EXHIBIT 10.1
LEASE AGREEMENT
BETWEEN
ARBERN INVESTORS IV, L.P.
AND
TENANT: I Games Entertainment, Inc.
RENTABLE SQ.FT.: 1,732
SUITE: 2199
TERM: One (1) Year
DATED:
TABLE OF CONTENTS
TO
NORTHERN TRUST PLAZA
OFFICE LEASE AGREEMENT
LEASE
Page
BASIC LEASE INFORMATION RIDER............................................................................i
1. THE PREMISES AND TERM...........................................................................1
2. POSSESSION......................................................................................2
3. MONTHLY RENT....................................................................................2
4. ADDITIONAL RENT.................................................................................2
5. USE.............................................................................................7
6. ACCEPTANCE OF PREMISES..........................................................................8
7. TENANT'S CARE...................................................................................8
8. BUILDING HOURS OF OPERATION....................................................................10
9. LANDLORD SERVICES..............................................................................10
10. DESTRUCTION OR DAMAGE TO THE PREMISES
AND WAIVER OF SUBROGATION......................................................................11
11. DEFAULT BY TENANT - LANDLORD'S REMEDIES........................................................14
12. LANDLORD'S LIABILITY...........................................................................15
13. ASSIGNMENT AND SUBLETTING......................................................................16
14. CONDEMNATION...................................................................................18
15. INSPECTIONS AND ACCESS TO PREMISES.............................................................19
16. SUBORDINATION AND LEASE AMENDMENT..............................................................19
17. INDEMNITY......................................................................................20
18. INSURANCE......................................................................................20
19, FINANCIAL REPORTS..............................................................................21
20. HOLDING OVER...................................................................................21
21. ENTIRE AGREEMENT - NO WAIVER...................................................................21
22. WAIVER OF JURY TRIAL...........................................................................22
23. HEADINGS.......................................................................................22
24. NOTICES........................................................................................22
25. HEIRS AND ASSIGNS - PARTIES....................................................................22
26. ATTORNEYS' FEES................................................................................22
27. TIME OF ESSENCE................................................................................22
28. SECURITY DEPOSIT...............................................................................23
29. TENANT IMPROVEMENTS; IMPROVEMENT ALLOWANCE.....................................................23
30. PARKING ARRANGEMENTS AND COMMON AREAS..........................................................23
31. RULES AND REGULATIONS..........................................................................24
32. BROKER.........................................................................................24
33. PUBLIC AREAS...................................................................................25
34. QUIET ENJOYMENT................................................................................25
35. FORCE MAJEURE..................................................................................25
36. RELATIONSHIP OF THE PARTIES....................................................................25
37. AUTHORITY......................................................................................26
38. RADON GAS......................................................................................26
39. HAZARDOUS SUBSTANCES...........................................................................26
40. SAVING PROVISION...............................................................................27
41. REMEDIES CUMULATIVE............................................................................27
42. EFFECTIVENESS OF LEASE.........................................................................27
43. GUARANTER OF LEASE.............................................................................27
44. RELOCATION.....................................................................................27
45. WAIVER.........................................................................................28
46. ENTIRE AGREEMENT...............................................................................28
47. MISCELLANEOUS.............................................................................29
48. NO REPRESENTATIONS.............................................................................31
49. GOVERNING LAW..................................................................................31
50. COUNTERPARTS...................................................................................31
EXHIBITS: "A" - Floor Plan
"B" - Intentionally Omitted
"C" - Description of Project
"D" - Description of Property
"E" - Rules and Regulations
"F" - Tenant Improvement Allowance
BASIC LEASE INFORMATION RIDER
NORTHERN TRUST PLAZA
OFFICE LEASE AGREEMENT
Preamble Date of Lease: ____________, 20__ ("Effective Date")
Preamble Landlord: ARBERN INVESTORS IV, L.P., a Delaware limited partnership.
Preamble Tenant: I Games Entertainment, Inc., a corporation of the State of Nevada.
Section 1.A. Premises: A portion of Northern Trust Plaza, 301 Yamato Road, Boca Raton, Florida
(the "Building"), as shown on Exhibit "A", being hereby designated as: Suite 2199. The
Building, together with parking spaces, driveways, walkways, drainage systems, utility
systems, and greenspace areas, are hereinafter collectively referred to as the
"Project."
Section 1 Net Rentable Area of Premises: 1,732 square feet which is stipulated and agreed by the
parties (based on 1,506 square feet of usable area and a fifteen (15%) add-on factor);
provided, however, that within ten (10) days after delivery of the Premises to Tenant,
either Landlord or Tenant, at the expense of the party electing to do so, shall be
entitled to have the Premises measured in accordance with BOMA Standards (ANSI
Z65.1-1996). Following such measurement, if it is determined that in fact the Premises
contain more or less than the Rentable Area set forth above, as such determination
shall be confirmed in writing in a certificate provided by Landlord, Base Rent,
Tenant's Share, and any other provision which is based on the amount of square footage
leased by Tenant shall be ratably modified in accordance with the certified
adjustment.
Section 3 Lease Commencement Date:
November 1, 2001
Section 2 Expiration Date: November 30, 2002.
Section 2 Lease Term: From the Commencement Date plus One (1) year after the Rent Commencement
Date, unless sooner terminated pursuant to any provision hereof.
Xxxxxxx 0 Xxxxxxx Xxxx(x): One (1) Renewal Terms of Three(3) years each; at Market Rate Rent.
Section 3 Base Rent: Tenant agrees to pay to Landlord as Base Rent for the Premises, in advance
without demand, deduction or set-off, from and after the Commencement Date and
throughout the term, the Annual Base Rent in the amounts as indicated in the following
Schedule of Base Rent in equal monthly installments, plus applicable sales tax.
BASE RENT COMMENCEMENT DATE: DECEMBER 1, 2001
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SCHEDULE OF BASE RENT
NOT INCLUDING ANY APPLICABLE SALES TAX.
---------------------------- ------------------------- -------------------------- -------------------------
PERIOD PER SQUARE FOOT ANNUALIZED BASE RENT MONTHLY BASE RENT
---------------------------- ------------------------- -------------------------- -------------------------
---------------------------- ------------------------- -------------------------- -------------------------
December 1, 2001- November
30, 2002 $13.25 $22,949.00 $1,912.42
---------------------------- ------------------------- -------------------------- -------------------------
---------------------------- ------------------------- -------------------------- -------------------------
$ $ $
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$ $ $
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$ $ $
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---------------------------- ------------------------- -------------------------- -------------------------
$ $ $
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$ $ $
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Section 4: Overhead Rent Commencement Date: December 1, 2001.
Estimated Overhead Rent for the current year: $7.68 per rentable square foot.
Section 3 Tenant's Proportionate Share: .85%. Landlord and Tenant acknowledge that Tenant's Proportionate
Share has been obtained by taking the Net Rentable Area of the Premises and dividing such
number by 203,609 square feet, being the rentable area contained in the Building as determined
by Landlord, and multiplying such quotient by 100. In the event Tenant's Proportionate Share
is changed during a calendar year by reason of a change in the Net Rentable Area of the
Premises, Tenant's Share shall thereafter mean the result obtained by dividing the new Net
Rentable Area of the Premises by 203,609 and multiplying such quotient by 100.
Section 28 Security Deposit Received: $3,200.00 (including Florida sales tax)
Date Received:
Section 3 Prepaid First Month's Rent $3,202.15 (including Florida sales tax)
Date Received:
Section 5 Use of Premises: General office
Address for Notices After Commencement Date:
Tenant:
The Premises
Landlord:
Arbern Investors IV, L.P.
c/o Stoltz Management
000 Xxxxxx Xxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Section 18 Amount of General Comprehensive Liability Insurance: $2,000,000.00 per occurrence -
$3,000,000.00 in the aggregate, together with $1,000,000.00 property damage.
Section 19 Tenant Improvement Allowance $NONE.
