LEASE FOR THE BROADWAY CENTER
BY AND BETWEEN
CTC INVESTMENTS II LIMITED
AND
NATIONAL AUTO FINANCE COMPANY, INC.
DATED
JUNE 16, 1997
I N D E X
ARTICLE Page
ARTICLE 1 BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS ..... 1
1.1 Basic Lease Provisions............................ 1
1.2 Identification of Exhibits........................ 2
ARTICLE 2 PREMISES AND TERM.......................................... 3
2.1 Lease of Premises................................. 3
2.2 Term of Lease..................................... 3
2.3 Right to Measure.................................. 3
ARTICLE 3 RENEWAL OPTION............................................. 4
3.1 Option............................................ 4
3.2 Notice............................................ 4
3.3 Monthly Base Rent During Renewal Term............. 4
3.4 Compliance with terms of Lease.................... 4
3.5 Fair Market Rate.................................. 4
ARTICLE 4 RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE................. 6
ARTICLE 5 FIRST RIGHT TO LEASE....................................... 8
ARTICLE 6 RENT AND TAXES............................................. 10
6.1 Rent.............................................. 10
6.2 Taxes............................................. 10
ARTICLE 7 UTILITIES.................................................. 10
7.1 Payment by Tenant................................. 10
7.2 No Liability of Landlord.......................... 10
7.3 Installation of Equipment......................... 11
ARTICLE 8 POSSESSION, USE AND ENJOYMENT.............................. 11
8.1 Demise of Premises................................ 11
8.2 Prohibited Uses................................... 11
8.3 Landlord's Work................................... 11
8.4 Tenant's Work..................................... 11
8.5 Permitted Uses.................................... 11
8.6 No Violations of Lease............................ 12
8.7 Licenses or Permits............................... 12
8.8 No Unusual Risks.................................. 12
8.9 Signage........................................... 12
8.10 Permitted Signage................................. 12
8.11 Quiet Enjoyment................................... 12
8.12 Landlord's Title.................................. 12
8.13 Additional Landlord's Representations............. 12
ARTICLE 9 CONDITION OF PREMISES...................................... 13
ARTICLE 10 ASSIGNMENT AND SUBLETTING.................................. 13
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10.1 Assignment and Subletting......................... 13
10.2 Notice and Consent................................ 13
10.3 Effectiveness..................................... 14
10.4 Intercompany Assignment........................... 14
ARTICLE 11 ACCESS, CHANGES IN BUILDING FACILITIES, NAME............... 15
11.1 Landlord's Access................................. 15
11.2 Exhibition of Premises............................ 15
11.3 Landlord's Representatives and Designees.......... 15
11.4 No Unreasonable Interferences..................... 15
ARTICLE 12 MAINTENANCE AND REPAIR..................................... 15
12.1 Tenant's Obligation............................... 15
12.2 Tenant's Work and Property........................ 15
12.3 Landlord's Obligation............................. 16
12.4 Maintenance and Service Agreements................ 16
12.5 No Liability of Landlord.......................... 16
12.6 Floor Loads....................................... 16
12.7 Machines and Equipment............................ 16
12.8 Inconvenience or Injury to Business............... 16
ARTICLE 13 SERVICES AND FUNCTIONS..................................... 17
13.1 Landlord's Obligations............................ 17
13.2 Tenants Obligations............................... 17
13.3 Pests............................................. 17
13.4 Water............................................. 17
ARTICLE 14 ALTERATIONS AND IMPROVEMENTS SUBSEQUENT TO INITIAL
OCCUPANCY.................................................. 17
14.1 Alterations and Improvements...................... 17
14.2 Liens............................................. 18
ARTICLE 15 WAIVER OF CLAIMS........................................... 18
ARTICLE 16 TENANT'S DEFAULT AND LANDLORD'S REMEDIES................... 19
16.1 Events of Default................................. 19
16.2 Landlord's Remedies............................... 19
16.3 Trustee in Bankruptcy............................. 20
16.4 Attorneys' Fees................................... 20
16.5 Limitation of Remedies............................ 21
ARTICLE 17 SURRENDER OF PREMISES...................................... 21
ARTICLE 18 HOLDING OVER............................................... 21
ARTICLE 19 DAMAGE BY FIRE OR OTHER CASUALTY........................... 22
19.1 Substantial Untenantability....................... 22
19.2 Insubstantial Untenantability..................... 22
19.3 Rent Abatement.................................... 22
ARTICLE 20 EMINENT DOMAIN............................................. 23
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20.1 Substantial Taking................................ 23
20.2 Insubstantial Taking.............................. 23
20.3 Compensation...................................... 23
ARTICLE 21 INSURANCE.................................................. 23
21.1 Tenant's Insurance................................ 23
21.2 Landlord's Insurance.............................. 23
21.3 Mutual Waiver of Subrogation...................... 24
ARTICLE 22 RULES AND REGULATIONS...................................... 24
ARTICLE 23 LANDLORD'S RIGHTS.......................................... 24
ARTICLE 24 ESTOPPEL CERTIFICATES...................................... 25
ARTICLE 25 ADJUSTMENT TO MONTHLY BASE RENT............................ 25
25.1 Expenses.......................................... 25
25.2 Taxes............................................. 26
25.3 Adjustments....................................... 26
25.4 Inspection of Records............................. 29
ARTICLE 26 PARKING.................................................... 29
ARTICLE 27 REAL ESTATE BROKERS........................................ 29
ARTICLE 28 SUBORDINATION AND ATTORNMENT............................... 29
28.1 Subordination..................................... 30
28.2 Attornment........................................ 30
28.3 Conditions to Subordination and Attornment........ 30
28.4 Subordination of Landlord's Lien.................. 30
ARTICLE 29 NOTICES.................................................... 31
ARTICLE 30 MISCELLANEOUS.............................................. 31
30.1 Late charges...................................... 31
30.2 Entire Agreement.................................. 32
30.3 Accord and Satisfaction........................... 32
30.4 Limitation of Liability........................... 32
30.5 Force Majeure..................................... 32
30.6 Applicable Law.................................... 33
30.7 Time.............................................. 33
30.8 Landlord's Right to Perform Tenant's Duties....... 33
30.9 Landlord's Access................................. 33
30.11 Tenant's Remedies................................. 33
30.12 Headings.......................................... 35
30.13 Cover Sheet....................................... 35
30.14 Table............................................. 35
30.15 Exhibits.......................................... 35
30.16 References........................................ 35
30.17 Gender; Successor & Assigns....................... 35
30.18 Joint and Several Obligations..................... 35
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30.19 Multiple Tenants.................................. 35
30.20 Mortgages......................................... 36
30.21 References to Lease as a Whole.................... 36
30.22 Consents and Approvals............................ 36
30.23 Recordation....................................... 36
30.24 Arbitration....................................... 36
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LEASE
ARTICLE 1
BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.1 BASIC LEASE PROVISIONS.
(a) BUILDING & ADDRESS:
Broadway Center -- Building I
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(b) LANDLORD & ADDRESS:
CTC Investments II Limited
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxx X. Xxxxxxxx
(c) TENANT & CURRENT ADDRESS:
National Auto Finance Company, Inc.
Xxx Xxxx Xxxxx, Xxxxx 000
000 X.X. 00xx Xxxxxx, Xxxx Xxxxx, XX 00000
ATTN: Xxxxxxx Xxxxx
(d) DATE OF LEASE: June 16, 1997
(e) LEASE TERM: Six (6) years
(f) COMMENCEMENT DATE OF TERM: The Commencement Date, as
defined in Section 2.2 hereof.
(g) EXPIRATION DATE OF TERM: The Expiration Date, as
defined in Section 2.2 hereof.
(h) MONTHLY BASE RENT: The monthly base rent shall be in
the following amounts for the following years during
the term of this Lease:
================================================================================
Monthly Base Rent Monthly
Lease Year/Month per square foot Base Rent
================================================================================
--------------------------------------------------------------------------------
Months 1-5 $0.00 $0.00
--------------------------------------------------------------------------------
Month 6 .48648 x $1.0042 $18,075.36
--------------------------------------------------------------------------------
Months 7-12 $1.0042 $37,154.70
--------------------------------------------------------------------------------
2nd Year $1.0342 $38,264.17
--------------------------------------------------------------------------------
3rd Year $1.0650 $39,405.00
--------------------------------------------------------------------------------
4th Year $1.0975 $40,607.50
--------------------------------------------------------------------------------
5th Year $1.1300 $41,810.00
--------------------------------------------------------------------------------
6th Year $1.1642 $43,074.17
================================================================================
In addition to the Monthly Base Rent, Tenant shall
also pay all sums, costs, expenses, payments and
deposits required by Tenant pursuant to the terms of
this Lease. The Monthly Base Rent is subject to
adjustment as provided in Section and Article of this
Lease. The Monthly Base Rent is also subject to
increase in accordance with Section C(1)(d) of the
Work Letter attached hereto as EXHIBIT C.
(i) NET RENTABLE SQUARE FEET OF THE PREMISES UPON WHICH
ANNUAL RENT AND ADJUSTED RENT IS CALCULATED: 37,000
square feet, subject to adjustment pursuant to
Section 2.3 below.
(j) SECURITY DEPOSIT: None
(k) BROKERS: Phoenix Realty Group, Inc.
Suite 2330, 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
TSC Southeast-Florida, Inc.
c/o The Staubach Company
000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
(l) RENTABLE SQUARE FEET OF THE BUILDINGS INCLUDED IN THE
PROJECT (DEFINED AS BEING THAT CERTAIN PROPERTY,
INCLUDING BUILDINGS CONSTRUCTED OR TO BE CONSTRUCTED
THEREON, LOCATED IN XXXXX COUNTY, FLORIDA AND MORE
PARTICULARLY DESCRIBED ON EXHIBITS A-2 ATTACHED
HERETO): 142,100 square feet, subject to adjustment
pursuant to Section 2.3 below.
(m) TENANT'S PROPORTIONATE SHARE (DEFINED AS BEING THE
RENTABLE SQUARE FOOTAGE OF THE PREMISES DIVIDED BY
THE TOTAL RENTABLE SQUARE FOOTAGE OF THE BUILDINGS
INCLUDED IN THE PROJECT, INCLUSIVE OF THE PREMISES):
26.04%, subject to adjustment pursuant to Section 2.3
below.
1.2 IDENTIFICATION OF EXHIBITS. The exhibits set forth below and
attached to this Lease are incorporated in this Lease by this reference and are
hereby made a part of this Lease:
EXHIBIT A - Tenant Location in Building
EXHIBIT A-1 - Preliminary Layout Plan of Premises
("Layout Plan")
EXHIBIT A-2 - Legal Description for Project
EXHIBIT B - Rules and Regulations
EXHIBIT C - Work Letter
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EXHIBIT C-1 - Drawing of Elevation
EXHIBIT C-2 - Construction Schedule
EXHIBIT D - Approved Signage
EXHIBIT E - Parking Site Plan
ARTICLE 2
PREMISES AND TERM
2.1 LEASE OF PREMISES. Landlord leases to Tenant and Tenant leases from
Landlord the premises (the "Premises") outlined on EXHIBITS A AND A-1, which is
contained in the building described in Section (the "Building"), together with
the right to access and utilize the roof of the Building for the installation
and maintenance of any equipment serving the Premises (provided, however, that
the installation of any such equipment shall be subject, in all events, to the
terms and conditions of this Lease respecting the installation of alterations or
improvements to the Premises), and the right to use common areas of the Building
and Project in common with the other tenants thereof, upon the following terms
and conditions.
2.2 TERM OF LEASE. The term of this Lease (the "Term") shall commence
on the date (the "Commencement Date") which shall be (i) 90 days after the
Delivery of Possession Date (as hereinafter defined), or (ii) the date that
Tenant first occupies all or any part of the Premises for the conduct of
business, if such date occurs prior to the date set forth in (i) above;
provided, however, that in the case of clause (i), the Commencement Date shall
be extended by the number of days of delay incurred in the preparation of the
Premises for Tenant's occupancy (in accordance with the Work Letter attached
hereto as EXHIBIT C) as a result of an event of Force Majeure (as defined in
Section 30.5) or Landlord delay, such total number of days of delay to be
calculated without duplication. The Term shall expire at midnight on the day
immediately preceding the sixth (6th) anniversary of the Commencement Date (the
"Expiration Date"), unless renewed or sooner terminated as otherwise provided in
this Lease. For purposes of this Lease, the term "Delivery of Possession Date"
shall mean the date of this Lease, if such day is a working day, and if not,
then the first working day thereafter. On the Delivery of Possession Date,
Landlord shall allow the Tenant unrestricted access to the Premises for the
delivery and installation of building materials and equipment in accordance with
the terms of the Work Letter.
2.3 RIGHT TO MEASURE. The rentable area for the Premises and each of
the buildings included within the Project shall be subject to Tenant's right to
confirm the measurement thereof by making a written request for confirmation not
later than ninety (90) days after the Commencement Date. If Tenant requests such
a measurement, such measurement shall be conducted, at Tenant's sole cost and
expense, within thirty (30) days after Tenant's request for a measurement, by an
architect or engineer selected by Tenant. Such measurement shall be based upon
the current standards published by Building Owners and Managers Association
International ("BOMA"), except that all exterior walls shall be measured from
the exterior side of such walls (as opposed to the center line), interior walls
(such as a demising wall) shall be measured to its center line, and all unheated
space, such as an unenclosed entrance way or vestibule with a roof overhang,
shall be excluded. Landlord reserves the right to contest the measurements of
Tenant's architect or engineer. If the measurements are finally determined to
vary from the amounts reflected in this Lease, Landlord and Tenant agree to
enter into an amendment to this Lease to correct such measurements and any other
percentages or dollar amounts based thereon, within thirty (30) days after the
final measurements. If Tenant does not request a final measurement in accordance
with the terms of this Section 2.3, then
3
Landlord's measurements as set forth in Article 1 shall be binding and
conclusive upon Tenant. Tenant shall have a comparable right to measure any
additional space or expansion space that is hereafter added to the Premises.
ARTICLE 3
RENEWAL OPTION
3.1 OPTION. Subject to the terms and conditions of this Article 3,
Tenant shall have the option (the "Renewal Options") to extend this Lease for
two (2) successive terms of five (5) years each (the "Renewal Terms").
3.2 NOTICE. In order to exercise any Renewal Option provided hereunder,
Tenant shall provide to Landlord written notice of Tenant's intent to exercise
such option not less than four (4) months and not more than twelve (12) months
prior to the commencement of such Renewal Term in question. If Tenant fails to
exercise any Renewal Option in accordance with the terms and conditions hereof,
including, but not limited to, the foregoing requirement of notice, such Renewal
Option shall thereafter be deemed null and void and of no further force or
effect.
3.3 MONTHLY BASE RENT DURING RENEWAL TERM. In the event Tenant elects
to exercise any Renewal Option provided hereunder, the Monthly Base Rent for
such Renewal Term shall be 95% of the then current Fair Market Rate (as
hereinafter defined). In recognition that the Fair Market Rate for the Premises
may not be determined until after the commencement of the Renewal Term, Tenant
shall pay the Monthly Base Rent previously in effect under the Lease until such
time as a Monthly Base Rent for the Renewal Term is finally determined. In such
event, on the next date on which rent is due following the determination of the
Monthly Base Rent for the Renewal Term, Tenant shall pay any additional rent
which is due, or shall receive a credit for any excess rent which Tenant has
paid, to the extent the Monthly Base Rent paid by the Tenant pending the final
determination differs from the Monthly Base Rent as finally determined. In
addition to Monthly Base Rent as determined in connection with this Article ,
Tenant shall pay Adjusted Monthly Base Rent, Additional Rent and all other
taxes, expenses and charges due under the terms of this Lease at all times
during any Renewal Term period.
