Exhibit 10.36
OFFICE LEASE
This Lease is made this __ day of November __, 2000 by and between
XXXXXXX IMMOBILIEN GMBH, a German corporation, represented by its agent WELSH
COMPANIES, SE., INC., a Florida corporation ("Landlord") and STARMEDIA NETWORK,
INC., a New York corporation, with corporate headquarters at 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
1. BASIC LEASE PROVISIONS:
1.1. PROJECT: "Legal Description" SEE SCHEDULE I
------- --------------
The Project includes: An office building ("Building"), a parking
garage, and/or surface parking lot, the
land and other improvements within the
Project boundaries
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000
Unit/Suite No.: 900 and 808
Floor: 9th and 8th
Guaranty of Lease: INTENTIONALLY OMITTED
Rules and Regulations: SEE SCHEDULE III
Landlord may change the Building and/or Project name and/or
address without notice to or consent of Tenant, subject to the
terms of Section 3.2 below.
1.2. AREA OF PREMISES: Approximately 13,511 rentable square feet,
as reflected on the floor plans attached hereto as composite
Exhibit "A" ("Premises"), subject to re-measurement by
Landlord's architect pursuant to BOMA standard, upon
completion of the Tenant Improvements under paragraph 1.15
below and as provided in paragraph 1.19. below, and including
a Building common area factor of 1.175. The Premises as so
remeasured shall thereafter not be subject to dispute.
The rentable area of the Premises includes a corridor in suite
808, which is crosshatched on Exhibit "A" of approximately 235
rentable square feet. Tenant obligations to pay Base Rent and
Building Operating Expenses under this Lease shall exclude
this corridor and shall be based on approximately 13,276
rentable square feet, as adjusted upon re-measurement under
this paragraph 1.2.
In the event of a change of the rentable area of the Premises
as a result of this remeasurement, all lease provisions
relating to measurements of the Premises and the parties'
rights and obligations resulting therefrom shall be adjusted
accordingly, including but not limited to Tenant's obligation
to pay Rent and Tenant's Percentage Share as defined herein.
1.2.1 SATELLITE DISH ANTENNA; SHAFT USE.
---------------------------------
A. RIGHT TO USE. Tenant shall have the right during the term
hereof, at Tenant's sole cost and expense, to install and
operate two (2) satellite dish antennae on the roof of the
Building per the attached plan of the intended installation
(Exhibit "A1"), subject to space availability and provided
there is no interference with existing equipment. The
installation of such antennae shall be subject to Landlord's
prior written approval of all technical and construction plans
and specifications, which approval shall not be unreasonably
withheld or delayed. Tenant shall obtain all governmental
approvals and permits and shall comply with all applicable
codes, laws and regulations, and specifically all applicable
FCC regulations and requirements in connection with the
installation and operation of said equipment. Tenant agrees to
remove all equipment so installed upon termination of the
Lease and agrees to restore the Building, including but not
limited to the affected roof area, to its original condition.
Tenant shall be responsible for all damages caused to the
Building and/or Landlord's property or that of other tenants
as a result of the installation, maintenance or removal of the
equipment. Tenant agrees that access to the satellite dish
antenna shall be provided by Landlord's maintenance staff at
the Building during regular working hours and upon call for,
emergency purposes. Landlord shall provide access to the
building risers, shafts and common areas as necessary for the
installation and maintenance of fiber optics, telecom, data
cabling, and other related equipment to the Premises as well
as for Tenant's Satellite Dish Antenna.
B. MISCELLANEOUS. Tenant will at all times maintain
comprehensive general and commercial liability insurance for
its equipment and its operation. If it is determined in the
future that any health hazard may result from the operation of
this equipment, or if any governmental agencies determine new
regulations for such installations, then Tenant agrees to
comply immediately
2
or remove the equipment, without terminating the Lease and/or
its Right To Use under this Paragraph, until such
non-complying condition is remedied. Tenant shall be liable
for all claims which may arise out of the installation and
operation of its equipment.
1.2.2. ELEVATOR ACCESS CONTROL. Landlord, subject to Landlord's
review of the proposed system and provided all zoning and
governmental regulations are complied with, shall permit
Tenant to install a controlled access system for the 9th
floor.
1.3. TENANT'S PERCENTAGE SHARE. 14.04%. Tenant's' Percentage
Share shall be adjusted if the rentable area of the Building
or the Project is increased or decreased.
1.4. COMMENCEMENT DATE OF LEASE. On the Rent Commencement Date
as defined in paragraph 1.6 below.
1.5. LEASE TERM/EXPIRATION DATE OF LEASE: The Lease Term ("Lease
Term") shall commence on the Commencement Date and shall
expire the last day of the 60th month after Rent Commencement
Date ("Expiration Date").
1.5.1. RENEWAL OPTIONS. Tenant shall have two (2) consecutive
options (the "Renewal Options") to extend the Lease Term for
consecutive periods of five (5) years each (the "First and
Second Renewal Periods" respectively). The rental rate for
each Renewal Period shall be equal to the prevailing market
rent for properties similar to the Building in quality, size,
location and use in Miami Florida on the date of the exercise
of the Renewal Option, taking into account size and location
of the Premises, any rent concessions, moving concessions,
tenant allowances, and brokerage commissions prevailing in the
market at such time, as well as Tenant's creditworthiness,
length of the term, and extent of services provided or to be
provided. Tenant shall exercise its option rights not later
than one hundred eighty (180) days before the expiration date
of the then current Lease Term. Landlord shall provide Tenant
with its determination of the prevailing market rent within
ten (10) days after receipt of Tenant's notice to exercise its
Renewal Option. Tenant shall have twenty (20) days after
receipt of Landlord's notice in which to notify Landlord of
any objection thereto. In the event Tenant notifies Landlord
of its objection to `the computation of such rental rate, then
the parties shall negotiate in good faith for a period not to
exceed thirty (30) days in order to come to agreement thereon.
In the event the parties are unable to agree upon such rate
within' such thirty (30) day period, then Tenant shall have
the right, via written notice to Landlord within 10 days
thereafter, to either revoke its exercise of the Renewal
Option or to have the
3
matter submitted to arbitration as follows: Each party shall
select at its sole cost and expense, within ten (10) days
thereafter, an arbitrator with at least five (5) years of
experience in the valuation of office buildings in the Miami
area. Each such arbitrator shall submit its valuation of the
prevailing market rental rate in accordance herewith within
ten (10) days after selection, and if the valuations are
within ten percent (10%) of each other, then the valuations
shall be averaged together to arrive at the prevailing market
rent of the Premises. In the event the valuations have a
disparity greater than ten percent (10%), then the arbitrators
shall select a third arbitrator, who shall submit his/her
valuation in accordance with the foregoing within ten (10)
days after selection. The two valuations which are the closest
to each other shall then be averaged together to arrive at the
prevailing market rate. The cost of the third arbitrator shall
be shared by the parties.
1.5.2. RIGHT OF FIRST OFFER. If Tenant is not in default under
the Lease beyond any grace or cure period, as may be
applicable, Tenant shall have one time Right of First Offer to
lease Suite 800, which is contiguous to Suite 808 and marked
on Exhibit "A" and any part or all of the 7th floor space, and
other space in the building ("Expansion Space"), during the
Lease Term as the space becomes available, subject to any
encumbrances which may exist at the time this Lease Agreement
is signed or at the time the space becomes available, at
Market Rent, as defined below. The Landlord shall offer such
space to Tenant when it becomes available and Tenant shall
exercise its right under this paragraph by giving written
notice to Landlord of its exercise of this right and
acceptance of Landlord's offer not later than twenty (20) days
following its receipt of Landlord's offer. Expansion Space
shall be deemed available when it is vacant and broom clean
and not subject to any tenant rights other than Tenant's right
herein. Upon exercise of Tenant's right under this paragraph,
the parties shall execute an amendment to the Lease whereby
the Expansion Space shall be included in the definition of the
"Premises" under the Lease and shall be subject to the terms
of Landlord's offer accepted by Tenant. If not accepted,
Tenant's right under this paragraph shall terminate as to the
offered space, except that, if Tenant does not exercise its
right hereunder only because the. parties were unable to agree
on the Market Rent, Tenant's right hereunder shall continue if
Landlord markets the Expansion Space to third parties at less
than 95% of the Market Rent offered to Tenant.
Market Rent shall be defined as the rental rate which is equal
to the' prevailing market rent for properties similar to the
Building in quality, size, location and use in Miami Florida
on the date of the exercise of the Right of First Offer,
taking into account size and location of the Premises, any
rent concessions, moving concessions, tenant allowances, and
brokerage commissions prevailing in the market at such time,
as well as Tenant's creditworthiness,
4
length of the term, and extent of services provided or to
be provided.
Tenant's Flight of First Offer shall be limited to a total
area of Expansion Space of 31,638 square feet in the
Building and shall automatically terminate when size has
been reached.
1.6. RENT COMMENCEMENT DATE. On the Completion Date as defined
in Paragraph 5.3.4 of the Building Standard Workletter
attached as Exhibit "C" and pursuant to Landlord's written
notice to Tenant that the Tenant Improvements as described
in Paragraph 1.15 hereof have been substantially completed
and that the Premises are ready for occupancy and that a
permanent or temporary certificate of Occupancy or
equivalent has been issued for the Premises by Miami-Dade
County, with or without actual entry by Tenant subject to
the adjustments provided in Paragraph V of Exhibit "C".
The parties shall execute a Rent Commencement Date
Certificate in the form attached as Exhibit "B."
1.7. RENT. From and after the Rent Commencement Date, and
throughout the Lease Term, Term shall pay as Rent to
Landlord.
(1) Base Rent shall be $139,398.00 per year or $10.50
per rentable square foot per year, payable in equal
monthly installments of $11,316.5 per month, during
the first year of the Least Term and thereafter
subject to annual adjustment as hereinafter provided.
(2) Operating Expenses Rent in the amount of Taxes and
Operating Expenses, as these terms are defined in
paragraph 2 of this Lease, and payable pursuant to
paragraph 6 of the Lease. Operating Expenses Rent is
herein also called "CAM". The Common Area Maintenance
(CAM) charge for the calendar year 2000 is estimated
as $10.50 per rentable square foot.
Rent is due on the first day of each calendar month at
Landlord's address stated in this paragraph 1., together
with all applicable sales and/or rent taxes thereon,
without demand, deduction or setoff during the Lease Term.
