid to Landlord all
Rents which may become due during the entire Term of this Lease.
25.1.7. If any assignment or transfer shall be made or deemed to be
made that is in violation of any of the provisions of this Lease.
25.1.8. If Tenant shall fail to abide by, comply with or conform to
any applicable laws or with any of the rules and regulations established and
promulgated by Landlord or the Association with respect to Downtown Celebration,
the Common Property or the Premises and such failure continues beyond the
shorter of the notice period provided in Section 25.5 below or the cure period
provided by the applicable the applicable law, rule or regulation or the
applicable notice of violation thereof.
25.1.9. If Tenant shall fail to comply with any other term,
provision, covenant or condition of this Lease.
25.1.10. If any franchise or other agreement which grants to Tenant
the right to operate the Premises for the Permitted Use or utilize the name
under which Tenant is obligated to operate its business hereunder, is terminated
by either party to such agreement, or the person or entity granting such rights
to Tenant assigns, sells, conveys or otherwise transfers any of its rights
thereunder to any third party or entity, in whole or in part (other than as
security for financing obtained by such party) without Landlord's prior consent.
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25.1.11. If Tenant shall suffer a material adverse change in
Tenant's business or financial condition, as indicated by the annual financial
statements provided to Landlord, if any, or as otherwise becomes apparent to
Landlord.
25.1.12. Any default or breach by Tenant of Tenant's covenants or
obligations under this Lease shall be deemed to be an Event of Default under any
other lease or agreement between Tenant and Landlord or Tenant and any of
Landlord's Affiliates.
25.2. Remedies. If an Event of Default shall occur, then and in addition
to any other rights or remedies Landlord may have under this Lease and at law or
in equity, Landlord shall have all remedies available at law or equity,
including, but not limited to:
25.2.1. Without terminating this Lease, to accelerate the whole or
any part of the Base Rent, Additional Rent and other charges, payments, costs
and expenses herein agreed to be paid by Tenant for the entire unexpired balance
of the Term of this Lease, including, without limitation, Tenant's Allocated
Percentage Share of Downtown Celebration Common Expenses or Allocated Percentage
Share of Building Common and Building Commercial Common Expenses, and any Rent,
other charges, payments, costs and expenses if so accelerated shall, in addition
to any and all installments of Rent already due and payable and in arrears,
and/or any other charge, expense or cost herein agreed to be paid by Tenant
which may be due and payable and in arrears, be deemed due and payable as if, by
the terms and provisions of this Lease, such accelerated Rent and other charges,
payments, costs, and expenses were on that date payable in advance.
25.2.2. After use of appropriate summary process, to enter the
Premises and without further demand or notice, proceed to distress and have sold
the goods, chattels and personal property there found, to levy the Rent and
Tenant shall pay all costs and officer's commissions, including, without
limitation, watchmen's wages and sums chargeable to Landlord, and further
including, without limitation, any sums chargeable according to state law, as
commissions to the constable or other person making the levy, and in such case
all costs, officer's commissions and other charges shall immediately attach and
become part of the claim of Landlord for Rent, and any tender of Rent without
said costs, commissions and charges made, after the issuance of a warrant of
distress, shall not be sufficient to satisfy the claim of Landlord.
25.2.3. After use of appropriate summary process, to re-enter the
Premises and without further demand or notice, remove all persons and all or any
property therefrom, by summary eviction proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefor, and repossess and enjoy the Premises, together with all Alterations,
Fixtures, Signs and other installations of Tenant. Upon recovering possession of
the Premises by reason of or based upon or arising out of a default on the part
of Tenant, Landlord may, at Landlord's option, either terminate this Lease or
make such alterations and repairs as may be necessary in order to relet the
Premises and relet the Premises or any part or parts thereof for the account of
Tenant, either in Landlord's name or otherwise, for a term or terms which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Term of this Lease and at such Rents and upon
such other terms and conditions as in Landlord's reasonable discretion may seem
advisable and to such person or persons as may in Landlord's discretion seem
best; upon each such reletting all Rents received by Landlord from such
reletting shall be applied: first, to the payment of any costs and expenses of
such reletting, including, without limitation, brokerage fees and Attorney Fees
and all costs of such alterations and repairs; second, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; third, to
the payment of Rent due and unpaid hereunder, and the residue, if any, shall be
held by Landlord and applied in payment of future Rent as it may become due and
payable hereunder. If such rentals received from such reletting during any month
shall be less than that to be paid during that month by Tenant hereunder, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be calculated
and paid monthly. No such re-entry or taking possession of the Premises or the
making of alterations and/or improvements thereto or the reletting thereof shall
be construed as an election on the part of Landlord to terminate this Lease
unless written notice of such intention be given to Tenant. Landlord shall in no
event be liable in any way whatsoever for failure to relet the Premises or, in
the event that the Premises or any part or parts thereof are relet, for failure
to collect the rent thereof under such reletting. Tenant, for Tenant and
Tenant's successors and assigns, hereby irrevocably constitutes and appoints
Landlord as Tenant's and their agent to collect the Rents due and to become due
under all subleases of the Premises or any parts thereof without in any way
affecting Tenant's obligation to pay any unpaid balance of Rent due or to become
due hereunder. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for such previous
breach.
25.2.4. To declare a default hereunder and take possession of the
Premises without any right on the part of Tenant to waive the forfeiture by
payment of any sum due or by other performance of any condition, term or
covenant broken; whereupon Landlord shall be entitled to recover, in addition to
any and all sums and damages for violation of Tenant's obligations hereunder in
existence at such time, damages for Tenant's default in an amount equal to the
amount of the Rent reserved for the balance of the Term of this Lease, as well
as all other charges, payments, costs and expenses herein agreed to be paid by
Tenant.
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25.2.5. To terminate this Lease and the term hereby created without
any right on the part of Tenant to cure the forfeiture by payment of any sum due
or by other performance of any condition, term or covenant broken; whereupon
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the
amount of the Rent reserved for the balance of the term of this Lease, as well
as all other charges, payments, costs and the expenses herein agreed to be paid
by Tenant.
25.3. Rights Not Exclusive; Additional Remedies. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy herein or by law provided but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute. Nothing herein contained shall be
construed as precluding Landlord from having or exercising such lawful remedies
as may be and become necessary in order to preserve Landlord's right or the
interest of Landlord in the Premises and in this Lease, even before the
expiration of any notice periods provided for in this Lease, if under the
particular circumstances then existing the allowance of such notice periods will
prejudice or will endanger the rights and estate of Landlord in this Lease and
in the Premises.
25.4. Waivers by Tenant. Tenant expressly, knowingly, and voluntarily
waives all constitutional, statutory, or common law bonding requirements,
including the requirement under Section 83.12, Florida Statutes, that Landlord
file a bond payable to Tenant in at least double the sum demanded by Landlord
(or double the value of the property sought to be distrained), it being the
intention of the parties that no bond shall be required to be filed by Landlord
in any distress action. Tenant further waives the right under Section 83.14,
Florida Statutes to replevy distrained property. Tenant, for itself and for all
persons claiming by, through or under it, hereby expressly waives any and all
rights which are or may be conferred upon Tenant by any present or future law to
redeem the Premises. If Landlord shall acquire possession of the Premises by
summary proceedings, or in any other lawful manner without judicial proceedings,
it shall be deemed a reentry within the meaning of the word as used in this
Lease.
25.5. Calculations of Amounts Due. For the purpose of calculating the
accelerated Rent payable under Section 25.2.1 of this Article and the "Rent
reserved for the balance of the Term of this Lease" for the purposes of Sections
25.2.4 and 25.2.5 hereof, the amount payable as Tenant's Allocated Percentage
Share of Downtown Celebration Common Expenses and Allocated Percentage Share of
Building Common and Building Commercial Common Expenses, for the balance of the
Term hereof (as if this Lease had not been terminated) shall be that amount
equal to the product of (i) the sum of the highest amount paid or payable by
Tenant in any prior calendar year during the term of this Lease for each of the
foregoing items, multiplied by (ii) the number of calendar years (including any
fractional calendar year) remaining in the Term (as if this Lease had not been
terminated) of this Lease (the "Remaining Term").
25.6. Notice to Tenant. Notwithstanding anything hereinabove stated,
Landlord agrees that Landlord will not exercise any right or remedy provided for
in this Lease or allowed by law because of any default of Tenant, other than the
collection of late charges and fees and the collection of interest on amounts
due and unpaid, unless Landlord shall have first given written notice thereof to
Tenant and Tenant, within a period of five (5) days after receipt of Landlord's
notice shall have failed to pay the sum or sums due if the default consists of
the failure to pay any monetary sum required to be paid hereunder, or if the
default consists of something other than the failure to pay money, Tenant shall
have failed within thirty (30) days of receipt of Landlord's notice to correct
such default (or such shorter period of cure as is otherwise expressly provided
in this Lease). Notwithstanding the foregoing, no such notice from Landlord
shall be required, nor shall Landlord be required to allow any part of the said
cure period, if Tenant shall have temporarily or permanently ceased operating
and using the Premises to the extent and in the manner required under Article 6
hereof except temporary closings as may be otherwise permitted herein following
casualty or temporary taking, or Tenant, any Guarantor or any Related Party
shall have filed a petition in bankruptcy or for reorganization or a xxxx in
equity or shall otherwise initiate proceedings for the appointment of a receiver
of Tenant's, the Guarantor's or the Related Party's assets, or if a receiver or
trustee is appointed for Tenant, any Guarantor or any Related Parties and such
appointment and such receivership or trusteeship is not terminated within thirty
(30) days, or Tenant, any Guarantor, or any Related Party makes an assignment
for the benefit of creditors or if Tenant is levied upon and is about to be sold
out upon the Premises by a sheriff, marshal or constable, or if Tenant defaults
in an obligation hereunder which cannot be cured or for which this Lease
expressly provides no notice or opportunity to cure will be given, or in the
event of the occurrence of any of the Event of Default described in the last
sentence of Section 9.1 or subsection 25.1.11 hereof, and provided further that
if Tenant shall commit the same or similar default more than two (2) times
during the Lease Term, such default shall be deemed to be deliberate and
Landlord shall not be required to give any notice called for by this Section
25.5.