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Certain of the information relating to the Lease, including many of the principal economic terms,
are set forth in the foregoing Basic Lease Information Rider (the "BLI Rider"). The BLI Rider and the Lease are, by
this reference, hereby incorporated into one another. In the event of any direct conflict between the terms of the
BLI Rider and the terms of the Lease, which includes all Exhibits thereto, the BLI Rider shall control. Where the
Lease simply supplements the BLI Rider and does not conflict directly therewith, the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI
Rider as of this ____ day of ______________, 2001.
WITNESSES: "TENANT" I Games Entertainment, Inc., a corporation
of the State of
Nevada
______________________________________
(As to Tenant)
By:_____________________________
Name:
Title:
(SEAL)
WITNESSES: "LANDLORD"
______________________________________ ARBERN INVESTORS IV, L.P., a Delaware limited partnership
______________________________________ By: Arbern Building Company, Inc., a Delaware corporation
authorized to do business in the State of Florida,
its general partner
By:_____________________________
Authorized Agent
iii
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is made this _____ day of
____________, 2001 (the "Effective Date"), by and between ARBERN INVESTORS IV,
L.P., a Delaware limited partnership ("Landlord"), and I Games Entertainment, a
Nevada corporation ("Tenant").
1. THE PREMISES AND TERM.
A. Initial Term. Landlord, for and in consideration of the
rents hereinafter reserved and of the covenants, agreements and conditions
hereinafter set forth, to be kept and preformed on the part of Tenant, hereby
leases to Tenant, and Tenant hereby rents and leases from Landlord the Premises
described in the Basic Lease Information Rider ("BLI Rider") attached to the
front of this Lease and incorporated into this Lease by reference, and as more
particularly outlined on the floor plan attached hereto and made a part hereof
as Exhibit "A" (the "Premises"), together with the continuous right, during the
Building Hours of Operation as hereinafter identified, subject to applicable
rules and regulations, to use the Common Areas (defined below), Project Common
Areas (defined below), Parking Areas (defined below) and the improvements and
facilities located thereon which are designated for the nonexclusive use of
occupants of the Building in common with Landlord and the tenants and occupants
of the Building and the Project (defined below) and their respective agents,
employees, and invitees, for a term to commence on the Commencement Date set
forth in the BLI Rider ("Commencement Date") to end on the Lease Expiration Date
set forth in the BLI Rider ("Expiration Date"). The period from the Commence
Date through the Expiration Date is hereinafter referred to as the "Initial
Term". For purposes of this Lease, if the Commencement Date, as provided in the
BLI Rider is made subject to the substantial completion of the improvements to
the Premises, the term "substantially complete" when used in connection with the
term Tenant Improvements shall mean that the Tenant Improvements are completed
substantially in accordance with the plans and specifications for the Tenant
Improvements. The Tenant Improvements shall be deemed substantially completed
notwithstanding the fact that minor or insubstantial details of the work,
mechanical adjustment, or decoration remain to be performed.
B. Renewal Term(s): Provided this Lease shall not have been
canceled pursuant to the other provisions of this Lease, and provided further
that at the time Tenant exercises its renewal option Tenant shall not then be in
default of the Lease beyond any applicable notice and cure period, then Tenant
shall have an option to renew the term of this Lease for one (1) additional
renewal terms of three (3) years each (collectively the Renewal Terms and each
separately a Renewal Term), commencing on the date immediately following the
last day of the preceding term. To be effective, Tenant shall exercise this
option for the first Renewal Term by delivering to Landlord no less than twelve
(12) months' Notice (defined below) of such election prior to the expiration of
the Initial Term. Provided that Tenant has exercised the first Renewal Term and
is not then in default of this Lease beyond any applicable notice and cure
period, Tenant shall have the right to renew the term of this Lease for an
additional one (3) year term by delivering to Landlord no less than twelve (12)
months' Notice of such election prior to the expiration of the first Renewal
Term. Base Rent for each Renewal Term shall be equal to the Market Rent, as
determined in accordance with this section ("Market Rent"). Within thirty (30)
days following its receipt of Tenant's request, Landlord shall advise Tenant of
Market Rent for each year of the Renewal Term. Market Rent (including
escalations for each successive year of the Renewal Term(s) shall be determined
by Landlord in its reasonable judgment. Landlord's determination of the Market
Rent shall be based, as Landlord reasonably deems appropriate, upon then current
and projected rents for space in the Building, adjusted for any special
conditions applicable to such space and leases, for location, length of term,
amount of space and other factors Landlord deems relevant in computing rents for
space in the Building, including adjustments for anticipated inflation. Tenant
may exercise its option to renew by notifying Landlord, within 30 days from the
date on which Tenant was advised by Landlord of Landlord's determination of
Market Rent, that Tenant has elected to exercise the Option at the Market Rent
determined by Landlord. If Tenant exercises the Option as provided, the
Expiration Date of the Lease shall be extended for the length of the Renewal
Term and Base Rent shall be adjusted to Market Rent.
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If Tenant fails or omits to give Landlord Notice of its election to
renew this Lease upon the terms set forth herein and within the prescribed time
or if Tenant is in default of the Lease beyond applicable notice and cure
periods at the time Tenant attempts to exercise its Renewal Option, then it
shall be deemed without further notice and without further agreement, that
Tenant elected not to exercise the option to extend the term of this Lease and
the Renewal Option(s) shall be null and void and of no further force or effect.
Either party, if requested, agrees to enter into a Lease amendment reflecting
the leasing of the Premises for the Renewal Term.
2. POSSESSION.
Notwithstanding the estimated Commencement Date of the Initial Term as
set forth in Paragraph 1 herein, if for any reason Landlord cannot deliver
possession of the Premises to Tenant on said date because the Premises are not
ready for occupancy, or for any other reason or cause, Landlord and its agents
shall not be subject to any liability therefore, nor shall such failure affect
the validity of this Lease or the obligations of Tenant or extend the Initial
Term hereof. After the determination of the Commencement Date, Tenant agrees,
upon demand of Landlord, to execute, acknowledge and deliver to Landlord an
instrument, in form satisfactory to Landlord, which sets forth the Commencement
Date and the end of the Initial Term.
3. MONTHLY RENT
Tenant shall pay to Landlord, or to any successor thereto named by
Landlord, at the address provide in the BLI Rider or at such other place as
Landlord may designate by Notice, without notice or demand and without
deduction, abatement, counterclaim, or set-off whatsoever, except as may be
expressly noted and authorized under the terms of this Lease, annual rent at the
rates and in the amounts set forth in the BLI Rider (the "Base Rent") payable in
lawful money of the United States in equal monthly installments (the "Monthly
Rent"). The first Monthly Rent and Sales Tax (defined below) installment payable
thereon for the first month of the Initial Term shall be paid by Tenant to
Landlord on the Commencement Date. All subsequent Monthly Rents shall be due in
advance on the first day of each calendar month during the Initial Term,
beginning with the month next succeeding the First Month, as defined below,
together with payment of all Additional Rent, as herein defined, and together
with Sales Tax. The term "Lease Year", as used herein, (i) shall mean the twelve
(12) month period beginning with the Commencement Date, and each twelve (12)
month period thereafter occurring during the Initial Term of this Lease, and
(ii) in the event this Lease expires or terminates on a date other than the date
determined pursuant to Paragraph 1 hereof, then the term "Lease Year" shall also
mean the period from the end of the preceding Lease Year to the date of said
expiration or termination of this Lease. Notwithstanding anything to the
contrary contained herein, in the event the Commencement Date is other than the
first day of a calendar month, then Tenant shall pay to Landlord on the
Commencement Date a sum equal to the per diem Monthly Rent for the month in
which the Commencement Date shall occur multiplied by the number of days from
the Commencement Date to the last day of the First Month, both inclusive plus
the Monthly Rent for the next calendar month (said period of time hereafter
referred to as the "First Month"). Such per diem payment and the first Monthly
Rent payment shall constitute payment of Monthly Rent from the Commencement Date
to the last day of the month next succeeding the First Month, both inclusive. In
the event this Lease terminates on a day other than the date determined in
accordance with Paragraph 1 hereof, the Monthly Rent shall be equitably
adjusted. Any Rent not paid within five (5) days after its due date shall be
subject to a late charge of Five Hundred Dollars ($500.00) plus One Hundred and
No/100 Dollars ($100.00) per day for each day after the fifth (5th) day of
delinquency until the Rent payment is received. The provisions of the
immediately preceding sentence shall not, in any manner, constitute a waiver of
Landlord's right to default Tenant for the failure to pay rent subject to
applicable grace periods herein contained. In the event Tenant provides Landlord
with a check or other draft on a bank which is dishonored, Tenant shall be
obligated to pay Landlord the sum of One Hundred Fifty Dollars ($150.00) for
each non-negotiable check issued.