Any payments of sums required hereunder to be made to
Landlord by Tenant, other than Rent as designated herein,
shall be deemed Additional Rent, whether or not designated
as such. The collection of Rent and Additional Rent may
be enforced in the same manner permitted for the collection
of Base Rent as allowed in the jurisdiction in which the
Building is located. If the Lease Term commenced during a
calendar month, Rent shall be prorated on a thirty (30)
day basis for such month.
5
1.7.1. RENT ADJUSTMENT(S) DURING THE LEASE TERM FROM RENT
COMMENCEMENT DATE:
ADJUSTED
BASE RENT PER MONTHLY MONTHLY
ADJUSTMENT MON. RENTABLE SQ. FT. BASE RENT CAM
--------------- ---------------- --------- -------
01-12 $10.50 $11,616.50 $11,616.50
(2000 est.)
13-24 $11 .50 $12,722.83 to be determ.
25-36 $12.50 $13,829.17 to be determ
37-48 $14.00 $15,488.67 to be determ
49-60 $15.50 $17,148.17 to be determ
Tenant's monthly Base Rent and CAM excluding sales tax/
charges during the calendar year 2000: $23,233.00.00
1.8. SECURITY DEPOSIT:
$11,616.50 which is the amount of one (1) month of Base Rent
and the amount of $11,616.50 which is the amount of one (1)
month of estimated CAM charge for the calendar year 2000,
excluding Florida Sales Taxes. The amount of the Security
Deposit is due upon execution of this Lease together with the
first month's Rent, including sales tax, in the total amount
of $47,976.15.
As an additional Security Deposit, Tenant shall provide to
Landlord at the time of execution of this Lease a decreasing
value standby irrevocable letter of credit ("LC"), confirmed
by a reputable local US bank reasonably acceptable to Landlord
in the amount of $100,000.00 and valid for the initial Lease
Tern, and in compliance with any renewal requirements of the
bank, as further security to ensure the financial obligations
of Tenant under this Lease. The face amount of the LC shall
automatically reduce by $20,000.00 to $80,000.00 on the 3rd
anniversary of' the Lease Commencement Date and by an
additional $20,000.00 to $60,000.00 on the 4th anniversary of
the Lease Commencement Date. The LC shall be payable to
Landlord. Tenant's failure to maintain the LC for the Lease
Term shall be a material default under this Lease. In such
event or any other event of default hereunder, which default
is not cured within the applicable grace and/or cure period,
Landlord shall be authorized to draw the full face amount of
the LC (or such lesser amount as may be sufficient to remedy
such default) by notice to the issuing bank that Tenant is in
default (beyond any applicable grace and/or cure period) under
this Lease and that Landlord requests payment to it of the
face amount of the LC. Said notice does not have to be in a
particular form, but shall be certified by an officer of
Landlord or Landlord's managing agent.
6
1.9. PERMITTED USE: General Office.
1.10. TRADE NAME: N/A.
1.11. PARKING SPACES: Tenant shall be entitled to up to five (5)
reserved parking spaces per 1,000 rentable square feet of
leased Premises up to 10,000 and four (4) reserved spaces per
1,000 rentable square feet of leased Premises from 10,000 to
15,000 rentable square feet in the garage tower of the
Building at a monthly charge of Sixty and 00/100 Dollars
($60.00) per space plus Florida sales tax and/or any other
governmental charges, or in the basement of the Building at a
monthly charge of Seventy and 00/100 Dollars ($70.00) per
space plus Florida sales tax, and/or any other governmental
charges. On any extension of the Lease, Landlord, at its
option, may adjust the monthly charge to the then prevailing
market rental. Additional parking is available subject to
availability at market rates.
1.12. LATE CHARGES: The parties agree that late payment by Tenant to
Landlord of Rent will cause Landlord to incur costs not
contemplated by this Lease, the amount of which is extremely
difficult to ascertain. Therefore, the parties agree that if
any installment of Rent is not received by Landlord within ten
(10) days after Rent is due, Tenant will pay to Landlord a sum
equal to 5% of the monthly Rent as a late charge. In addition,
all other charges due hereunder which are not paid when due
shall bear interest from the due date until paid at the
Default Rate.
1.13. CALCULATION OF OPERATING EXPENSE RENT: See paragraph 6.
1.14. GUARANTOR(S): Omitted.
1 .15. TENANT IMPROVEMENTS.
1.15.1 PREMISES. Landlord at its expense shall build out the Premises
pursuant to the layout shown on the attached Exhibit "C(1)".
The respective obligations, covenants and agreements of
Landlord and Tenant to construct the Premises, including
the division of responsibilities and procedures for design
and construction and for payment of costs and expenses are
more specifically set forth in Exhibit "C" (Building
Standard Workletter). Landlord agrees to provide to Tenant
a Tenant Improvement Allowance in an amount equal to the
number of square feet of Net Useable Area within the
Premises multiplied by $27.00 ("Tenant Improvement
Allowance"), of which $2.00 per useable square foot shall
be applied to architectural fees.
7
1.15.2 POSSESSION. Taking possession of all or any portion of the
Premises by Tenant after Landlord's notice of the Rent
Commencement Date shall be conclusive evidence as against
Tenant that the Premises or such portion thereof are in
satisfactory condition on such date of possession, subject
only to any deficiencies listed in writing in a notice
delivered by Tenant to Landlord not more than thirty (30) days
after the Rent Commencement Date.
1.15.3 NET USEABLE AREA. Net Useable Area shall mean the total area
within the Premises as measured from the interior surface of
exterior walls, windows and doors to the mid-point of all
interior demising walls, windows and doors, without deduction
for columns or projections. For the purpose of this Lease, the
Net Useable Area of the Premises shall be 11,299 useable
square feet subject to adjustment by re-measurement as
provided in paragraph 1.2. hereof.
1.15.4 SUPPLEMENTAL AIR CONDITIONING. Upon Landlord's review and
written approval of Tenant's plans and at the same time as
Landlord performs the Tenant improvements on the ninth (9th)
floor Premises, Tenant may install supplemental air
conditioning equipment on the ninth (9th) floor to cool
Tenant's computer equipment on said floor. If Tenant is not
intending to install such equipment at the time of its initial
occupancy, then Tenant must later comply with Landlord's rules
and regulations governing approval of such alteration, which
approval shall not be unreasonably withheld or delayed.
1.15.5 EARLY ENTRY. Tenant shall be permitted to enter the Premises
before the Commencement Date in order to prepare the Premises
for occupancy, and install Tenant's workstations and cabling.
Tenant's early entry shall be at Tenant's solo risk and
subject to all the terms and provisions of this Lease as if
the Commencement Date had occurred, except for the payment of
Rent, as this term is defined in paragraph 1.7 below, which
shall commence on the Commencement Date. Tenant, its agents,
or employees will not interfere with or delay Landlord's
completion of Landlord's work. All rights of Tenant hereunder
will be subject to the requirements, of all applicable
building codes, zoning requirements, and federal, state, and
local laws, rules, and regulations, so as not to interfere
with Landlord's compliance with all laws, including the
obtaining of a certificate of occupancy for the Premises.
Landlord has the right to impose additional conditions on the
Tenant's early entry that Landlord, in its reasonable
discretion, deems appropriate including, without limitation,
indemnification of Landlord and proof of insurance, and will
further have the right, to require that Tenant execute an
early entry agreement containing those conditions prior to
Tenant's early entry.
1.16. ADDRESS FOR PAYMENT/NOTICES. Address for payment of rent
and notices,
8
which is subject to change by written notice to the other
party at its then current address:
Landlord: Tenant:
Xxxxxxx Immobilien, GmbH StarMedia Network, Inc.
c/o Welsh Companies, S.E. 000 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxx., Xxxxx 000 Xxxxx 000
Xxxxx, Xxxxxxx 00000 Xxxxx, Xxxxxxx 00000
Tel. (000) 000-0000 Tel. (000) 000-0000
Fax (000) 000-0000 Fax (000) 000-0000
With copy to:
StarMedia Network, Inc.
Attn: General Counsel
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
1.17. BROKER: The Broker[s] [is] OR [are]: Welsh Companies,
S.E., Inc. as Landlord's Broker, and The Langhorne Company as
Tenant's Broker. Landlord will bear the cost of the commission
payable to Brokers in connection with this Lease, if any. The
commission payable to The Langhorne Company by the Landlord is
4% of the net Base Rent; payable by Tenant to Landlord for the
initial term of the Lease, excluding any renewals or
expansions, except that Landlord shall pay a commission of 4%
of the net Base Rent on expansions that occur within 36 months
of' the Lease Commencement Date. All commission payments are
due upon Tenant's occupancy of the Premises. Landlord and
Tenant warrant and represent to each other that they have not
consulted or negotiated with any broker or finder with regard
to the Premises or this Lease other than Brokers identified
herein. If either party shall be in breach of the foregoing
warranty, such party shall indemnify the other against any
loss, liability and expense (including attorneys' fees and
court costs) arising out of claims for fees or commissions
from anyone having dealt with such party in breach.
1.18. BUILDING OPERATING HOURS: Current Building Operating Hours
are from 7:00 a.m. to 7:00 p.m., Monday through Friday except
on legal holidays. Upon Tenant's prior written request to be
received by Landlord not later than by 5:00 p.m. on the
preceding business day, Landlord will provide at no charge to
Tenant HVAC services on Saturdays from 9:00 a.m. to 1:00 p.m.,
legal holidays excluded. The Building Operating Hours as set
forth above shall not be reduced during the term of this
Lease, as the same may be extended.
9
Tenant shall have 24 hour, 7 day a week, 365 day a year access
to the Premises although during non-Building Operating Hours,
Tenant may need to present a pass or comply with other
reasonable rules and regulations.
1 .19. REDESIGN OF ELEVATOR LOBBIES: If Tenant does not exercise
its Right of First Offer to lease Suite 800 pursuant to
paragraph 1.5.2 hereof, Landlord reserves the right to
redesign the elevator lobby by Landlord's architect on the
eighth (8th) Building floor, in order to provide an enlarged
new lobby design pursuant to Building standard, as outlined on
the attached Exhibit "D." Such redesign will increase the
lobby area by moving the frontage line of the Premises to the
existing elevator lobby by approximately 3 to 4 feet into the
area of the Premises as defined in paragraph 1.2 above. In
such event, the rentable area of the Premises shall be
adjusted and remeasured by Landlord's architect pursuant to
B.O.M.A. standards and the Lease provisions and financial
terms which are affected or determined by the measurements of
the Premises shall be adjusted accordingly. Tenant hereby
consents to the required construction work affecting the
Premises. Landlord shall make diligent efforts to ensure that
such work does not unreasonably interfere with Tenant's use of
the Premises and provide Tenant with at least thirty (30) days
of prior written notice of commencement of construction
("Redesign Commencement Date"). In said notice, Landlord shall
specify the area of the Premises which must be made available
by Tenant by the Redesign Commencement Date. The parties shall
cooperate during the notice period to prepare for the redesign
work in order to ensure that the Redesign Commencement Date is
kept. Tenant acknowledges and agrees that the plans and
specifications for Tenant's improvements and/or alterations to
the Premises to be performed under the Lease shall duly
consider the possibility of such redesign.