25.7. Notice to Landlord. Landlord shall in no event be in default in the
performance of any of its obligations in this Lease contained unless and until
Landlord shall have failed to commence to perform such obligation within a
reasonable period of time after receipt of written notice from Tenant by
Landlord (no less than 30 days) properly specifying wherein Landlord has failed
to perform any such obligation or shall have failed to proceed thereafter with
reasonable diligence to complete such performance.
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25.8. Landlord's Lien. LANDLORD SHALL HAVE AT ALL TIMES DURING THE TERM OF
THIS LEASE, A VALID FIRST AND PRIOR CONTRACT LIEN FOR ALL RENTS AND OTHER SUMS
OF MONEY BECOMING DUE HEREUNDER FROM TENANT, UPON FURNITURE, FIXTURES, EQUIPMENT
AND OTHER PERSONAL PROPERTY (INCLUDING, WITHOUT LIMITATION, REMOVABLE TRADE
FIXTURES) AND EFFECTS OF TENANT SITUATED IN OR UPON THE PREMISES, AND SUCH
PROPERTY SHALL NOT BE REMOVED THEREFROM WITHOUT THE APPROVAL AND CONSENT OF
LANDLORD UNTIL ALL ARREARAGE IN RENT AS WELL AS ANY AND ALL OTHER SUMS OF MONEY
THEN DUE TO LANDLORD HEREUNDER SHALL FIRST HAVE BEEN PAID AND DISCHARGED IN
FULL. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT BY TENANT, LANDLORD MAY, IN
ADDITION TO ANY OTHER REMEDIES PROVIDED HEREIN OR BY LAW OR IN EQUITY, ENTER
UPON THE PREMISES AND TAKE POSSESSION OF ANY AND ALL FURNITURE, FIXTURES,
EQUIPMENT AND OTHER PERSONAL PROPERTY (INCLUDING, WITHOUT LIMITATION, REMOVABLE
TRADE FIXTURES) AND EFFECTS OF TENANT SITUATED IN OR UPON THE PREMISES WITHOUT
LIABILITY FOR TRESPASS OR CONVERSION, AND SELL THE SAME AT PUBLIC OR PRIVATE
SALE, WITH OR WITHOUT HAVING SUCH PROPERTY AT THE SALE, AT WHICH LANDLORD OR ITS
ASSIGNS MAY PURCHASE, AND APPLY THE PROCEEDS THEREOF, LESS ANY AND ALL EXPENSES
CONNECTED WITH THE TAKING OF POSSESSION AND SALE OF THE PROPERTY, AS A CREDIT
AGAINST ANY SUMS DUE BY TENANT AND TENANT AGREES TO PAY ANY DEFICIENCY
FORTHWITH. ALTERNATIVELY, THE LIEN HEREBY GRANTED MAY BE FORECLOSED IN THE
MANNER AND FORM PROVIDED BY LAW FOR FORECLOSURE OF SECURITY INTERESTS OR IN ANY
OTHER MANNER AND FORM PROVIDED BY LAW. THE STATUTORY LIEN FOR RENT, IF ANY, IS
NOT HEREBY WAIVED AND THE EXPRESS CONTRACTUAL LIEN HEREIN GRANTED IS IN ADDITION
THERETO AND SUPPLEMENTARY THERETO. IF REQUESTED AT ANY TIME BY LANDLORD, TENANT
SHALL EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING
STATEMENTS IN SUFFICIENT FORM SO THAT WHEN PROPERLY FILED, THE SECURITY INTEREST
HEREBY GIVEN SHALL THEREUPON BE PERFECTED. IF REQUESTED HEREAFTER BY LANDLORD,
TENANT SHALL ALSO EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE
FINANCING STATEMENT CHANGE INSTRUMENTS IN SUFFICIENT FORM TO REFLECT ANY PROPER
AMENDMENT OR MODIFICATION IN OR EXTENSION OF THE AFORESAID CONTRACT LIEN AND THE
RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE AS
ADOPTED IN THE STATE OF FLORIDA FROM TIME TO TIME.
26. NO ABATEMENT OF RENT. No abatement, diminution or reduction of Rent, charges
or other compensation shall be allowed to Tenant or any person claiming under
Tenant, and no abatement, diminution or reduction of Tenant's other obligations
hereunder shall be allowed to Tenant, under any circumstances whatsoever
including, without limitation, inconvenience, discomfort, interruption of
business or otherwise by virtue of, or arising out of: (a) the making of
alterations, changes, additions, improvements or repairs to the Premises or any
other portion of Downtown Celebration; (b) any present or future governmental
laws, ordinances, requirements, orders, directions, rules or regulations; (c)
restoration of the Premises or any other portion of Downtown Celebration after
damage, destruction or partial condemnation; or (d) any other cause or
occurrence.
27. NOTICES.
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27.1. Notices to Parties. Any notice, demand, request, offer, consent,
approval or communication to be provided under this Lease shall be in writing
and sent by one of the methods hereinafter described and shall be deemed
received: (i) three (3) business days after it is deposited, postage prepaid, in
the United States mail, certified or registered mail with a return receipt
requested, addressed (as the case may be) to Landlord at Landlord's Address for
Notices set forth in Section 1.1 hereof, or to Tenant at Tenant's Address for
Notices set forth in Section 1.1 hereof; (ii) the next delivery day after it is
deposited for overnight delivery with a nationally recognized and reputable air
courier (with electronic tracking requested) addressed (as the case may be) to
Landlord at Landlord's Address for Notices set forth in Section 1.1 hereof, or
to Tenant at Tenant's Address for Notices set forth in Section 1.1 hereof; (iii)
the same day it is personally delivered (as the case may be) to Landlord at
Landlord's Address for Notices set forth in Section 1.1 hereof, or to Tenant at
Tenant's Address for Notices set forth in Section 1.1 hereof; or (iv) upon
confirmation of receipt of electronic transmission if sent by facsimile or
telecopier transmission to Landlord at Landlord's facsimile number set forth in
Landlord's Address for Notices set forth in Section 1.1 or to Tenant at Tenant's
facsimile number set forth in Tenant's Address for Notices set forth in Section
1.1 (as the case may be) and in such case of facsimile transmission, a copy is
also contemporaneously sent by one of the methods described in the preceding
clause (i), (ii) or (iii) of this Section (it being understood and agreed,
however, that such notice shall be deemed received upon receipt of electronic
transmission. Notwithstanding the foregoing, in the event any notice or other
communication as described in this Section is sent by Tenant to Landlord by
overnight delivery or personal delivery and it is received by Landlord (or
delivery is attempted) during non-business hours (i.e., other than during 8:30
a.m. to 5:00 p.m. EST/EDT (as the case may be) Monday through Friday, excluding
holidays), then such notice or other communication shall not be deemed to have
been received until the next business day. Either party may designate a
different address for receiving notices hereunder by notice to
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the other party in accordance with the provisions of this Section 27.1. Further
notwithstanding the foregoing, if any notice or other communication described in
this Section is sent by either party hereto to the other and such notice or
other communication has not been sent in compliance with this Section but has in
fact actually been received by the other party, then such notice or other
communication shall be deemed to have been duly given by the sending party and
received by the recipient party effective as of such date of actual receipt
(irrespective of whether such notice or other communication was sent in
accordance with the foregoing terms of this Section). Tenant designates and
appoints, as its agent to receive notice of all dispossessory or distraint
proceedings and all notices required under this Lease, the general manager,
assistant manager or person in charge of the Premises at the time the notice is
given, and, if no person is in charge of the Premises at that time, such service
of notice may be made by attaching the same, in lieu of mailing, on any entrance
to the Premises. Notwithstanding anything in this Article to the contrary, any
notice mailed to the last designated address of any person or party to which a
notice may be or is required to be delivered pursuant to this Lease shall not be
deemed ineffective if actual delivery cannot be made due to a change of address
of the person or party to which the notice is directed or the failure or refusal
of such person or party to accept delivery of the notice.
28. MISCELLANEOUS.
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28.1. Standard for Tenant Operations. Tenant understands, and it is a
consideration for which Tenant enters into this Lease, that the customers and
patrons of Tenant's business will reasonably expect that the products and
services provided by Tenant, and the manner of providing such products and
services, will be of the high standard generally and customarily associated with
Landlord and CELEBRATION; that it is in the best interest of all concerned that
the customers and patrons of Tenant's business be provided with products and
services of a high standard; and that Tenant will be held to a high standard in
affording such products and services. Accordingly, Tenant shall give due
consideration to recommendations and suggestions that Landlord may make from
time to time toward the continued operation of the Premises and the business
contemplated by this Lease to be conducted thereon, therein and therefrom in
accordance with the intent expressed in this Section. Landlord and Tenant shall
confer with respect to excessive complaints of customers and patrons of Tenant's
business which come to the attention of Landlord. If such complaints relate to
product quality, customer service or the cleanliness or the state of repair or
other condition of the Premises and are reasonably found by Landlord to be
justified, Tenant shall remedy immediately the cause or causes of such
complaints.