4. ADDITIONAL RENT.
A. Definitions. As used herein:
(i) "Common Areas" shall mean all portions of
the Building and the Project not intended as leasable area, including, but not
limited to, (if any) public lobbies, elevators, doorways leading into the
Building, loading areas, pedestrian walkways and ramps, landscaped areas,
stairways, corridors, mechanical rooms, washrooms, toilets, and other public
facilities, and other areas of the Building and the Property which are provided
by Landlord for the general use, in common, of tenants, their officers, agents,
employees, servants, invitees, licensees, visitors, patrons, and customers.
2
(ii) "Cost of Operation and Maintenance" shall
mean, subject to the exclusions and limitations set forth in this Subsection
4A(ii), all costs and expenses incurred by Landlord in operating, repairing,
maintaining and Improving (defined below) the Building, Property, Common Areas,
Parking Areas and Project Common Areas, as determined in accordance with
generally accepted accounting principles consistently applied on a cash basis,
including without limitation, all Improvements (defined below), equipment,
systems and Parking Areas designated to service occupants of the Building,
whether now existing or hereafter constructed and including, without limitation,
as they relate to the Building, Property, Common Areas, Parking Areas and
Project Common Areas, (1) costs in providing rubbish and waste pickup and
disposal, if any; (2) costs of janitorial services and window cleaning
(including materials, supplies, light bulbs and ballasts, equipment and tools
therefor, and rental costs related to any of the foregoing) and contracts with
third parties to provide such services or supplies; (3) insurance premiums for,
without limitation, property, rental interruption, liability and any other types
of insurance carried by Landlord, the costs of which may include a reasonable
allocation of a portion of the premium of a blanket insurance policy maintained
by Landlord; (4) costs of electricity, water, sewer, and other utility charges,
but excluding any utility charges paid directly by any tenant of the Building
(including Tenant) to any utility provider; (5) costs of operation, maintenance,
and repair including, without limitation, the roof, all floor, wall and window
coverings and personal property, systems such as ventilation and air
conditioning, fire prevention sprinkler systems, elevators, escalators, and all
other mechanical or electrical systems serving such facilities and service
agreements for all such systems and equipment; (6) license, permit and
inspection fees; (7) wages, salaries, employee benefits and taxes (or a
reasonable allocation of the foregoing) for working full or part time in
connection with operation, maintenance and management; (8) accounting and legal
services associated with the Building and/or the Project; (9) management fees
(including fees paid to Landlord if Landlord manages the Building and/or the
Project), and Landlord's administrative costs, such as postage, stationery,
office space, photocopy expenses, and other management office supplies; (10)
costs of indoor and outdoor landscaping including, without limitation, planting,
replacing, and replanting of flowers and bushes, and the maintenance thereof;
(11) expenses and fees, including legal fees and costs, reasonably incurred
contesting the validity or applicability of any governmental enactments,
including taxes; (12) costs of any parking validation program enacted by
Landlord in which Tenant has a right to participate; (13) cost of operation,,
maintenance and repairs of any equipment to supply music or to provide intercom
capability; (14) cost of compliance with any fire, safety or other governmental
rules, regulations, laws, statutes, ordinances or requirements imposed by any
governmental authority or insurance company; (15) the cost of any Study (defined
below); (16) the current amortization portion of Required Capital Improvements
(defined below) and Cost Saving Improvements (defined below), amortized on a
straight line basis for ten (10) years or over the useful life of such
improvement, as determined in accordance with generally accepted accounting
principles, whichever is less; (17) the cost of all replacements or capital
repairs (hereinafter "Replacements") made in lieu of repairs when such
Replacement is reasonably necessary in accordance with sound management and
operating principles, notwithstanding that the Replacement item is of superior
quality, design or utility to the item being replaced, but only to the extent
such quality, design or utility shall not exceed the standard for the same
currently prevailing for comparable office buildings located in the southeast
Florida market, such cost to be amortized or depreciated, as the case may be, on
a straight-line-basis over the useful life of the Replacement in question, but
in no event more than ten (10) years, as commercially reasonably determined by
Landlord, and included in the Cost of Operation and Maintenance until such cost
has been fully amortized at Citibank Prime (N.Y.), together with two (2%)
percent. "Required Capital Improvements" shall mean any capital improvements or
any replacements made in or to any portion of the Project or improvements
located thereon, including, without limitation, the Building, the Property, the
Common Areas, the Parking Areas and the Project Common Areas, in order to
conform to any law, ordinance, rule, regulation or order of any governmental
authority having jurisdiction over the Building, the Property, the Common Areas,
the Parking Areas and the Project Common Areas, as the case may be, and
replacements of capital improvements at the end of their useful life. "Cost
Saving Improvements" shall mean any capital improvements or replacements which
are intended, in Landlord's reasonable judgment, to reduce, stabilize or limit
increases in the costs of Operation and Maintenance; for Cost Saving
Improvements costing more than $100,000, Landlord's reasonable judgment shall be
based upon a study and analysis made by or on behalf of Landlord of the
projected cost savings to be realized from making such capital improvements (the
"Study"). "Improvements" shall mean any improvement that is a Required Capital
Improvement or a Cost Saving Improvement. "Improving" shall mean the
construction of any Improvement.
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The Taxes and Costs of Operation and Maintenance of
the Common Areas, Project Common Areas, and Parking Areas shall be reasonably
apportioned among the buildings located within the Project. Tenant shall pay
Tenant's Proportionate Share (defined below) of Taxes and the Cost of Operation
and Maintenance as hereinafter provided.
Notwithstanding any other provisions of this
Lease to the contrary, the Cost of Operation and Maintenance shall be deemed to
specifically exclude the following:
(a) costs and expenses incurred in
connection with lease, sublease and/or lease assignment negotiations and
transactions with present or prospective tenants or other occupants of the
Building, including, without limitation, leasing commissions, attorneys' fees,
consulting fees and space planning costs;
(b) tenant allowances, monetary
inducements and other costs of installation of tenant improvements and
decorations (including permit, licensing and inspection fees) incurred in
connection with preparing space for a new tenant or the cost of renovating or
otherwise improving, decorating, painting or redecorating space of existing
tenants or vacant space available for lease;
(c) accountants' fees and costs,
attorneys' fees and court costs and other such professional expenses incurred by
Landlord in connection with (1) negotiations or disputes with existing tenants
(unless such disputes are with a majority of all tenants in the Building [based
upon rentable square footage] in which case such legal expenses will be included
to the extent Landlord prevails in any such dispute) or prospective tenants,
management agents, brokers, purchasers, or mortgagees of the Building or in
enforcing remedies in the event of tenant defaults and/or (2) any mortgaging,
financing, refinancing, development, sale, or change of ownership of the Project
or Building, or the modification of any ground lease, air rights lease, or any
other lease or sublease to, or assumed, directly or indirectly by, Landlord;
(d) amounts for which Landlord is
entitled to be reimbursed by tenants, or insurers (other than through payment of
its proportionate share of Cost of Operation and Maintenance) or for which any
tenant pays or is to pay third persons;
(e) interest, principal, points and
fees on debt or amortization payments on any mortgages or any other debt
instruments encumbering the Building and rental under any ground lease;
(f) expenses paid by Landlord for the
advertising and promotion of rental space in the Building and Project and the
cost of signage within or on the Project identifying the owner and/or managing
agent of the Building;
(g) depreciation expense on the
Building;
(h) costs arising from Landlord's
charitable or political contributions;
(i) costs related to maintaining
Landlord's legal existence, including by way of example but not limitation,
trustee's fees, annual fees, organizational and administrative expenses and
accounting fees (other than with respect to the Building's operations);
(j) the costs incurred by Landlord to
cure any latent defects in the original construction of the Premises as to which
Tenant has given Notice to Landlord prior to the first anniversary of the
Commencement Date; and
(k) electric power costs for which any
tenant directly contracts with the local public service company.