3.4 COMPLIANCE WITH TERMS OF LEASE. Tenant's use and occupancy of the
Premises during any applicable renewal term shall be subject to each of the
terms, covenants and conditions of this Lease, except as specifically modified
in this Article . Tenant's right to exercise any Renewal Option shall be
suspended during any period in which Tenant is in default under this Lease
beyond any applicable grace or cure period. In addition, should any event of
default hereunder occur either before or after the exercise of any Renewal
Option, but prior to the commencement of the Renewal Term and not be cured
within any applicable grace and cure period provided herein, Landlord, at its
option, may declare any such Renewal Option terminated and of no further force
or effect.
3.5 FAIR MARKET RATE.
(a) For purposes of this Lease, "Fair Market Rate" shall mean,
as of the date in question, the base rental rate (including
escalations) which a landlord willing but not obligated to lease, would
accept for the premises at issue and which a tenant, willing but not
obligated to lease, would pay therefor in an arm's length transaction,
such determination to be made with reference to other comparable lease
transactions in the Building's marketplace (a "Reference Lease") and
shall take into account all relevant factors, including without
4
limitation, any inducements granted in a Reference Lease such as free
rent, free parking, tenant improvement allowances, and landlord's
assumption of existing leases, the relative location, age and quality
of the building that is the subject of the Reference Lease, the size of
the premises under the Reference Lease, and the services provided under
the Reference Lease in comparison to the services provided hereunder.
The Fair Market Rate shall not reflect the value of any improvements to
the Premises made by the Tenant which Tenant has the right to remove at
the end of the term of this Lease.
(b) Landlord and Tenant shall attempt in good faith to agree
upon the Fair Market Rate by mutual discussion and shall diligently
pursue such effort at such times during the Lease Term as either party
may request in conjunction with the proposed exercise of rights
hereunder to which such Fair Market Rate applies. If, however, Landlord
and Tenant shall not be able to agree upon the Fair Market Rate at any
time after Tenant has exercised an option which gives rise to a
determination of Fair Market Rate, then, in such event, either party
may demand that the Fair Market Rate be determined by arbitration
pursuant to the provisions of this Section 3.5 by delivering written
notice to the other party which notice shall designate such party's
appointment of a person as arbitrator with the qualifications set forth
in Section 3.5(c) below on its behalf, together with such party's
determination of the Fair Market Rate (the "First Proposed Fair Market
Rate"). Within twenty (20) days after receipt of such notice, the
receiving party by written notice to the other party shall appoint a
second person as arbitrator with the qualifications set forth in
Section 3.5(c) below and the three arbitrators shall, within thirty
(30) days, determine the Fair Market Rate by making their own
independent determination of the actual Fair Market Rate for the
applicable space based upon the definition of Fair Market Rate
contained herein; provided, however, that the arbitrators are bound to
choose a Fair Market Rate that is within the range established by the
First Proposed Fair Market Rate and the Second Proposed Fair Market
Rate. The arbitrators shall not have the right to determine the Fair
Market Rate in any other manner; provided, however, that:
(i) If the second arbitrator shall not have been
appointed within the twenty (20) day period as
aforesaid, the First Proposed Fair Market Rate shall
be the applicable Fair Market Rate; and
(ii) If the two arbitrators are appointed by the parties
and shall be unable to agree, within ten (10) days
after their appointment, upon the third arbitrator,
they shall give written notice to the parties of such
failure to agree, and if the parties fail to agree
upon the selection of such third arbitrator within
ten (10) days after the arbitrators appointed by the
parties gave notice as aforesaid, then either of the
parties upon notice to the other party may request in
writing such appointment by the American Arbitration
Association, or any successor organization ("AAA") or
in its absence, refusal, failure or inability to act
within ten (10) days after the request to the AAA,
may apply to the Chief Judge of the Xxxxx County
Circuit Court for a court appointment of such
arbitrator.
(c) Each arbitrator shall be qualified and impartial person
who shall be a licensed real estate salesperson, broker or appraiser
with substantial commercial experience with respect to management,
ownership and marketing of office/warehouse buildings in the
Jacksonville, Florida metropolitan area. Once the arbitrators have been
selected, the
5
arbitrators shall, after due consideration of the factors to be taken
into account in connection with the definition of the Fair Market Rate
and hearing whatever evidence they deem appropriate from Landlord,
Tenant or others, determine a Fair Market Rate that is within the range
established by the First Proposed Fair Market Rate and the Second
Proposed Fair Market Rate and shall render their decision in writing,
upon the concurrence of at least two (2) of their number, within thirty
(30) days after the appointment of the third arbitrator. Such decision
shall be final and conclusive on the parties and counterpart copies of
such decision shall be delivered to each of the parties; provided,
however, upon the rendering of such decision, Tenant shall be entitled
to rescind its exercise of the option in question provided such
rescission is exercised by an irrevocable written notice to Landlord at
least ten (10) days after the arbitrators have determined the Fair
Market Rate and notified the parties thereof. No such rescission shall
be effective unless Tenant agrees to pay Landlord's reasonable
out-of-pocket expenses incurred in connection with such option,
including, without limitation, all arbitration costs incurred with
respect to the determination of Fair Market Rate. Judgment may be had
on the decision of the arbitrators so rendered in any court of
competent jurisdiction and to the extent that Florida law imposes
requirements different than those of the AAA in order for the decision
of the arbitrators to be enforceable in the courts of the State of
Florida, such requirements shall be complied with during the
arbitration.
(d) Except as otherwise provided in Section 3.5 (c) above, the
parties shall each pay the fees of the arbitrator they selected,
one-half (1/2) of the fees of the third arbitrator and shall each pay
their own respective fees of counsel, experts and witnesses.
ARTICLE 4
RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE
During the Term of this Lease, including any extensions or renewals
thereof, Tenant shall have the right of first refusal to lease any area of the
Building that is contiguous to the then current Premises (the "ROFR Area"). Such
right of first refusal shall be exercisable at the following times and upon the
following conditions:
(a) If during the Term of this Lease, Landlord receives an
offer from a prospective tenant (the "Prospective Tenant") to lease
premises (the "Offered Premises") in the Building containing all or any
part of the ROFR Area, and Landlord desires to accept such offer,
Landlord shall notify Tenant of such fact. Tenant shall have a period
of five (5) working days from the date of delivery of such notice to
notify Landlord whether Tenant elects to exercise the right granted
hereby to lease the Offered Premises. If Tenant fails to give any
notice to Landlord within the required five (5) working day period,
Tenant shall be deemed to have refused its right to lease that portion
of the ROFR Area which comprises the Offered Premises.
(b) If Tenant refuses its right to lease the Offered Premises,
either by giving written notice thereof or by failing to give any
notice, Landlord shall thereafter have the right, for a period of one
hundred twenty (120) days, to lease the Offered Premises to the
Prospective Tenant on such terms and provisions as may be acceptable to
Landlord, provided such terms and provisions are not more favorable
than the terms and provisions set forth in the notice from Landlord to
Tenant. If Landlord and the Prospective Tenant fail to enter into a
lease following Tenant's refusal to lease the ROFR Area within the one
hundred
6
twenty (120) day period provided in the previous sentence, Tenant shall
have the right of first refusal described herein with respect to any
subsequent bona fide offers from the Prospective Tenant. Moreover,
without regard to the one hundred twenty (120) day period referenced
above, Tenant shall have the right of first refusal described herein
with respect to any subsequent bona fide offers from other prospective
tenants.
(c) If Tenant exercises its right to lease the Offered
Premises, Landlord and Tenant shall, within thirty (30) days after
Tenant delivers to Landlord notice of its election, enter into an
amendment to this Lease which evidences that Tenant has leased the
Offered Premises on the same terms, covenants, and conditions as are
contained in this Lease, subject to the following:
(i) The rentable area of the Offered Premises shall be
equal to the area offered to be leased by the
Prospective Tenant.
(ii) The rate of Monthly Base Rent to be paid for the
Offered Premises for the balance of the then current
Term (as the same may be adjusted pursuant to
subsection (v) below) shall be equal to the monthly
base rent offered to be paid by the Prospective
Tenant, including any free rent periods offered and
any offered rent escalations from time to time in
such rental rate; provided, however, that such
monthly base rent shall be adjusted, if necessary, to
account for differences in the duration of the lease
as offered by the Prospective Tenant as compared to
the duration Tenant will be leasing the Offered
Premises; such adjustment to be mutually agreed upon,
or failing agreement to be finally determined
utilizing the arbitration process set forth in
Section 3.5 above.
(iii) The payment of monthly installments of Monthly Base
Rent with respect to the Offered Premises shall
commence on the effective date of the lease of the
Offered Premises as offered to the Prospective
Tenant, or in the event no specific effective date
was so offered, on the date mutually acceptable to
Landlord and Tenant, but in no event earlier than the
later of (x) thirty (30) days after Tenant delivers
to Landlord notice of its election, or (y) the date
Landlord delivers possession of the Offered Premises
to Tenant. Rent for any partial month shall be
prorated.
(iv) Possession of the Offered Premises shall be delivered
to Tenant on the basis offered to the Prospective
Tenant, including any construction allowances;
provided, however, that Landlord will use reasonable
diligence to make the Offered Premises available to
Tenant on the date requested by Tenant.
(v) The term of the lease of the Offered Premises shall
commence on the date determined pursuant to
subsection (iv) above (the "Supplemental Commencement
Date"), and shall continue thereafter for the
remaining then current Term of this Lease; provided,
however, that if the then current Term of this Lease
is due to expire within three (3) years after the
Supplemental Commencement Date and Tenant has not
exercised an available Renewal Option, if any, then
the then current Term of this Lease shall be extended
one day for each day of such shortfall, such that the
then current Term of this
7
Lease is in no event shorter than three (3) years in
duration from the Supplemental Commencement Date.
(vi) Any renewal of this Lease occurring after the
Supplemental Commencement Date pursuant to Article 3
above, shall include and extend to the Offered
Premises leased hereunder, with the rent for the
Offered Premises (and the balance of the Premises) to
be calculated pursuant to Article 3 for the Renewal
Term.
(d) The right of first refusal provided under this Article 4
shall be suspended during any period in which Tenant is in default
under this Lease beyond any applicable grace or cure period. In
addition, should any event of default hereunder occur either before or
after the exercise of any right of first refusal, but prior to the
execution of an amendment for the Offered Premises and the same is not
cured within any applicable grace or cure period provided herein, then
Landlord, at its option, may reject Tenant's notice of exercise of its
right of first refusal and proceed hereunder as if Tenant had declined
to lease the Offered Premises.
ARTICLE 5
FIRST RIGHT TO LEASE
(a) From time to time during the Lease Term, but not more
frequently than quarterly, Tenant shall have the option to notify
Landlord of its desire to lease additional space in the Building.
(b) Within thirty (30) days following the receipt of Tenant's
notification under subsection (a) above, Landlord shall notify Tenant,
in writing, of the space which is then available in the Building (or
scheduled to become available within one hundred twenty (120) days from
the date of Landlord's notice) and the date upon which any expansion
rights of other tenants in and to such space would permit occupation of
such space by such tenant (the "Other Tenant").
(c) Within ten (10) days after notice from Landlord to Tenant
of the available space, Tenant must notify Landlord in writing
designating that space, if any, which Tenant is interested in leasing
(the "Designated Space") and the term for which Tenant is interested in
leasing such Designated Space (which term shall not extend beyond the
Term of this Lease (as the same may be extended pursuant to Article 3
above) and either (i) shall not extend beyond the date the Landlord
requires such Designated Space in order to deliver such Designated
Space to the Other Tenant in accordance with the Other Tenant's
expansion rights, or (ii) shall be subject to the expansion rights of
the Other Tenant). Tenant shall have no option to lease the Designated
Space during any period when Tenant is in default of this Lease beyond
any applicable grace or cure period.
(d) If Tenant does not give Landlord written notice within
thirty (30) days after Tenant gives notice under subsection (c) above
that Tenant has exercised Tenant's option to lease the Designated
Space, Tenant shall be deemed to have elected not to exercise such
option with respect to such Designated Space and Landlord shall be free
to lease such Designated Space in the ordinary course of business, but
if such Designated Space is unleased
8
as of the date of a request by Tenant under subsection (a), such
Designated Space shall be available space under subsection (b).
(e) The Designated Space shall be leased upon the terms and
provisions then in effect under this Lease, except that (i) the Monthly
Base Rent, escalation, concessions, etc. for the Designated Space for
the balance of the then current term shall be the Fair Market Rate for
the Designated Space; (ii) the Tenant shall not be entitled to the
"Tenant Improvement Allowance" referenced in the Work Letter (provided,
however, that the absence thereof shall be taken into account in the
determination of Fair Market Rate); and (iii) the term for the
Designated Space shall be modified in accordance with subsection (c).
The rate of Monthly Base Rent during any subsequent Renewal Term shall
be determined in accordance with Article 3. The lease of the Designated
Space shall commence and rent and other charges shall commence to
accrue on the earlier of (i) ninety (90) days after the date Landlord
delivers actual possession of the Designated Space to Tenant, or (ii)
the date that Tenant first occupies all or any part of the Premises for
the conduct of business. Landlord and Tenant shall enter into an
amendment to this Lease which evidences that Tenant has leased the
Designated Space within thirty (30) days after Landlord has delivered
possession of the Designated Space to Tenant.
(f) If Landlord and Tenant do not agree on the Fair Market
Rate for the Designated Space at any time after Tenant's exercise of
its option right hereunder, either party may require that such Fair
Market Rate be determined using the procedures set forth in Section 3.5
(which determination shall be binding on Landlord and Tenant). In
recognition that the Fair Market Rate for the Designated Space may not
be determined until after the commencement of the lease for such
Designated Space, Tenant shall pay, as Monthly Base Rent and additional
charges for the Designated Space, until such Fair Market Rate is
determined, the amount of Monthly Base Rent and other charges then in
effect under this Lease on a per rentable square foot basis multiplied
by the number of rentable square feet in such Designated Space. If the
Fair Market Rate is determined to be less than such amount, Tenant
shall receive a credit again the Monthly Base Rent and other charges
thereafter coming due under this Lease in an amount equal to the
difference between the amount of Monthly Base Rent and other charges
actually paid by Tenant with respect to such Designated Space and the
amount which Tenant would have paid at the Fair Market Rate for such
Designated Space. If such Fair Market Rate is determined to be more
than such amount, Tenant shall pay such difference to Landlord within
thirty (30) days after the determination of Fair Market Rate.
(g) The first right to lease granted to Tenant hereunder shall
be subject and subordinate to any expansion or renewal options granted,
from time to time, in leases to other tenants in the building.
(h) The first right to lease provided hereunder shall be
suspended during any period in which Tenant is in default under this
Lease beyond any applicable grace or cure period. In addition, should
any event of default hereunder occur either before or after the
exercise of any first right of lease, but prior to the execution of an
amendment for the Designated Space and the same is not cured within any
applicable grace or cure period provided herein, then Landlord, at its
option, may reject Tenant's notice of exercise of its first right to
lease and proceed hereunder as if Tenant had declined to lease the
Designated Space.
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ARTICLE 6
RENT AND TAXES
6.1 RENT. Tenant agrees to pay to Landlord at the address set forth in
Section of this Lease, or at such other place designated by Landlord, without
any prior notice or demand and without any set-off or deduction whatsoever
except as expressly permitted herein, base rent at the initial monthly rate
stated in Section ("Monthly Base Rent"). Monthly Base Rent is subject to
adjustment pursuant to Article , and as adjusted is called "Adjusted Monthly
Base Rent". Monthly Base Rent and Adjusted Monthly Base Rent shall be paid
monthly in advance on the first day of each month of the Term. Monthly Base Rent
and Adjusted Monthly Base Rent shall be prorated for partial months within the
Term. All charges, costs and sums required to be paid by Tenant to Landlord
under this Lease, in addition to Monthly Base Rent and Adjusted Monthly Base
Rent, shall be considered additional rent, and Monthly Base Rent, Adjusted
Monthly Base Rent and Additional Rent shall be collectively called "Rent".