28.2. Restrictions on Use of Names. Tenant shall not, by reason of this
Lease, acquire any right to use, and Tenant agrees that it shall not use, the
names "CELEBRATION", "XXXX DISNEY WORLD(R)" or "DISNEY" (either alone or in
conjunction with or as a part of any other word or name) or any fanciful
characters, designs or other images associated with Landlord or any of
Landlord's Affiliates in any advertising or promotional materials or on or in
connection with any products or services or expressly state or otherwise imply
any endorsement of Tenant's business, products or services by Landlord or any of
Landlord's Affiliates without, in each such instance, first obtaining the
express written consent and approval of Landlord or the particular Affiliate
which holds ownership, copyright or trademark rights with respect to such name,
fanciful characters or designs, which consent may be given or withheld in their
sole, absolute and unbridled discretion, it being clearly understood and agreed
by Tenant that the provisions of Section 28.3 of this Lease shall be
inapplicable to any such consent and approval. Landlord shall provide Tenant
with advertising language and graphics which Tenant shall use in its advertising
and promotional materials when Tenant elects to advertise or promote the fact
that its business is located in Celebration and the use of any other language or
graphics for such purposes shall be deemed to be an incurable default for
purposes of this Lease. This Section 27.2 shall survive expiration or earlier
termination of this Lease.
28.3. Consent or Approval of Landlord. In all instances where Landlord is
required to act reasonably in giving or withholding Landlord's consent or in
making any decision under this Lease, or in any instance where common law or
equity would require Landlord to not unreasonably withhold its approval or
consent, Landlord shall be entitled to take into account, in determining whether
or not to grant or withhold approval or consent, Landlord's ownership and/or
management of Downtown Celebration and Landlord's concerns that the level of
quality, appearance, service, product and overall customer experience at
Downtown Celebration be of the highest character and of quality, of service and
appearance. Tenant's sole remedy, in the event that a court of competent
jurisdiction subsequently determines that Landlord unreasonably withheld its
consent or approval to any action proposed to be taken by Tenant as to which
Landlord is required to not unreasonably withhold its consent or approval, will
be to obtain the right to take such proposed action and to be reimbursed legal
fees and expenses incurred in such action.
28.4. Landlord May Cure Tenant's Defaults. If Tenant shall default in the
performance of any term, provisions, covenant or condition on its part to be
performed hereunder, Landlord may but shall not be obligated to, after notice to
Tenant and a reasonable time to perform after such notice (or without notice if,
in Landlord's reasonable opinion, an emergency exists) perform the same for the
account and at the expense of Tenant. If, at any time and by reason of such
default, Landlord is compelled to pay, or elects to pay, any sum of money or do
any act which will require the payment of any sum of money, or is compelled to
incur any expense in the enforcement of its rights hereunder or otherwise, such
sum or sums together with interest thereon at the Default Rate,
31
shall be deemed Additional Rent hereunder and shall be repaid to Landlord by
Tenant promptly when billed therefor, and Landlord shall have all the same
rights and remedies in respect thereof as Landlord has in respect of the Rents
herein reserved.
28.5. Financial Statements. From time to time, upon Landlord's written
request, Tenant shall promptly furnish to Landlord financial statements prepared
by Tenant's independent certified public accountant setting forth Tenant's
then-current financial condition.
28.6. Estoppel Certificates. From time to time, Tenant, on not less than
five days' prior notice from Landlord or Landlord's mortgagee, shall execute and
deliver to Landlord or Landlord's mortgagee, as the case may be, an estoppel
certificate in a form generally consistent with the requirements of
institutional lenders and certified to Landlord and any mortgagee or prospective
mortgagee or purchaser of the Building. In addition, if requested, Tenant shall
provide any financial information concerning Tenant and Tenant's business
operations and Guarantor that may be reasonably requested by any mortgagee or
prospective mortgagee or purchaser of the Building.
28.7. Mortgagee Approval. If any mortgagee of Landlord, who now or
hereafter holds a mortgage on the Building or any other portion of Downtown
Celebration, requires any modification of the terms and provisions of this Lease
as a condition to such financing as Landlord may desire, then Landlord shall
have the right to cancel this Lease if Tenant fails or refuses to approve and
execute such modification(s) within thirty (30) days after Landlord's request
therefor. Upon such cancellation by Landlord, this Lease shall be null and void
and neither party shall have any liability either for damages or otherwise to
the other by reason of such cancellation. In no event, however, shall Tenant be
required to agree, and Landlord shall not have any right of cancellation for
Tenant's refusal to agree, to any modification of the provisions of this Lease
relating to: the amount of Rent or other charges reserved herein; the size
and/or location of the Premises; the duration and/or Commencement Date of the
Term; or the reduction of the improvements to be made by Landlord to the
Premises prior to delivery of possession.
28.8. Limitation on Right of Recovery Against Landlord. Tenant
acknowledges and agrees that the liability of Landlord under this Lease shall be
limited to the value of its equity interest in the Building. No personal
judgment shall lie against Landlord (or any of its officers, directors,
employers, agents or representatives) upon extinguishment of its rights in the
Building and any judgment so rendered shall not give rise to any right of
execution or levy against Landlord's assets. The provisions hereof shall inure
to Landlord's successors and assigns, including, without limitation, any
mortgagee. The foregoing provisions are not intended to relieve Landlord from
the performance of any of Landlord's obligations under this Lease, but only to
limit the personal liability of Landlord in case of recovery of a judgment
against Landlord; nor shall the foregoing be deemed to limit Tenant's rights to
obtain injunctive relief or specific performance or to avail itself or any other
right or remedy which may be awarded Tenant by law or under this Lease. In no
event shall Landlord be liable to Tenant or Tenant's employees, agents,
representatives or others for any damages of any kind or nature except actual
compensatory damages, it being understood and agreed by Tenant that all other
damages or liabilities (including, without limitation, indirect, consequential,
speculative, exemplary or punitive damages) are hereby expressly waived. For
purposes of this Lease, consequential damages shall include, but not be limited
to, any lost profits, revenues or business opportunities.
28.9. Force Majeure. If the performance by either of the parties of its
obligations under this Lease (excluding monetary obligations) is delayed or
prevented in whole or in part by any law, rule, regulation, order or other
action adopted or taken by any federal, state or local governmental authority
(and not attributable to an act or omission of said party), or by any Acts of
God, fire or other casualty, floods, storms, explosions, accidents, epidemics,
war, terrorism, civil disorders, strikes or other labor difficulties, shortages
or failure of supply of materials, labor, fuel, power, equipment, supplies or
transportation, or by any other cause not reasonably within said party's
control, whether or not specifically mentioned herein, said party shall not be
deemed to be in default hereunder with respect thereto unless such party fails
to promptly remedy such lack of performance immediately following the end of
such event of force majeure, but Tenant's obligations for Returned Check Fees
shall not be abated.
28.10. Brokerage. Landlord and Tenant represent and warrant that they
neither consulted nor negotiated with any broker or finder regarding the
Premises, except the Broker as set forth in Section 1 of the Lease. Landlord and
Tenant agree to indemnify, defend, and save the other harmless from and against
any claims for fees or commissions from anyone other than the Broker with whom
they have dealt in connection with the Premises or this Lease including
attorneys' fees incurred in defending any claim. Landlord shall indemnify and
hold Tenant harmless against payment of any leasing commission due the Broker in
connection with this Lease.
28.11. No Partnership or Joint Venture. Landlord shall not, by virtue of
this Lease, in any way or for any purpose, be deemed to be a partner of Tenant
in the conduct of Tenant's business upon, within or from the Premises or
otherwise, or a joint venturer or a member of a joint enterprise with Tenant.
32
28.12. Entire Agreement. This Lease contains the entire agreement between
the parties and, except as otherwise provided herein, can only be changed,
modified, amended or terminated by an instrument in writing executed by the
parties. It is mutually acknowledged and agreed by Landlord and Tenant that
there are no verbal agreements, representations, warranties or other
understandings affecting the same; and that Tenant hereby waives, as a material
part of the consideration hereof, all claims against Landlord for rescission,
damages or any other form of relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease.
28.13. Modification. This Lease shall not be changed, amended or modified
except by a written instrument executed by duly authorized representatives of
both Landlord and Tenant.
28.14. Waiver. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of any item by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, shall be deemed a waiver
of any rights or remedies that Landlord or Tenant may have or a waiver of any
subsequent breach or default in any of such terms, provisions, covenants,
agreements and conditions.
28.15. Time. Time is of the essence in every Tenant's obligation of this
Lease.
28.16. Costs and Attorneys' Fees. In any suit, action, or other
proceeding, including arbitration or bankruptcy, arising out of or in any manner
relating to this Lease, the Premises, or Downtown Celebration (including (a) the
enforcement or interpretation of either party's rights or obligations under this
Lease whether in contract, tort, or both, or (b) the declaration of any rights
or obligations under this Lease) the prevailing party, as determined by the
court or arbitrator, shall be entitled to recover from the losing party
reasonable attorneys' fees and disbursements (including disbursements that would
not otherwise be taxable as costs in the proceeding). In addition, if Landlord
becomes a party to any suit or proceeding affecting the Premises or involving
this Lease or Tenant's interest under this Lease, other than a suit between
Landlord and Tenant, or if Landlord engages counsel to collect any of the
amounts owed under this Lease, or to enforce performance of any of the
agreements, conditions, covenants, provisions, or stipulations of this Lease,
without commencing litigation, then the costs, expenses, and reasonable
attorneys' fees and disbursements incurred by Landlord shall be paid to Landlord
by Tenant. All references in this Lease to attorneys' fees shall be deemed to
include all legal assistants', paralegals', and law clerks' fees and shall
include all fees incurred through all post-judgment and appellate levels and in
connection with collection, arbitration, and bankruptcy proceedings. However,
the term "attorneys' fees" shall exclude fees for lawyers who are employees of a
party.