(iii) "Garage(s)" shall mean any parking garage
subsequently constructed within the Project and designated for non-exclusive use
by Tenant and its employees, guests and invitees. The term "Garage(s)" shall not
include any Parking Area not available for use by Tenant or its invitees,
employees or customers. Nothing contained in this Subsection shall commit or be
interpreted as committing Landlord to construct any parking garage.
(iv) "Landlord's Statement" shall mean an
instrument containing a reasonable computation of any Additional Rent due,
itemized by expense category in reasonable detail, pursuant to the provisions of
this Paragraph 4.
4
(v) "Operational Year" shall mean a calendar
year.
(vi) "Parking Areas" shall mean the Garage(s)
and any other parking areas designated to service occupants of the Building,
whether now existing or hereafter constructed, including parking areas that
contain reserved parking spaces for tenants of the Project. Paragraph 30 hereof
contains provisions relating to the use of Parking Areas.
(vii) "Project" shall mean the parcel of land
situated in Palm Beach County, Florida, more particularly described on Exhibit
"C" attached hereto of which the Property is a portion. The Project is comprised
of Northern Trust Plaza Building.
(viii) "Project Common Areas" shall mean all
improved portions of the Project not intended as leasable areas which are
provided by Landlord for the general non-exclusive use of tenants, their
officers, agents, employees, servants, invitees, licensees, visitors, patrons
and customers of any leasable improvements located in the Project and expressly
excluding any Common Areas and Parking Areas and any common areas or common
facilities located in another building constructed in the Project or dedicated
for the use of tenants of other improvements located in the Project and not
available for use by Tenant or its employees, invitees or customers.
(ix) "Property" shall mean the parcel of land
situated in Palm Beach County, Florida, on which is situated the Building.
(x) "Taxes" shall mean all real estate taxes,
assessments, special or otherwise, sewer rents, rates and charges, water rents,
rates and charges, or any other charge of a governmental authority of a similar
or dissimilar nature, of any kind, which may be levied or assessed upon or with
respect to the Building, Parking Areas, the Property, Project Common Areas and
Common Areas, and all taxes or charges levied on the Monthly Rent and/or
Additional Rent or the gross receipts from the Building and/or Garage(s) which
are in lieu of or a substitute for, any other tax or assessment or charge upon
or with respect to the Building, Property, Parking Areas, Project Common Areas
and Common Areas. If assessments are paid in annual or other installments, there
shall be deemed included in Taxes for each Lease Year the annual installment or
total number of other installments of such assessment becoming payable during
such Lease year, together with interest payable during such Lease Year, on such
installment and all installments thereafter becoming due as provided by law, all
as if such assessments had been so divided. Taxes shall not be deemed to
include: (a) franchise or similar taxes of Landlord, or (b) income, excess
profits or other taxes, if any, of Landlord, except to the extent such taxes are
in lieu of or a substitute for any other tax, assessment or charge upon the
Building, Property, Parking Areas, Project Common Areas and Common Areas which,
if such other tax, assessment or charge were in effect, would be payable by
Tenant as provided above, in which event such taxes shall be computed as if the
Building, Property, Parking Areas, Project Common Areas and Common Areas were
the only property of Landlord, and the rent hereunder the only income of
Landlord. Notwithstanding anything contained herein to the contrary, Taxes shall
not include any Sales Tax payable by Tenant pursuant to any other provision of
this Lease. Further, Taxes do not include interest, fines or other penalties due
or payable by Landlord as a result of Landlord's failure to make payments and/or
file any tax or informational returns when due. Landlord shall calculate Taxes
on the basis of the maximum discount available for early payment, provided
Tenant is not in default in the payment of Base Rent.
(xi) "Tax Year" shall mean the period of 12
months commencing on January 1st of each year or such other 12 month period as
may hereafter be duly adopted as the fiscal year from real estate tax purposes
for Palm Beach County or other applicable governmental authority.
(xii) "Tenant's Projected Share" shall mean
Tenant's Proportionate Share multiplied by Landlord's written estimate of the
Cost of Operation and Maintenance for the ensuing Operational Year.
5
B. Taxes.
(i) Tenant shall pay as Additional Rent a sum
equal to Tenant's Proportionate Share of the Taxes for each Tax Year during the
term of this Lease for the Building and the Property. Tenant shall also pay as
Additional Rent a sum equal to Tenant's Proportionate Share of the Taxes for
Project Common Areas and Parking Areas that are allocable to tenants of the
Building pursuant to the terms of this Lease. Subsequent to the issuance of the
xxxx for Taxes, Landlord shall give Notice of such Taxes to Tenant which Notice
shall include a copy of such xxxx, together with Landlord's Statement for Taxes,
and Tenant shall pay the Additional Rent set forth on such Statement within
thirty (30) days such Notice is given. Landlord, at its option, may require
Tenant to make monthly payments on account of Tenant's Proportionate Share of
Taxes payable for the Tax Years immediately following delivery of the first
Landlord's Statement for Taxes. Landlord's Statement of Taxes shall set forth
the amount of said monthly payments, which shall be credited to Tenant's
obligation to pay Additional Rent under this Subsection 4B(i) for the applicable
succeeding Tax Year. Landlord agrees to regularly review Taxes for the Building,
Parking Areas, Project Common Area, and Property and to contest or negotiate the
amount thereof with the appropriate governmental or regulatory authority if
Landlord determines it is reasonably prudent to contest the Taxes. The cost of
any such contest or negotiation shall be a Cost of Operation and Maintenance
regardless of Landlord's success. In the event that after a Landlord's Statement
for Taxes has been sent to Tenant and Tenant has paid Additional Rent for such
Taxes, an assessed valuation which had been utilized in computing the Taxes is
reduced (as a result of settlement, final determination of legal proceedings or
otherwise) and as a result thereof a refund of Taxes is received by or on behalf
of Landlord, then, promptly after receipt of such refund, Landlord shall
reimburse Tenant in the amount of Tenant's Proportionate Share of such refund.
(ii) Any payment of Additional Rent or refunds
due to Tenant hereunder for any period of less than a full Tax Year, or any
adjustment required due to Tenant hereunder for any period of less than a full
Tax Year, or any adjustment required due to the change in the area of the
Premises, shall be equitably prorated to reflect any such event.
C. Operating Expenses.
(i) Commencing with the Commencement Date,
Tenant shall pay to Landlord, as Additional Rent, Tenant's Projected Share of
the Costs of Operation and Maintenance for the Project, Building and Property
and Tenant's Proportionate Share of the Cost of Operation and Maintenance for
Project Common Areas and Parking Areas that are allocable to tenants of the
Building pursuant to the terms of this Lease during such Operational Year.
During the month of December preceding each Operational Year, Landlord shall
furnish Tenant by Notice a written statement, itemized in reasonable detail, of
the estimated Cost of Operation and Maintenance for such year setting forth
Tenant's Projected Share of the Cost of Operation and Maintenance for the
Building and Property and of the Cost of Operation and Maintenance for Project
Common Areas and Parking Areas that are allocable to tenants of the Building
pursuant to the terms of this Lease during such Operational Year and Tenant
shall pay same to Landlord as Additional Rent. Tenant's Projected Share shall be
divided by 12 and shall be payable on the first day of each month, beginning on
the first day of such ensuing Operational Year. If said statement is furnished
to Tenant after the commencement of such Operational Year, Tenant shall
nonetheless be obligated to pay, as part of its next installment of Monthly Rent
and Additional Rent, Tenant's Projected Share for the period which shall have
elapsed prior to the first day of the calendar month next succeeding the
calendar month in which said Statement is furnished to Tenant.