1.20. JANITORIAL SPECIFICATIONS. The following janitorial
specifications shall apply to the Premises:
Monday - Friday:
Vacuum carpets and mop vinyl and tile floors
Empty trash cans Clean bathroom fixtures,
restock all paper and soap Mop bathroom
floors Clean elevator and elevator lobby
Weekly: Wipe down desks, glass walls and doors
Monthly: Buff vinyl floors, kitchen floors
Clean interior of building windows
Clean air vents, dust furniture and filing
cabinets
2. DEFINITIONS: Unless the context otherwise specifies or requires, the
following
10
terms will have the meanings set forth below:
2.1. COMMON AREAS: All areas and facilities outside the Premises
and within the exterior boundaries of the Project that are not
leased to other tenants and that are provided and designated
by Landlord, in its sole discretion from time to time, for the
general use and convenience of Tenant and other tenants of the
Project and their authorized representatives, invitees and the
general public. Common Areas are areas within and outside of
the Building in the Project, such as common entrances,
lobbies, pedestrian walkways, patios, landscaped areas,
sidewalks, service corridors, elevators, restrooms (other than
those within any tenant's leased premises), stairways,
decorative walls, plazas, loading areas, parking areas, and
roads.
2.2. OPERATING EXPENSES: All costs of operating, servicing,
administering, repairing and maintaining the Project
(excluding costs paid directly by Tenant and other tenants in
the Project or otherwise reimbursable to Landlord), the
landscaping of Common Areas of the Project and the parking
areas within the Project boundaries. Such costs include Taxes,
as this term is defined in paragraph 2.5 below and any
reasonable and necessary costs of operation, maintenance and
repair, computed in accordance with generally accepted
accounting principles applied on a consistent basis ("GAAP"),
and will include, by way of illustration, but not limitation:
(i) All costs of managing, operating and maintaining
the Project, including, without limitation,
management fees, wages, salaries, fringe benefits and
payroll burden for employees utilized in the day to
day operation of the Project; public liability,
flood, windstorm property damage, rent loss, all risk
and all other insurance premiums paid by Landlord
with respect to the Project; water, sewer, heating,
air conditioning, ventilating and all other utility
charges (other than with respect to utilities
separately metered and paid directly by Tenant or
other tenants); the cost of contesting the validity
or amount of real estate and personal property taxes;
janitorial services; access control; window cleaning;
elevator maintenance; fire detection and security
devices and services; gardening and landscape
maintenance; trash, rubbish, garbage and other refuse
removal; pest control; painting; facade maintenance;
lighting; exterior and partition (demising) wall
repairs; roof repairs; maintenance of all steam,
water and other water retention and discharging
piping, lakes, culverts, fountains, pumps, weirs,
lift stations, catch basins and other areas and
facilities whether or not on-site; canal embankment
and related maintenance repair and repainting of
sidewalks and roads due to settlement and pothoIes
and general resurfacing and maintenance of parking
areas; sanitary control;
11
depreciation of machinery and equipment used in any
of such maintenance and repair activities; management
fees; road sidewalk and driveway maintenance; and all
other Project maintenance, repairs and insurance. The
controllable costs (all costs except Utilities,
Taxes, and Insurance) will be capped at a 5% per year
increase.
(ii) The costs (amortized together with a reasonable
finance charge in accordance with GAAP) of any
capital improvements or investment items which are
for the sole purpose of reducing (or minimizing
increases of) Operating Costs or improving the
security of the Building or are or may be required by
Governmental agencies, including but not limited to
improvements prescribed by the Americans wit
Disabilities Act ("ADA") and other such mandated
programs, which may occur from time to time. All such
costs shall be amortized on a straight-line basis
over the reasonable life of the capital investment
item(s), determined in accordance with generally
accepted accounting principles and in no event to
extend beyond the reasonable life of the Building.
(iii) The costs of all supplies, materials and
equipment used in operation and/or maintenance of the
Building and Land;
Except as provided above, Operating Expenses shall not include:
(a) Depreciation on the Project or any Common Areas;
(b) costs of space planning, tenant improvements, marketing
expenses, finders fees and real estate broker commissions;
(c) any and all expenses for which Landlord is reimbursed
(either by an insurer, condemnor or other person or entity),
but only to the extent of such reimbursement, and any and all
expenses for which Landlord is reimbursed or entitled to
reimbursement by a tenant in the Project pursuant to a lease
provision in such tenant's lease;
(d) salaries for personnel above the grade of senior property
manager, senior controller, senior accountant and senior
engineer;
(e) costs in connection with services or benefits of a type
which are not provided to Tenant, but are provided to another
tenant or occupant;
(f) xxxx-ups on electricity and condenser cooling water for
heat pumps in excess of Landlord's costs therefor;
12
(g) Landlord's general overhead and administrative expenses
not directly allocable to the operation of the Project;
(h) cost of repair or other work necessitated by the gross
negligence or willful misconduct of Landlord or Landlord's
employees contractors or agents;
(1) Landlord's federal and state income taxes, inheritance
taxes, gift taxes and similar taxes not directly attributable
to the operation of the Building and the Project;
(j) any costs or expenses incurred to bring the Building or
any part thereof, and the property on which the Building is
located, into compliance with applicable laws (including,
without limitation, the Americans With Disabilities Act), or
to remove or remediate hazardous materials and waste, except
as provided in paragraphs 2.2(ii) hereof.
2.3 RENTABLE SQUARE FEET: The number of square feet of net
rentabIe area as computed in accordance with BOMA standard as
exists on the date of this Lease.
2.4 DEFAULT RATE: The lower of the maximum lawful rate of
interest or 16%.
2.5 TAXES: All impositions, taxes, assessments (special or
otherwise, water and sewer charges and rents, and other
governmental liens or charge of any and every kind, nature and
sort whatsoever, ordinary and extraordinary, foreseen and
unforeseen, and substitute therefore including all taxes
whatsoever (except only those taxes of the following
categories: any inheritance, estate, transfer, or gift taxes
imposed upon Landlord or any income taxes specifically payable
by Landlord as a separate tax paying entity without regard to
Landlord's income source as arising from or out of the
Building and/or the land on which it is located) attributable
in any manner to the Building and/or the Land (however the
term may be defined) receivable therefrom or any part thereof,
or any use thereof, or any facility located therein or thereon
or used in conjunction therewith or any charge or other
payment require to be paid to any governmental authority,
whether or not any of the foregoing shall be designated "real
estate tax", "sales tax", "rental tax", "excise tax", or
"business tax" or designated in any other manner.
3. PREMISES:
13
3.1. LEASE OF PREMISES: Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, for the term and subject
to the agreements, covenants, conditions and provisions set
forth in this Lease, to which Landlord and Tenant hereby
mutually agree, the premises (the "Premises") described in
paragraphs 1.1 and 1.2 above.
3.2. PROJECT: The Premises are a part of the office project
(the "Project") described in paragraph 1. Landlord may
increase, reduce or change the number, dimensions or locations
of the walks, buildings, lobbies, parking and other Common
Areas and other improvements located in the Project in any
manner that Landlord, in its sole discretion shall deem
proper. Landlord further reserves the right to make
alterations and/or additions to and to build or cause to be
built additional stories on the Building in which the Premises
are situated and to add any buildings within the Project site.
Landlord reserves the right to install, maintain, use, repair
and replace, pipes, ducts, conduits and wires leading through
the Premises and serving other parts of the Project in a
manner that will not materially interfere with Tenant's use of
the Premises. Landlord will also have the right to increase
and expand the size of the Project and/or the Project site by
adding additional land, buildings and other structures to the
Project. Landlord shall have the right to grant easements for
ingress, egress or other purposes within or across the Project
or the Project site. Landlord shall have the right to change
the Project's name without notice, to change the Project's
street address upon 9 days prior notice, to grant to any
person or entity the exclusive right to conduct any business
or render any service in or to the Project, (provided such
exclusive right shall not operate to prohibit Tenant from
using the Premises for the purpose set forth in paragraph 1.,
to retain at all times master keys or passkeys to the
Premises, and to place such signs, notices or displays as
Landlord reasonably deems necessary or desirable upon the roof
and exterior of the Project.
Landlord shall not exercise its rights under this Section in
xxx manner as would reduce Tenant's allocable parking, affect
in a material way Tenant's access, or increase Tenant's costs
under this Lease, or reduce Landlord's services.
3.3. RELOCATION OF TENANT: [Intentionally Omitted]
4. COMMON AREAS:
4.1. TENANT'S RIGHT TO USE COMMON AREAS: Landlord grants Tenant
and its authorized representatives and invitees the
non-exclusive right to use the Common Areas with others who
are entitled to use the Common Areas
14
subject to Landlord's rights as set forth in this Lease.
4.2. LANDLORD'S CONTROL: Landlord has the right to:
(a) establish and enforce reasonable rules and regulations
applicable to all tenants concerning the maintenance,
management, use and operation of the Common Areas;
(b) close, if necessary, any of the Common Areas to prevent
dedication of any of the Common Areas or the accrual of any
rights of any person or of the public to the Common Areas;
(c) close temporarily any of the Common Areas for maintenance
purposes;
(d) select a person, firm or corporation which may be an
entity related to Landlord to maintain, manage, and/or operate
any of the Common Areas; and
(e) designate other lands outside the exterior boundaries of
the Project to become part of the Common Areas.
Notwithstanding the provisions of this Subparagraph, in
exercising its rights hereunder, Landlord will provide
reasonable access to and from the Premises.
5. RENT:
5.1. BASE RENT: Tenant will pay to Landlord as rent for the use and
occupancy of the Premises at the times and in the manner
provided below, Base Rent in the amount specified in Paragraph
1 above payable in advance on the Commencement Date and on or
before the first day of each and every successive calendar
month during the term hereof without demand, setoff or
deduction.