28.17. Captions, Headings and Exhibits. The captions and headings in this
Lease have been inserted herein only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of, or
otherwise affect the provisions of this Lease. The exhibits referred to in, and
attached to, this Lease are hereby incorporated in full by reference. Unless
otherwise expressly provided in the exhibit or the body of this Lease, in the
event of any conflict or inconsistency with the provisions contained in the body
of this Lease and the exhibits, the provisions contained in the body of this
Lease shall control.
28.18. Partial Severability. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
effected thereby and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
28.19. Applicable Law/Venue. This Lease shall be governed by, and
construed in accordance with, the laws of the State of Florida. The venue of any
suit or proceeding brought for the enforcement of or otherwise with respect to
this Lease shall always be lodged in the State Courts of the Ninth Judicial
Circuit in and for Osceola County, Florida; or if the Circuit Court does not
have jurisdiction, then before the United States District Court for the Middle
District of Florida (Orlando Division); or if neither of such courts shall have
jurisdiction, then before any other court sitting in Osceola County, Florida,
having subject matter jurisdiction, regardless of whether, under any applicable
principle of law, venue may also be properly lodged in the courts of any other
Federal, State or County jurisdiction.
28.20. Waiver of Jury Trial. Landlord and Tenant waive trial by jury in
any action, proceeding, or counterclaim involving any matter whatsoever arising
out of or in any way connected with this Lease. Tenant further waives the right
to interpose any permissive counterclaim of any nature in any action to obtain
possession of the Premises.
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28.21. Successors and Assigns. Subject to the limitations set forth in
this Section, all rights, obligations and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind Landlord
and Tenant and their several and respective heirs, executors, administrators,
successors and assigns of the said parties; and if there shall be more than one
Tenant, they shall all be bound jointly and severally by the terms, covenants
and agreements herein, and the word "Tenant" shall be deemed and taken to mean
each and every person or party mentioned as a Tenant herein, be the same one or
more; and if there shall be more than one Tenant, any notice required or
permitted by the terms of this Lease may be given by or to any one thereof, and
shall have the same force and effect as if given by or to all thereof. No
rights, however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing as
aforesaid. The word "Landlord" is used herein to include Landlord named above
and any subsequent owner of the Premises, as well as their respective successors
and assigns, each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had it originally signed this Lease
as Landlord.
28.22. Effect of Submission. The submission by Landlord to Tenant of this
Lease in draft form shall be solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force or effect,
shall not constitute an option for the leasing of the premises herein described,
nor confer any rights or impose any obligations upon either party. The
submission by Landlord of this Lease for execution by Tenant and the actual
execution and delivery thereof by Tenant to Landlord or the submission of any
correspondence or other communications between the parties in connection
therewith, shall similarly have no binding force and effect unless and until
Landlord shall have executed this Lease and a duplicate original thereof shall
have been forwarded to Tenant or its representative or delivered in person to
Tenant or its representative. Accordingly, any such submission by Landlord or
its agents or attorneys is intended only as non-binding discussions, and either
party shall have the absolute right to withdraw from such discussions without
any liability whatsoever to the other party.
28.23. Interpretation. It is the intent of the parties hereto that if any
term, covenant or condition of this Lease is capable of two interpretations, one
of which would render the provision void and the other of which would render the
provision valid, then the provision shall have the meaning which shall render it
valid. Printed parts of this Lease shall be as binding upon the parties hereto
as other parts hereof. Parts of this Lease which are written or typewritten
shall have no greater force or effect than and shall not control parts which are
printed, but all parts shall be given equal effect. No meaning shall be
attributable to any sections which are "reserved" or "intentionally omitted",
nor shall any inference be drawn from any deletion, modification or amendment
from any prior draft of this Lease. Tenant declares that Tenant has read and
understands all parts of this Lease, including all printed parts hereof. The
parties acknowledge and agree that this Agreement has been negotiated "at arm's
length" by and between Landlord and Tenant, each having the opportunity to be
represented by legal counsel of its choice and to negotiate the form and
substance of this Lease and, therefore, in construing the provisions of this
Lease neither party will be deemed disproportionately responsible for
draftsmanship.
28.24. Recording. Tenant shall not record this Lease, or any memorandum or
short form hereof, without the prior written consent and joinder of Landlord.
Any such recordation by Tenant without Landlord's prior written consent and
joinder shall render this entire Lease automatically void and of no further
force and effect.
28.25. Cure by Mortgagees. If any mortgagee shall forward to Tenant
written notice of the existence of its mortgage, then Tenant shall, so long as
such mortgage is in existence, be required to give to such mortgagee the same
notice and opportunity to correct any default as is required to be given to
Landlord under this Lease, but such notice of default may be given by Tenant to
Landlord and such mortgagee concurrently.
28.26. Accord and Satisfaction. No payments by Tenant or receipt by
Landlord of a lesser amount than any payment of Rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other remedy provided for in this Lease or
available at law or in equity.
28.27. Representations of Tenant. Tenant represents and warrants to
Landlord that all financial, management and operational information regarding
Tenant and its principals previously provided to Landlord by Tenant, were and
are true and correct and accurately report and depict the financial and
operational experience of the entities described therein and do not omit any
material facts or information which, if disclosed, might affect a reasonable
Landlord's judgment regarding the propriety of entering into this Lease with
Tenant. Tenant hereby represents and warrants that Tenant is and shall remain at
all times during the term of this Lease in good standing in its state of
incorporation and authorized to transact business in the State of Florida.
28.28. Radon Gas Notification. In accordance with the requirements of
Florida Statute ss.404.056(6), the following notice is hereby given: "Radon is a
naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities,
34
may present health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit."
28.29. Landlord's Media Rights. Landlord shall have the right, without
Tenant's consent, to photograph, take motion pictures of, televise, make
miniatures of or otherwise reproduce in any manner or through any media the
exterior of the Building and/or the Premises, or any portion thereof, in
conjunction with any marketing, publicity, sales or promotional activities
relating to Celebration, or any portion thereof. Landlord may use, sell or
license any such pictures or other reproductions for any purpose, commercial or
otherwise, both during the Term hereof and after the expiration or sooner
termination of this Lease. Tenant shall endeavor to obtain, for Landlord's
benefit, releases, clearances or other instruments from any of its employees,
which may be necessary to permit Landlord to make and use or permit to be made
and used any photographs, motion pictures or other reproductions for any of the
purposes herein provided.
28.30. Affiliates. As used in this Lease, the term "Affiliate" means, as
to any entity, any other entity which is controlled by, controls, or is under
common control with such entity. The term "control" (including the terms
"controlled," "controlled by" and "under common control with") shall mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of an entity. The term "Affiliates" shall be the
plural reference to "Affiliate."
28.31. Survival. The provisions of this Lease which from their context or
application are intended to survive the expiration or earlier termination of
this Lease shall so survive.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed on the date set forth above.
TENANT:
VOX COMMUNICATIONS CORP.
a Delaware corporation
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
-------------------------------- ------------------------------------
(Signature of First Witness)
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
-------------------------------- ----------------------------------------
(Printed Name of First Witness) Printed Name
/s/ Xxxxx Xxxxxxxx Title: President
-------------------------------- ---------------------------------
(Signature of Second Witness)
Xxxxx Xxxxxxxx Date: 1/21/05
-------------------------------- ----------------------------------
(Printed Name of Second Witness)
LANDLORD:
LEXIN CELEBRATION LLC,
a Delaware limited liability company
By: Lexin Celebration MM LLC
Managing Member
By: Lexin Capital LLC
Sole Member
/s/ Xxxxxxx X. Xxxxxxx III By: /s/ Xxxxx Xxxxxx
-------------------------------- ------------------------------------
(Signature of First Witness)
Xxxxxxx X. Xxxxxxx III Xxxxx Xxxxxx
-------------------------------- ----------------------------------------
(Printed Name of First Witness) Printed Name
Title: President
-------------------------------- ---------------------------------
(Signature of Second Witness)
Date: 1/21/05
-------------------------------- ----------------------------------
(Printed Name of Second Witness)
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EXHIBIT "A"
-----------
Graphic Depiction of Downtown Celebration Property
--------------------------------------------------
37
EXHIBIT "B"
-----------
Downtown Celebration Site Plan
------------------------------
The Downtown Celebration Site Plan shown above is intended to show the
approximate location of the Building and the Premises, but not the specific
configuration of Downtown Celebration or locations of all of the Downtown
Celebration Buildings, and Landlord expressly reserves the right to reconfigure,
alter, enlarge, reduce or redesign all or any portion of Downtown Celebration
and the Downtown Celebration Buildings in such manner as Landlord in it sole and
absolute discretion may determine.
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EXHIBIT "C"
-----------
Premises Floor Plan
-------------------
The Premises Floor Plan shown above is a conceptual plan only, and Tenant hereby
acknowledges that (i) the Premises as finally constructed may vary in one (1) or
more respects from the Premises Floor Plan shown above and (ii) such variances
shall not constitute a breach of, nor otherwise entitle Tenant to cancel or
terminate, this Lease.