(ii) It is estimated that on or before March 31
following a calendar year for which Overhead Rent is payable hereunder, Landlord
shall furnish a written reconciliation statement to Tenant by Notice a written
statement, itemized in reasonable detail, of the actual Cost of Operation and
Maintenance incurred for such Operational Year and Tenant's Proportionate Share
of the Cost of Operation and Maintenance of the Building and Property and
Tenant's Proportionate Share of the Cost of Operation and Maintenance for
Project Common Areas and Parking Areas that are allocable to tenants of the
Building pursuant to the terms of this Lease during such Operational Year
("Landlord's Statement of Operation and Maintenance"). If the Landlord's
Statement of Operation and Maintenance shall indicate that Tenant's Projected
Share paid by Tenant for such Operational Year exceeded Tenant's Proportionate
Share for such Operational Year, Landlord, at Landlord's option, shall forthwith
either (1) pay the amount of excess directly to Tenant within thirty (30) days
of Tenant's receipt of such Statement or (2) permit Tenant to credit the amount
of such excess against the subsequent payment of Additional Rent due hereunder.
If Landlord's Statement of Operation and Maintenance shall indicate that
Tenant's Proportionate Share exceeds Tenant's Projected Share for that
Operational Year, Tenant shall forthwith pay Landlord within thirty (30) days
after Tenant's receipt of such Statement, the amount of such excess.
6
D. Apportionment of Additional Rent. If the Term of this
Lease shall begin on a date other than January 1 or end on a date other than
December 31st, any Additional Rent for the year in which the Commencement Date
or the date of expiration of the term shall occur, as the case may be, shall be
apportioned in that percentage which the number of days in the period from the
Commencement Date to December 31st or from the Commencement Date of such Lease
Year to such date of expiration, both inclusive, as the case may be, shall bear
to the total number of days in the calendar year in which such expiration
occurs.
E. Landlord's Statements.
(i) Landlord's failure to render Landlord's
Statement of Taxes or Landlord's Statement of Operation and Maintenance (each a
Landlord's Statement"), with respect to any Operational Year or Tax Year, or
Landlord's delay in rendering such Statement beyond a date specified herein,
shall not prejudice Landlord's right to render a Landlord's Statement with
respect to that or any subsequent Operational Year or Tax Year. The obligations
of Landlord and Tenant under the provisions of Paragraph 4 with respect to any
Additional Rent shall survive the expiration or any sooner termination of this
Lease.
(ii) Each Landlord's Statement of Taxes and
Landlord's Statement of Operation and Maintenance shall be conclusive and
binding upon Tenant, unless within three thirty (30) days after receipt of such
Landlord's Statement, Tenant shall give Notice to Landlord that it disputes the
correctness of Landlord's Statement, specifying the respects in which Landlord's
Statement is claimed to be incorrect (the "Thirty Day Notice"). If the Thirty
Day Notice is sent, Tenant, its authorized agents, representatives and
accountants, shall have the right within the thirty (30) days following the
giving of the Thirty Day Notice to audit Landlord's Statement and Landlord's
books and records relating to the same to verify that Landlord's Statement has
been determined in accordance with the terms of this Lease. Any such audit shall
be conducted during normal business hours at Landlord's convenience, so long as
the audit is permitted to commence within thirty (30) days of Tenant's request.
In conducting its audit, Tenant and its authorized agents, representatives, and
accountants shall have full access to Landlord's books and records. Any such
audit shall be at Tenant's sole cost and expense unless the audit reveals an
overcharge of more than five percent (5%) of Tenant's Proportionate Share of
Cost of Operation and Maintenance or of Taxes, as the case may be, in which
event Landlord shall, upon Notice from Tenant demanding payment, pay the
reasonable costs of the audit. If the audit reveals an undercharge or an
overcharge, then the amount due from Tenant shall be appropriately adjusted to
the extent indicated in accordance with the results of the audit. Pending the
determination of such dispute, Tenant shall pay Additional Rent in accordance
with the applicable Landlord's Statement, and such payment shall be without
prejudice to Tenant's position in any legal proceeding commenced by Tenant and
shall be without prejudice to Tenant's right to audit as herein provided.
F. Collection. Except as otherwise provided herein,
any Additional Rent payable pursuant to Paragraph 4 shall be collectible by
Landlord in the same manner as Monthly Rent, and Landlord shall have the same
remedies for nonpayment thereof as Landlord has hereunder for nonpayment of
Monthly Rent.
G. Sales Tax. Tenant further agrees to pay, in addition
to, but not in lieu of, the Monthly Rent and the Additional Rent, any and all
sales and use tax now or hereafter imposed by any governmental entity upon,
applicable to, or measured by or on the Monthly Rent and Additional Rent, or any
other charges payable to Landlord under this Lease ("Sales Tax"). Tenant shall
pay to Landlord, concurrently with each such payment of Monthly Rent or
Additional Rent or such other charges hereunder, the amount of Sales Tax
attributable to the payment being made to Landlord. If any Sales Tax is required
to be paid to the governmental taxing authority directly by Landlord, whether
during the term of this Lease or subsequent to the termination of this Lease (if
such Sales Tax is levied on the Monthly Rent or Additional Rent paid by Tenant),
then Landlord shall, upon demand, be fully reimbursed by Tenant for such
payment.
H. Electric. It is acknowledged by the parties that the
electric usage and service to the Premises is maintained and monitored by a
separate electric meter. However, this meter serves electric to the adjacent
Premises as well. The Adjacent Premises known as Suite 2198 is currently vacant.
Upon the Leasing of the Adjacent Premises, Tenant shall proportionately invoice
the Adjacent Premises tenant at the rate of 41% of the monthly FPL service
invoice. Tenant shall be responsible for the connection of service to the
utility provider and for the monthly charges applicable to Tenant's use at the
rate of 59% as long as there is a tenant in the adjacent Premises. Light bulb
replacement shall be at the expense of Tenant.
I. A/C System. Landlord shall be responsible for the
production of cooled air throughout the Common Areas and to the boundary of the
Premises.
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5. USE.
Tenant, its successors and assigns, shall use the Premises
exclusively for the purpose of a general business office and such related
activities approved by Landlord, in writing, and for no other use or purpose
whatsoever. Tenant shall comply with all laws, ordinances, rules and regulations
of applicable governmental authorities respecting the use, operation and
activities of the Premises, the Common Areas, Project Common Areas and Parking
Areas and Tenant shall not make, suffer or permit any unlawful, improper or
offensive use of the Premises, Building or Project, or any part thereof, or
permit any nuisance thereon. Tenant shall not make any use of the Premises,
Building or Project which would make void or voidable any policy of fire or
extended coverage insurance covering the Premises, Building or Project. Tenant
shall use the Premises only for the purpose stated in this Lease and shall not
leave said Premises vacant or suffer or permit any waste or mistreatment
thereof. Tenant agrees to abide by any rules or regulations promulgated by
Landlord, from time to time, including the Rules and Regulations attached hereto
as Exhibit AE@ and made a part of this Lease.
6. ACCEPTANCE OF PREMISES.
Taking possession of the Premises by Tenant shall be conclusive
evidence that the Premises were in good and satisfactory condition when
possession was so taken except for latent defects; provided, however, unless
Tenant shall give Notice to Landlord of any latent defects within the first
ninety (90) days following the Commencement Date, the exception for latent
defect shall be deemed omitted from this sentence. Unless expressly stated
herein to the contrary, Landlord has no obligation to repair, improve, or add to
the Premises subsequent to Tenant's taking possession thereof and Tenant shall,
at its sole cost and expense and in compliance with the provisions of this
Lease, be responsible for any changes, alterations, repairs, replacements,
maintenance, and decorations to the Premises. Neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Building or the Premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or relating to the Premises
except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set froth in
the provisions of this Lease. Landlord represents and warrants to Tenant that it
has not received any notice that the Building is currently in violation of any
laws, regulations, or ordinances.
7. TENANT'S CARE.
A. Standard of Care. Tenant will, at Tenant's sole expense,
take good care of the Premises and the fixtures and appurtenances therein,
reasonable wear and tear, and damage by fire, the elements, casualty, or Acts of
God excepted, and will suffer no active or permissive waste or injury thereof.