5.2. SALES TAX; ADDITIONAL RENT; DEFINITION OF RENT: In addition to
the Base Rent, Tenant agrees to pay Landlord monthly all sales
or use taxes or excise taxes imposed or levied by the State of
Florida or any other governmental body or agency against any
rent or any other charge or payment require hereunder to be
made by Tenant to Landlord. All sums of money as shall become
due and payable by Tenant to Landlord under this Lease,
including but not limited to Base Rent, Operating Expenses
Rent pursuant to paragraph 6 below and sales tax, shall be
defined as and payable as Rent under this Lease which Tenant
shall be obligated to pay. Landlord's remedies for default in
the payment of additional Rent shall be the same as are
available to Landlord in the case of a default in the payment
of Base Rent.
15
5.3 PRORATION: If the Lease Term shall begin during a calendar
month, then in order that the Base Rent, Operating Expenses
Rent pursuant to Paragraph 6 below, and all related amounts
described herein, may be placed on a calendar month basis, the
amounts due for such portion of the particular calendar month
shall be apportioned and paid on the basis of a month of
thirty (30) days.
6. OPERATING EXPENSES:
6.1. OPERATING EXPENSES RENT: In addition to Base Rent, Tenant
shall ay Tenant's Percentage Share, as specified in paragraph
1 above, of the Operating Expenses paid or incurred by
Landlord in each year ("Operating Expenses Rent").
6.2. Payment: Prior to the Commencement Date and thereafter
during December of each calendar year or as soon thereafter as
practicable, Landlord will give Tenant written notice of its
estimate (line item and detailed support, included) of
Operating Expenses Rent for the ensuing calendar year. On or
before the first day of each month during the ensuing calendar
year, Tenant will pay to Landlord 1/12th of such estimated
amounts, provided that if such notice is not given in
December, Tenant will continue to pay on the basis of the
prior year's estimate until the month after such notice is
given. If at any time or times it appears to Landlord that the
amounts payable for Operating Expenses Rent for the current
calendar year will vary from its estimate by more than 10%,
Landlord, by written notice to Tenant, will revise its
estimate for such year, and subsequent payments by Tenant for
such year will be in an amount so that by the end of such year
Tenant will have paid a total sum equal to such revised
estimate. Landlord will indicate in its notice to Tenant the
reasons Landlord believes its estimate is low by more than
10%.
Landlord agrees to maintain accounting books and record
reflecting Operating Expenses of the Building and Land in
accordance with generally accepted accounting principles.
Within one hundred twenty (120) days following the end of each
calendar year during the Term hereof, Landlord shall submit to
Tenant statement showing the actual amount of Operating
Expenses and Taxes or the past calendar year, the amount
thereof actually paid during that year by Tenant and the
amount of the resulting balance due thereon, or overpayment
thereof, as the case may be. Within thirty (30) days after
receipt by Tenant of said statement, Tenant shall have the
right to inspect Landlord's books
16
and records, at Landlord's office, during normal business
hours, after four (4) business days prior written notice,
showing the Operating Expenses and Taxes for the Building for
the calendar year covered by said statement. Said statement
shall become final and conclusive unless Landlord receives
written objections with respect thereto within said thirty
(30) day period. Any balance shown to be due pursuant to said
statement shall be paid by Tenant to Landlord within thirty
(30) days following Tenant's receipt thereof. Any overpayment
shall be credited against Tenant's obligation to pay expected
Operating Expenses Rent, or if by reason of any termination of
the Lease no such future obligation exists, refunded to
Tenant. Anything herein to the contrary notwithstanding,
Tenant shall not delay or withhold payment of any balance
shown to be due pursuant to the statement rendered by Landlord
to Tenant, pursuant to the terms hereof, because of any
objection that Tenant may raise with respect thereto. The
provisions of this paragraph hail survive the expiration or
termination of this Lease.
6.3 PRORATION: If for any reason other than the default of Tenant
this Lease terminates on a day other than the last day of a
calendar year, th amount of Operating Expenses Rent payable by
Tenant applicable to the calendar year in which such
termination occurs will be prorated on the basis which the
number of days from the commencement of such calendar year to
and including such termination date bears to 365.
6.4 TAXES PAYABLE BY TENANT: Tenant shall be directly responsible
for taxes upon, measured by, or reasonably attributable to the
cost or value of Tenant's equipment, furniture, fixtures and
other personal property located in the Premises or by the cost
or value of any leasehold improvements made in or to the
Premises by or for Tenant other than the initial improvements
to be installed at Landlord's expense regardless of whether
title to such improvements is in Tenant or Landlord.
7. USE OF PREMISES:
7.1. EFFECT ON INSURANCE: Tenant shall not use any portion of the
Premises for purposes other than those specified in paragraph
1 no other use shall be made or permitted to be made upon the
Premises, nor acts done which will increase the existing rate
of insurance upon the Project, or cause cancellation of
insurance policies covering said Project, provided, however,
that mere use in accordance with the permitted use shall not
cause Tenant to be in violation hereof.
7.2. CONTINUOUS OPERATION: Tenant will not leave the Premises
unoccupied or vacant and will continuously conduct and carry
on in the Premises the type
17
of business for which the Premises are leased. Tenant shall
not be in default hereof if the Premises is vacant or not
continuously utilized for less than ninety (90) days, or is
vacant or not continuously utilized pending Tenant's
completion of its active efforts to sublease the Premises
and/or assign the Lease, provided Tenant at all times
continues to maintain the Premises and provides full access to
the Premises to Landlord, and further provided that Tenant's
failure to comply with its maintenance and access obligations
during such period shall be an Event of Default pursuant to
paragraph 21 hereof and entitles Landlord to all its default
remedies under this ease.
Notwithstanding Landlord's other rights and remedies under
this Lease, Landlord may terminate the Lease or Tenant's right
to possession and recapture the Premises effective upon ten
(10) days prior written notice to Tenant, in the event Tenant
has discontinued its operations on the Premises for more than
ninety (90) days, and re-lease the Premises for Landlord's own
account or on behalf of Tenant.
7.3. MISCELLANEOUS RESTRICTIONS: Tenant will operate from the
Premises using the Trade Name set forth in paragraph 1, if any
or any other trade name in lieu of such Trade Name which
Tenant or any of its affiliates or any permitted sublessees or
assignees may use. Tenant will not use the Premises for or
permit in the Premises any offensive, noisy, or dangerous
trade, business, manufacture or occupation or interfere with
the business of any other tenant in the Project. Tenant agrees
not to cause, permit or suffer any waste or damage,
disfigurement or injury to the Premises or the fixtures or
equipment thereof or the Common Areas. Tenant will not use the
Premises for washing clothes or cooking and nothing will be
prepared, manufactured or mixed in the Premises which might
emit any offensive odor into the Project. Tenant will not
obstruct the sidewalks or Common Areas in the Project or use
the same for business operations or advertising. Tenant will
not use the Premises for any purpose which would create
unreasonable elevator loads, cause structural loads to be
exceeded or adversely affect the mechanical, electrical,
plumbing or other base building systems. Tenant will at all
times comply with the Rules and Regulations of the Project
attached hereto as Schedule III and with such additional rules
and regulations as may be adopted by Landlord from time to
time. Provided that said rules and regulations shall be
enforced in a uniform and non-discriminatory manner.
8. PARKING:
8.1. TENANT'S PARKING RIGHTS: Subject to the rules and
regulations of he Project,
18
Tenant shall be entitled to use of the Building's surface
parking lot set forth in Paragraph 1 above. Only automobiles,
motorcycles and pickup trucks will be permitted on the parking
areas.
8.2. LANDLORD'S CONTROL OVER PARKING: Tenant and its authorized
representatives shall park their cars only in the surface
parking lot ("Designated Parking Areas") which are
specifically designated for that purpose by Landlord. Within 5
days after written request by Landlord, Tenant will furnish to
Landlord the license numbers assigned to its cars and the cars
of all of its authorized representatives. If Tenant or its
authorized representatives fails to park their cars in the
Designated Parking Areas in compliance with this Lease,
Landlord may charge Tenant as and for liquidated damages
$45.00 per each day or partial day for each car parked in
areas other than those designated. Tenant will not park or
permit the parking of any vehicles adjacent to loading areas
so as to interfere in any way with the use of such areas.
Landlord shall have the right, in Landlord's sole discretion,
to designate portions of or spaces in the Designated Parking
Areas for the exclusive use of a particular tenant or
particular tenants, but not in any manner which unreasonably
discriminates against Tenant as to location. Landlord will
have the right to institute reasonable procedures and/or
methods to enforce the terms of this Subparagraph or otherwise
regulate parking, including the use of a towing or booting
service to tow or boot improperly parked vehicles.
8.3 The Designated Parking Areas are provided by Landlord as a
convenience to Tenant only and not to Tenant's guests or
visitors, except as expressly permitted in this Lease, and
shall be used at the sole and exclusive risk of the Tenant.
Landlord does not accept any responsibility for injury to any
persons, damage or loss of any automobiles or other property,
while in the parking facility and common and other areas of
the Building, whether under the control of the Landlord or
some third party. Landlord accepts no responsibility for the
regulation of the parking area nor for persons who improperly
park automobiles in spaces assigned to another tenant or
operate automobiles in an improper manner. Landlord is under
no obligation to provide a parking attendant, doorman or
valet, and is under no obligation to provide security for
automobiles parked in the Designated Parking Areas.
9. GRAPHICS: Landlord, at Tenant's sole cost and expense, will install and
maintain all letters or numerals on the entrance doors for the
Premises. All such letters and numerals shall be in the form specified
by Landlord, and no other shall be used or permitted on the Premises.
Tenant shall not place any signs within the Premises which are visible
from the outside of the Premises without Landlord's prior written
19
approval. However, Tenant may install an exterior monument sign subject
to code compliance and permitting, and subject to Landlord's review and
prior written approval of Tenant's design and construction plans, which
shall not be unreasonably denied or delayed.
In the event that Tenant leases a total of 3 full floors at the
Building within the initial Lease Term, Landlord agrees not to
unreasonably withhold consent to Tenant's request for exterior Building
signage rights in an area that will not conflict with signage rights
which are inherent to the "bank" or "retail" space on the first four
floors of the Building.
Any exterior signage shall be constructed and installed at Tenant's
cost and subject to Landlord's prior written approval of the design,
location and installation.
Tenant shall be responsible for all costs of maintenance and power
consumption of all signs and shall at all times maintain such signs in
good condition and repair and in operation. Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims,
demands, suits, or actions whatsoever which may arise as a result of
the existence, maintenance and operation of such signs. Upon
termination or expiration of the Lease, Tenant shall, at its cost,
remove all signs an restore the area of their installation to the
original condition, ordinary wear and tear excepted.