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EXHIBIT "D"
-----------
Tenant's Work
-------------
Tenant shall be responsible for all design, engineering, construction,
fabrication and installation of all interior improvements beyond what has been
provided by Landlord as described in Exhibit "D-1", at Tenant's sole cost and
expense. Unless otherwise provided in this Lease, the Tenant's Work may include,
without limitation, the following types of work:
I. GENERAL
A. Installation of floor, walls and ceiling finishes, including finishes to
area on the first floor following demolition of the stairwell by Landlord.
B. Interior Partitions: Any interior partitions required as a result of the
nature of the operations of Tenant.
C. All equipment, facilities and systems utilized in connection with the
operation of Tenant's business within and from the Premises beyond what
have been provided by Landlord.
II. ELECTRICAL
A. All electrical distribution conduit, wiring, circuitry, panels, fuses,
disconnect switches, meter bases, receptacles, switches, and any other
miscellaneous controls beyond Landlord's electrical closet.
B. Alarm systems or other protective devices, public address systems, fire
extinguishing devices and any other system(s) necessary to abide by all
governmental rules and regulations.
C. All interior lighting, wiring and control systems.
D. Any electrical service beyond what is provided by Landlord, which may be
required to serve the Premises as a result of Tenant's desire to upgrade
Landlord's standard electrical service. Upgrade shall be contingent upon
verification by Landlord's electrical engineer that there exists
sufficient excess electrical service capacity to upgrade Tenant's base
electrical service.
E. All electrical wiring and controls for any exterior sign, which sign must
be approved by Landlord in advance.
III. TELEPHONE
All wiring, distribution, connections and controls necessary to provide
telephone service beyond what is provided by Landlord. Tenant shall be
responsible for arranging with the local telephone company for the
necessary telephone connections to the Premises.
IV. PLUMBING
All plumbing connections, services, fixtures and equipment beyond the
plumbing stubs provided to the Premises by the Landlord including, without
limitation:
1. Underground and overhead piping within Tenant's Premises including
required insulation.
2. Installation of bathrooms and related fixtures and equipment meeting
all governing codes, rules and regulations.
3. Any drinking fountains, water coolers or other plumbing fixtures
beyond the washroom fixtures.
4. Any special filtering systems and/or drainage requirements due to
any special equipment needs within Tenant's Premises.
5. All kitchen equipment requiring plumbing connections or services.
V. MECHANICAL
All mechanical connections, equipment and controls beyond what has been
provided by Landlord. Tenant's HVAC designs must be performed by a
licensed mechanical engineer registered in the State of Florida in
accordance with all applicable codes, rules and regulations and must be
compatible with Landlord's condenser water system. Tenant's work shall
include, without limitation, the following:
1. All connections and extensions to Landlord's condenser water system
stubs including, without limitation, piping, insulation, valves and
controls.
2. Installation of a water-cooled heat pump system designed to serve
the normal operating cooling needs of Tenant's Premises. Heat pump
must be provided with a condensate water drip pan piped to nearest
drain.
3. Ductwork distribution for supply and return air including, without
limitation, registers, grilles, etc.
4 Thermostat equipment and control wiring.
5. Grease exhaust ducts for restaurant designated spaces consisting of
welded metal duct with appropriate access panels for clean out.
6. Kitchen exhaust hoods with continuous washdown hoods and charcoal
filters for restaurant designated spaces.
7. Any and all supply, return, make-up air and exhaust system ductwork
required as a result of Tenant's HVAC design.
40
8. Any and all mechanical, cooling and heating equipment within
Tenant's Premises.
9. All exterior mounted kitchen exhaust units must be equipped and
mounted with proper roof curbs and drip pans. Drips pan overflows
must be directly piped to grease line interceptors.
10. All restaurant exhaust hoods shall be specified to include a
continuous washdown hood system.
VI. ACCESS
Tenant must provide access to any of Landlord's equipment, utilities,
systems cleanouts, valves and controls which may be contained in or run
through Tenant's Premises. Tenant must provide access panels to Landlord's
equipment which may be contained within Tenant's finished space.
VII. SPECIAL EQUIPMENT
Alarm systems or other protective devices, PA systems, fire extinguishers,
conveyers, elevators, escalators, dumb waiters, time clocks, delivery door
buzzers, storm and screen doors, store enclosures, dry chemical fire
protection system, and all lighting and electrical work not covered in
Landlord's Work.
VIII. PLANS AND SPECIFICATIONS
A complete set of architectural and engineering drawings and
specifications to include all work to be performed by Tenant. Tenant must
adhere to the plan submittal and review requirements as specified in
Section 3.1 of the Lease. Said drawings and specifications are to be
prepared by a duly licensed architect or engineer. Tenant shall also be
responsible for submitting an interior finish and material sample board
for review and approval by Landlord. Tenant plans submitted to Landlord
for review and approval shall include, without limitation, the following:
1. Architectural: floor plans, reflected ceiling plans, wall elevation,
sections and details.
2. Furniture, Fixture and Equipment plan listing all proposed fixturing
and equipment.
3. Finish and Equipment schedule.
4. Electrical Plans describing all Tenant's electrical system design
including, without limitation, power distribution, receptacles, etc.
5. Lighting Plan describing Tenant's lighting design with appropriate
fixture schedule.
6. Plumbing plan listing all of Tenant's plumbing systems and
equipment.
7. Mechanical plan listing all of Tenant's mechanical systems and
equipment.
8. Fire Protection System plan listing Landlord's fire protection grid
and Tenant's modifications.
9. Signage: interior and exterior signage plans and specifications.
IX. PERMITS, FEES AND LICENSES
Tenant shall obtain and pay for all permits, fees and licenses required
for the design, construction, occupation and operation of Tenant's
Premises.
X. SIGNAGE
All signage and graphics on interior and exterior of Tenant's Premises.
Tenant shall submit shop drawing for Landlord's approval prior to
fabrication or installation of any signage.
XI. TENANT AGREES TO THE FOLLOWING:
A. Tenant shall supply to Landlord, before commencing its work hereunder, a
performance and payment bond as required by Section 3.2 of the Lease
providing that all of Tenant's Work will be paid for and performed lien
free.
B. Tenant shall supply contractor's affidavits concerning the total cost of
the work to be performed.
C. Tenant's Work shall conform to all applicable governing codes, ordinances,
rules, regulations and requirements of fire insurance rating bureau.
Landlord's approval of the Plans and Specifications shall not be
considered as approval of the structural adequacy thereof or the
compliance thereof with applicable laws and does not release Tenant from
this obligation.
D. No combustible materials are permitted above ceiling.
E. Signage shall be in accordance with Landlord's sign requirements as
adopted by Landlord from time to time and shall be subject to Landlord's
approval prior to installation.
F. Tenant agrees that utility lines may pass through its Premises to service
other tenants and building areas.
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G. Tenant agrees to require its contractors and/or subcontractors to furnish
Landlord evidence of adequate insurance coverage prior to Tenant's
contractors performing any work in Tenant's Premises.
H. Tenant and/or its contractors and/or subcontractors are limited to
performing their work in the Premises only. Tenant and/or its contractor
and/or subcontractor shall each be responsible for daily removal of all
trash, rubbish and surplus material resulting from construction, fixturing
and merchandising of the Premises, and all construction debris shall be
hauled from the Premises and Downtown Celebration at Tenant's sole cost
and expense.
I. Tenant and/or its contractor and/or subcontractors are responsible for
temporary utilities for their work including, without limitation, payment
of utility charges.
J. Any upgrade of any component of the Premises, including, without
limitation, the floor slab, thickness of demising partition, insulation,
emergency equipment and smoke/fire alarms, and mechanical, electrical and
plumbing systems, shall be at Tenant's sole expense; provided, however,
that prior to starting such upgrades, Tenant shall have received
Landlord's written consent to such upgrades pursuant to the provisions of
this Lease.
K. All work performed by Tenant must not only be approved by Landlord, but
must have temporary and final Waiver of Liens submitted to Landlord.
Tenant shall provide Landlord with a list of all contractors,
sub-contractors, suppliers and materialmen providing labor, material and
equipment to the Premises.
L. Tenant shall be responsible for separate metering of gas, electric,
sewer and domestic water service to the Premises.
42
EXHIBIT "D-1"
-------------
Landlord's Work
---------------
None
43
EXHIBIT "E"
-----------
Permitted Use of Premises
-------------------------
Throughout the Term and subject at all times to the use restrictions set
forth in Article 6 of this Lease, the Premises shall be used and occupied by
Tenant only for the following Permitted Use, and for no other use or purpose
whatsoever: an administrative office for a communications company. Tenant shall,
at its own cost and expense, obtain all licenses and permits necessary for the
Permitted Use.
Any use not specifically set forth herein, shall be subject to the prior
written approval of Landlord, which approval may be granted or withheld in
Landlord's sole and absolute discretion, and shall be subject at all times to
the use restrictions set forth in Article 6 of this Lease. Tenant hereby
acknowledges that Landlord has a very substantial interest in maintaining the
family-oriented image, reputation, nature and feel of Downtown Celebration and,
in recognition of the foregoing, Tenant agrees to and shall promptly remove from
display within the Premises any merchandise and/or other items which Landlord,
in its sole and absolute discretion, determines to be inconsistent with the
aforesaid standards and values. Further, Tenant expressly acknowledges and
agrees that nothing contained herein shall permit or be deemed to permit the
sale or display of any merchandise licensed by or affiliated with "CELEBRATION",
"XXXX DISNEY WORLD(R)" or "DISNEY" (either alone or in conjunction with or as a
part of any other word or name) including, without limitation, any merchandise
which utilizes or contains any of the fanciful characters or designs of Lexin
Celebration LLC, The Xxxx Disney Company or any of its related, affiliated or
subsidiary companies.