Notwithstanding anything contained herein to the contrary Rent (including any
so-called free rent periods) shall not begin to accrue until the Landlord's Work
is Substantially Complete, as that term is defined in the Work Letter.
Notwithstanding any provision hereof to the contrary, Tenant shall not
pay Monthly Base Rent for the first five months of the Term of this Lease, and
shall only pay 48.648% of any Adjusted Monthly Base Rent for the sixth month of
the Term of this Lease. Thereafter, Tenant shall pay all Rent sums due under the
Terms of this Lease.
6.2 TAXES. Tenant shall pay to Landlord any sales, use, excise, or
similar tax, levied or assessed by the State of Florida or any political
subdivision thereof, on the Rent payable hereunder, and required by law to be
paid. Such tax shall be paid to Landlord with each payment of Rent herein
reserved and calculated on the Rent paid with such payment. Default in payment
of such tax shall constitute an event of default under Section hereof to the
same extent as would a default in payment of Rent.
ARTICLE 7
UTILITIES
7.1 PAYMENT BY TENANT. Tenant shall pay, directly to the appropriate
supplier, the cost of all utilities (heat, gas, electricity, telephone, and
refuse disposal, but exclusive of water and sewer) and other services supplied
to the Premises. However, if any services or utilities are jointly metered with
other units, Landlord shall make a reasonable determination of Tenant's share of
the cost of such utilities and services and Tenant shall pay such share to
Landlord.
Tenant shall pay to Landlord the charges specified by Landlord for such
services and utilities, within 20 days after billing by Landlord. Default in
payment of such charge shall constitute an event of default under Section 16.1
hereof to the same extent as would a default in payment of Rent.
7.2 NO LIABILITY OF LANDLORD. Unless due to Landlord's negligence or
wilful misconduct, Landlord shall not be liable for damages for any failure to
furnish or delay in furnishing any service or utility described in Section 7.1
above. Unless due to Landlord's negligence or wilful misconduct, no such failure
or delay shall result in any liability of Landlord to Tenant or be deemed to be
an
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eviction or disturbance of Tenant's use or possession of the Premises, or
relieve Tenant from its obligation to pay all Rent when due or from any other
obligation of Tenant under this Lease.
7.3 INSTALLATION OF EQUIPMENT. Tenant agrees that it will not install
any equipment which will exceed or overload the capacity of any utility
facilities.
ARTICLE 8
POSSESSION, USE AND ENJOYMENT
8.1 DEMISE OF PREMISES. Landlord does hereby demise and lease to
Tenant, and Tenant does hereby hire and take the Premises from Landlord.
8.2 PROHIBITED USES. Tenant shall not occupy or use the Premises for
any purpose or in any manner which: (1) is unlawful or in violation of any
applicable legal, governmental or quasi-governmental requirement, ordinance or
rule (including the rules of the Board of Fire Underwriters); (2) may be
dangerous to persons or property; (3) may invalidate or increase the amount of
premiums for any policy of insurance affecting the Building or covering its
operation or violate the terms thereof and if any additional amounts of
insurance premiums are payable as a result of Tenant's occupancy or use of the
Premises, Tenant shall pay to Landlord the additional amounts on demand; (4) may
create a nuisance, disturb any other tenant of the Building or the occupants of
neighboring property or injure the reputation of the Building; (5) will conflict
with any exclusive rights granted to any other tenant in the Building; or (6)
will violate the provisions of any covenant, condition, restriction, agreement
or document relating to the Premises, Building or Land (which shall be defined
to include the real property upon which the Building and all improvements
serving the Building, including parking areas, are located) which is recorded in
the office of the Clerk of the Court of Xxxxx County, Florida.
8.3 LANDLORD'S WORK. All installations, facilities, materials and work
to construct the Premises for its initial occupancy by Tenant as described in
the Work Letter to be undertaken by Landlord are hereinafter referred to as the
"Landlord's Work" and are described in the Work Letter attached hereto. Except
for Landlord's Work, Landlord shall not be required to perform any work, render
any services or furnish or install any materials, fixtures or equipment to the
Premises in order that the Premises be ready for occupancy on the Commencement
Date, except for payment of the Tenant Improvements Allowance (as hereinafter
defined).
8.4 TENANT'S WORK. All installations, facilities, materials and work
other than Landlord's Work, which may be undertaken by or for the account of
Tenant to equip (including but not limited to the installation of its trade
fixtures) and finish the Premises for its initial occupancy by Tenant are
hereinafter called "Tenant's Work".
8.5 PERMITTED USES. The Premises shall be used by Tenant for warehouse,
distribution, call center and general office uses (and uses accessory thereto
permitted under applicable laws, regulations or covenants and restrictions), and
for no other purpose. Notwithstanding anything contained in the Lease to the
contrary, Tenant shall have no obligation to occupy the Premises during the term
of the Lease, but Tenant's failure to occupy the Premises shall not relieve
Tenant from its obligation to pay Rent accruing pursuant to the terms of the
Lease, or to otherwise adhere to the terms and conditions of this Lease.
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8.6 NO VIOLATIONS OF LEASE. Tenant shall not use or permit the use of
the Premises or any part thereof in any way which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or for any
unlawful purposes or in any unlawful manner or in violation of any applicable
law, regulations or covenant or restriction and Tenant shall not suffer or
permit the Premises or any part thereof to be used in any manner or anything to
be done therein or anything to be brought into or kept therein which, in the
judgment of Landlord, reasonably exercised, shall (i) adversely affect the
character, or appearance of the Premises, or (ii) adversely interfere with any
use, operation or occupancy of the facilities or improvements. Tenant shall not
install any electrical or other equipment of any kind which, in the reasonable
judgment of Landlord, might cause any such impairment.
8.7 LICENSES OR PERMITS. If any license or permit of a governmental
authority shall be required for the proper and lawful conduct of Tenant's
business or other activity carried on in the Premises, and if the failure to
secure such license or permit would or might reasonably be expected to adversely
affect, in any way, the Landlord, then Tenant, at Tenant's expense, shall duly
procure and thereafter maintain such license or permit and submit the same for
inspection by Landlord. Tenant, at Tenant's expense, shall, at all times, comply
with the requirements of each such license or permit.
8.8 NO UNUSUAL RISKS. The use of the Premises for the purposes
specified in Section hereof shall not in any event be deemed to include, and
Tenant shall not use, suffer or permit the use of the Premises or any part
thereof for the conduct of any business, or activity in which, in the reasonable
judgment of Landlord, may create or xxxxxx an unusual risk to the Building or of
any of its occupants.
8.9 SIGNAGE. No signs, advertisement, notice or other lettering shall
be exhibited, inscribed, painted or affixed by Tenant on any part of the outside
of the Premises or the Building without the prior written consent of the
Landlord. In the event of the violation of the foregoing by Tenant, Landlord may
remove the same without any liability, and may charge the expense incurred by
such removal to the Tenant.
8.10 PERMITTED SIGNAGE. Notwithstanding the provisions of Section
hereof, Landlord will allow Tenant to install the signage specified in EXHIBIT E
annexed hereto and made a part hereof, subject to any covenants and restrictions
regarding Broadway Center and Deerwood Park, zoning laws, municipal ordinances
and any other applicable laws and governmental regulations. All costs incurred
in effecting the provisions of the first sentence of this Section shall be borne
by Tenant.
8.11 QUIET ENJOYMENT. So long as Tenant is not in default under this
Lease beyond any applicable grace or cure period, Tenant shall be entitled to
peaceful and quiet enjoyment of the Premises, subject to (i) the provisions of
this Lease, (ii) any governmental action, and (iii) any cause beyond the
reasonable control of Landlord.
8.12 LANDLORD'S TITLE. Landlord represents and warrants to Tenant that
it owns the Premises in fee simple, and has the power and authority to execute
and deliver this Lease and to carry out and perform all covenants to be
performed by it hereunder.
8.13 ADDITIONAL LANDLORD'S REPRESENTATIONS. Landlord hereby represents
and warrants to Tenant, both as of the date hereof, and as of the Commencement
Date, that to the best knowledge and belief of Landlord, no Hazardous Substances
(as hereinafter defined) exists on, under or about the Premises or have been
transplanted to or from the Premises or used, generated, manufactured,
12
stored or disposed of on, under or above the Premises and there has been no
escape, seepage, leakage, spillage, discharge, emission or other release on or
from the Premises of any Hazardous Substances. As used in this Lease, the term
"Hazardous Substances" means any hazardous or toxic substance, material or waste
which poses any danger to persons or property in, on or about the Premises or
which is or becomes regulated by any local governmental authority, the State of
Florida, or the United States government.
ARTICLE 9
CONDITION OF PREMISES
Tenant shall be conclusively presumed to have accepted the Premises and
Landlord's Work on the date Tenant first takes possession of the Premises and to
have waived all claims relating to the condition of the Premises and the work,
except for "punch list items," as provided in the Work Letter and except for
latent or hidden defects or any breach of Sections 8.12 or 8.13, and Landlord's
repair obligation as provided in Section hereof.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 ASSIGNMENT AND SUBLETTING. Without the prior written consent of
Landlord, Tenant shall not (i) sublease all or any part of the Premises, or
assign, convey, encumber, mortgage, pledge, hypothecate or otherwise transfer or
permit the transfer of the interest of Tenant in this Lease, in whole or in
part, by operation of law or otherwise, or (ii) permit the use and occupancy of
all or any part of the Premises by any party other than Tenant, its agents,
employees, invitees and guests. For purposes of this Article 10, an assignment
shall be considered to include a change in the majority ownership or control of
Tenant if Tenant is a partnership or a corporation; provided, however, that the
foregoing provision shall not apply if the stock or partnership interests of the
Tenant are publicly traded, nor shall such provision apply for so long as
National Auto Finance Company, Inc. or one or more of its Affiliates (as
hereinafter defined) is the "Tenant" under this Lease. For purposes of this
Lease, an "Affiliate" of , or persons or entities "Affiliated" with, a specified
person or entity, is a person or entity that directly, or indirectly through one
or more intermediaries, "Controls" or is "Controlled By," or is "Under Common
Control With," the persons or entities specified, and the term "Control"
(including the terms "Controlling," "Controlled By" and "Under Common Control
With") as used in this Lease shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
10.2 NOTICE AND CONSENT. In the event that Tenant shall desire
Landlord's prior written consent to the subletting of all or any part of the
Premises or the assignment of the Lease, Tenant shall give Landlord prior
written notice thereof. Tenant shall also provide Landlord with such information
as to the proposed assignee's or subtenant's financial responsibility and
standing as Landlord may reasonably require. Tenant agrees that Landlord shall
be entitled to and shall receive fifty percent (50%) of any "excess rent" paid
by a subtenant or assignee to Tenant. For purposes of this Section , the term
"excess rent" shall mean all rent paid by a subtenant or assignee to the Tenant
in excess of the sum of (i) the Rent payable hereunder, plus (ii) an amount
equal to the total out-of-pocket costs to Tenant to prepare the Premises for
occupancy either for itself or its assignee or subtenant (which costs shall be
exclusive of furniture, furnishings, machinery, equipment or other
13
movable or detachable items or any so-called tenant improvement allowances
provided to Tenant by Landlord) (the "Out-Of-Pocket Improvement Costs")
amortized over the initial Term of the Lease at ten (10) percent per annum, plus
(iii) the cost to Tenant of brokerage and consulting fees to obtain said
sublease or assignment (to the extent such fees are reasonable and consistent
with the prevailing fair market fees for such services), amortized over the
period of such sublease or assignment plus the amount Tenant has paid for any
lease concessions granted by Tenant to such assignee or subtenant, and the sum
of all Rent incurred by Tenant from the date it vacated and put on the market
the space which is the subject of the assignment or sublease, to the date it
assigned or subleased the same, amortized over the period of the assignment or
sublease. If less than the entire Premises is sublet or assigned, (i) only a
fraction of the Rent shall be used to calculate excess rent, the numerator of
such fraction shall be the number of Rentable Square Feet of the Premises
subleased or assigned by the Tenant and the denominator shall be the Rentable
Square Feet of the Premises as provided in Section and (ii) any Out-Of-Pocket
Improvement Costs paid in gross for improvements to both the space being
assigned or sublet and other areas of the Premises shall be allocated in a
reasonable fashion and in good faith by Tenant. Landlord covenants not to
unreasonably withhold, delay or condition its consent to any proposed assignment
or subletting by Tenant; provided, however, that Landlord shall not in any event
be obligated to consent to any such proposed assignment or subletting unless (i)
the proposed assignee, or subtenant is of a financial standing reasonably
satisfactory to Landlord, (ii) the Premises will not be utilized by the assignee
or subtenant in a manner prohibited by the terms of this Lease, (iii) the
proposed assignment or subletting does not violate any negative covenants as to
use contained in any other lease made between Landlord and other tenant(s) of
the Building, and (iv) Tenant shall not be in default, beyond any applicable
grace or cure period, under any of the terms and conditions of this Lease at the
time of any notice or request for consent under the terms of this Article or at
the effective date of such assignment or subletting.
10.3 EFFECTIVENESS. It is a condition to the effectiveness of any
assignment otherwise complying with this Article that the assignee execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee assumes all obligations of Tenant
under this Lease (with such assumption to be limited to obligations thereafter
accruing with respect to any assignment to a person or entity that is not
Affiliated with the assignor) and agrees that the provisions of this Article
shall continue to be binding upon it in respect of all future assignments of
this Lease. No assignment or subletting of this Lease shall release the assignor
from its continuing obligations to Landlord under this Lease except as herein
provided, and Tenant and any subsequent assignor shall continue to remain
jointly and severally liable (as primary obligors) for all Tenant's obligations
hereunder. The joint and several liability of the Tenant named below and any
immediate or remote successor in interest of the Tenant named below for the due
performance and observance of all covenants and conditions to be performed and
observed by Tenant shall not be impaired by any agreement of Landlord extending
the time for such performance or observance or by Landlord's waiving or failing
to enforce any provisions of this Lease.
10.4 INTERCOMPANY ASSIGNMENT. Notwithstanding any provision of this
Article to the contrary, Tenant may assign its rights under this Lease to any
corporation which may, as a result of a reorganization, merger, consolidation or
sale of stock or assets, succeed to the business now carried on by Tenant, or to
any Affiliate of Tenant, provided that Tenant shall not be in default, beyond
any applicable grace or cure period under any of the terms and conditions of
this Lease at the time of the request for consent to the assignment or the
effective date of such assignment; and further provided that such assignment or
sublet does not violate any negative covenants as to use contained in any other
lease made between Landlord and other tenant(s) of the Building and does not
result in the Premises being utilized by the assignee or subtenant in a manner
that is prohibited under the terms of
14
this Lease. Any such assignment shall be subject to each of the conditions and
requirements of Section hereof, including, without limitation, the provisions
thereof with respect to the continued liability of the Tenant under the terms of
the Lease following such assignment.
ARTICLE 11
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
11.1 LANDLORD'S ACCESS. Landlord or Landlord's agents and designees
shall have the right to enter and/or pass through the Premises or any part
thereof during regular business hours to examine or inspect the Premises and to
show them to actual and prospective Mortgagees and to prospective purchasers, of
the Premises, or any part thereof, upon reasonable notice to Tenant, except in
the case of emergency situations.
11.2 EXHIBITION OF PREMISES. During the period of nine (9) months prior
to the expiration or termination of this Lease, Landlord may exhibit the
Premises to prospective tenants during regular business hours on reasonable
advance notice to Tenant.