10. ASSIGNMENT AND SUBLETTING; ENCUMBRANCE:
10.1 NO TRANSFERS. Tenant shall not assign this Lease or sublet any
portion of the Premises without prior written consent of the
Landlord, which Landlord shall not unreasonably withhold or
delay. Any change in the ownership of Tenant, if Tenant is a
corporation or partnership, shall constitute an assignment for
purposes of this paragraph, except as herein provided.
Notwithstanding any consent by Landlord, Tenant and
Guarantor(s), if any, shall remain jointly and severally
liable (along with each approved assignee and sublessee, which
shall automatically become liable for all obligations of
Tenant hereunder with respect to that portion of the remises
so transferred), and Landlord shall be permitted to enforce
the provisions of this Lease directly against Tenant or any
assignee or sublessee without proceeding in any way against
any other party. In the vent of an assignment,
contemporaneously with the granting of Landlord's consent,
Tenant shall cause the assignee to expressly assume in writing
and agree to perform all of the covenants, duties and
obligations of Tenant hereunder and such assignee shall be
jointly and severally liable therefor along with Tenant (but
any assignee who does not expressly assume such obligations in
writing shall nevertheless be deemed to have assumed such
obligations by
20
acceptance of any such assignment). No usage of the Premises
different from the usage provided for in paragraph 1 above
shall be permitted, and all other terms and provisions of the
Lease shall continue to apply after such assignment or
sublease. Tenant shall not make or consent to any conditional,
contingent or deferred assignment of some or all of Tenant's
interest in this Lease without the prior written consent of
Landlord, which Landlord may unreasonably withhold in its sole
and absolute discretion. Tenant shall not enter into, execute
or deliver any financing or security agreement that can be
given priority over any mortgage given by Landlord or its
successors, and, in the event Tenant does so execute or
deliver such financing or security agreement, such action on
the part of Tenant shall be considered a breach of the terms
and conditions of this Lease and a default by Tenant entitling
Landlord to such remedies as are provided for in this Lease.
In the event of any assignment or sublease (other than
permitted assignments and sublettings as hereinafter
provided), Tenant shall pay to Landlord 50% of any "Transfer
Premium" received by Tenant in connection therewith. As used
herein, "Transfer Premium" shall mean all payments required to
be paid by the assignee or sublessee in excess of the Base
Rental, Operating Expenses and other amounts due from Tenant
hereunder. If Tenant provides notice and has authorization to
assign or sublet the lease, Tenant shall pay all legal and
administrative costs related to such assignment or sublease,
including the cost to redraft the lease document, and to
process any consent. Landlord's consent shall be given or
refused within thirty (30) days after Tenant's submission to
Landlord of the proposed assignment or sublease together with
all information about the proposed transferee which is
reasonably requested by Landlord. Landlord's consent shall be
deemed given if not refused within such thirty (30) day
period.
10.2 RIGHT OF RECAPTURE. Notwithstanding anything contained in 10.1
to the contrary, in the event Tenant desires to assign or
sublet or seek permission for any assignment or subletting of
all or any portion of the Premises, then Landlord shall have
the right of recapture or of first refusal, as applicable,
with respect to said space, and shall have the right, by
notice to Tenant, to either recapture or to receive an
assignment of the Lease or a sublease of the Premises on the
same terms and conditions as the terms and conditions of the
assignment or subletting proposed by Tenant. In the event
Landlord should decide to exercise its rights pursuant to this
paragraph, Landlord shall give to Tenant written notice
exercising its right of first refusal herein contained within
ten (10) business days from the date of Tenant's written
notice to Landlord or written application to Landlord for
consent to the assignment or subletting, in which event, in
the case of a recapture, the Lease shall terminate, and in the
case of an assignment or full subletting, Tenant shall be
released from all obligations, rights and liabilities from and
21
after the recapture date. In the event Landlord does not give
such written notice within the ten (10) day period specified,
then Landlord's right of first refusal herein contained shall
be null and void, and of no further force and effect as to the
space covered by the proposed assignment or sublease only.
However, nothing contained herein shall in any way constitute
an approval of the assignment or subletting by Landlord, nor
shall anything herein contained be construed to impair, hinder
or otherwise modify the required approval of Landlord as
provided herein to any such assignment or subletting. The
recapture date shall be the date as of which tenant intends to
assign or sublease or the commencement date of the proposed
assignment or sublease, as applicable.
10.3 PERMITTED ASSIGNMENTS AND SUBLETTINGS. Tenant shall have the
right, without Landlord's consent, to assign this Lease or
sublease all or a portion of the Premises to any entity
controlled by Tenant or which control Tenant, or which is
under common control with Tenant, as well as any entity with
which Tenant is merged or consolidated, or any entity which
succeeds to Tenant's business by way of sale of all or
substantially all of Tenant's stock or assets (or all or
substantially all of Tenant's business at the Premises). In
addition, since Tenant is a public company traded on a
recognized exchange, the transfer of the shares of Tenant
shall not be deemed an assignment of this Lease. Lastly,
Tenant shall have the right, without Landlord's consent, to
sublease up to one-half (1/2) of the Premises to another
internet, wireless or computer related company, provided that
Tenant or its affiliates remain in occupancy of the Premises.
The transactions set forth in this paragraph are referred to
as permitted assignments and sublettings. The provisions of
10.1 and 10.2 shall not apply to the permitted assignments and
sublettings under this subparagraph 10.3.
10.4 LANDLORD TRANSFERS. Landlord shall have the right to assign or
transfer, in whole or in part, Landlord's rights and
obligations hereunder and in the Project and the Premises and
subsequent to any such assignment Landlord shall have no
further obligations to Tenant.
11. ORDINANCES AND STATUTES: At Tenant's sole cost, Tenant will comply with
all statutes, ordinances and requirements of all municipal, state and
federal authorities now in force, or which may hereafter be in force,
pertaining to the Premises, occasioned by or affecting the use thereof
by Tenant, (not its mere use as office space) including, but not
limited to the Americans With Disabilities Act, to the extent Tenant
makes any alterations to the Premises following the Commencement Date.
The commencement or pendency of any state or federal court abatement
proceeding affecting the use of the Premises against Tenant shall, at
the option of the Landlord, be deemed an Event of Default pursuant to
paragraph 21 of this Lease. Further, Tenant agrees to comply with the
Building Rules and Regulations
22
and such other nondiscriminatory rules as are published from time to
time by Landlord for the operation of the building and the facility
serving it. The current Building Rules and Regulations in effect as of
the date of this Lease are attached hereto as Schedule III.
12. MAINTENANCE, REPAIRS, ALTERATIONS:
12.1 TENANT'S OBLIGATIONS: Tenant acknowledges that the Premises
are in good order and repair, unless otherwise indicated
herein. Tenant shall, at its own expense and at all times,
maintain the Premises in good and safe condition and shall
surrender the same, at termination hereof, in as good
condition as received, normal wear and tear excepted. Tenant
shall promptly repair any damage done to the Premises and to
the Building, or any art thereof, including replacement of
damaged portions items, caused by Tenant or Tenant's agent,
contractors, subcontractors, employees, invitees, or visitors.
All such work or repairs by Tenant shall be effected in
compliance will all applicable laws. If Tenant fails to make
such repairs or replacements promptly, Landlord many, at its
option, make the repairs or replacements, and Tenant shall pay
the cost thereof to the Landlord within ten (10) days of
Landlord's demand therefor. Tenant shall not make or allow to
be made any alteration to or install any vending machines on
the Premises without the prior written consent of the
Landlord, except as permitted in the Building Rules and
Regulations attached hereto. Any and all alterations to the
Premises shall become the property of Landlord upon
termination of this Lease (except movable equipment or
furniture owned by the Tenant). Landlord may, nonetheless,
require Tenant to remove any and all fixtures, equipment and
other improvements installed on the Premises by giving notice
to Tenant of such requirement at the time it approves such
alteration. lf Tenant fails to do so, Landlord may remove the
same and Tenant agrees to pay Landlord on demand the cost of
making repairs to the premises caused by such removal. Tenant
shall not use or permit the use of the Premises for the
generation, storage, treatment, use, transportation or
disposal of any chemical, material, or substance which is
regulated as toxic or hazardous or exposure to which is
prohibited, limited, or regulated by any 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 other tenants and occupants of
the Landlord's property or adjacent property. If any such
chemical, material, or substance is used upon the Premises in
the ordinary course of Tenant's permitted business, Tenant
shall not use such chemical, material, or substance in
hazardous manner. In the event of any use in violation of this
provision Tenant will remove, or cause to be removed, such
material at its own expense and will indemnify Landlord for
any loss or expense, including reasonable attorney
23
fees, it suffers as a result of the violation. Tenant's
liability for such indemnification is not limited by any
exculpatory provision in this Lease, and shall survive any
expiration, cancellation, or termination of this lease or
transfer of Landlord's interest in the Premises.
12.2 LIMITS ON ALTERATIONS: Tenant may not make any structural
improvement or alteration to the Premises or which may affect
building systems without the prior written consent of
Landlord. Prior to the commencement of any repair,
improvement, or alteration, Tenant shall give Landlord at
least 2 days written notice. All alterations will be made by a
licensed contractor consented to by Landlord (in the exercise
of its reasonable discretion) and performed in a good and
workmanlike manner. All materials shall be of a quality
comparable to or better than those in the Premises and shall
be in accordance with plans and specifications approved by
Landlord. Landlord may condition its consent to any
improvements or alterations upon Tenant's obtaining such lien
releases, waivers, bonds, and insurance as Landlord shall
require.
12.3 LIENS: Tenant will pay all costs of construction done by it or
caused to be done by it on the Premises as permitted by this
Lease. Tenant will keep the Project free and clear of all
construction, mechanic's, materialman's, laborer's and
supplier's liens, resulting from construction done by or for
Tenant. The interest of Landlord in the Premises and the
Project shall not be subject to liens for improvements made by
Tenant. Any lien filed by any contractor, materialman, laborer
or supplier performing work for Tenant shall attach only to
Tenant's interest in the Premises. Tenant agrees to indemnify,
defend (by counsel reasonably acceptable to Landlord) and hold
harmless Landlord from and against any and all costs and
liabilities and any and all mechanic's, materialman's or
laborer's liens arising out of or pertaining to any
improvements or construction done by Tenant. All persons and
entities contracting or otherwise dealing with Tenant relative
to the Premises or the Project are hereby placed on notice of
the provisions of this paragraph, and Tenant shall further
notify in writing such persons or entities of the provisions
of this paragraph prior to commencement of any Tenant work in
the Premises. If any construction, mechanic's, materialman's
or laborer's lien is ever claimed, fixed or asserted against
the Premises or any other portion of the Project in connection
with any such Tenant work, Tenant shall, within thirty (30)
days after receipt by Tenant of notice of such lien, discharge
same as a lien either by payment or by posting of any bond as
permitted by law. If Tenant shall fail to discharge any such
lien, whether valid or not, within ten (10) days after receipt
of notice from Landlord, Landlord shall have the right, but
not the obligation, to discharge such lien on behalf of Tenant
and all costs and expenses incurred by
24
Landlord associated with the discharge of the lien, including
without limitation, attorneys' fees, shall constitute
additional rent hereunder and shall be immediately due and
payable by Tenant. Landlord, at its option may record a Notice
of Lease pursuant to F.S 718.01.