44
EXHIBIT "F"
-----------
Downtown Celebration Office Building Rules and Regulations
----------------------------------------------------------
The following are the Rules and Regulations of Downtown Celebration Office
Buildings and, as indicated, shall be applicable to the use and operation of the
Common Property and to the use, occupancy and operation of all Office Buildings
within Downtown Celebration:
1. Access. Tenant shall not obstruct any elevators, vestibules, stairways,
corridors, halls, sidewalks, passages, exits, entrances, roadways, truck ways,
loading docks, package pick-up stations, or pedestrian sidewalks or ramps within
any Building or any other portion of Downtown Celebration. No sidewalk or
walkway shall be used for other than pedestrian travel. All sidewalks and other
Common Property contiguous to the Premises shall be kept clean and free at all
times of trash, dirt, rubbish or debris of any kind. No person shall use any
roadway, sidewalk, or walkway, except as a means of egress or ingress to retail
or commercial establishments or residential areas or automobile parking areas
within Downtown Celebration, or adjacent public streets. Such use shall be in an
orderly manner, and in accordance with the directional and other signs or
guides. Roadways shall not be used for parking or stopping, except for the
immediate loading or unloading of passengers.
2. Advertising. Tenant shall not: (i) use, or permit to be used, any area
outside the Premises (including, without limitation, any lobbies, landings,
sidewalks or other portions of the Common Property for solicitation or for any
other business, occupation or undertaking, or for outdoor public meetings,
circuses or other entertainment of any kind (except for promotional activities
in cooperation with Landlord); (ii) use or permit to be used any sound
broadcasting or amplifying device which can be heard outside of the Premises; or
(iii) use or permit to be used any flashing, beacon, strobe, chaser or other
form of special attention-getting lighting which may be visible from the
exterior of the Premises. Tenant shall not park any trailer, truck or other
vehicle in Downtown Celebration at any time for the purpose of advertising or
promoting Tenant's business. Upon Landlord's request, Tenant shall cease any
advertising by Tenant which uses or employs the name of CELEBRATION and which,
in Landlord's reasonable opinion, tends to adversely impact or impair the
reputation of Celebration or Landlord.
3. Utilities. Tenant shall keep corridor doors closed except when being
used for access. Tenant shall use no other method of heating or cooling other
than that supplied by Landlord or installed with Landlord's approval as part of
the Tenant Improvements. The interior of the Premises shall at all times be
maintained at a comfortable temperature.
4. Solicitation, Etc. Tenant shall not, and shall not permit any third
parties to, solicit business or engage in any promotional activities or
distribute any handbills or other promotional or advertising materials of any
kind within the Premises or any other portion of Downtown Celebration, nor shall
Tenant engage or permit any third parties to engage, in any sales or promotional
practices within the Premises or any other portion of Downtown Celebration.
Tenant shall not, and shall not permit any third parties to, solicit for or
distribute any promotional or advertising materials or engage in any promotional
activities, which are intended to or which may have the effect of encouraging
customers of Tenant to attend, shop at, or order merchandise from any store,
business, attraction or other location not contained within Downtown
Celebration, without Landlord's prior written consent, which consent Landlord
may withhold in its sole and absolute discretion. Tenant shall not solicit
membership in or contributions for any organization, group, association or any
other purpose, or permit any other third parties to do the same anywhere in the
Premises or any portion of Downtown Celebration, without Landlord's prior
written consent, which consent Landlord may withhold in its sole and absolute
discretion. Canvassing, soliciting, and peddling within Downtown Celebration is
prohibited, and Tenant shall cooperate to prevent the same. In addition to the
foregoing, neither Tenant nor its employees or agents shall, in or on any part
of Downtown Celebration:
(a) Engage in any conduct that might tend to interfere with or
impede the use of any of the Common Property by any customer, business invitee,
employee, or tenant of Downtown Celebration, create a disturbance, attract
attention, or harass, annoy, disparage, or be detrimental to the interest of any
of the retail, commercial or residential establishments within Downtown
Celebration.
(b) Throw, discard, or deposit any paper, glass, or extraneous
matter of any kind, except in a designated trash receptacle, or create litter
hazards of any kind.
(c) Use any sound making device of any kind or create and produce in
any manner noise or sound that is annoying, unpleasant or distasteful to any
other tenant, occupant, or adjacent resident.
45
(d) Deface, damage, or demolish any sign, light standard or fixture,
landscaping material, or other improvement within Downtown Celebration, or the
property of customers, business invitees, or employees situated within Downtown
Celebration.
5. Parking. Tenant, and Tenant's employees and customers shall not use any
automobile parking areas except for the parking of motor vehicles during the
period of time the occupant(s) of such motor vehicles are working in or
customers or business invitees of retail or commercial establishments within
Downtown Celebration. Usage of parking spaces shall be in common with all other
tenants of the Building or of Downtown Celebration, and their employees, agents,
invitees and guests. Additionally, Tenant's employees, agents, invitees and
guests shall abide by all posted roadway signs an about the parking facilities
and all motor vehicles shall be parked in an orderly manner within the painted
lines defining the individual parking spaces. Trailers, trucks or cars shall not
be permitted to remain parked overnight within Downtown Celebration, whether
loaded, unloaded or partially loaded. Landlord shall have the right to tow away
any vehicle, at Tenant's expense, which is in violation of these Rules and
Regulations or which is determined by Landlord to be objectionable. In the event
that Tenant or its employees shall fail, after written notice, to park in the
designated parking areas so designated for employee parking as set forth in the
Lease, Landlord, at its option, shall be entitled to charge Tenant TWENTY-FIVE
DOLLARS ($25.00) per day or partial day per car parked in any area other than
the designated employee parking area. Tenant agrees that parking lots contained
within Downtown Celebration shall be managed by Landlord; that Landlord shall
have the right to charge and retain a fee for parking in such lots; and that
Landlord may prohibit Tenant and Tenant's employees from parking in such lots if
Landlord deems it advisable to reserve such spaces for residential tenants and
retail, commercial and other customers of Downtown Celebration.
6. Theft or Loss. Tenant shall be responsible for the protection and
security of the Premises and all property therein from robbery, theft,
vandalism, pilferage or other loss. Landlord shall not be responsible for lost
or stolen personal property, equipment or money occurring within the Premises or
the Building, regardless of how or when the loss occurs. Tenant, upon leaving
Premises at the end of any day, shall see that all windows and exit doors from
the Premises is closed and locked. Tenant shall furnish Landlord with
"afterhours" emergency telephone numbers, for the sole use of Landlord at its
discretion. Except for emergency purposes, Landlord will use its best efforts to
keep such telephone numbers confidential.
7. Keys. Landlord shall furnish Tenant (free of charge) with two (2) keys
to each door lock in the Premises. Landlord shall have the right to retain at
all times, and to use in appropriate instances, keys to all doors within and to
the Premises. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the prior written consent of Landlord,
which consent Landlord may withhold in its own discretion, and unless a
duplicate key is delivered to Landlord. Tenant, upon the expiration or earlier
termination of the Lease, shall deliver to Landlord all keys to all doors in the
Premises, and in the event of a failure of Tenant to do so, Landlord shall have
the right to change any locks in the Premises and charge Tenant for the
reasonable cost thereof.
8. Signs. Tenant shall not place, or cause or allow to be placed, any
sign, placard, picture, advertisement, notice or lettering whatsoever, in, about
or on the exterior of the Premises, the Building or Project, except in and at
such places as may be designated by Landlord and consented to by Landlord in
writing. Any such sign, placard, advertisement, picture, notice or lettering so
placed without Landlord's consent may be removed by Landlord without notice to
and at the expense of Tenant. All lettering and graphics on corridor doors shall
conform to the building standard prescribed by Landlord and shall be subject to
Landlord's approval as set forth in the Lease. All approved signs erected,
placed or installed by Tenant shall be maintained by Tenant in good repair and
in a neat, clean, and orderly condition pursuant to the terms and provision of
the Lease.
9. Deliveries/Loading/Unloading. All deliveries to the Premises and
loading and unloading of goods shall be done only at the rear entrance(s) to the
Premises, or as may be otherwise determined by Landlord from time to time.
10. Moving/Equipment. Tenant shall not use any hand trucks or other
material-handling equipment within the Premises or the Building, within which
the Premises is located, except those equipped with rubber tires and side
guards. Any damage to the Premises, said Building or any other portion of
Downtown Celebration arising out of the movement of any equipment, furniture or
other property, shall be repaired by Tenant at its sole expense.
11. Equipment/Vibration/Noise. Landlord shall have the right to prescribe
the weight, size and location of all equipment, materials, furniture or other
property brought into the Premises, and the Building. Landlord shall also have
the right to require all such items to be moved into and out of said Building or
the Premises only at such times and in such manner as Landlord shall direct in
writing; provided, however, movement of Tenant's property into and out of the
Premises of said Building are entirely at the risk and responsibility of Tenant.
Tenant shall not place a load upon any floor which exceeds the designed load per
square foot or the load permitted by law. Heavy objects shall stand on such
platforms as may be necessary to properly distribute the weight thereof.
46
Business machines and mechanical equipment which cause noise or vibration that
may be transmitted, felt or heard outside the Premises, shall be placed and
maintained by Tenant at Tenant's expense, on vibration eliminators or other
similar devices. Tenant agrees not to use or permit the use of any apparatus for
sound reproduction or transmission or of any musical instrument in such manner
that the sound so reproduced, transmitted or produced shall be audible beyond
the interior of the Premises; to keep all mechanical apparatus free of vibration
and noise which may be transmitted beyond the confines of the Premises; and not
to cause or permit objectionable odors to emanate or be dispelled from the
Premises.