Tenant shall, at Tenant's expense, but under the direction of Landlord, promptly
repair any injury or damage whether structural or nonstructural to the Premises
or the Building or Parking Areas or Common Areas, or Project Common Areas and
facilities caused by the negligence or intentional acts of Tenant, or its
agents, invitees or employees, or Tenant moving in or out of the Premises. All
the aforesaid repairs shall be of quality or class equal to the original work or
construction, and shall be made in accordance with the provisions of
Subparagraph 7B hereof. If Tenant fails after thirty (30) days' Notice thereof
to proceed with due diligence to make the repairs required to be made by Tenant,
unless the repair is of an emergency nature or one which, if not promptly
repaired will further exacerbate the situation or prejudicially impact other
tenants, the repairs may be made by Landlord, at the expense of Tenant and the
expenses thereof incurred by Landlord plus twenty percent (20%) to reimburse
Landlord for its overhead and construction management services associated
herewith, after rendition of a xxxx or statement therefor, shall be reimbursed
by Tenant to Landlord within thirty (30) days of such billing. There shall be no
abatement of Rent or rent allowance to Tenant for diminution of rental value and
no liability on the part of Landlord by reason of inconvenience, annoyance or
injury to business arising from Tenant making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises, or in or to fixtures, appurtenances, or equipment thereof.
8
B. Alterations. Tenant will not, without Landlord's prior
written consent, make alterations, additions or improvements in or about the
Premises and will not do anything to or on the Premises which will increase the
rate of fire insurance on the Building. It is expressly understood and agreed
that, other than the Tenant Improvements, Landlord is not requiring Tenant to
make such improvements to the Premises, and Landlord and Tenant agree that no
improvements by Tenant shall be deemed "Improvements," within the meaning of the
Florida Construction Lien Law. All contractors, subcontractors, mechanics,
laborers, materialmen, and others who perform any work, labor or services, or
furnish any materials, or otherwise participate in the improvement of the
Premises shall be and are hereby given notice that Tenant is not authorized to
subject Landlord's interest in the Building or the Property to any claim for
construction, mechanics', laborers' and materialmen's liens, and all persons
dealing directly or indirectly with Tenant may not look to the Premises as
security for payment. Landlord has recorded a notice of the foregoing in the
Public Records of Palm Beach County, Florida, pursuant to the provisions of
Section 713.10, Florida Statutes. Tenant shall save Landlord harmless from and
against all expenses, liens, claims or damages to either property or person
which may or might arise by reason of the making of any such additions,
improvements, alterations and/or installations by Tenant. Tenant shall with
regard to all improvements and alterations made to or about the Premises,
including, without limitation, the Tenant Improvements, comply with the building
codes, regulations and laws now or hereafter to be made or enforced in the
municipality, county and/or state which have jurisdiction over such work. All
alterations, additions or improvements of a permanent nature made or installed
by Tenant to the Premises shall become the property of Landlord at the
expiration of this Lease, unless Landlord, by Notice to Tenant given no later
than thirty (30) days prior to the end of the Lease, elects to relinquish its
right thereto. In such event, Tenant shall remove the same at its sole cost and
expense and shall repair any damage to the Building or the Premises caused by
said removal.
Prior to making any alterations, including the Tenant Improvements, Tenant (i)
shall submit to Landlord detailed plans and specifications (including layout,
architectural, mechanical and structural drawings) for each proposed alteration
drawn in compliance with all applicable codes, ordinances and laws and shall not
commence any such alteration without first obtaining Landlord's written approval
of such plans and specifications, it being understood that neither Landlord's
approval of such plans and specifications nor the construction of such Tenant
Improvements pursuant to a contract between Landlord and a contractor, shall be
deemed a warranty or representation by Landlord that the plans and
specifications for such Tenant Improvements comply with applicable codes,
ordinances and laws, (ii) shall, at its expense, obtain all permits, approvals
and certificates required by any government or quasi-governmental bodies and
ensure that all work is performed in strict accordance with the plans and
specifications approved by Landlord, and (iii) shall furnish to Landlord
evidence of insurance for worker's compensation (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such alteration) and comprehensive public liability (including property
damage coverage) insurance in such form, with such companies, for such periods
and in such amounts as Landlord may require, naming Landlord and its agents as
additional insureds. Upon completion of such alteration, Tenant, at Tenant's
expense, shall obtain certificates of final approval of such alteration required
by any governmental or quasi-governmental bodies, if applicable, and shall
furnish Landlord with copies thereof. All alterations shall be constructed in a
good, workmanlike manner and strictly conform to the plans and specifications
approved by Landlord; shall be of a quality that equals or exceeds the then
current standard for the Building; all materials and equipment to be
incorporated in the Premises as a result of all alterations shall be new and
first quality; and no such materials or equipment shall be subject to any lien,
encumbrance, chattel mortgage or title retention or security agreement.
Landlord, at its option, may require Tenant to remove any additions installed by
Tenant and/or repair any alterations made by Tenant to the Premises, at Tenant's
sole cost and expense, if such physical additions and/or alteration (i) were not
pre-approved by Landlord in accordance with the provisions of this Subparagraph
B; or (ii) the contractor performing such work was not approved of by Landlord
in accordance with the provisions of Subparagraph 7D below; or (iii) the quality
of workmanship and/or quality of materials utilized in connection with such work
do not comply with the standards set forth in this Subparagraph B; or (iv) such
work was not performed in strict accordance with the plans and specifications
approved by Landlord.
If Landlord elects to require that Tenant remove any such additions or repair
any such alterations in accordance with the prior paragraph, Tenant shall do so
within thirty (30) days of the date Landlord gives Tenant Notice of Landlord's
election. If Tenant fails to correct such matters with said thirty (30) day
period, Landlord, may, but shall not be obligated to, remove such additions
and/or repair such alterations and Tenant shall reimburse Landlord for all costs
therefor, plus twenty percent (20%) to reimburse Landlord for its overhead and
construction management services associated therewith.
Tenant shall not, at any time prior to or during the Term, directly or
indirectly employ, or permit the employment of, any contractor, mechanic or
laborer in the Premises, whether in connection with any alteration or otherwise,
if such employment will unreasonably interfere or cause any material conflict
with other contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others. In the
event of any such unreasonable interference or material conflict, Tenant, upon
demand of Landlord, shall cause all contractors, mechanics or laborers causing
such interference or conflict to leave the Building immediately. All alterations
to which Landlord has consented shall be at Tenant's sole cost and expense,
unless such alterations are Tenant Improvements for which an Improvement
Allowance (defined below) shall be paid.
9
C. Removal of Personalty. No later than the last day of the
Initial Term or Renewal Term, as applicable, Tenant will remove all of Tenant's
personal property and repair all injury done by or in connection with
installation or removal of said property and surrender the Premises (together
with all keys to Premises) in good order and working condition, reasonable wear
and tear and damage by fire, the elements, Acts of God, or casualty excepted.
All property of Tenant remaining on the Premises after expiration of the Initial
Term or Renewal Term, as applicable, shall be deemed conclusively abandoned and
may be removed by Landlord and Tenant shall reimburse Landlord for the cost of
removing the same, subject however, to Landlord's right to require Tenant to
remove any improvements or additions made to Premises by Tenant pursuant to the
preceding Subparagraph B.
D. Approval of Contractors. In doing any work related to the
installation of Tenant's furnishings, fixtures, or equipment in the Premises or
in making any alterations pursuant to Subparagraph B above, Tenant will use only
contractors or workmen approved by Landlord, which approval shall not be
unreasonably withheld or delayed. Tenant shall promptly remove any lien for
material or labor claimed against the Premises by such contractors or workmen if
such claim should arise and hereby indemnifies and holds Landlord harmless from
and against any and all costs, expenses or liabilities incurred by Landlord as a
result of such liens filed by contractors or workmen hired by Tenant or its
agents.