12.4. SURRENDER OF PREMISES: On the last day of the term hereof or
on any sooner termination, Tenant shall surrender the Premises
to Landlord in the same condition as when received, ordinary
wear and tear excepted, clear and free of debris. Tenant shall
repair any damage to the Premises occasioned by the
installation or removal of Tenant's trade fixtures,
furnishings and equipment.
12.5. LANDLORD'S OBLIGATIONS: Landlord shall maintain as part of
Operating Expenses all structural elements of the Building,
the Building's HVAC and other Building systems, including
without limitation, the elevator plumbing, electrical, heating
and air conditioning systems and equipment in and/or serving
the Premises, as well as the common and parking areas of the
Project, all in a in a manner consistent with similar Brickell
Avenue office buildings.
13. ENTRY AND INSPECTION: Tenant shall permit Landlord or Landlord's agents
to enter upon the Premises at reasonable times and upon reasonable
notification for the purpose of inspecting the same, performing any
services required of Landlord hereunder and showing the Premises to
potential and existing mortgagees and purchasers and prospective
tenants of other space in the Project. The foregoing notwithstanding,
Landlord is not required to give notice to Tenant if Landlord must
enter the Premises because of an emergency or to perform janitorial and
other services. Tenant will permit Landlord at any time within 180 days
prior to the expiration of this Lease, to show the Premises and permit
potential tenants to inspect the Premises.
14. INDEMNIFICATION OF LANDLORD: Subject to paragraph 16.8 below, Tenant
will indemnify, defend (by counsel reasonably acceptable to Landlord
which is deemed to include counsel furnished by Tenant's liability
insurer in accordance with this Lease), protect and hold Landlord
harmless from and against any and all claims, demands, losses, damages,
costs and expenses (including reasonable attorney's fees) or death of
or injury to any person or damage to any property whatsoever arising
out of or relating to Tenant's breach or default under this Lease,
including, but not limited to Tenant's breach of paragraph 21 below or
Tenant's use or occupancy of the Premises or caused by Tenant or its
agents, employees or invitees. Landlord shall not be liable to Tenant
for any damage by or from any act or negligence of any co-tenant or
other occupant of the Project or by any owner or occupant of adjoining
or contiguous property or by any defect in or failure to
25
maintain the Project or the Premises. Tenant agrees to pay for all
damage to the Project as well as all damage to tenants or occupants
thereof caused by misuse or neglect of said Premises, its apparatus or
appurtenances or the Common Areas, by Tenant or Tenant's employees,
agents and invitees. Landlord agrees to indemnify Tenant from any
claims, demands, losses, damages, costs and expenses (including
reasonable attorney's fees) incurred by Tenant as a result of the
negligence or willful acts of Landlord, its agents, employees or
contractors.
15. POSSESSION: If Landlord is unable to deliver possession of the Premises
at the commencement hereof, Landlord shall not be liable for any damage
caused thereby, nor shall this Lease be void or voidable, but Tenant
shall not be liable for any rent until the Rent Commencement Date, at
which time the term shall commence and the Expiration Date shall be
extended so as to give effect to the full stated term.
16. TENANT'S INSURANCE: At all times during the term of this Lease, Tenant
shall, at its sole expense, procure and maintain the following types of
insurance overage:
16.1 GENERAL LIABILITY: Commercial general liability insurance
against any and all damages and liability including attorneys'
fees on account or arising out of injuries to or the death of
any person or damage to property, however occasioned, in, on
or about the Premises in an amount of at least $1,000,000.00
for one or more persons in a single accident damage to
property.
16.2 PERSONAL PROPERTY: Insurance adequate in amount to cover
damage to or replacement of, as necessary, the Premises
including, without limitation, leasehold improvements, trade
fixtures, furnishings, equipment goods and inventory.
16.3 BUSINESS INTERRUPTION INSURANCE: (Intentionally Omitted).
16.4 EMPLOYERS LIABILITY/WORKERS COMPENSATION: Employer's liability
insurance and worker's compensation insurance providing
statutory state benefits for all persons employed by Tenant in
connection with the Premise as required by applicable law.
16.5 SPRINKLER: Customary coverage.
16.6 OTHER INSURANCE: If this Lease is extended, such other
insurance in such amounts as may be reasonably required by
Landlord against other insurable hazards as at the time are
commonly insured against in case of prudent owners of
comparable office projects in the area in which the Project is
located.
26
16.7 FORM OF INSURANCE/COMPANIES: All such insurance shall be in a
form satisfactory to Landlord and carried with companies
reasonably acceptable to Landlord that are licensed or
authorized to do business in the State, are in good standing
with the Department of Insurance in the State of Florida and
have a rating issued by an organization regularly engaged in
rating insurance companies (including specifically A.M. Best &
Company) of not less than two ratings below the top rating.
Tenant shall provide Landlord with a Certificate of Insurance
showing Landlord and Landlord's managing agent as an
additional insured. The Certificate shall provide for a ten
(10) day written notice to Landlord in the event of
cancellation or material change of coverage. Not later than
thirty (30) days prior to the expiration of any coverage,
renewals of or replacements for such contracts of insurance
shall be delivered to Landlord, together with proof of payment
of the associated premiums. In the event Tenant shall fail to
procure any contract of insurance required under the terms
hereof or any renewal of or replacement for any contract of
insurance that is expiring or has been canceled, Landlord may,
but shall not be obligated to, procure such insurance on
behalf of Tenant and the cost thereof shall be payable to
Landlord as additional rent within ten (10) days following
written demand therefor.
16.8 SUBROGATION: Landlord and Tenant shall each obtain from their
respective insurers under all policies of fire, theft, public
liability, workers' compensation and other insurance
maintained by either of them at any time during the term
hereof insuring or covering the Premises, a waiver of all
rights of subrogation which the insurer of one party might
otherwise have, if at all, against the other party.
16.9 UTILITIES AND SERVICES: Landlord shall use all reasonable
efforts to furnish (as part of Operating Expenses) heating,
ventilation, air conditioning, janitorial service, electricity
for normal lighting and office machines, cold water for
reasonable and normal drinking, and lavatory use, replacement
light bulbs and/or fluorescent tubes and ballasts for standard
overhead fixtures and elevator service, if applicable, and if
currently being provided to the Premises ("Landlord's
Services"). Said services and utilities shall be provided on a
24-hour, 7-day a week basis, except for HVAC, janitorial and
building maintenance services which shall be provided during
building operating hours. Such utilities and services required
at other times shall be subject to a reasonable charge. Such
charge for HVAC services shall be as follows: $25 per hour for
the first 500 hours of usage in each calendar year and $35 per
hour of usage in excess of 500 hours in any calendar year and
including a reasonable administrative charge for Landlord as
determined by Landlord from time to time. Landlord shall not
be liable for failure to furnish any of the utilities
described in this paragraph 16.9, and Tenant shall have no
right to abatement of rental hereunder or to termination of
this Lease
27
with respect to any such interruption nor shall such failure
constitute an eviction, nor shall Landlord be liable under any
circumstances for loss of or injury to property, however
occurring through or in connection with or incidental to the
furnishing of any of the services enumerated above.
Tenant agrees to exercise due care and prudence in the use of
Landlord's Services and will comply with all federal, state,
and local guidelines concerning the same. No heating, cooling,
refrigeration or cooking equipment or office machines or
equipment requiring electric current in excess of 110 volts
shall be used in the Premises without Landlord's consent,
which consent shall not be unreasonably withheld or delayed,
provided however that such consent may be conditioned upon
Tenant paying for direct expense as reasonably estimated by
Landlord on account of the installation and use of such
equipment.
Nothing herein shall be deemed to waive Tenant's right to
claim damages against Landlord for Landlord's failure to
comply with Section 12.5 and the first sentence of this
Section 16.9, nor in connection with the negligence or willful
acts of Landlord or its employees, agents or contractors, or
the right of Tenant to claim constructive eviction under
Florida law in the case of any interruption which is not
beyond Landlord's reasonable control and where Tenant vacates
the Premises.
17. CONDEMNATION: If 25% of the land area of the Project site shall be
taken or condemned for public use, Landlord may elect to terminate this
Lease effective on the date of taking; otherwise this Lease will remain
in full force and effect. If there is a taking of all of the Premises
or a part thereof so that the remaining part of the Premises is not
reasonably suited for Tenant's continued use or Tenant`s reserved
parking area is unreasonably reduced, either party may elect to
terminate this Lease effective on the date of taking. If there is a
taking of a portion of the Premises and a part remains which is
suitable for Tenant's use, this Lease shall, as to the part taken,
terminate as of the date the condemnor acquires possession, and
thereafter Tenant shall be required to pay such proportion of the rent
for the remaining term as the value of the Premises remaining bears to
the total value of the Premises at the date of condemnation. The
election to terminate this Lease as provided herein must be exercised,
if at all, within sixty (60) days after the nature and extent of the
taking is determined, otherwise, this Lease will remain in full force
and effect. All sums which may be payable on account of any
condemnation shall belong solely to the Landlord, and Tenant shall not
be entitled to any part thereof, provided however, that Tenant shall be
entitled to retain any amount awarded to it for its trade fixtures or
moving expenses.
18. FIXTURES: Any and all improvements made to the Premises during the term
hereof shall unless Landlord requests that removal, belong to the
Landlord without compensation, allowance or credit to Tenant, except
movable trade fixtures of the Tenant which can be removed without
defacing the Premises or the Project.
19. DESTRUCTION OF PREMISES:
19.1 PARTIAL DESTRUCTION: In the event of a partial destruction of
the Premises during the term hereof, from any cause covered by
insurance, Landlord may
28
elect to repair the same to the extent such repairs can be
made with the insurance proceeds made available to Landlord
(and not retained by any lender) and within a reasonable time
under then existing governmental laws and regulations. Such
partial destruction shall not terminate this Lease and Tenant
shall be entitled to a proportionate reduction of rent while
such repairs are being made, based upon the extent to which
the making of such repairs shall interfere with the business
of Tenant on the Premises. If Landlord elects to make said
repairs, this Lease will continue in effect and the rent will
be proportionately abated as stated above. If the repairs
cannot be made with the available insurance proceeds and
Landlord elects not to make said repairs, this Lease may be
terminated at the option of either party upon ten (10) days
prior written notice. No rent shall be payable for the period
after the date of casualty whenever the Lease is terminated
pursuant to this section 1 9.