12. Installation of Services/Roof. Except for telephone, computers and fax
equipment installed wholly within the Premises and intended solely to support
Tenant's business on the Premises, Tenant shall not install any signal,
communications, telegraphic, telephonic, burglar alarm or similar services
within the Premises, or any part of the Building, without Landlord's prior
written approval, which Landlord may withhold in its sole and absolute
discretion. Any such work, if approved by Landlord, shall be done at Tenant's
sole cost and expense and shall be subject to such restrictions and limitations
as Landlord shall impose. Tenant shall not go onto the roof of any Building for
any reason without Landlord's prior written approval, which approval Landlord
may withhold in its sole and absolute discretion.
13. Antennas, Etc. Tenant shall not install any radio or television
antenna, loudspeaker or other device on the roof or exterior walls of the
Premises or the Building or any other portion of Downtown Celebration. Tenant
shall not interfere with radio or television broadcasting or reception from or
within Downtown Celebration or any property located within the general vicinity
of Downtown Celebration.
14. Exterior Appearance. Tenant shall not place or install any show cases,
awnings, window coverings, shades, lighting, signs, canopies, or any other item
or article, in front of or affixed to any part of the exterior of the Premises
or the Building or any other portion of Downtown Celebration.
15. Restrooms. The restrooms, toilets, urinals, wash bowls and other
bathroom facilities and apparatus shall not be used for any purpose other than
that for which they were constructed, and no foreign substances of any kind
whatsoever shall be disposed of therein. Tenant shall keep all toilets, urinals,
wash bowls and other bathroom fixtures and apparatus clean and sanitary and in
compliance with all applicable laws, ordinances and regulations. All restrooms
shall be checked for cleanliness and cleaned at least daily and as otherwise
needed. All expenses of repair or replacement due to any breakage, stoppage or
damage of any bathroom facilities or related sanitary sewer lines in the
Premises shall be borne exclusively by Tenant.
16. Fire-Retardant Materials. All paneling or other wood products not
considered furniture which Tenant shall install in the Premises shall be of
fire-retardant materials. Prior to the installation of any such materials,
Tenant shall submit to Landlord a satisfactory (in the reasonable opinion of
Landlord) certification of such materials' fire-retardant characteristics.
17. Landlord's Right. Landlord shall have the right to remove or exclude
from or to restrain (or take legal action to do so) any unauthorized person
from, or from coming upon, Downtown Celebration or any portion thereof, and to
prohibit, xxxxx, and recover damages arising from any unauthorized act, whether
or not such act is in express violation of these Rules and Regulations or of the
Lease. Any persons in or entering the Building shall be required to comply with
the security policies of the Building, if any. If Tenant desires its own
security service for the Premises, Tenant shall have the right (with advance
written consent of Landlord) to obtain such service at its sole cost and
expense. Tenant shall keep doors to unattended areas locked and shall otherwise
exercise reasonable precautions to protect property from theft, loss or damage.
Landlord shall not be responsible for the theft, loss or damage of any property
or for any error with regard to the exclusion from or admission to the Building
of any person. In case of invasion, mob, riot or public incitement, Landlord
reserves the right to prevent access to the Building during the continuance of
same by closing the doors or taking other measures for the safety of the tenants
and protection of the Building and property or persons therein.
18. Trash and Garbage. Tenant shall store all trash and garbage in
containers within the Premises and/or, as to non-standard office trash, in a
location within the Common Property designated by Landlord, and shall not at any
time place, leave or discard any trash or any object of any kind whatsoever
outside the doors of the Premises or in the corridors or passageways of the
Building. Tenant shall not burn any papers, trash or garbage of any kind in or
about the Premises or the Building. All non-standard office waste, trash and
garbage shall be packed in leak resistant, odor resistant containers prior to
disposal. All boxes or cartons shall be broken down and/or torn by Tenant as
necessary to be easily accommodated in the trash and garbage containers. Tenant
shall not place any material in any trash or garbage container which cannot be
disposed of in the ordinary and customary course of trash and garbage disposal.
47
19. Holidays. The following dates shall constitute "Holidays" as said term
is used in this Lease:
A. New Year's Day
B. Memorial Day
C. Independence Day
D. Labor Day
E. Thanksgiving Day
F. Christmas Day
20. Services. Only persons authorized by Landlord will be permitted to
furnish newspapers, ice, drinking water, towels, barbering, shoe shining,
additional janitorial services, floor polishing and other similar services and
concessions in the Building, and only at hours and under regulations fixed by
Landlord. Tenant shall not do any cooking or operate any restaurant,
luncheonette, or cafeteria for the sale or service of food or beverages to its
employees or to others, or permit the delivery of any food or beverages to the
Premises, except by such persons delivering the same as shall be approved by
Landlord and only under regulations fixed by Landlord. Tenant may, however,
provide a coffee and beverage bar and/or microwave oven for the use of its
employees.
21. Maintenance Generally. The Premises shall be kept neat, clean, well
maintained and in good repair at all times, and Tenant shall be responsible for
all ongoing maintenance and upkeep of the Premises in accordance with the Lease.
22. Windows. Tenant will keep the inside and outside of all glass in the
doors and windows of the Premises clean, and shall replace promptly, at its
expense, any plate glass or window glass which may become cracked or broken.
23. Food Preparation Areas. Tenant shall keep any food preparation areas
in the Premises clean and sanitary and in compliance with all applicable laws,
ordinances and regulations.
24. Pest Control. Tenant shall provide for regular insect and pest control
service for the Premises from a certified, bonded pest extermination company
reasonably designated or approved by Landlord, such service to be performed at
least monthly or at such other interval as Landlord may reasonably require.
Tenant shall provide Landlord with a copy of its pest control service agreement
and evidence of payment therefor, at least five (5) days prior to the
Commencement Date and annually thereafter.
25. Compliance. Tenant shall be responsible for the compliance by its
employees and agents with the foregoing Rules and Regulations, and, with respect
to Tenant's customers, invitees and guests, Tenant shall exercise due diligence
in the enforcement and observation of these Rules and Regulations.
26. Waiver. No release or waiver by Landlord of any provisions herein
shall be enforceable by Tenant unless in writing and executed by Landlord. The
failure by Landlord to insist upon the strict performance of any of the terms or
provisions hereof shall not be deemed a waiver of any rights or remedies of
Landlord or a waiver of any subsequent violation or failure of compliance with
these Rules and Regulations.
27. Amendment. Landlord shall have the right to promulgate additional
Rules and Regulations or amend or rescind any of the foregoing Rules and
Regulations from time to time as Landlord in its sole and absolute discretion
deems suitable for the safety, care and cleanliness of Downtown Celebration and
the conduct of a first class retail shopping/commercial/office/residential
district. Tenant shall comply with all new or amended Rules and Regulations upon
receipt of written notice of the same from Landlord.
28. Consent. Whenever any consent or approval of Landlord is required
pursuant to these Rules and Regulations, such consent shall be in writing and
shall be given or withheld by Landlord in accordance with the standards for such
consent or approval as set forth in the Lease.
29. Conflict with Lease. These Rules and Regulations are in addition to
and shall not be construed to in any way modify or amend the terms, provisions,
agreements, covenants and conditions of the Lease. In the event of any conflict
between the Rules and Regulations and the Lease, the terms and provisions of the
Lease shall prevail.