11.3 LANDLORD'S REPRESENTATIVES AND DESIGNEES. Wherever in a provision
of this Lease, reference is made to the right of Landlord to enter the Premises
for an activity therein referenced, the term "Landlord" shall mean and include
its representatives and designees.
11.4 NO UNREASONABLE INTERFERENCES. Rights of access granted to
Landlord under this Lease shall be utilized so as not to unreasonably interfere
with Tenant's use and occupancy of the Premises. Moreover, notwithstanding
anything contained in this Lease to the contrary, Tenant may maintain certain
secure areas in the Premises to which the Landlord will not be provided a key or
be granted access without being accompanied by a representative of the Tenant,
except in emergency situations.
ARTICLE 12
MAINTENANCE AND REPAIR
12.1 TENANT'S OBLIGATION. Tenant shall, at its sole cost and expense,
take good care of the Premises, and shall make all non-structural repairs to the
interior of the Premises, including, but not limited to, those pertaining to
floor coverings, ceiling tiles, glass, interior windows and window frames,
electrical fixtures, switches and outlets, door closers and hardware, painting
and decorating, toilets, sinks and faucets, but excluding, its load-bearing
elements, floor slab, exterior masonry and walls and any repairs or maintenance
required by Landlord under this Lease.
12.2 TENANT'S WORK AND PROPERTY. In addition, Tenant shall make all
repairs to the Premises, structural and non-structural, attributable to (a) the
moving, installation, removal, use or operation of Tenant's Work or Tenant's
property or of parties acting for or at the instance of Tenant or those deriving
their interest in the Premises through or under Tenant or (b) the carelessness,
omission, neglect, negligence or improper conduct of Tenant or any other parties
referenced in clause (a) preceding or (c) to the extent not within the purview
of (a) preceding, with respect to Tenant's Work, Tenant changes or Tenant's
property. Tenant shall promptly notify Landlord of the need for any such
repairs.
15
12.3 LANDLORD'S OBLIGATION. Except for those repairs for which Tenant
is responsible pursuant to Section hereof or any other provisions of this Lease,
Landlord shall make all repairs to the Project, Building and Premises , whether
interior or exterior, structural or non-structural) and shall maintain
(including repair or replacement when necessary) the same, including the roof,
walls, foundation, gutters, utility supply lines and pipes, downspouts and
structural portions of the Premises, in good condition and repair. In making any
repairs or replacements, Landlord shall use its best efforts to minimize any
interference with Tenant's use and enjoyment of the Premises. Landlord shall
make all necessary replacements, repairs and perform all necessary maintenance
and custodial services for the common areas, including striping of lanes and
elimination of cave-ins and pools of water and shall maintain the driveways and
sidewalks in good repair. Landlord shall keep the parking areas and sidewalks
open and accessible and free from rubbish, debris, ice, snow or other
hindrances.
Landlord will maintain the landscaping in good order and repair.
12.4 MAINTENANCE AND SERVICE AGREEMENTS. Tenant agrees to provide and
to keep in force, at Tenant's sole cost, during the Term for the benefit of
Landlord and Tenant, a comprehensive maintenance and service agreement, in form
and substance and with a contractor satisfactory to Landlord in the reasonable
exercise of its discretion, covering the maintenance, service, repairing and
replacement and both labor and materials, with respect to any HVAC equipment,
alternators, UPS or UBS systems, air-conditioning or air-distribution systems or
equipment, or systems or equipment which services the Premises exclusively. Upon
request, Tenant agrees to deliver to Landlord a duplicate original of the
aforesaid service and maintenance agreement which shall provide that it will run
in favor of Landlord if Landlord so elects and that such agreement may not be
cancelled or modified except with prior notice to Landlord.
The provisions of Sections and hereof shall not apply to repairs
required by reason of a taking (or partial taking) by any governmental authority
or fire or other casualty or any other matter covered by any casualty insurance
maintained by Landlord.
12.5 NO LIABILITY OF LANDLORD. Except for matters attributable to
Landlord's negligence or willful misconduct, Landlord shall have no liability to
Tenant by reason of any inconvenience, annoyance, interruption or injury to
business arising from Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease, to make in or to any portion of the
Premises; provided Landlord has used its reasonable efforts to minimize any
interference with Tenant's business operations and use and enjoyment of the
Premises.
12.6 FLOOR LOADS. Tenant shall not place a load upon the floor of the
Premises exceeding the floor load per square foot areas which such floor was
designed to carry and which is allowed by law.
12.7 MACHINES AND EQUIPMENT. Machines and mechanical equipment used by
Tenant which cause vibration, noise, cold or heat that may be transmitted to the
Building structure or to any leased space to such a degree as to be reasonably
objectionable to Landlord or to any other tenant in the Building shall be placed
and maintained by Tenant at its expense in settings sufficient to absorb and
prevent such vibration or noise, or prevent transmission of such cold or heat.
12.8 INCONVENIENCE OR INJURY TO BUSINESS. Except as otherwise
specifically provided in this Lease, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of the Landlord by
reason of inconvenience, annoyance or injury to business arising from the making
by Landlord of any repairs, alterations, additions or improvements in or to any
portion of the
16
Premises or in or to fixtures, provided, Landlord has exercised its reasonable
diligence to minimize any interference with Tenant's business operations,
provided, further, however, that Landlord shall not be required to perform the
same on an overtime or premium pay basis.
ARTICLE 13
SERVICES AND FUNCTIONS
13.1 LANDLORD'S OBLIGATIONS. In accordance with Section 7.1, Tenant
shall contract directly with the appropriate utility supplier for heat, gas,
electricity, light and other energy or energy producing sources and Landlord
shall not be required to furnish the same. Landlord shall have no duty or
obligation to make any alteration, change, improvement, replacement or repair
to, or to demolish any improvements now or hereafter erected, constituting a
part of or located within the Premises, except as otherwise specifically in this
Lease provided to the contrary.
13.2 TENANTS OBLIGATIONS. Tenant shall also, at its own cost and
expense, (a) keep the interior of the Premises reasonably clean and (b) heat the
Premises so as to prevent damage thereto.
13.3 PESTS. Landlord shall maintain the Premises free of insect or
vermin and shall provide exterminating services necessary to do so. In addition,
Tenant agrees not to use the Premises in a manner which reasonably can be
anticipated to propagate the existence of such insects or vermin.
13.4 WATER. Landlord shall furnish sewer and water for use within the
Premises.
ARTICLE 14
ALTERATIONS AND IMPROVEMENTS SUBSEQUENT TO INITIAL OCCUPANCY
14.1 ALTERATIONS AND IMPROVEMENTS. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned, or delayed, make or cause to be made any alterations, improvements,
additions or installations in or to the Premises subsequent to the initial
occupancy of the Premises by Tenant (other than repair or replacement of
non-structural, interior Tenant improvements). If Landlord so consents, before
commencement of any such work or delivery of any materials into the Premises or
the Building, Tenant shall furnish to Landlord for approval: architectural plans
and specifications, names and addresses of all contractors, contracts, necessary
permits and licenses, certificates of insurance and instruments of
indemnification against any and all claims, costs, expenses, damages and
liabilities which may arise in connection with such work, all in such form and
amount as may be reasonably satisfactory to Landlord. All work performed by
Tenant shall be performed and supervised by a licensed Florida general
contractor. In addition, prior to commencement of any such work or delivery of
any materials into the Premises, Tenant shall provide Landlord security for the
payment of said work and materials as Landlord may require (which security may
be in the form of a payment and performance bond reasonably acceptable to
Landlord) if at any time the total materials and work undertaken by Tenant (and
not fully completed, as evidenced by final waivers of lien) exceeds, in the
aggregate, $10,000, or such work is commenced in the last 120 days of the term
of this Lease, or any Renewal Term thereof. Tenant agrees to hold Landlord, its
partners, officer, directors, the managing agent of the Building and each of
their respective agents and employees forever harmless against all claims and
liabilities of every kind, nature and description which may arise out of or in
any way be connected with such work. The Landlord's interest in the Premises
shall in no way be subject to any liens for improvements or
17
repairs made by Tenant or any contractor, subcontractor, materialman, or
laborer. Tenant shall notify any contractor making improvements to the Premises
of this provision as required by Florida Statute 713.10 and shall provide
Landlord with a receipt of such notice signed by the contractor. If Landlord
desires to make a recording as contemplated by Florida Statute 713.10, Tenant
shall cooperate with Landlord in recording in the appropriate clerk's office
either (a) a short form of this Lease or (b) a notice which complies with the
provisions of said statute. All such work shall be performed and insured under
insurance policies reasonably satisfactory to Landlord. If at any time such work
shall cause or threaten to cause disharmony or interference, including labor
disharmony, Landlord may revoke Tenant's authority to continue to perform such
work. Upon completion of such work, Tenant shall furnish Landlord with
contractors' affidavits and full and final waivers of lien and receipted bills
covering all labor and materials expended. All such work shall be in compliance
with all applicable legal, governmental and quasi governmental requirements,
ordinances and rules (including the Board of Fire Underwriters), and all
requirements of applicable insurance companies. Tenant shall permit Landlord, if
Landlord so desires, to supervise construction operations in connection with
such work at no cost to Tenant; provided, however, that such supervision or
right to supervise by Landlord shall not constitute any warranty by Landlord to
Tenant of the adequacy of the design, workmanship or quality of such work or
materials for Tenant's intended use or impose any liability upon Landlord in
connection with the performance of such work. All alterations, improvements,
additions and installations to or on the Premises shall become (subject to
Article ) part of the Premises at the time of their installation and shall
remain in the Premises at the expiration or termination of this Lease without
compensation or credit to Tenant.
14.2 LIENS. If any lien or claim for lien is filed (other than a lien
arising from any construction by Landlord or Landlord's contractor), Tenant
shall, within 20 days after such filing, either have such lien or claim for lien
released of record or shall deliver to the appropriate clerk's office a bond or
other security in form, content, and amount sufficient to comply with Florida
Statute 713.24 and which transfers the claim of lien to the bond pursuant to
said statute. If Tenant fails to have such lien or claim for lien so released or
to deliver such bond to the clerk's office as specified above, Landlord, in
addition to the other rights and remedies under this Lease and without
investigating the validity of such lien, may pay or discharge the same and
Tenant shall reimburse Landlord upon demand for the amount so paid by Landlord,
including Landlord's reasonable and actual expenses and attorneys' fees (in
settlement, at trial, or on appeal).
ARTICLE 15
WAIVER OF CLAIMS
To the full extent permitted by law, Tenant hereby releases and waives
all claims against Landlord, its officers, directors, employees, the managing
agent of the Building and each of their respective agents and employees for
injury or damage to person, property or business sustained in, on or about the
Building or the Premises by Tenant, its agents or employees other than damage
caused by the negligence of Landlord, its employees, the managing agent of the
Building, or any of their respective agents, employees, contractors or
representatives.
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ARTICLE 16
TENANT'S DEFAULT AND LANDLORD'S REMEDIES
16.1 EVENTS OF DEFAULT. Each of the following shall constitute an event
of default by Tenant under this Lease:
(a) If any default in the payment of Rent shall continue for
ten (10) days after Landlord has provided written notice to Tenant of
such nonpayment;
(b) Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease or under the Work
Letter to be observed or performed by Tenant and fails to cure such
default within thirty (30) days after written notice to Tenant
provided, however, that where such failure cannot reasonably be cured
within such thirty (30) day period, Tenant shall not be in default if
it commences to cure such default within the thirty (30) day period and
diligently thereafter prosecutes the same to completion within ninety
(90) days after written notice of such default;
(c) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(d) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any
Chapter of the Bankruptcy Code, or any amendment, replacement or
substitution therefor, or to delay payment of, reduce or modify
Tenant's debts, or any petition is filed or other action taken to
reorganize or modify Tenant's capital structure or to dissolve Tenant
except that the filing of any involuntary petition for bankruptcy
against Tenant shall not constitute an event of default hereunder,
unless such petition is not dismissed within thirty (30) days of the
filing of the same;
(e) Tenant is declared insolvent by law or any assignment of
Tenant's property is made for the benefit of creditors; or
(f) a receiver is appointed for Tenant or Tenant's property.
16.2 LANDLORD'S REMEDIES. Upon the occurrence of an event of default by
Tenant under this Lease, Landlord, at its option, without further notice or
demand to Tenant, may in addition to all other rights and remedies provided in
this Lease or at law or in equity (but subject to Section 16.5 below):
(a) Terminate this Lease and retake possession upon the
Landlord's own account, terminating all further liability and rights of
the Tenant (with the exception of any outstanding Rent or other sums
due Landlord at the time of such termination, including any amount due
as a consequence of Landlord electing to accelerate rent pursuant to
subsection (e) below) under the terms of this Lease;
(b) Not terminate this Lease, but hold the Tenant liable for
Rent as it comes due under the terms of this Lease;
19
(c) Not terminate this Lease, but hold the Tenant liable for
all Rent and other charges payable to Landlord or to others on
Landlord's behalf under the terms of this Lease;
(d) Retake possession of the Premises for the account of the
Tenant, holding the Tenant liable for the difference between the Rent
stipulated to be paid (as such Rent comes due as stipulated in this
Lease or as may be accelerated in accordance with Subsection (e) below)
under this Lease and what the Landlord is able to actually recover from
reletting. Landlord and Tenant specifically agree that Landlord shall
not be liable for repayment back to Tenant of any sums actually
received from reletting in excess of the Rent stipulated to be paid
under this Lease. Any such sums received by Landlord shall first be
applied to any expenses incurred or to be incurred by Landlord in
reletting the property, including without limitation leasing
commissions and tenant improvements, then to payment of attorneys fees
and costs incurred or to be incurred by Landlord, then to outstanding
Rent at the date of default under the terms of this Lease, then to any
Rent payable as such Rent comes due as stipulated in this Lease;
(e) If this Lease is terminated by Landlord as a result of the
occurrence of an event of default, then if and to the extent permitted
by applicable law, Landlord may declare due and payable immediately an
amount determined as follows: (i) the entire amount of Rent and other
charges and assessments which would have become due and payable during
the remainder of the Lease Term, discounted to present value by using a
discount factor of eight percent (8%) per annum, plus (ii) all of
Landlord's costs and expenses (including, without limitation,
Landlord's expenses in redecorating and restoring the Premises and all
costs relating to such reletting, including broker's commissions and
lease assumptions) reasonably incurred in connection with or related to
the reletting of the Premises, minus (iii) the market rental value of
the Premises for the remainder of the Lease Term, based on Landlord's
reasonable determination of both future rental value and the
probability of reletting the Premises for all or part of the remaining
Term, discounted to present value by using a discount factor of eight
percent (8%) per annum. The term "remaining Lease Term" as used in this
subsection shall mean the period which otherwise would have (but for
the termination of this Lease) constituted the balance of the Lease
Term from the date of the termination of this Lease.
(f) Subject to Section 16.5, all other remedies permitted in
law or in equity.
16.3 TRUSTEE IN BANKRUPTCY. In the event a petition is filed by or
against Tenant seeking a plan of reorganization or arrangement under any Chapter
of the Bankruptcy Code, Landlord and Tenant agree, to the extent permitted by
law, that the trustee in bankruptcy shall determine within 60 days after
commencement of the case, whether to assume or reject this Lease.
16.4 ATTORNEYS' FEES. Tenant shall pay upon demand, all costs and
expenses, including reasonable attorneys' fees (in settlement, at trial or on
appeal or in connection with any bankruptcy proceeding), incurred by Landlord in
enforcing Tenant's obligations under this Lease and the Work Letter, or
resulting from Tenant's default under this Lease. If suit be brought by either
party, the prevailing party shall be entitled to recover from the other party,
the prevailing parties' costs, including reasonable attorneys' fees, whether
such fees and costs be incurred at trial, on appeal, in bankruptcy proceedings
or otherwise.