19.2 MATERIAL/TOTAL DESTRUCTION: If the Building in which the
Premises are situated or the Project sustains damage of more
than 1/3 of the replacement cost thereof, Landlord may elect
to terminate this Lease whether the Premises are injured or
not, provided that Landlord terminates all other leases
equally affected by such casualty. A total destruction of the
Building in which the Premises are situated or the Project
shall terminate this Lease.
19.3. TENANT'S RIGHT. In the event that the Premises are
substantially damaged within the last year of the term, or in
the event that the Premises are not likely to be restored
within nine (9) months of the casualty, Tenant may terminate
this Lease upon ten (10) days prior written notice.
20. HAZARDOUS SUBSTANCES:
20.1 DEFINITIONS: For the purposes of this Agreement, the
following terms have the following meanings:
(a) "Environmental Law" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the
environment including, without limitation CERCLA
(Comprehensive Environmental Response, Compensation and
Liability Act of 1980), RCRA (Resources Conservation and
Recovery Act of 1976) and XXXX (Superfund Amendments and
Reauthorization Act of 1986).
(b) "Hazardous Substance" means any substance, material or
waste which is or becomes designated, classified or regulated
as being "toxic" or "hazardous" or a "pollutant" or which is
or becomes similarly designated,
29
classified or regulated, under any Environmental Law,
including asbestos, petroleum and petroleum products.
20.2 TENANT'S RESPONSIBILITIES: At its own expense, Tenant will
procure, maintain in effect and comply with all conditions of
any and all permits, licenses and other governmental and
regulatory approvals required for Tenant`s particular manner
of use of the Premises, as opposed .to the mere office use of
the Premises as to which Landlord shall comply (e.g.,
certificate of occupancy, etc.). Tenant will not cause or
permit its employees, agents invitees or contractors to cause
any Hazardous Substance to be brought upon, kept or used in or
about the Project by Tenant, its agents, employees,
contractors or invitees without the prior written consent of
Landlord (other than small quantities normally associated with
office use). Tenant will, in all respects, handle, treat, deal
with and manage any and all Hazardous Substances in, on, under
or about the Premises in total conformity with all applicable
Environmental Laws and prudent industry practices regarding
management of such Hazardous Substances. Tenant will not take
any remedial action in response to the presence of any
Hazardous Substances in or about the Premises or the Project,
nor enter into any settlement agreement, consent decree or
other compromise in respect to any claims relating to any
Hazardous Substances in any way connected with the Premises
without first notifying Landlord of Tenant's intention to do
so and affording Landlord. ample opportunity to appear,
intervene or otherwise appropriately assert and protect
Landlord's interests with respect thereto.
20.3. HAZARDOUS WASTE. (Intentionally Omitted)
20.4. INDEMNIFICATION: If the Premises or the Project become
contaminated in any manner for which Tenant is legally liable
or otherwise become affected by any release or discharge of a
Hazardous Substance, Tenant shall immediately notify Landlord
of the release or discharge of the Hazardous Substance, and to
the extent that Tenant or its employees, agents, invitees or
contractors cause such release or discharge, Tenant shall
indemnify, defend (by counsel reasonably acceptable to
Landlord) and hold harmless Landlord from and against any and
all claims, damages, fines, judgments, penalties, costs,
liabilities or losses (including, without limitation, a
decrease in value of the Project or the Premises, damages
caused by loss or restriction of rentable or usable space, or
any damages caused by adverse impact on marketing of the
space, and any and all sums paid for settlement of claims,
attorneys' fees, consultant fees and expert fees) arising
during or after the term of this Lease and arising as a result
of such contamination, release or discharge. This
indemnification includes, without limitation, any and all cots
incurred because of any investigation of the site or any
cleanup, removal or
30
restoration mandated by federal, state or local agency or
political subdivision.
21. EVENTS OF DEFAULT: If one or more of the following events ("Event of
Default") occurs, such occurrence constitutes a breach of this Lease by
Tenant:
21.1 ABANDONMENT/VACATION: Tenant abandons or vacates the remises
or removes furniture, fixtures or personal property (except in
the normal course of business or in connection with any
proposed subletting or assignment of this Lease and as
permitted in paragraph 7.2 hereof) or fails to perform its
maintenance and presence obligations during a permitted period
of vacancy, under paragraph 7.2 above; or
21.2 RENT: Tenant fails to pay any monthly Base Rent or Operating
Expenses Rent, if applicable, as and when the same becomes due
and payable, and such failure continues for more than five (5)
days after written notice; or
21.3 OTHER SUMS: Tenant fails to pay any other sum or charge
payable by Tenant hereunder as and when the same becomes due
and payable, and such failure continues for more than five (5)
days after Landlord gives written notice thereof to Tenant; or
21.4 OTHER PROVISIONS: Tenant fails to perform or observe any other
agreement, covenant, condition or provision of this Lease to
be performed or observed by Tenant as and when performance or
observance is due, and such failure continues for more than
thirty (30) days after Landlord gives written notice thereof
to Tenant, or if the default cannot be cured within said
thirty (30) day period and Tenant fails promptly to commence
with due diligence and dispatch the curing of such default or,
having so commenced, thereafter fails to prosecute or complete
with due diligence and dispatch the curing of such default; or
21.5 INSOLVENCY: Tenant (a) files or consents by answer or
otherwise to the filing against it of a petition for relief or
reorganization or arrangement or any other petition in
bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction; (b) makes an
assignment for the benefit of its creditors; (c) consents to
the appointment of a custodian, receiver, trustee or other
officer with similar powers of itself or of any substantial
part of its property; or (d) takes action for the purpose of
any of the foregoing; or
21.6 RECEIVER: A court or governmental authority of competent
jurisdiction, without consent by Tenant, enters an order
appointing a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial power of its property, or constituting an order
for relief or approving a petition for relief or
reorganization or any other petition in
31
bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding up or liquidation of Tenant, or if
any such petition is filed against Tenant and such petition is
not dismissed within ninety (90) days; or
21.7 ATTACHMENTS: This Lease or any estate of Tenant hereunder
is levied upon under any attachment or execution and such
attachment or execution is not vacated within 60 days; or
21.8 ASSIGNMENT/SUBLEASE: Tenant assigns this Lease or subleases
all or any portion of the Premises without Landlord's prior
written consent, except as permitted under this Lease.
22. REMEDIES OF LANDLORD ON DEFAULT:
22.1 TERMINATION: In the event of any breach of this Lease by
Tenant, Landlord may, at its option, terminate the Lease and
repossess the Premises pursuant to the laws of the State of
Florida and recover from Tenant as damages:
(a) the unpaid rent and other amounts due at the time of
termination plus interest thereon at the Default Rate from the
due date until paid;
(b) the balance of the rent for the remainder of the term
after termination, less amounts, if any, collected by Landlord
during such term; and
(c) any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform
its obligations under the Lease or which in the ordinary
course of things would be likely to result therefrom,
including, without limitation, the cost of recovering th
Premises.
22.2 LANDLORD'S OPTIONS: Landlord may, in the alternative, (i)
continue this Lease in effect, as long as Landlord does not
terminate Tenant`s right to possession, and Landlord may
enforce all its rights and remedies under the Lease, including
the right to recover the rent as it becomes due under the
Lease; or (ii) terminate Tenant's right of possession (but not
this Lease) and repossess the Premises pursuant to the laws of
the State of Florida, without demand or notice of any kind to
Tenant, in which event Landlord may, but shall be under no
obligation to do so (except to the extent required by the laws
of the State of Florida ), relet the Premises for the account
of Tenant for such rent and upon such terms as shall be
satisfactory to Landlord. For purpose of such reletting
Landlord is authorized by Tenant to decorate or to make any
repairs, changes, alterations or additions in or to the
Premises that may be necessary or convenient, at Tenant's
expense. Tenant xxxXx also be responsible for rent for the
period that the Premises are vacant and all costs
32
of re-letting, including without limitation, brokerage
commissions and attorneys' fees. Tenant shall also be liable
for any deficiency of such rental below the total rental and
all other payments herein provided for the unexpired balance
of the term of this Lease; or (iii) exercise any and all other
rights and remedies available to Landlord at law or in equity.
22.3 MULTIPLE DEFAULTS: Should Tenant default in the payment of
Base Rent, Additional Rent, or any other sums payable by
Tenant under this Lease on three (3) or more occasions during
any twelve (12) month period, regardless of whether any such
default is cured; then, in addition to all other remedies
otherwise available to Landlord:
(a) Landlord may demand by written notice to Tenant that all
payments due by Tenant under this Lease shall be by bank
certified or cashier's check. Tenant's failure to comply with
this demand shall be an Event of default.
(b) (Intentionally Omitted)
(c) All notice requirements or cure periods otherwise set
forth in the Lease with respect to a further default by Tenant
in such twelve (12) month period shall not apply.
(d) Any and all rights or options of first refusal, or to
extend the Term, to expand the size of the Premises, to
purchase the Premises or the Building, or other such or
similar rights or options which have been granted to Tenant
under this Lease shall automatically, and without further
action on the part of any party, expire and be deemed canceled
and of no further force and effect, unless and Tenant has
fully cured all defaults within such twelve (12) month period.
23. SECURITY DEPOSIT: The Security Deposit set forth in paragraph 1, if
any, shall secure the performance of the Tenant's obligations
hereunder. Landlord may, but shall not be obligated to apply all or
portions of the Security Deposit on account of Tenant's obligations
hereunder. In the event that Landlord applies all or a portion of the
Security Deposit to Tenant's obligations hereunder, Tenant shall be
obligated, within ten (10) days of receipt of notice from Landlord, to
deposit cash (or restore the LC) with Landlord in an amount sufficient
to restore the Security Deposit to the full amount stated in paragraph
1.8 above, subject to reduction as may be provided under this Lease.