48
EXHIBIT "G"
-----------
[INTENTIONALLY OMITTED]
49
EXHIBIT "H"
-----------
Downtown Celebration Common Expenses - List of Items and Charges
----------------------------------------------------------------
1. The cost of cleaning, maintaining, repairing and replacing the roof,
exterior walls and other exterior or structural elements of the Downtown
Celebration Buildings and other improvements located within Downtown
Celebration;
2. All ad valorem real and personal property taxes and assessments
attributable and levied and assessed by any lawful authority and payable by
Landlord with respect to the real property which is now or hereafter becomes a
part of Downtown Celebration, and buildings and improvements located therein
including, without limitation, the Building and the Common Property, and all
other costs and expenses incurred by Landlord in contesting any such taxes,
assessments, or charges and/or negotiating with any such lawful authority with
respect thereto, as well as all taxes and assessments levied by the CDD against
Landlord, as the owner of Downtown Celebration;
3. All insurance premiums attributable and payable with respect to the
real property which is now or hereafter becomes a part of Downtown Celebration
and all buildings and improvements located thereon and therein including,
without limitation, the Building and the Common Property;
4. The cost of operating, maintaining, repairing and replacing exterior
music, public address and security systems, if any, in Downtown Celebration
Buildings and the Common Property;
5. The cost of maintaining, repairing and replacing utility systems and
facilities, including, without limitation, underground electric, gas, sewer,
water and telephone lines and mains located within Downtown Celebration
Buildings and other portions of the Downtown Celebration Property, including,
without limitation, those which traverse the Common Property (excluding those,
if any, which are owned by utility companies providing such utility services to
all Downtown Celebration Buildings and other portions of Downtown Celebration);
6. The cost of operating, cleaning, maintaining, repairing and replacing
all signs or signage which identifies Downtown Celebration Buildings generally
and any other Downtown Celebration signs and signage (excluding Tenant's Signs,
which shall be cleaned, maintained, repaired and replaced at Tenant's sole
cost);
7. The cost of professional services or fees involved in the management
and operation of the Downtown Celebration Property, including, without
limitation, legal and accounting services;
8. The cost of operating, maintaining, repairing and replacing the
security, alarm or monitoring systems for the benefit of tenants in Downtown
Celebration Buildings;
9. The cost of operating, cleaning, maintaining, repairing and replacing
sidewalks, parking lots or parking areas and entrances, access and service roads
and travelways in Downtown Celebration, including, without limitation,
sidewalks, walkways and corridors in or adjacent to Downtown Celebration
Buildings, including, without limitation, periodic patching, repaving, resealing
and restriping. Notwithstanding the foregoing, Tenant acknowledges that said
sidewalks, parking lots, and roads are either public or available for use by all
tenants and others permitted by Landlord, and Tenant has no exclusive rights
with respect to same, or rights that are paramount to the rights of others;
10. The costs incurred by Landlord in providing dumpsters or other
containers for the deposit of trash, rubbish and recyclable materials and the
removal of such trash, rubbish and recyclable materials;
11. The cost of operating, maintaining and repairing Downtown Celebration
traffic control systems and facilities, including, without limitation, on-ground
and above-ground signs, signals and other traffic control devices;
12. The cost of traffic control and security services for Downtown
Celebration whether pursuant to service contracts or employees of Downtown
Celebration, including, without limitation, amounts paid to consultants to
optimize the efficiency of the parking and traffic flow within Downtown
Celebration, and the costs of effectuating such consultants' recommendations;
50
13. The cost of operating (including all utility charges related thereto),
cleaning, maintaining, repairing and replacing the Condenser Water System,
lighting systems and facilities, including, without limitation, those located in
Downtown Celebration Buildings or in Downtown Celebration entrances, parking
lots and signage;
14. The cost of operating, cleaning, maintaining, repairing and replacing
Downtown Celebration drainage systems and facilities, including, without
limitation, Downtown Celebration underdrains, culverts, ditches, ponds and
lakes;
15. The cost of maintaining, repairing and replacing, from time to time,
Downtown Celebration fountains, lawns, gardens, planting beds and other
landscaping areas and all landscaping, including, without limitation, all
grasses, plants, shrubs, bushes, trees and other plants or planting materials;
16. The cost of supplies, uniforms, pagers, radios, automobiles, trucks,
and other such equipment and materials required for any of the foregoing;
17. The cost of operating, maintaining, repairing, replacing and renting
from time to time, machinery, equipment and tools required for any of the
foregoing, including, without limitation, the cost of storage for such
machinery, equipment and tools whether on-site or off-site;
18. All assessments levied by the Association against Landlord, as the
owner of Downtown Celebration;
19. The cost of maintenance and service agreements entered into by
Landlord for the operation, maintenance or repair of any or all of the Downtown
Celebration Property including, without limitation, pest control agreements;
20. The cost of all wages, salaries, fringe benefits and employer taxes
for all employees of Landlord or of Downtown Celebration, if any, engaged in the
operation, maintenance, repair and replacement of the Downtown Celebration
Property, including, without limitation, Downtown Celebration Buildings and
Common Property located thereon, or any of its component parts;
21. The cost of a management fee to Landlord or any other managing agent
selected by Landlord for and in connection with the management of the Downtown
Celebration Property, in an amount to be determined by Landlord;
22. The costs relating to any energy saving devices, equipment or
installations or any water saving devices, equipment or installations installed
by Landlord from time to time for the benefit of all tenants of Downtown
Celebration;
23. The costs incurred by Landlord for the purchase, installation,
operation, removal and storage of holiday decorations from time to time, for use
throughout Downtown Celebration;
24. The cost expended by Landlord to place and keep the Common Property in
compliance with all present and future governmental laws, regulations and
ordinances, including, without limitation, the ADA;
25. All utility costs incurred by Landlord in connection with the
operation of the Common Property, including, without limitation, any
improvements, equipment, signage and other facilities related thereto; and
26. Reasonable reserves established by Landlord for deferred maintenance
and/or replacement of any portion or all of Downtown Celebration or any of its
component parts.
51
EXHIBIT "I"
-----------
Extension Option
----------------
1. Provided that on the date Tenant delivers its Notice of Intent to Extend (as
defined below) and on the Termination Date, Tenant is not then in default of any
of its obligations under this Lease, Tenant may extend the Term ("Extension
Option") for one (1) additional five (5) year period ("Extension Option Term"),
to commence on the third (3rd) anniversary of the Lease Year Commencement Date
("Extension Term Commencement") and terminate on the day immediately preceding
the eighth (8th) anniversary of the Lease Year Commencement Date. Tenant shall
exercise the Extension Option by delivering written notice to Landlord ("Notice
of Intent to Extend") between two hundred ten (210) and one hundred eighty (180)
days prior to the Termination Date of the Initial Lease Term, as defined in
Section 1.1 of this Lease. In the event Tenant fails to deliver its Notice of
Intent to Extend as and when required in the preceding sentence, Tenant shall be
deemed to have irrevocably waived its right to the Extension Option.
2. In the event Tenant exercises the Extension Option, Landlord shall deliver,
and Tenant shall execute, Landlord's form lease amendment (the "Lease
Amendment") extending the Lease Term as provided herein, within fifteen (15)
days following the delivery of the Notice of Intent to Extend. Failure of the
Tenant to execute the Lease Amendment within the said period shall constitute a
waiver of the Extension Option.
3. The Base Rent for each Lease Year during the Extension Option Term shall be
adjusted and increased (but never decreased) to the greater of either (i) an
amount equal to the sum of the Base Rent for the immediately preceding Lease
Year plus an additional three percent (3%) thereof, or (ii) that sum (but in not
event less than the Base Rent payable for the preceding Lease Year), which is
derived by multiplying the Base Rent payable for the preceding Lease Year by a
fraction, the numerator of which shall be the "CPI Index" (as defined below) in
effect for the calendar month which is two (2) calendar months prior to the
calendar month in which the first day of the Lease Year for which the adjustment
is to be made occurs and the denominator of which shall be the "CPI Index" in
effect for the calendar month which is two (2) calendar months prior to the
calendar month in which the Extension Option Commencement occurs. The term "CPI
Index", as used herein, shall mean the Consumer Price Index for All Urban
Consumers (CPI-U) - U.S. Average, All Items (1982-1984 = 100), published by the
Bureau of Labor Statistics of the U.S. Department of Labor ("CPI"); provided,
however, that if the CPI shall be discontinued, the CPI Index shall be the index
of Consumer Prices in the U.S. most closely comparable to the discontinued CPI
Index, after making such adjustments in items included or method of computation
as may be prescribed by the agency publishing the same, or as otherwise may be
required to compensate for changes subsequent to the Lease Year Commencement
Date. In the event a comparable substitute index is not available, then the
price index used in making the CPI-based adjustments provided for in this Lease
shall be the successor thereto, compiled and published by an agency of the
United States government, which determines the purchasing power of the dollar.
If Landlord determines that there is no such index compiled and published by an
agency of the United States government, then a nationally recognized firm of
independent certified public accountants designated by Landlord shall select a
successor price index, government or private, which best reflects changes in the
purchasing power of the dollar, and the decision of said accountants in
selecting such successor price index to be used hereunder shall be final and
binding upon the parties. Landlord shall pay the fees of said accountants
payable in respect of their selection of such successor price index. In the
event the base reference year used in computing the CPI is changed during the
Term, the 1982-84 = 100 index published concurrently by the Bureau of Labor
Statistics shall continue to be used in the calculation of adjustments
hereunder; provided, however, that in the event the Bureau of Labor Statistics
ceases to currently publish the 1982-84 = 100 index, then the adjustments
provided for in this Lease shall be calculated based upon the new base year
index, and in such event Landlord shall apply a conversion factor to such new
index for the purpose of making such new index as comparable as practicable with
the prior base year index. Such conversion factor shall be obtained from the
Bureau of Labor Statistics if in fact the Bureau of Labor Statistics publishes
such a conversion factor, otherwise a nationally recognized firm of certified
public accountants designated by Landlord shall select a conversion factor.
4. In the event that Tenant exercises the Extension Option, Tenant shall
complete certain alterations to the Premises ("Extension Term Alterations"). The
Extension Term Alterations shall include, without limitation, the following
elements of interior construction necessary to update the interior decor of the
Premises in accordance with Tenant's Permitted Use thereof, including, without
limitation, the following types of work: (i) repaint all previously painted
surfaces; (ii) replace all wall coverings; (iii) replace all carpeting; and (iv)
replace any dated, worn, discolored, faded, stained, or damaged furniture,
fixtures, equipment, signs, displays and other portions of the interior of the
Premises and any such other renovation and alterations as Landlord may
reasonably require. Said Extension Term Alterations are for the purpose of
updating the decor of the Premises consistent with its Permitted Use, and shall
be made in addition to
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any repair and maintenance work which Tenant may be obligated to perform
pursuant to Article 16 of this Lease. All work to be performed shall be at
Tenant's sole cost and expense.
5. Within fifteen (15) days following the execution by Landlord and Tenant of
the Lease Amendment, Tenant shall submit to Landlord, for its review and
approval in the manner set forth in Section 3.2 hereof, its plan and
specifications for the Extension Term Alterations. Tenant shall proceed to
complete the same in accordance with the provisions of Article 3 hereof, and
shall provide Landlord with documentation and certification required therein.
Tenant shall complete all Extension Term Alterations not later than sixty (60)
days following the Extension Term Commencement. Landlord may declare Tenant in
default if said Extension Term Alterations are not completed by such date.
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