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16.5 LIMITATION OF REMEDIES. Landlord shall have no right to accelerate
rent on Tenant's default, except as provided in Subsections (a), (d) and (e)
above. Landlord shall have not right to evict or dispossess the Tenant, except
in accordance with statutory legal process.
ARTICLE 17
SURRENDER OF PREMISES
Upon the expiration or termination of this Lease or termination of
Tenant's right of possession of the Premises, Tenant shall surrender and vacate
the Premises immediately and deliver possession thereof to Landlord in a clean,
good and tenantable condition, ordinary wear and loss due to casualty or
condemnation excepted. In the event possession of the Premises is not
immediately delivered to Landlord or if Tenant shall fail to remove any movable
trade fixtures or personal property which Tenant is entitled to remove, Landlord
may remove same without any liability to Tenant. Any movable trade fixtures and
personal property which may be removed from the Premises by Tenant but which are
not so removed, and all improvements made by Tenant to the Premises, shall be
conclusively presumed to have been abandoned by Tenant and title to such
property shall pass to Landlord without any payment or credit, and Landlord may,
at its option and at Tenant's expense, store, keep and/or dispose of such
property. In no event shall Tenant have any obligation to remove any alterations
or improvements made to the Premises in accordance with the provisions of this
Lease or the Work Letter.
ARTICLE 18
HOLDING OVER
(a) Tenant may retain possession of the Premises for a period
of not more than three (3) one month periods immediately following the
expiration of the Term of this Lease, provided that Tenant complies
with all provisions of this Lease (including, without limitation,
payment of all Rent due under this Lease, with Monthly Base Rent to be
at the same rate as for the final year of the Term of this Lease), and
further provided that Tenant provide to Landlord written notice of its
intent to retain possession of the Premises, and the tentative duration
thereof, not later than six (6) months prior to the expiration of the
Term of this Lease.
(b) In the event Tenant retains possession of the Premises, or
any part of the Premises, after the expiration or termination of this
Lease, except in accordance with subparagraph (a) above, Tenant shall
pay Landlord one hundred twenty-five percent (125%) of the Adjusted
Monthly Base Rent then applicable under this Lease for each month or
partial month during which Tenant retains possession, not to exceed
three (3) months, and thereafter two hundred percent (200%) of the
applicable Adjusted Monthly Base Rent for any month or partial month.
In addition to the foregoing, Tenant shall also indemnify Landlord
against all liabilities and damages sustained by Landlord by reason of
any improper retention of possession. The provisions of this Article
shall not constitute a waiver by Landlord of any re-entry rights of
Landlord available under this Lease or by law.
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ARTICLE 19
DAMAGE BY FIRE OR OTHER CASUALTY
19.1 SUBSTANTIAL UNTENANTABILITY. If either the Premises or the
Building is rendered substantially untenantable by fire or other casualty,
Landlord may elect by giving Tenant written notice within 60 days after the date
of said fire or casualty, either to (1) terminate this Lease as of the date of
the fire or other casualty; or (2) proceed to repair or restore the Premises or
the Building, other than leasehold improvements (except those constructed by
Tenant with the Tenant Improvements Allowance) and personal property installed
by Tenant, to substantially the same condition as existed immediately prior to
such fire or casualty. For purposes of this Lease, the Building shall be deemed
substantially untenantable if the amount of any loss or damage to the Building
exceeds fifty percent (50%) of the value of the Building immediately prior to
such damage or loss as determined by the Landlord or any mortgagee of the
Building.
If Landlord elects to proceed pursuant to subsection (2) above,
Landlord's notice shall contain Landlord's reasonable estimate of the time
required to substantially complete such repair or restoration. If such estimate
indicates that the time so required will exceed 150 days from the date of the
casualty, then Tenant shall have the right to terminate this Lease as of the
date of such casualty by giving written notice to Landlord not later than 20
days after the date of Landlord's notice. If Landlord's estimate indicates that
the repair or restoration can be substantially completed within 150 days, or if
Tenant fails to exercise its said right to terminate this Lease, this Lease
shall remain in force and effect. Notwithstanding any provision of this Article
to the contrary, Tenant may, at its option, terminate this Lease, if Landlord
elects to repair or restore as provided hereunder, and such repair or
restoration is not completed within 150 days plus the number of days of delay
attributable to an events of Force Majeure, as provided in Section 30.5 hereof
(provided that the total number of days of delay attributable to an event of
Force Majeure may not exceed thirty (30)), plus the number of days of delay, if
any, as are attributable to the failure of Tenant to repair or restore any
portion of the Building or Premises to be repaired or restored by Tenant.
19.2 INSUBSTANTIAL UNTENANTABILITY. If the Premises are damaged by fire
or other casualty but are not rendered substantially untenantable, then Landlord
shall diligently proceed to repair and restore the damaged portions thereof,
other than the leasehold improvements and personal property installed by Tenant,
to substantially the same condition as existed immediately prior to such fire or
casualty, unless such damage (or substantial damage) occurs during the last six
(6) months of the Term, or any applicable Renewal Term (unless Tenant has
exercised its Renewal Option with respect to a subsequently occurring Renewal
Term), in which event Landlord shall have the right to terminate this Lease as
of the date of such fire or other casualty by giving written notice to Tenant
within thirty (30) days after the date of such fire or other casualty.
19.3 RENT ABATEMENT. If all or any part of the Premises are damaged by
fire or other casualty and this Lease is not terminated, Adjusted Monthly Base
Rent shall xxxxx (and Tenant's proportionate share shall be adjusted) for all or
that part of the Premises which are untenantable on an equitable basis from the
date of the fire or other casualty until Landlord has substantially completed
the repair and restoration work in the Premises which it is required to perform,
provided, that as a result of such fire or other casualty, Tenant does not
occupy the portion of the Premises which are untenantable during such period.
22
ARTICLE 20
EMINENT DOMAIN
20.1 SUBSTANTIAL TAKING. If all or any part of the Premises or the
Building or the common areas is permanently taken or condemned by any competent
authority for any public use or purpose (including a deed given in lieu of
condemnation), which renders the Premises substantially untenantable, this Lease
shall terminate as of the date title vests in such authority, and Adjusted
Monthly Base Rent shall be apportioned as of said date.
20.2 INSUBSTANTIAL TAKING. If any part of the Premises or the Building
is taken or condemned for any public use or purpose (including a deed given in
lieu of condemnation) and this Lease is not terminated pursuant to Section ,
Adjusted Monthly Base Rent shall be reduced for the period of such taking by an
equitable amount, and Tenant's Proportionate Share shall be adjusted
accordingly, for all purposes under this Lease.
20.3 COMPENSATION. Landlord shall be entitled to receive the entire
price or award from any such sale, taking or condemnation without any payment to
Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any, in such
award. Tenant shall have no claim or right to any price or award as a result of
any such sale, taking or condemnation, except Tenant shall be entitled to make a
claim for its trade fixtures, personalty, relocation expenses, Tenant's loss of
business and, if and to the extent the same does not dismiss Landlord's award,
for the unamortized balance of any of Tenant's Out-Of-Pocket Improvement Costs
(as defined in Section 10.2).
ARTICLE 21
INSURANCE
21.1 TENANT'S INSURANCE. Tenant, at its expense, shall maintain in
force during the Term: comprehensive general public liability insurance, which
shall include coverage for personal liability, contractual liability, tenant's
legal liability, bodily injury, death and property damage, all on an occurrence
basis with respect to the business carried on, in or from the Premises and
Tenant's use and occupancy of the Premises, with coverage for any one occurrence
or claim of not less than $1,000,000 or such other amount as Landlord may
reasonably require upon not less than six months' prior written notice, which
insurance shall include Landlord, its partners, officers, directors and the
managing agent of the Building as named insureds and shall protect Landlord in
respect of claims by Tenant as if Landlord were separately insured. All
insurance required to be maintained by Tenant shall be on terms and with
insurers reasonably acceptable to Landlord. Tenant shall furnish to Landlord, if
and whenever required by it, certificates or other evidences acceptable to
Landlord as to the insurance from time to time effected by Tenant and its
renewal or continuation in force.
21.2 LANDLORD'S INSURANCE. Landlord shall carry, at its expense, all
risk insurance, comprehensive general commercial liability insurance insuring
Landlord, on an occurrence basis, against contractual liability and liability
for injury to or death of a person or persons and for damage to property
occasioned by or arising out of the maintenance, operation and/or management of
the Building or Project by Landlord, or its equivalent, insuring the Building
(exclusive of any component of the Premises which Tenant is required to insure
pursuant to the terms of Section 21.1 above), such insurance coverage to be in
an amount equal to one hundred percent (100%) of the replacement cost of the
Building, as such may increase from time to time. All said insurance policies
shall be carried
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with companies licensed to do business in the State of Florida reasonably
satisfactory to Tenant. Landlord shall provide to Tenant certificates of such
insurance if requested by Tenant.
21.3 MUTUAL WAIVER OF SUBROGATION. Landlord and Tenant each waive any
and all rights or recovery, claim, action or cause of action against the other,
its agents, officers or employees, for any loss or damage that may occur to the
Premises or the Building or any personal property therein, by reason of fire,
the elements, or any other cause or causes which are insured against under the
terms of insurance policies, regardless of cause or origin, including negligence
of the other party hereto, its agents, officers or employees. This waiver shall
be applicable only if the same does not violate the terms of the insurance
policies carried by each, which insures against such loss or damage. Each party
agrees to use its best efforts to obtain a waiver of subrogation endorsement on
its insurance policies, without thereby invalidating its insurance or affecting
its rights to proceeds payable thereunder. Each such policy of insurance shall
contain an undertaking by the insurer that no material change adverse to
Landlord or Tenant will be made, and such policy will not lapse or be cancelled,
except after not less than 15 days' prior written notice to Landlord of the
intended change, lapse or cancellation.
ARTICLE 22
RULES AND REGULATIONS
Tenant agrees that Tenant and each of Tenant's employees, agents, and
invitees shall comply with the Rules and Regulations attached hereto as EXHIBIT
B and with all modifications and additions thereto which Landlord may from time
to time make consistent with sound management practices, which are uniformly
applied and enforced against other tenants by Landlord. In the event of any
conflict between the Rules and Regulations and the terms and condition of this
Lease, the terms and conditions of this Lease shall control.
ARTICLE 23
LANDLORD'S RIGHTS
Landlord shall have the following rights exercisable without notice
(except as expressly provided to the contrary in this Lease) and without being
deemed an eviction or disturbance of Tenant's use or possession of the Premises
or giving rise to any claim for set-off or abatement of Rent: (1) upon
reasonable prior notice, to change the name or street address of the Building
provided that Landlord compensates Tenant for any changes in stationery, etc.,
reasonably incurred as a result thereof; (2) subject to Section 8.10, to
install, affix and maintain all signs on the exterior of the Building, the
interior of the Building and/or on the land upon which the Building is located
(collectively referred to as the "Land"); (3) subject to Section 14.1, to
designate and/or approve prior to installation, all window shades, blinds,
drapes, awnings or other similar items that may be visible from the exterior of
the Premises; (4) to change the arrangement, size, configuration and/or
decoration of entrances, exits, doors, closets, atriums, storage areas,
corridors, boiler rooms, mechanical rooms, elevators, washrooms, hallways,
lobbies, trash and rubbish areas and stairs in or about the Building and,
subject to Article 26, to change the arrangement, size and/or configuration of
the parking areas, driveways, entrances, exits and all other areas of the Land;
(5) to have access for Landlord and other tenants of the Building to any mail
chutes and boxes located in or on the Premises according to the rules of the
United States Post Office; (6) to take any and all reasonable measures,
including inspections and repairs to the Premises or to the Building, as may be
necessary or
24
desirable in the operation or protection thereof, provided Landlord shall
exercise its best efforts to minimize any interference with Tenant's business
operations; (7) to retain at all times master keys or pass keys to the Premises;
(8) to install, operate and maintain security systems which monitor, by closed
circuit television or otherwise, all persons entering and leaving the Building;
and (9) to install and maintain pipes, ducts, conduits, wires and structural
elements located in the Premises which serve other parts or other tenants of the
Building, provided Landlord shall exercise its best efforts to minimize any
interference with Tenant's business operations.
ARTICLE 24
ESTOPPEL CERTIFICATES
Tenant shall from time to time after the date of this Lease, upon not
less than 10 days' prior written request by Landlord, or any mortgagee or ground
lessor of the Building, or any prospective purchaser of the Building, deliver to
Landlord, or such mortgagee, ground lessor or purchaser, a statement in writing
signed by Tenant certifying as to information that may be reasonably requested.
Landlord shall from time to time, upon not less than 10 days prior
written request by Tenant, provide similar Estoppel Certificates to Tenant's
prospective lenders or sub-lessees or assignees.
ARTICLE 25
ADJUSTMENT TO MONTHLY BASE RENT
25.1 EXPENSES. The term "Expenses" shall mean the actual cost incurred
by Landlord with respect to the operation, maintenance and repair of the
Building and Land, including, without limitation or duplication, (1) the costs
reasonably incurred for cleaning; rubbish removal; general landscaping and
ground maintenance; window washing; repairs; maintenance; fire, extended
coverage, sprinkler apparatus, public liability and property damage insurance
(including loss of rental income insurance); supplies; wages; salaries,
disability benefits, pensions, hospitalization, retirement plans and group
insurance respecting service and maintenance employees and management staff (if
said employees and/or staff perform services for properties other than the
Building or Land, the expenses relating thereto shall be equitably prorated);
expenses imposed pursuant to any collective bargaining agreement with respect to
such employees; payroll, social security, unemployment and other similar taxes
with respect to such employees (if said employees and/or staff perform services
for properties other than the Building or Land, the expenses relating thereto
shall be equitably prorated); sales, use and other similar taxes; any applicable
occupancy taxes and other similar taxes; water rates and sewer rents; and any
other costs, charges and expenses which, under generally accepted accounting
principles and practices, would be regarded as maintenance and operating
expenses, and (2) the cost of any capital improvements made to the Building or
Land after the Commencement Date that are intended to reduce other Expenses (but
only to the extent of such reduction), or made to the Building or Land by
Landlord after the date of this Lease that are required under any governmental
law or regulation that was not applicable to the Building or Land at the time it
was constructed, such cost or allocable portion thereof to be amortized over
such reasonable period as Landlord shall determine, together with interest on
the unamortized balance at a rate of interest equal to the prime rate as
published by Xxxxxxx Bank, N.A. or such higher rate as may have been paid by
Landlord on funds borrowed for the purpose of constructing such capital
improvements. Expenses shall not include "Taxes", depreciation on the Building;
costs of services or repairs and maintenance which are paid for by proceeds of
insurance by other tenants or third parties; tenant improvements, real estate
brokers'
25
commissions, interest and capital items other than those referred to in clause
(2) above; or any costs that are not customarily incurred by landlords operating
comparable properties consistent with sound management practices.
25.2 TAXES. The term "Taxes" shall mean the amount of all ad valorem
real property taxes and assessments, special or otherwise, levied upon or with
respect to the Building and Land, or the rent and additional charges payable
hereunder, imposed by any taxing authority having jurisdiction. Taxes shall also
include all taxes, levies and charges which may be assessed, levied or imposed
in replacement of, or in addition to, all or any part of ad valorem real
property taxes as revenue sources, and which in whole or in part are measured or
calculated by or based upon the Building and Land, the leasehold estate of
Landlord or Tenant, or the rent and other charges payable hereunder. Taxes shall
include any expenses incurred by Landlord in determining or attempting to obtain
a reduction of Taxes, but only to the extent any reduction is achieved.
Notwithstanding the foregoing,"Taxes" shall not include any tax that is the
subject of Section 6.2.