Failure to deposit such cash shall be a default under the terms of this
Lease. Provided Tenant is not in default, any balance remaining upon
termination of the Lease shall be returned to Tenant within fifteen
(15) days after expiration. Tenant shall not have the right to apply
the Security Deposit in payment of the last month's rent. No interest
shall be paid by Landlord on he Security Deposit. In the event of a
sale of the Project, Landlord shall have the right to transfer the
Security Deposit to the purchaser and upon such transfer Landlord
33
shall have no further liability with respect thereto, and Tenant agrees
to look solely to such purchaser for the return of the Security Deposit
provided such transferee shall have acknowledged in writing the receipt
of such security and the obligations with respect thereto under this
Lease. Landlord shall not be required to keep the Security Deposit in a
segregated account, and the Security Deposit may be commingled with
other funds of Landlord.
24. LIEN FOR RENT: Landlord shall have any and all lien rights in favor of
Landlord arising under Florida law upon all equipment, fixtures, and
furnishings, of Tenant which may be situated in or on the Premises at
the time of a default, and all proceeds therefrom, and such property
shall not be removed therefrom without the consent of Landlord until
any and all sums of money then due to Landlord hereunder first shall
have been paid and discharged, and all covenants, agreements and
conditions hereof have been fully complied with and performed by
Tenant. Landlord hereby waives its lien rights hereunder in favor of
any existing lender, as well as any third party providing an equipment
lease or equipment financing to Tenant, or hereafter having a blanket
lien on Tenant's aforementioned property.
25. LIMITATION ON LANDLORD'S PERSONAL LIABILITY: Tenant specifically agrees
to look solely to Landlord's interest in the Project and any proceeds
therefrom for the recovery of any judgment from Landlord, it being
agreed that Landlord (and any officers, shareholders, partners,
directors or employees of Landlord or of any partners in the entity
comprising Landlord) shall never be personally Iiable for any such
judgment.
26. ATTORNEY'S FEES: In the event of any dispute or legal action between
the parties as a result of Tenant's default under this Lease or
otherwise, the prevailing party shall be entitled to reimbursement of
reasonable attorneys' fees by the losing party.
27. WAIVER: No failure of Landlord to enforce any term hereof shall be
deemed to be a waiver.
28. SEVERABILITY: If any clause or provisions of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the term hereof, then it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is
also the intention of both parties that in lieu of each clause or
provision that is illegal, invalid or unenforceable, there shall be
added as a part of this Lease, a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as
may be possible and be legal, valid and enforceable.
29. NOTICES: All notices or other communications required or permitted
hereunder
34
must be in writing, and be (i) personally delivered (including by means
of professional messenger service), (ii) sent by overnight courier,
with request for next Business Day delivery, or (iii) sent by
registered or certified mail, postage prepaid, return receipt
requested, to the addresses set forth in paragraph 1. All notices sent
by mail will be deemed received two (2) business days after the date of
mailing. Notwithstanding anything to the contrary hereinabove, any
notice of default sent by Landlord to Tenant must be sent by certified
mail, return receipt requested, to Tenant at the address(es) stated in
paragraph 1.16 above.
30. HOLDING OVER: Any holding over after the expiration or termination of
this Lease shall be construed as a month-to-month tenancy at a rental
of 200% of the rent for the month of the Lease preceding the month in
which the expiration or termination occurred, and otherwise in
accordance with the terms hereof, as applicable. In the event Tenant
shall be or become a holdover tenant, Tenant shall also indemnify
Landlord against all claims for damages against Landlord as a result of
Tenant's possession of the Premises, including, without limitation,
claims for damages by any tenant to whom Landlord may have leased the
Premises, or any portion thereof, for a term commencing after the
expiration or termination of this Lease.
31. TIME: Time is of the essence of this Lease, subject to the grace and
cure periods set forth herein.
32. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to
the benefit of the assigns and successors in interest of Landlord and
is binding upon and inures to the benefit of Tenant and Tenant's heirs
and successor and, to the extent assignment may be approved by Landlord
hereunder, Tenant's assigns.
33. SUBORDINATION: This Lease is and shall always be subject and
subordinate to the lien of any mortgages which are now or shall at any
future time be placed upon the Project, the Premises or Landlord's
rights hereunder, and to any renewals, extensions, modifications or
consolidations of any such mortgage. This clause shall be
self-operative and no further instrument of subordination need be
required by any mortgagee. In confirmation of such subordination,
however, Tenant, at Landlord's request, shall execute promptly any
appropriate certificate or instrument that Landlord may reasonably
request. Notwithstanding anything to the contrary herein, Tenant's
rights under this Lease shall not be disturbed in the event of any
foreclosure of any such mortgage or lien, so long as Tenant attorns to
the new owner of the Building as Landlord under this Lease.
34. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS:
34.1 CONTENT: Tenant shall at any time upon not less than ten (10)
days' prior written notice from Landlord execute, acknowledge
and deliver to Landlord a
35
statement in writing:
(a) certifying that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified,
is in full force and effect), the amount of any security
deposit, and the date to which the rent and other charges are
paid in advance, if any; and
(b) acknowledging that there are not, to Tenant's knowledge,
any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective
purchaser or encumbrancer to the Premises.
34.2 FAILURE TO DELIVER: At Landlord's option, Tenant's failure
to deliver such statement within such time shall be conclusive
upon Tenant:
(a) that this Lease is in full force and effect, without
modification except as may be represented by. Landlord; and
(b) that there are no uncured defaults in Landlord's
performance.
34.3 FINANCIAL STATEMENTS: [Intentionally Omitted].
34.4. LANDLORD'S ESTOPPEL. Upon Tenant's reasonable request and in
no event more than once during the Lease year, or in the event
of a permitted assignment of sublease by Tenant, Landlord
shall provide an estoppel statement certifying the facts
stated in 34.1(a) and (b) hereof as related to Tenant.
35. AUTHORIZATION: If Tenant executes this Lease as a, corporation,
partnership or, other entity or organization then Tenant and the
person(s) executing this Lease on behalf of Tenant, represent and
warrant that such entity or organization is duly qualified to do
business in the State in which the Project is located and that the
individuals executing this Lease on Tenant's behalf are duly authorized
to execute and deliver this Lease on Tenant's behalf.
36. JOINT AND SEVERAL LIABILITY: In the event that, more than one person or
entity executes the Lease as Tenant, all such persons and entities
shall be jointly and severally liable for all of Tenant's obligations
hereunder. In the event that Tenant is a partnership, all general
partners shall be jointly and severally liable for all of Tenant's
obligations hereunder.
37. FORCE MAJEURE: Landlord and Tenant respectively shall be excused for
the period of any delay in the performance of any obligations hereunder
when
36
prevented from doing so by cause or causes beyond Landlord's or
Tenant's reasonable control which shall include, without limitation,
all labor disputes, civil commotion, civil disorder, riot, civil
disturbance, war, war-like operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental
regulations, orders, moratoriums or controls, fire or other casualty,
inability to obtain any material, services or financing or Acts of God.
38. RECORDING: Tenant shall not record this Lease, or any memorandum or
short form thereof, without the written consent and joinder of
Landlord, which may be unreasonably withheld.
39. RIDER: A Rider, signed by the parties /__/ is attached /__/ is not
attached hereto.
40. ENTIRE AGREEMENT: The foregoing constitutes the entire agreement
between the parties and may be modified only by a writing signed by
both parties.
41. GOVERNING LAW: This Lease shall be construed in accordance with the
internal laws of the State of Florida (without regard to conflicts of
law or choice of law rules).Miami-Dade
42. RADON GAS: The following statement is included in order to comply with
Florida statutory law requirements: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from our
county public health unit.
43. WAIVER OF THE RIGHT TO TRIAL BY JURY/NO COUNTERCLAIM: LANDLORD AND
TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING THAT LANDLORD OR TENANT MAY
HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS LEASE OR THE PREMISES, OR THE
PROJECT, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR
OCCUPANCY OF THE PREMISES, OR ANY OTHER CLAIMS (EXCEPT CLAIMS FOR
PERSONAL INJURY OR WHERE A WAIVER OF JURY TRIAL IS PROHIBITED) AND ANY
EMERGENCY STATUTORY OR OTHER STATUTORY REMEDY. IN THE EVENT LANDLORD
COMMENCES ANY ACTION FOR NON-PAYMENT OF RENT, TENANT SHALL NOT
INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION IN TO THE
POSSESSORY COUNTS IN ANY SUCH ACTION OR PROCEEDING OTHER THAN
COUNTERCLAIMS WHICH WOULD BE WAIVED IF NOT THEN ASSERTED SUCH AS
COMPULSORY COUNTERCLAIMS AND WHICH COULD NOT BE SEVERED OR OTHERWISE
MAINTAINED AS A SEPARATE
37
ACTION. THE FOREGOING, HOWEVER, SHALL NOT BE CONSTRUED AS A WAIVER OF
TENANT'S RIGHTS TO ASSERT SUCH CLAIM IN A SEPARATE ACTION INSTITUTED BY
TENANT.
44. ACCEPTANCE BY LANDLORD: THE SUBMISSION OF THIS DOCUMENT FOR EXAMINATION
DOES NOT CONSTITUTE AN OPTION OR OFFER TO LEASE SPACE IN THE PROJECT.
THIS DOCUMENT SHALL HAVE NO BINDING EFFECT ON THE PARTIES UNLESS
EXECUTED BY THE LANDLORD AND THE EXECUTED COPY IS DELIVERED TO THE
TENANT.
38
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
XXXXXXX IMMOBILIEN GMBH,
a German corporation, by Welsh
Companies, S.E., Inc.,
a Florida corporation, as its agent
Witnesses as to Landlord:
[ILLEGIBLE] By: /s/ XXXXXX XXXXXXXXXXXXX
--------------------------------- ---------------------------------
Xxxxxx Xxxxxxxxxxxxx, President
[ILLEGIBLE]
---------------------------------
TENANT:
STARMEDIA NETWORK, INC.
Witnesses as to Tenant:
[ILLEGIBLE] By: /s/ XXXXXXXXX XXXXXXXX
--------------------------------- ---------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: COO
[ILLEGIBLE] StarMedia Network, Inc.
---------------------------------
SCHEDULES AND EXHIBITS:
----------------------
Schedule I: Project (paragraph 1.1)
Schedule II: Omitted
Schedule III: Rules and Regulations (paragraph 1.1 and 7.3 and 11)
Exhibit "A": Premises (paragraph 1 .2)
Exhibit "A1": Satellite Dish Antenna (paragraph 1.2.1)
Exhibit "B": Rent Commencement Date Certificate (paragraph 1 .6)
Exhibit "C": Building Standard Workletter (paragraph 1.6)
Exhibit "C1": Tenant Improvements Layout (paragraph 1.15.1)
Exhibit "D": Elevator Lobby Redesign Outline (paragraph 1.19)
39