E. Risk of Loss. Tenant agrees that all personal property
brought into the Premises by Tenant, its employees, licensees and invitees shall
be at the sole risk of Tenant, and Landlord shall not be liable for theft
thereof of money deposited therein or for any damages thereto; such theft or
damage being the sole responsibility of Tenant, unless such theft or damage is
caused by Landlord's defaults under the Lease or the negligence or intentional
acts of Landlord or its agents, contractors, or employees.
8. BUILDING HOURS OF OPERATION.
The normal business hours of the Building shall be from 8:00 a.m. to
6:00 p.m. on Monday through Friday and 8:00 a.m. to 5:00 p.m. on Saturday and
Sunday (the "Building Hours of Operation"). Landlord reserves the right to alter
the Building Hours of Operation to meet tenant needs; provided the normal
business hours shall never be less than the hours set forth in the prior
sentence. Landlord shall not be obligated to operate the Building on any day
which is defined as a legal holiday under Section 683.01, Florida Statutes, as
it may be amended from time to time. Tenant and its employees shall be permitted
access to the Building seven (7) days a week, twenty-four (24) hours a day,
subject to Landlord's reasonable security procedures. Tenant access at all other
times shall be accommodated by the Building security system. Should Tenant
desire to have the Building in operation in addition to the Building Hours of
Operation, Tenant shall give Landlord twenty-four (24) hours' notice thereof and
shall reimburse Landlord for all costs incurred by Landlord in connection
therewith.
9. LANDLORD SERVICES.
A. Description of Services. Landlord shall furnish the
following services:
(i) Air conditioning, as in Paragraph 4 (I)
(but excluding any supplemental air conditioning units installed for the sole
use of Tenant) during the Building Hours of Operation, which is reasonably
required for the comfortable occupation of the Premises, subject to any
governmental laws, regulations or restrictions pertaining to the furnishing or
use of such air conditioning.
(ii) Seven (7) days a week, twenty-four (24)
hours a day, passenger and freight elevator service; provided, however that
Tenant acknowledges that such freight elevator service shall be provided through
one of the passenger elevators and Tenant shall give the Building Manager not
less than three (3) hours' advance notice during Building Hours of Operation of
such freight elevator use so that Landlord may install appropriate protective
padding in such passenger elevator. The freight elevator may not be available
during peak usable hours when it is being used as a passenger elevator.
10
(iii) Toilet room supplies.
(iv) Window washing with reasonable frequency.
(v) Daily janitorial service during the time
and in the manner that such janitorial service is customarily furnished in
office buildings in the southeast Florida market.
(vi) Seven (7) days a week, twenty-four (24)
hours a day, water, fire sprinklers (solely to the Premises) and sewage
disposal.
(vii) Seven (7) days a week, twenty-four (24)
hours a day, electrical service for normal office use made available to the
boundaries of the Premises. The Premises shall be separately metered and Tenant
shall pay the utility furnishing electric service directly for electricity used
in the Premises.
(viii) Seven (7) days a week, twenty-four (24)
hours a day security for the Building at a level consistent with that generally
provided by other landlords of office buildings of comparable size located in
the southeast Florida market. Tenant acknowledges and agrees that due to the
limited size of the Building, such security may be in the form of card-key
access and that there are no current plans to have a lobby concierge or other
security personnel stationed in the Building. The immediately preceding sentence
shall not constitute a commitment of Landlord to continue the present stationing
of security personnel in the Building in the future.
Services to be provided by Landlord hereunder shall be subject
to the Rules and Regulations of the Building established by the Landlord.
B. Waiver of Liability. Landlord shall not be liable for any
damages directly or indirectly resulting from, nor shall the Rent as herein set
forth be abated by reason of (i) installation, use or interruption of use, of
any equipment in connection with the furnishing of any of the foregoing
services, or (ii) failure to furnish, or delay in furnishing, any such services
when such failure or delay is caused by accident or any condition beyond the
reasonable control of the Landlord or by the making of necessary repairs or
improvements to the Premises or to the Building. The temporary failure to
furnish any such services shall not be construed as an eviction of Tenant or
relieve Tenant from the duty of observing and performing any of the provisions
of this Lease.
C. Tenant Expenses. Tenant shall be responsible for all costs
associated with the maintenance, repair, and replacement of Tenant's personal
property and fixtures located within the Premises and the following: (a) the
cost of painting interior walls, (b) the cost of replacing wall paper on
interior walls, (c) the cost to decorate or redecorate the Premises, (d) the
cost of shampooing and replacing carpeting within the Premises, and (e) the cost
of light bulbs in the Premises. If Tenant uses services in an amount or for a
period in excess of that provided for herein, then Landlord reserves the right
to charge Tenant and Tenant shall pay Landlord as Additional Rent a sum equal to
the actual costs incurred by Landlord in providing such added services.
D. Maintenance. Other than Tenant's expenses described in
Subparagraph C above, Landlord shall keep the (i) foundation, exterior, windows,
walls, elevators, stairs, structural components, and roof of the Building; (ii)
Common Areas and Project Common Areas; (iii) Parking Areas; and (iv) plumbing,
air conditioning, mechanical, and electrical systems, and other Building
systems, in good order, repair and condition, unless any such work is necessary
because of any negligent or intentional act of Tenant as described in
Subparagraph 7A hereof, in which event the cost shall be borne by Tenant. Should
Tenant discover that any portion of the Premises, Building, Common Areas,
Project Common Areas, Parking Areas or other Building or Premises systems
require any repairs or maintenance as set forth in the preceding sentence,
Tenant shall promptly give Notice to Landlord of such discovery. This
Subparagraph D shall not apply to any damage caused by fire or other casualty or
condemnation as described in this Lease, which events shall be controlled by
Paragraphs 10 and 14 of this Lease.
11
10. DESTRUCTION OR DAMAGE TO THE PREMISES AND WAIVER OF
SUBROGATION.
A. If the Building or the Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as hereinafter provided in this Paragraph 10), then: (1)
Landlord shall repair the damage to and restore and rebuild the Building and the
core and shell of the Premises (including Tenant Improvements but excluding
Tenant's improvements and betterment and Tenant's Property) diligently and in a
workmanlike manner after the collection of the insurance proceeds attributable
to such damage, and (2) Tenant shall repair the damage to and restore and repair
Tenant's improvements and betterment and Tenant's personal property diligently
and in a workmanlike manner after the substantial completion of Landlord's
repairs and restoration of the core and shell of the Premises and the Tenant
Improvements provided for in clause (1) above, provided that Tenant shall not
have been given Notice by Landlord that this Lease has been terminated pursuant
to the provisions of this Paragraph 10, or Tenant shall not have elected to
exercise its right of termination of this Lease pursuant to this Paragraph 10.
Such repair work by Tenant shall be deemed to constitute alterations for the
purposes hereof. Provided that this Lease shall not have been terminated by
Landlord or Tenant, the proceeds of Tenant's policies providing coverage for
Tenant's improvements and betterment shall be paid to Tenant. In the event that
this Lease is terminated by Landlord or Tenant, Landlord shall be entitled to
retain from the insurance proceeds paid to it those portions of such proceeds
allocated to Tenant Improvements. Tenant shall be solely responsible for (i) the
amount of any deductible under the policy insuring Tenant's improvements and
betterment and (ii) the amount, if any, by which the cost of repairing and
restoring Tenant's improvements and betterment exceeds Tenant's available
insurance proceeds therefor.
B. If all or part of the Premises shall be damaged or
destroyed or rendered completely or partially untenantable on account of fire or
other casualty, Rent shall be abated in the proportion that the untenantable
area of the Premises bears to the total area of the Premises, for the period
from the date of the damage or destruction to (i) the date the damage to the
core and shell of the Premises (exclusive of Tenant's improvements and
betterment and Tenant's Property) shall be substantially repaired by Landlord
(provided, however, that if in Landlord's reasonable judgment based upon the
estimate of Landlord's independent contractors such repairs would have been
substantially completed at an earlier date but for Tenant's having failed to
reasonably cooperate with Landlord in effecting such repair, then the core and
shell of the Premises shall be deemed to have been repaired substantially on
such earlier date and any reduction or abatement shall then cease) or (ii) if
the Building and not the Premises is so damaged or destroyed, the date on which
the Premises shall be made tenantable and access thereto shall be available
substantially to the same extent existing immediately prior to the occurrence of
such fire or casualty; provided, however, should Tenant or any of its subtenants
reoccupy a portion of the Premises for the conduct of business during the period
the repair work is taking place prior to the date that the Premises are
substantially repaired or made tenantable, the Rent allocable to such reoccupied
portion, based upon the proportion which the area of the reoccupied Premises
bears to the total area of the Premises, shall be payable by Tenant from the
date of such occupancy.