25.3 ADJUSTMENTS.
(a) Tenant shall pay to Landlord Tenant's Proportionate Share
of Expenses and Taxes in the manner and at the times herein provided.
(b) With respect to Expenses, prior to the Commencement Date
and prior to the beginning of each fiscal year of Landlord thereafter,
or as soon thereafter as practicable, Landlord shall give Tenant notice
of Landlord's estimate of Tenant's Proportionate Share of Expenses for
the ensuing fiscal year. On or before the first day of each month
during the ensuing fiscal year, Tenant shall pay to Landlord
one-twelfth (1/12) of such estimated amounts, provided that until such
notice is given with respect to the ensuing fiscal or calendar year, as
the case may be, Tenant shall continue to pay the amount currently
payable pursuant hereto until after the month such notice is given. If
at any time or times (including, without limitation, upon Tenant taking
occupancy of the Premises) it appears to Landlord that Tenant's
Proportionate Share of Expenses for the then current fiscal year will
vary from Landlord's estimate by more than five percent (5%), Landlord
may, by notice to Tenant, revise its estimate for such year and
subsequent payments by Tenant for such year shall be based upon such
revised estimate.
Within ninety (90) days after the close of each fiscal year of
Landlord with respect to Expenses, or as soon after such ninety (90)
day period as practicable, Landlord shall deliver to Tenant a statement
prepared by Landlord of Tenant's Proportionate Share of Expenses for
such fiscal year. If on the basis of such statements, Tenant owes an
amount that is less than the estimated payments for such fiscal year
previously made by Tenant, Landlord shall credit such excess amount
against the next payment due from Tenant to Landlord of Expenses. If
such credit due Tenant exceeds the next payment due from Tenant,
Landlord shall apply such credit to the next payment due, and refund
the excess to Tenant, if requested by Tenant. In no event shall a
reduction in Expenses operate to reduce the rental set forth in Section
1.1(h) hereof required to be paid hereunder. If on the basis of such
statement, Tenant owes an amount that is more than the estimated
payment for such fiscal year previously made by Tenant, Tenant shall
pay the deficiency to Landlord within twenty (20) days after delivery
of the statement.
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If this Lease shall commence on a day other than the first day
of Landlord's fiscal year or terminate on a day other than the last day
of Landlord's fiscal year, Tenant's Proportionate Share of Expenses
that are applicable to Landlord's fiscal year in which such
commencement or termination shall occur shall be prorated on the basis
of the number of calendar days within such year as are within the term
of this Lease. If this Lease shall commence on a day other than the
first day of a calendar year or terminate on a day other than the last
day of a calendar year, Tenant's Share of Taxes that are applicable to
the calendar year in which such commencement or termination shall occur
shall be prorated on the basis of the number of calendar days within
such year as are within the term of this Lease.
(c) Taxes:
(1) Tenant shall pay to Landlord, as Additional
Rent, Tenant's Proportionate Share of the
Taxes assessed against the Building and
surrounding common property ("Tenant's Tax
Payment").
(2) Tenant agrees to make payments on account of
Tenant's Tax Payment for a tax year, as
determined by the appropriate taxing
authority (a "Tax Year") in equal monthly
installments, in advance, on the first day
of each month within such Tax Year. Each
monthly installment shall be in an amount
equal to one-twelfth (1/12) of the amount
which would have to be paid by the Tenant to
the Landlord so as to effect compliance with
this Article, for the Tax Year immediately
preceding such Tax Year. The installments
for each such month shall be appropriately
adjusted to reflect the actual Tenant's Tax
Payment when Taxes for such Tax Year are
ascertained. If, as so ascertained, the
amount of Tenant's Tax Payment for such Tax
Year shall be greater than (resulting in an
underpayment) or be less than (resulting in
an overpayment) the aggregate of all of the
installments so paid to the Landlord by the
Tenant for such Tax Year, then, within
twenty (20) days after the receipt of a Tax
Statement for such Tax Year and in
fulfillment of its obligations under this
Article, the Tenant shall, in the case of an
underpayment, pay to the Landlord an amount
equal to such underpayment, or the Landlord
shall, in the case of an over- payment, pay
to the Tenant an amount equal to such
overpayment.
(3) Tenant's Tax Payment for a Tax Year, only a
part of which is included within the Term,
shall be apportioned so that Tenant shall
pay the portion thereof which the portion of
the Tax Year within the Term bears to the
entire Tax Year.
(4) The benefit of any discount for the early
payment or prepayment or abatement of Taxes
shall be subtracted in determining Taxes and
Tenant's Tax Payment.
(5) Tenant shall not institute or maintain any
action, proceeding or application in any
court or with any governmental authority or
otherwise for the purpose of changing the
Taxes.
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(6) If, by reason of the failure of Tenant to
pay Tenant's Tax Payment to Landlord when
due, a Governmental Authority or a Mortgagee
imposes a penalty or requires a penalty to
be paid in respect of Taxes, then Tenant
shall be responsible, in full, for the
payment of such penalty or interest, or
both, to Landlord, on demand, as Additional
Rent, but otherwise Tenant shall have no
responsibility for such penalty or interest.
(7) If Landlord shall receive a refund of Taxes
for any Tax Year, Tenant shall be entitled
to a prompt refund of Tenant's Proportionate
Share of the portion of the refund
attributable to Tenant's Tax Payment for
such Tax Year.
(8) Landlord's failure to render a Tax Statement
with respect to any Tax Year shall not
prejudice Landlord's right to thereafter
render a Tax Statement with respect to such
Tax Year or with respect to any subsequent
Tax Year, and Landlord may render one or
more revised Tax Statements with respect to
any Tax Year.
(9) Each Tax Statement shall be conclusive and
binding upon Tenant unless within ninety
(90) days after receipt of such Tax
Statement, Tenant shall notify Landlord that
it disputes the correctness of such Tax
Statement, specifying the particular
respects in which such Tax Statement is
claimed to be incorrect. Any dispute
relating to an Tax Statement must be
submitted to Arbitration within one hundred
twenty (120) days after the giving of such
Tax Statement. Pending such determination,
Tenant shall pay the disputed charge.
(10) Provided Tenant is not in default of any of
its obligations hereunder Landlord covenants
to pay Taxes prior to the date any interest
or penalty shall first become due with
respect to such payment. All special
assessments will be paid over the largest
number of installments allowed by the taxing
authority, if the payment of such
installments would extend beyond the
remaining Term of the Lease.
(11) To the extent not covered by Section 6.2
above, Tenant shall pay to Landlord upon
demand, as Additional Rent, any occupancy
tax or rent tax or any tax attributable to
this Lease or the leasehold estate created
hereby or any investment or installation
made by Tenant in respect of the Premises or
any personal property owned or used by
Tenant in or in connection with the Premises
(including but not limited to Tenant's
Property) whether the same is now or
hereafter in effect, required to be paid by
Landlord.
(12) Tenant's obligation under this Article shall
survive the expiration or earlier
termination of the Term, or any applicable
Renewal Term. Landlord's obligation to
refund excess Expenses and Taxes paid by
Tenant hereunder shall likewise survive the
expiration or termination of the Term or any
Renewal Term.
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25.4 INSPECTION OF RECORDS. Tenant shall have the right to inspect
Landlord's books and records as to Expenses and Taxes incurred by Landlord not
more than once each year during the initial Term of this Lease, and any
applicable Renewal Term.
ARTICLE 26
PARKING
Landlord has allocated, and shall make available for Tenant, its
employees, agents, visitors and invitees, twenty (20) "reserved" parking spaces
for Tenant's exclusive use. In addition, Tenant, its employees, agents, visitors
and invitees may use one hundred and eighty (180) additional parking spaces in
common with other tenants to whom similar rights are granted. A preliminary
parking site plan is attached hereto as Exhibit "E" which indicates the location
of Tenant's parking. Landlord will not change the parking in any manner that
materially and adversely affects Tenant's use of or access to the parking
facilities, or the location of Tenant's parking spaces, as such use, access or
location are reflected on the preliminary parking site plan; provided, however,
that nothing contained herein shall be read to limit Landlord's ability to
exclude or limit Tenant's access to such parking on a temporary basis, so long
as reasonable alternative parking accommodations are provided by Landlord during
the period of exclusion or limited access. Landlord, at all times, shall have
sole and exclusive control of all parking facilities, and may at any time
exclude any person from the use and occupancy thereof, except those persons
using the parking facilities in accordance with the written consent of Landlord
and in accordance with all regulations established by Landlord from time to
time. Tenant agrees that Landlord assumes no responsibility of any kind
whatsoever in reference to the use of such parking facilities by the Tenant, its
employees, agents, visitors and invitees. Landlord may, from time to time, limit
access to the parking facilities, by means of attendants and/or other devices,
and make other changes in the layout and operation of the parking facilities,
including, without limitation, changes in locations of entrances, exits and
parking spaces, except nothing herein shall be deemed to permit Landlord to
charge Tenant or its guests or invitees a fee for the parking provided to Tenant
in accordance with this Article during the Term of this Lease.
ARTICLE 27
REAL ESTATE BROKERS
Landlord and Tenant each represent and warrant to the other that,
except for the Brokers named in Section , they have not dealt with any real
estate broker, salesperson, or finder in connection with this Lease, and no such
person initiated or participated in the negotiation of this Lease, or showed the
Premises to Tenant. Each agrees to indemnify, defend and hold harmless the
other, its partners, officers, directors, the managing agent of the Building and
their respective agents and employees from and against any and all liabilities
and claims for commissions and fees arising out of a breach of the foregoing
representation and warranty. Landlord shall pay the commissions due the Brokers
named in Section , in accordance with the commission agreements entered into by
Landlord.
ARTICLE 28
SUBORDINATION AND ATTORNMENT
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28.1 SUBORDINATION. This Lease and the rights of Tenant hereunder are
expressly subject and subordinate to any ground lease of the Land now or
hereafter existing and all amendments, renewals, modifications and extensions of
and to any said ground lease, and to the lien of any one or more mortgage or
trust deed specified by Landlord now or hereafter existing encumbering the
Building, or any part hereof, or said Land or ground leasehold estate, and all
amendments, renewals, modifications and extensions of and to each said mortgage
or trust deed, and to all advances made or hereafter to be made upon the
security of each said mortgage or trust deed. Tenant agrees to promptly sign and
deliver to Landlord such further instruments subordinating this Lease to any
such ground lease or to the lien of each such mortgage or trust deed as may be
requested in writing by Landlord from time to time, provided that the holder of
such lien join in the execution of such instrument for the purpose of agreeing
not to disturb Tenant's possession of the Premises under this Lease, so long as
Tenant is not default hereunder.
28.2 ATTORNMENT. In the event of the cancellation or termination of any
such ground lease in accordance with its provisions or by the surrender of such
ground leasehold estate, whether voluntary, involuntary or by operation of law,
or by summary proceedings, or the foreclosure of any such mortgage or trust deed
by voluntary agreement or otherwise, or the commencement of any judicial action
seeking such foreclosure, Tenant, at the request of the then Landlord, shall
attorn to and recognize such ground lessor, mortgagee, holder of such trust deed
or purchaser in foreclosure as Tenant's Landlord under this Lease. Tenant agrees
to sign and deliver at any time upon request of such ground lessor, mortgagee,
holder, purchaser, or any of their successors, any instrument to further
evidence such attornment.
28.3 CONDITIONS TO SUBORDINATION AND ATTORNMENT. As soon as
practicable, but in any event within thirty (30) days after the date hereof,
Landlord shall obtain a subordination, non-disturbance and attornment agreement
(reasonably satisfactory to Tenant and its legal counsel) (a "SNDA Agreement")
from each holder of a mortgage, deed to secure debt, deed of trust, or other
instrument in the nature thereof which encumbers the Project and which has
priority over the Lease. If Landlord should fail to obtain such SNDA Agreement
within the time period permitted above, then in addition to any rights or
remedies available to Tenant at law or in equity, Tenant may elect to terminate
this Lease by written notice to Landlord delivered within forty (40) days after
the date hereof, or such right of Tenant to terminate this Lease shall be
waived. Notwithstanding anything contained in this Lease (including Sections
28.1 or 28.2) to the contrary, Tenant's agreement to attorn to a successor in
title to the Premises, or to subordinate this Lease to the interest of any
subsequent lienholder is conditioned upon Tenant's prior receipt of a SNDA
Agreement reasonably satisfactory to Tenant (and its legal counsel).
28.4 SUBORDINATION OF LANDLORD'S LIEN. Landlord agrees that it will
subordinate to any conditional sales vendor, lessor, or lender of Tenant, any
lien or ownership rights Landlord may have in regard to any furniture, trade
fixtures, equipment, or other articles of personal property from time to time
installed by Tenant at its expense in the Premises or otherwise stored or
located in, on or about the Premises (whether owned by or leased to Tenant)
(collectively, "Tenant's Property"); provided that the holder of such lien
provide to Landlord a subordination agreement, in form reasonably satisfactory
to Landlord and Landlord's counsel, which shall provide that such lienholder
shall remove Tenant's Property from the Premises within ten (10) days of
Landlord's written notice to such lienholder of Landlord's intent to exercise
Landlord's lien upon the Tenant's Property, and that should such lienholder fail
to remove such Tenant's Property (or make other arrangements with respect
thereto satisfactory to Landlord) within such ten (10) day period, then such
subordination agreement shall be deemed null and void, and Landlord shall be
entitled to deal with Tenant's
30
Property as it sees fit. Moreover, Landlord agrees that should any conditional
sales vendor, lessor or lender of Tenant so require, Landlord will execute any
waiver of ownership rights which may be reasonably requested by any such
conditional sales vendor, lessor or lender of Tenant, in regard to any of
Tenant's Property, and Landlord will utilize its reasonable efforts to cause its
mortgagees to execute and deliver such documentation as may be reasonably
requested by any such conditional sales vendor, lessor or lender.
ARTICLE 29
NOTICES
All notices required or permitted to be given under this Lease shall be
in writing and shall be deemed given and delivered, whether or not received, on
the date when personally delivered (and receipted for) or two days following the
date when deposited in the United States Mail, postage prepaid and properly
addressed, certified mail, return receipt requested, at the following addresses:
(a) To Landlord: at the address specified in Section of
this Lease, with a copy to: Xxxxxxx X. Xxxx, Esquire, Rogers, Towers,
Xxxxxx, Xxxxx & Gay, 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
(b) To Tenant: At the address specified in Section prior to
the Commencement Date, and at the Premises after the Commencement Date,
or such other address as Tenant shall designate by written notice to
Landlord, with a copy to: Xxxx X. Xxxxxx, Esquire, Xxxxx, Xxxxxxxx &
Xxxxxxx, Atlanta Financial Center, Suite 1800, 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000-0000.
ARTICLE 30
MISCELLANEOUS
30.1 LATE CHARGES. Tenant hereby acknowledges that the late payment by
Tenant to Landlord of Rent and other charges due under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any mortgage covering the Premises.
Accordingly, if any installment of Rent or any other charge due from Tenant is
not received by Landlord or Landlord's designee within ten (10) days after such
amount shall be due and if Tenant has been more than ten (10) days late in the
payment of Rent one or more times within the preceding twelve month period,
then, in addition to the other remedies provided to the Landlord herein, Tenant
shall pay to Landlord, within ten (10) days after demand, a late charge equal to
the five percent (5%) of such overdue amount, and in such event the parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of the late payment by Tenant. No late
charge may be imposed on a late charge or more than once for the same late
rental payment. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any other rights and remedies granted to it
hereunder.
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In addition to the late fee provided above, at the option of the
Landlord, all delinquent Rent shall bear interest at 2% in excess of the Prime
Rate as published by Xxxxxxx Bank, N.A. as in effect from time to time, from the
date due until paid.
30.2 ENTIRE AGREEMENT. This Lease and the Exhibits attached hereto
contain the entire agreement between Landlord and Tenant concerning the Premises
and there are no other agreements, either oral or written, between Landlord and
Tenant.
30.3 ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than any installment or payment of Rent due shall be
deemed to be other than on account of the amount due, and no endorsement or
statement on any check or any letter accompanying any check or payment of Rent
shall be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
installment or payment of Rent and Landlord may pursue any other remedies
available to Landlord. No receipt of money by Landlord from Tenant after the
termination of this Lease or Tenant's right of possession of the Premises shall
reinstate, continue or extend the Term.
30.4 LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
herein provided, each and every term, covenant, condition and provision of this
Lease is hereby made specifically subject to the provisions of this Section .
The term "Landlord" as used in this Lease means only the owner or lessor for the
time being of the Building, so that in the event of any conveyance of such
interest and the transfer to the transferee of any funds then being held under
this Lease by such owner, Landlord shall be and hereby is entirely freed and
relieved of any and all obligations of Landlord hereunder thereafter accruing,
and it shall be deemed without further agreement between the parties and such
grantee(s) that the grantee has assumed and agreed to observe and perform all
obligations of Landlord hereunder. It is specifically understood and agreed that
notwithstanding anything to the contrary herein provided or otherwise provided
at law or in equity, there shall be absolutely no personal liability in excess
of its interest in the Building and related proceeds to Landlord or any
successor in interest thereto (whether the same be an individual, joint venture,
tenancy in common, firm or partnership, general, limited or otherwise) or on the
part of the members of any firm, partnership or joint venture or other
unincorporated Landlord with respect to any of the terms, covenants and/or
conditions of this Lease; in the event of a breach or default by Landlord, or
any successor in interest thereof, of the Building of any of its obligations
under this Lease, Tenant shall look solely to the then Landlord for the
satisfaction of each and every remedy of Tenant, such exculpation of personal
and additional liability which is in excess of such interest in the Building and
related proceeds to be absolute and without any exception whatsoever.
30.5 FORCE MAJEURE. In the event either party hereto shall be delayed
or hindered in, or prevented from, the performance of any acts due under the
terms of this Lease, and such failure is due in whole or in part to any strike,
lockout, labor trouble (whether legal or illegal), civil disorder, inability to
procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrections, war, fuel shortages, accidents, casualties,
Acts of God, mechanical breakdown, repair, servicing or other reasons of a like
nature not the fault of the party delayed in performing such act required under
the terms of this Lease (all of such reasons or causes being referred to herein
as "Force Majeure"), then performance of such act shall be excused for the
period of such delay, and the period of such performance of such act shall be
extended for a period equivalent of such delay. "Force Majeure" shall not
include within its meaning any delay related to financial causes or the
inability to pay or receive funds, nor shall Force Majeure relieve any party
from the obligation to pay Rent or other sums due hereunder.
32
30.6 APPLICABLE LAW. This Lease shall be construed in accordance with
the laws of the State of Florida.
30.7 TIME. Time is of the essence of this Lease and the performance of
all obligations hereunder.
30.8 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES. If Tenant fails to
timely perform any of its duties under this Lease, Landlord shall have the right
(but not the obligation), after the expiration of any grace or cure period
elsewhere under this Lease expressly granted to Tenant for the performance of
such duty, to perform such duty on behalf and at the expense of Tenant without
further prior notice to Tenant, and all sums expended or expenses reasonably and
actually incurred by Landlord in performing such duty shall be deemed to be
additional Rent under this Lease and shall be due and payable upon demand by
Landlord.
30.9 LANDLORD'S ACCESS. Without incurring any liability to Tenant,
Landlord may permit access to the Premises and open the same, whether or not
Tenant shall be present, upon demand of any receiver, trustee, assignee for the
benefit of creditors, sheriff, marshal or court officer entitled to, or
reasonably purporting to be entitled to, such access for the purpose of taking
possession of, or removing, Tenant's property or for any other lawful purpose
(but this provision and any action by Landlord hereunder shall not be deemed a
recognition by Landlord that the person or official making such demand has any
right or interest in or to this Lease, or in or to the Premises), or upon demand
of any governmental authority.
30.10 RELINQUISHMENT OF RIGHTS UPON DEFAULT. Tenant shall not be
entitled to exercise any right or option granted to it by the Lease (if any) at
any time when Tenant is in default beyond any applicable grace or cure period in
the performance or observance of any of the covenants, terms, provisions or
conditions on its part to be performed or observed under this Lease.
30.11 TENANT'S REMEDIES.
(a) In the event Landlord shall default in the payment, when
due, of any monetary obligations to be paid by Landlord hereunder and
fails to cure said default within ten (10) days after written notice
thereof from Tenant; or if Landlord shall default in performing any of
the covenants, terms or provisions of this Lease (other than the
payment, when due, of any of Landlord's monetary obligations hereunder)
and fails to cure such default within thirty (30) days after written
notice thereof from Tenant (or such longer period as may be reasonably
necessary to cure such default if such default is not reasonably
susceptible of being cured within such thirty (30) day period and
Landlord commences its efforts promptly to cure the same and pursues
such cure thereafter with due diligence and good faith); then, and in
any of said events, Tenant, at its option may pursue any one or more of
the following remedies without further notice or demand whatsoever:
(i) In the event such default arises because of the
failure by Landlord to pay to Tenant any allowance
provided to Tenant pursuant to the Work Letter,
Tenant shall be entitled to offset the amount owed by
Landlord against Rent next accruing hereunder, and
such sums shall bear interest at two percentage
points in excess of the Prime Rate of Xxxxxxx Bank,
N.A., from the date when due until paid.
33
(ii) In the event that such default relates to the failure
to provide any service or perform any obligation
required under this Lease, then Tenant shall have the
right, but not the obligation, to remedy Landlord's
failure and charge Landlord for the reasonable cost
of such remedy, which charges shall be payable by
Landlord within ten (10) days of Tenant's demand
therefor. If Landlord shall fail to pay same, Tenant
shall have the right to deduct such costs (including
any interest due hereunder) from Rent next accruing
hereunder. Notwithstanding the foregoing provisions,
no work by Tenant shall materially interfere with the
use or enjoyment of the Building by any other tenant
or occupant or user of the Building.
(iii) Tenant shall be entitled to exercise any other right
or remedy available to Tenant at law or in equity.
The remedies set forth above are in addition to and cumulative with any of the
Tenant's rental abatement rights set forth in this Lease. Such rental abatement
rights may be exercised independently of any rights or remedies set forth above.
(b) If Landlord should dispute, in good faith, any claim by
Tenant under subsection (a) above that Landlord has failed to perform
an obligation under this Lease and if Landlord shall give Tenant
written notice specifying in reasonable detail the basis for its
dispute within ten (10) days after receipt of Tenant's notice of
Landlord's failure, then Tenant shall deposit the disputed amounts
Tenant from time to time deducts pursuant to subsection (a) above in an
escrow account solely for such purpose with a national bank having
offices in Jacksonville, Florida, and Tenant and Landlord shall proceed
diligently to resolve any such dispute by arbitration conducted in
accordance with Section 30.24 or in such other manner as may be
acceptable to the parties. Landlord shall not be deemed to be in
default as to such disputed items unless such dispute is determined
adversely to Landlord. Similarly, Tenant shall not be deemed to be in
default by reason of it exercising its rights under subsection (a)
above with respect to the disputed amounts unless and until Tenant
fails to make such payment into escrow or such dispute is determined
adversely to Tenant and Tenant shall fail to direct the escrow agent to
pay to Landlord the escrowed amounts, or so much thereof as shall be
determined to be payable to Landlord, within ten (10) days of the
resolution of such dispute.
(c) In addition to and not in lieu of any cure rights given to
Landlord herein in the event that Landlord defaults under this Lease,
each and every mortgagee and ground lessor having an interest in the
Property or Building shall have the right (but not the obligation) to
cure any such defaults on the part of Landlord hereunder in accordance
with and subject to the following terms and conditions:
(i) The rights granted hereunder to a mortgagee or a
ground lessor shall be given to any mortgagee or
ground lessor of which Tenant has written notice
prior to the occurrence of such default. Such notice
shall be given to Tenant by virtue of (A) any
subordination, non-disturbance and attornment
agreement to which Tenant is a party, or (B) any
other written notice of such mortgagee or ground
lessor given by Landlord to Tenant in accordance with
the notice provisions specified herein. Such notice
by Landlord shall specify the name and address for
such notice purposes of the mortgagee or ground
lessor in
34
question, and the instrument or document from which
the interest of the mortgagee or ground lessor
derives;
(ii) Tenant shall deliver to all such mortgagees or ground
lessors a copy of any notice of default or demand to
perform on the part of Landlord hereunder at the time
such notice or demand is delivered to Landlord, and
no such notice shall be effective as to the mortgagee
or ground lessor unless and until it has been so
delivered to such mortgagee or ground lessor;
(iii) The mortgagee or ground lessor in question shall have
the same amount of time from the date of default that
Landlord has (without duplication) to cure any
default on the part of Landlord under this Lease; and
(iv) Tenant shall accept a cure of the mortgagee or the
ground lessor in question within any applicable cure
period as if such cure were the cure of Landlord.
30.12 HEADINGS. The Article and Section headings of this Lease are for
convenience only and are not to be given any effect whatsoever in construing
this Lease.
30.13 COVER SHEET. The cover sheet hereto which immediately precedes
the Index is a part of this Lease, but in the event of a conflict between any of
the provisions of such cover sheet and those otherwise contained in the portion
of the Lease beginning on Page 1 hereof, the latter shall prevail and be
controlling.
30.14 TABLE OF CONTENTS. The table of contents preceding this Lease but
under the same cover is for the purpose of convenience of references only and is
not to be deemed or construed in any way as part of this Lease, nor as
supplemental thereto or amendatory thereof.
30.15 EXHIBITS. The Exhibits annexed to this Lease shall be deemed part
of this Lease and are hereby incorporated herein.
30.16 REFERENCES. All references in this Lease to numbered Articles,
numbered Sections and lettered Exhibits are references to Articles and Sections
of this Lease, and Exhibits annexed to (and thereby made part of) this Lease, as
the case may be, unless expressly otherwise designated in the context in which
used.
30.17 GENDER; SUCCESSOR & ASSIGNS. All words and terms used in this
Lease, regardless of the number and gender in which used, shall be deemed to
include any other number and any other gender as the context in which used may
require; and the use herein of the words "successors and assigns" or "successors
or assigns" of Landlord or Tenant shall be deemed to include the heirs, legal
representatives and assigns of any individual Landlord or Tenant.
30.18 JOINT AND SEVERAL OBLIGATIONS. If Landlord or Tenant consists of
more than one party, the obligations, representations, warranties and covenants
of Landlord or Tenant, as the case may be, hereunder are joint and several as to
each such party.
30.19 MULTIPLE TENANTS. If more than one person is named as or becomes
Tenant hereunder, the Landlord may require the signatures of all such persons in
connection with any notice to be given or action to be taken by Tenant
hereunder. Each person named as Tenant shall be fully
35
and primarily liable for all obligations hereunder and any notice to any person
named as Tenant shall be sufficient and shall have the same force and effect as
though given to all persons named as Tenant.
30.20 MORTGAGES. The terms "mortgage" and "deed of trust" are used
interchangeably in this Lease, are hereby given identical meanings, and where
applicable shall also refer to the notes and/or bonds or other evidence of
indebtedness and any chattel mortgages, conditional bills of sale, assignments
of rents, security agreements and financing statements executed and delivered in
connection with or as part of any such mortgage; as are the term "holder of the
mortgage", "mortgagee", "trustee" and "beneficiary"; and all of the foregoing
are applicable to any of the defined terms used in this Lease relating to a
mortgage or a holder thereof.
30.21 REFERENCES TO LEASE AS A WHOLE. Unless the context in which used
requires a different construction, the words "herein", "hereof" and "hereunder"
and words of similar import refer to this Lease as a whole and not to any
particular Section or subdivision thereof.
30.22 CONSENTS AND APPROVALS. Except if and to the extent otherwise
expressly provided for in this Lease, whenever the consent or approval of
Landlord or Tenant is required under any provision of this Lease, Landlord and
Tenant each agrees not to withhold, delay or condition such consent or approval
unreasonably. If either party withholds such consent or approval, such party
shall notify the other in writing stating the reasons therefor. Anytime this
Lease grants Landlord or Tenant the right to take action, exercise discretion,
establish rules and regulations or make an allocation or other determination,
Landlord and Tenant shall act reasonably and in good faith and take no action
which might result in the frustration of the other party's reasonable
expectations concerning the benefits to be enjoyed under this Lease.
30.23 RECORDATION. Landlord and Tenant agree that a short form of this
Lease shall be executed at the same time this Lease is executed, or thereafter
upon request by either Landlord or Tenant. Such short form of this Lease shall
be for recording and public notice purposes only, shall not reflect any of the
monetary terms of this Lease, and shall otherwise be in form and content
reasonably acceptable to both Landlord and Tenant. The party requesting the
short form lease shall be responsible for the cost of recording the same.
30.24 ARBITRATION.
(a) Terms. Should a provision of this Lease provide for the
arbitration of a dispute between Landlord and Tenant, then such
arbitration shall be conducted in accordance with the terms of this
Section 30.24 unless the provision in dispute makes reference to the
arbitration procedures set forth in Section 3.5 (relating to the
determination of Fair Market Rate) in which event the provisions of
Section 3.5 shall control. Any dispute to be settled by arbitration
pursuant to this Section 30.24 shall be determined by binding
arbitration in Jacksonville, Florida in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") then
in effect by a sole arbitrator who (i) has the qualifications and
experience set forth in subparagraph (b) of this Section and (ii) is
selected as provided in subparagraph (c) of this Section. The
arbitrator shall render his decision in writing and shall include the
findings of fact and conclusions of law upon which his award or
decision is based. The arbitration shall be governed by the terms and
conditions of this Lease, the substantive laws of the State of Florida
applicable to contracts made and to be performed therein, without
regard to conflicts of law rules, and by the arbitration law of the
36
Federal Arbitration Act (Title 9, U.S. Code), and judgment upon the
decision rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(b) Qualifications. Every person nominated or recommended to
serve as an arbitrator hereunder shall be a neutral and impartial
lawyer who has had training and experience as an arbitrator or who is
or has been a partner in (or counsel to) a law firm for at least
fifteen (15) years as a practicing attorney specializing in commercial
real estate matters in the Jacksonville, Florida area.
(c) Selection. If the parties cannot agree upon an arbitrator
within twenty (20) days of either party notifying the other party in
writing of an issue or issues the notifying party desires to arbitrate
under this Agreement, the arbitrator shall be selected in accordance
with the AAA's Commercial Arbitration Rules then in effect and in
accordance with the qualifications as set forth in subparagraph (b)
above, except that each party shall be entitled to strike on a
peremptory basis, for any reason or no reason, any or all of the names
of potential arbitrators on the list submitted to the parties by the
AAA. In the event the parties hereto cannot agree on a mutually
acceptable arbitrator from the one or more lists submitted by the AAA,
the President of the AAA shall designate three (3) persons who, in his
or her opinion, meet the criteria set forth in subparagraph (b), which
designees may include persons named on any list submitted by the AAA.
Each of the parties hereto shall each be entitled to strike one of such
three (3) designees on a peremptory basis, indicating its order of
preference with respect to the remaining designees, and the selection
of the arbitrator shall be made from among such designee(s) which have
not been so stricken by either Landlord or Tenant in accordance with
their indicated order of mutual preference.
(d) Procedure.
(i) The arbitrator shall, in his sole discretion,
determine whether or not an arbitration hearing shall
be held. If the arbitrator determines that a hearing
shall be held, it will occur in Jacksonville at a
date, time and place set by the arbitrator after
consulting with and securing the agreement of both
parties. The parties agree that, upon the request of
one party, the preliminary hearing, pursuant to AAA
Arbitration Rule 29, shall be conducted by telephone.
(ii) Consistent with the expedited nature of arbitration,
Landlord and Tenant will, upon the written request of
the other party, provide the other with copies of
documents relevant to the issue(s) raised by any
claim or counterclaim. Other discovery may be ordered
by the arbitrator to the extent the arbitrator deems
additional discovery relevant and appropriate, and
any dispute regarding discovery, including disputes
as to the need therefor or the relevance or scope
thereof, shall be determined by the arbitrator, which
determination shall be conclusive. Landlord and
Tenant explicitly agree that exclusion of evidence by
the arbitrator on grounds of irrelevance or
redundancy shall not be ground for failure to confirm
and enforce the award or decision.
(iii) If no arbitration hearing is held, the parties and
the arbitrator shall agree upon a date on which the
parties shall submit to the arbitrator a memorandum
setting forth their respective position regarding the
arbitratable issue(s). Within five (5) business days
after receipt of the parties' original
37
memoranda, each party may submit to the arbitrator a
response. Any award or decision by the arbitrator
shall be rendered within thirty (30) days after the
submission of the response.
(e) Expenses. All expenses and fees of the arbitrator and
expenses for hearing facilities and other expenses of the arbitration
shall be borne equally by Landlord and Tenant unless they agree
otherwise or unless the arbitrator in the award or decision assesses
such expenses other than equally between the parties. The parties shall
bear their own counsel fees and the expenses of their witnesses, except
to the extent otherwise provided in this Lease or by applicable law.
"LANDLORD"
CTC INVESTMENTS II LIMITED., a Florida
limited partnership
By: CTB Investments, Inc., a Florida
corporation, its managing general partner
By:_________________________________
Xxxxxx X. Xxxxxxxx, President
"TENANT"
NATIONAL AUTO FINANCE COMPANY, INC., a
Delaware corporation authorized to
transact business in the State
of Florida as "National Auto Finance
Company, Inc. of Delaware"
By:_________________________________________
Xxxxxxx Xxxxx, Vice President
38
EXHIBIT B
RULES AND REGULATIONS
Tenant agrees that Tenant and each of Tenant's employees, agents, and invitees
shall comply with the following rules and regulations and with all reasonable
modifications and additions thereto which Landlord may from time to time make
(1) Any sign, lettering, picture, notice or advertisement installed
within the Premises which is visible from the public corridors
within the Building shall be installed in such manner and be of
such character and style as Landlord shall approve in writing. No
sign, lettering, picture, notice or advertisement shall be placed
on any outside window or in a position to be visible from outside
the Building;
(2) Tenant shall not use the name of the Building for any purpose other
than Tenant's business address;
(3) Sidewalks, entrances, passages, courts, corridors, halls, in and
about the Premises shall not be obstructed nor shall objects be
placed against glass partitions, doors or windows which would be
unsightly from the corridors of the Building or from the exterior
of the Building;
(4) No animals, pets, bicycles or other vehicles shall be brought or
permitted to be in the Building or the Premises;
(5) No locks or similar devices shall be attached to any door except by
Landlord and Landlord shall have the right to retain a key to all
such locks;
(6) Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage.
(7) Only machinery or mechanical devices of a nature directly related
to Tenant's ordinary use of the Premises shall be installed, placed
or used in the Premises and the installation and use of all such
machinery and mechanical devices is subject to the other rules
contained in these Rules and Regulations and the other portions of
this Lease;
(8) Safes, furniture, equipment, machines and other large or bulky
articles shall be brought to the Building and into and out of the
Premises at such times and in such manner as the Landlord shall
reasonably direct and at Tenant's sole risk and cost. Prior to
Tenant's removal of such articles from the Building, Tenant shall
obtain written authorization of the office of the Building and
shall present such authorization to a designated employee of
Landlord;
(9) Tenant shall not in any manner deface or damage the Building;
(10) Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so
transmitted or produced shall be audible or vibrations therefrom
shall be detectable beyond the Premises;
Page 1 of 2
(11) Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the
Premises;
(12) Tenant shall not permit objectionable odors or vapors to emanate
from the Premises;
(13) Tenant shall not place a load upon any floor of the Premises
exceeding the floor load capacity for which such floor was designed
or allowed by law to carry; and
(14) Tenant shall comply with all rules and regulations established by
Landlord pursuant to Article of this Lease.
Page 2 of 2
EXHIBIT "C"
WORK LETTER
The provisions of this Work Letter shall govern construction of the Premises
pursuant to the Lease.
A. LANDLORD'S WORK
1. Landlord shall construct and/or install, at no cost to
Tenant, the following items which shall constitute the
Landlord's Work:
(a) all work per base building plans and specifications
produced by The Stellar Group, except for the
installation of overhead doors which have been
deleted;
(b) operational sprinkler system;
(c) installation of storefront window system in south
elevation per Exhibit "C-1" (drawing of elevation);
(d) 3000 amp 208 volt electrical service to the base
building with 2000 amps dedicated to the Premises
(including house panel and switchgear associated with
the 3000 amp service to the Building);
(e) all site work including roads, parking lots,
sidewalks, and landscaping;
(f) one 4" diameter telephone conduit from public
right-of-way to interior of the Premises adjacent to
existing 3" conduit;
(g) drawings detailing structural modifications necessary
for Tenant's HVAC equipment;
(h) install a directory monument for all tenants (with
lettering regarding Tenant to be at Tenant's sole
cost and expense), subject to the approval and
agreement of the developer of Deerwood Office Park.
2. During Tenant's construction of the Premises, Landlord
agrees to provide reasonable use of site utilities
including electricity and water at no charge to Tenant.
3. Landlord agrees to perform Landlord's Work in a good and
workmanlike manner, with such work to be Substantially
Completed in accordance with the construction schedule set
forth on Exhibit "C-2" attached hereto. The Landlord's
Work will be considered "Substantially Completed" for all
purposes under this Work Letter and the Lease when such
work has been completed except for "punch list" items.
When Landlord is of the opinion that such work is
substantially completed, then Landlord will notify Tenant.
Tenant agrees that upon such notification, Tenant will
promptly (and not later than three (3) days after the day
of Landlord's notice
Page 1 of 5
and in any event prior to Tenant moving its equipment and
property into the Premises) inspect the Premises and
execute a punch list ("Punch List") generated by Landlord
which will identify any uncompleted items of such work,
and the dates upon which such item will be completed by
Landlord. Tenant agrees that, at the request of Landlord
from time to time thereafter, Tenant will promptly furnish
to Landlord a revised Punch List reflecting completion of
any prior Punch List items. It is mutually agreed that if
the Punch List or any revised Punch List consists only of
items, the non-completion of which would not materially
impair Tenant's use or occupancy of the Premises, or such
work is otherwise substantially completed, then, in such
event, the Premises will be deemed to be complete and
Tenant will acknowledge in writing that the Premises are
complete and accept possession or execute a Punch List
that acknowledges the completion of all Punch List items.
Landlord will complete all Punch List items as soon as
reasonably possible, and in any event on or before the
date indicated on the Punch List.
4. The Staubach Company Design and Construction Consulting
Services group will assist in the design, bidding and
construction process, and overall project management.
Therefore, The Staubach Company must be afforded complete
access to the premises during building shell construction
and site work.
5. Landlord's workmen and contractors shall work in harmony
with, and not interfere with, labor employed by Tenant,
Tenant's workmen or contractors.
6. Time shall be of the essence with respect to the performance of
Landlord's Work.
B. TENANT'S PLANS AND SPECIFICATIONS; TENANT'S ADDITIONAL RIGHTS
1. Tenant shall deliver to Landlord all plans and
specifications with respect to the Tenant's Work on June
3, 1997, or as soon thereafter as is reasonably possible.
Landlord shall, within three (3) days after delivery of
such plans and specification, either approve or disapprove
the same; Landlord agreeing that such approval shall not
be unreasonably withheld, conditioned or delayed. If
Landlord disapproves of any portion of the plans or
specifications, it shall advise Tenant, with
particularity, as to what changes shall be made therein to
make the same acceptable to Landlord.
2. Tenant shall have the right, subject to Landlord's review
of Tenant's plans and specifications, in accordance with
paragraph B(1) above, to:
(a) Exclusive use of one existing 3" and one 4"
communications conduit serving the Building;
(b) Specify, purchase and utilize its own cosmetic and/or
decorative materials including, but not limited to,
floor coverings, paint and wall covering;
(c) Install Tenant's own security access system including
the main entrance to the Building for after-hours
access;
(d) Secure the Premises during and after business hours;
Page 2 of 5
(e) Have reasonable access to the Premises for delivery
and installation of building materials and equipment
no later than June 12, 1997;
(f) Have reasonable access to construction parking area
at no cost to Tenant;
(g) Install a back up generator and/or HVAC equipment in
the truck court.
(h) Install security system card readers and/or security
cameras on the exterior of the Building.
C. TENANT IMPROVEMENTS ALLOWANCE
1. Landlord shall provide Tenant with the following
allowances (collectively the "Tenant Improvement
Allowance"):
(a) $25.00 per rentable square foot in the Premises for
construction of Tenant's Work;
(b) a lump sum not to exceed $12,000 for modifications to
existing roof structure for support of Tenant's HVAC
units; the actual amount will be determined through
bidding to subcontractors by Tenant's contractor;
(c) a lump sum amount of $300.00 as a credit for 3
overhead doors deleted from Landlord's base building
scope of work;
(d) upon Tenant's request, an additional allowance of up
to $5.00 per rentable square foot in the Premises;
provided, however, that the amortized sum of such
additional allowance (together with a sum equal to
Landlord's closing costs in connection with the
borrowing of such funds, not to exceed Five Thousand
Five Hundred Fifty and No/100 Dollars ($5,550.00))
shall be added to the Monthly Base Rent payable under
the Lease (such amortization to be based on an
assumed interest rate of 10.5% per annum).
2. So long as Tenant is not in default under the terms of
this Lease, beyond any applicable grace or cure period,
Landlord shall disburse the Tenant Improvements Allowance
to or for the account of Tenant in accordance with the
terms of this Work Letter and this Lease.
3. The Tenant Improvements Allowance shall only be used for
the design and construction of the Tenant's Work, and for
no other purposes; provided, however, that any unused
Tenant Improvement Allowance (up to a maximum of $5.00 per
rentable square feet in the Premises) shall be credited
against the Rent first accruing under this Lease.
4. All costs and charges of any nature in connection with the
construction of the Tenant's Work in excess of the Tenant
Improvements Allowance shall be at the sole cost and
expense of Tenant.
Page 3 of 5
D. TENANT'S WORK
1. Tenant shall perform Tenant's Work in a good and
workmanlike manner, in accordance with Tenant's plans and
specifications, in compliance with all applicable federal,
state and municipal laws and regulations. To complete the
Tenant's Work, Tenant will enter into a construction
contract ("Tenant's Contract") with Xxxxxxx- Xxxxxx
Construction Company ("Tenant's Contractor"), who Tenant
certifies to be a licensed Florida general contractor.
Tenant shall furnish to Landlord true and correct copies
of Tenant's Contract, and any modifications or amendments
thereto.
2. All proceeds of the Tenant's Improvements Allowance shall
be disbursed by Landlord in checks jointly payable to
Tenant and Tenant's Contractor or, at Tenant's written
direction, to such other parties as are rendering
construction related services.
3. Each request for an advance of proceeds of the Tenant
Improvements Allowance shall be on AIA Form G702 or G703,
accompanied by receipted invoices for all portions of
Tenant's Work which have been paid prior to the request
for such advance, and by invoices not receipted with
respect to costs of the Tenant's Work which are due and
payable, but which have not been paid. Each such request
shall also be accompanied by a certificate of the Tenant,
Tenant's Contractor and Tenant's Architect that all bills
for labor, materials and services then incurred and
payable in connection with the Tenant's Work have been
paid or will be paid from the advance being requested;
that all work and materials are in accordance with
Tenant's plans and specifications; that such request for
advance is in accordance with the draw schedule and other
terms and conditions of Tenant's Contract except that
draws shall be made no more frequently than monthly; that
all certifications and approvals which may be necessary or
customary at such stage of construction have been
received; and that all work has been done according to all
applicable laws, regulations, building codes, covenants
and restrictions and in a good and workmanlike manner,
together with lien waivers from any contractor,
subcontractor, sub-subcontractor, laborer or materialman
furnishing labor, services or materials in connection with
Tenant's Work. Landlord will pay each requested advance
within fifteen (15) days after receipt of the foregoing
documentation.
4. Tenant acknowledges and agrees that all disbursements of
the proceeds of the Tenant Improvements Allowance by
Landlord to Tenant and/or Tenant's Contractor are being
made at Tenant's request and for Tenant's convenience, and
Landlord shall have no responsibility or obligation to see
to the application of such funds by Tenant's Contractor,
or to otherwise oversee or monitor Tenant's Work, and
Tenant agrees to indemnify and hold harmless Landlord
against any claims by Tenant's Contractor or other any
other parties in connection with the construction of
Tenant's Work disbursement obligations of Landlord
hereunder.
5. Tenant and Tenant's Contractor shall at all times comply
with Chapter 713, Florida Statutes, regarding construction
liens, as the same may be amended from time to time.
Page 4 of 5
6. Tenant's workmen and contractors shall work in harmony
with, and not interfere with, labor employed by Landlord,
Landlord's workmen or contractors, or by any other tenant
or their contractors.
7. Tenant and Tenant's contractors and workmen shall maintain
Workmen's Compensation, public liability insurance,
builder's risk and property damage insurance, with
hold-harmless provisions, all in amounts and with
companies in a form satisfactory to Landlord, and Tenant
shall provide certificates of such insurance to Landlord,
with Landlord designated as an additional insured.
8. Tenant's entry onto the property of Landlord in connection
with the construction of Tenant's Work shall be deemed to
be under all of the terms, covenants, provisions and
conditions of this Lease.
9. Upon completion of Tenant's Work, Tenant shall provide to
Landlord final lien waivers regarding Tenant's Work; a
final certificate from Tenant, Tenant's Contractor and
Tenant's Architect that all bills for labor, materials and
services have been paid; that all materials and work are
in accordance with Tenant's plans and specifications; that
all certifications and approvals which may be necessary or
customary have been received; and that all work has been
done according to all applicable laws, regulations,
building codes, covenants and restrictions, and in a good
and workmanlike manner; and Landlord and/or Landlord's
Contractor or other representative shall have the right to
inspect Tenant's Work to ensure compliance with all the
foregoing. In addition, upon completion of construction of
Tenant's Work, Tenant shall obtain a satisfactory final
inspection of the Premises from the City of Jacksonville.
Page 5 of 5
Exhibit "C-1"
Drawing of Elevation
Exhibit "C-2"
Construction Schedule for Landlord's Work
1. Premises cleaned and broom swept on or before the execution of the
Lease.
2. Sprinkler system operational and signed off on by Landlord and
Landlord's contractor on or before the execution of the Lease.
3. Storefront window system installed on South and West elevations of
the Premises on or before June 20, 1997.
4. Lime rocked access to rear of Building for equipment and material
delivery prior to completion of storefront installation.
5. Balance of base building shell (which shall exclude item 6 and
landscaping) construction Substantially Completed on or before
July 1, 1997.
6. 3000 amp electrical service installed on or before August 4, 1997.
7. Site work and paving Substantially Completed on or before June 23,
1997, subject to weather delays.
8. All remaining Landlord's Work to be Substantially Completed on or
before August 1, 1997.
Page 2 of 5
EXHIBIT "D"
Such signage as may be approved in writing by Landlord, subject to the zoning
code and municipal ordinances of the City of Jacksonville, Florida.
Page 3 of 5