C. If (i) the Building shall be totally damaged or destroyed
by fire or other casualty, or if the Building shall be so damaged or destroyed
by fire or other casualty (whether or not the Premises are damaged or destroyed)
that its repair or restoration requires more than one (1) year or the
expenditure of more than thirty five percent (35%) of the full insurable value
of the Building immediately prior to the casualty or (ii) if the Premises shall
be totally or substantially (i.e., for this purpose, more than fifty percent
(50%)) damaged or destroyed during the last two (2) years of the term of this
Lease, as same may have been extended (as estimated in any such case by a
reputable contractor, registered architect or licensed professional engineer
designated by Landlord), then in any such case Landlord may terminate this Lease
by giving Tenant Notice to such effect ("Landlord's Casualty Termination
Notice") as soon as practicable under the circumstances and in any event within
ninety (90) days after the date of the casualty. For the purpose of this
Subparagraph C only, "full insurable value" shall mean replacement cost less the
cost of footings, foundations and other structures below the ground floor of the
Building.
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D. (1) In the case of any damage or destruction mentioned in
this Paragraph 10, Tenant may terminate this Lease by Notice given to Landlord
in accordance with the last sentence of this Subparagraph 10D(1) if there has
been substantial damage or destruction to any portion or portions of the
Building or the Premises and Landlord shall not have completed the making of the
required repairs and restored and rebuilt the Building core and the Premises,
including Tenant Improvements, within one (1) year from the date of such damage
or destruction (herein called the "Restoration Completion Date"), or within such
period after such date as shall equal the aggregate period Landlord may have
been delayed in doing so by reasons of Force Majeure, delays caused by Tenant,
or delays which may be caused by reason of adjustment of Landlord's insurance
policies. Except as expressly provided in this Subparagraph 10D, Tenant shall
not be entitled to terminate this Lease and no damages, compensation or claim
shall be payable by Landlord for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the core and shell of
the Premises or of the Building, or the Tenant Improvements, pursuant to this
Paragraph 10. Landlord shall use all reasonable efforts to make such repair or
restoration diligently and in a workmanlike manner and in such manner as to not,
to the extent practicable, unreasonably interfere with Tenant's use and
occupancy of the Premises; provided, however, that: (i) Landlord shall not be
required to do such repair or restoration work on an overtime basis except to
the extent that the cost of such overtime work would be covered by Landlord's
insurance and (ii) upon Tenant's written request and agreement to bear the
incremental additional cost of same, Landlord shall perform the repair and
restoration of the core and shell of the Premises and the Tenant Improvements on
an overtime basis. In the event that Tenant becomes entitled to terminate this
Lease and the term and estate hereby granted pursuant to the provisions of the
first sentence of this Subparagraph 10D(1), Tenant may do so by giving Notice to
such effect to Landlord within thirty (30) days following the date on which
Tenant becomes so entitled, and upon the giving of such Notice this Lease and
the term and estate hereby granted shall terminate as of the date set forth in
such Notice, which shall not in any event be more than ninety (90) days after
the giving of such Notice, with the same force and effect as if such date were
the expiration date specified herein.
(2) Within ninety (90) days after the
occurrence of any such damage or destruction, Landlord shall give Tenant Notice
of the date that, in Landlord's good faith judgment, it estimates it shall be
able to substantially complete the required repairs and restorations (herein
called the "Anticipated Completion Date") subject to delays by reason of Force
Majeure, delays caused by Tenant, or delays which may be caused by reason of
adjustment of Landlord's insurance policies. If the Anticipated Completion Date
shall be after the Restoration Completion Date, Tenant shall have the right,
within thirty (30) days after the Notice of the Anticipated Completion Date is
given, to terminate the Lease by giving Notice of such termination to Landlord,
and on the date set forth in such Notice, which shall not in any event be more
than ninety (90) days after the giving of such Notice, this Lease will terminate
as if such date were the expiration date specified herein. If Tenant does not
give such termination Notice within said thirty-day period, then the Restoration
Completion Date provided for herein shall automatically be deemed extended to
the date which is ninety (90) days following the Anticipated Completion Date. In
no event shall Landlord be liable to Tenant in the event the restoration is not
completed on the Anticipated Completion Date (as extended for any of the causes
described above) and Tenant's sole remedy shall be the termination right herein
provided.
(3) Landlord and Tenant shall fully cooperate
with each other in connection with the collection of any insurance proceeds
payable in respect of any casualty to the Building and shall comply with all
reasonable requests made by each other in connection therewith, including,
without limitation, the execution of any affidavits required by the applicable
insurance companies.
(4) Except to the extent expressly set forth in
this Paragraph 10, Tenant shall not be entitled to terminate this Lease and
Landlord shall have no liability to Tenant for inconvenience, loss of business
or annoyance arising from any repair or restoration of any portion of the
Premises or of the Building pursuant to this Paragraph 10.
(5) Landlord shall not be obligated to repair
any damage to or replace any Tenant's improvements and betterment or Tenant's
property and Tenant agrees to look solely to its insurance for recovery of any
damage to or loss of Tenant's improvements and betterment, and Tenant's
property. If Tenant shall fail to maintain such insurance, and such failure
shall continue for ten (10) days after Notice by Landlord to Tenant specifying
same, Landlord, at Landlord's election, shall have the right (in its sole
discretion and without any liability whatsoever if Landlord elects not to do so)
to obtain insurance on Tenant's property, Tenant's improvements and betterment
and the cost thereof shall be Additional Rent under this Lease and payable by
Tenant to Landlord on demand.
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E. Each Party agrees to include in its insurance policies
insuring the Building, Tenant Improvements, Common Areas and any other
Landlord's improvements in the case of Landlord, and insuring Tenant's property
and Tenant other improvements and betterment in the case of Tenant, against
loss, damage or destruction by fire or other casualty, a waiver of the insurer's
right of subrogation against the other Party during the term of this Lease or,
if such waiver should be unobtainable or unenforceable, (i) an express agreement
that such policy shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty or (ii) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable from either party's then current insurance company, the
insured party shall so notify the other party promptly after learning thereof,
and shall use commercially reasonable efforts to obtain the same from another
insurance company meeting the requirements set forth herein. Each Party hereby
releases the other Party, with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party, for loss,
damage or destruction with respect to its property occurring during the term of
this Lease to the extent to which it is, or is required to be, insured under a
policy or policies containing a waiver of subrogation or permission to release
liability, as provided in the preceding subdivisions of this Paragraph. Nothing
contained in this Paragraph shall be deemed to relieve either party of any duty
imposed elsewhere in this Lease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this Lease.
11. DEFAULT BY TENANT - LANDLORD'S REMEDIES
A. Events of Default; Remedies. The following shall constitute
events of default: (i) Tenant's failure for five (5) days after Notice from
Landlord in paying any and all Rent as set forth herein; provided, however, in
the event Landlord is required to deliver Notice to Tenant to pay the Rent once
in any consecutive twelve (12) month period, thereafter, Landlord shall not be
obligated to provide Notice to Tenant and it shall be an event of default for
Tenant to fail to pay Rent on or before the fifth (5th) day of the month; or
(ii) Tenant's failure to observe or perform any item, covenant, or condition of
this Lease on Tenant's part to be observed and performed (other than the
covenant to pay any and all Rent) and Tenant shall fail to remedy such default
within thirty (30) days after Notice by Landlord to Tenant of such default; or
(iii) the entry against Tenant of a decree or order for relief in an involuntary
case under the federal bankruptcy laws (as now or hereafter constituted) or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) for Tenant or for any substantial part of
Tenant's property, or an order for the winding-up or liquidation of Tenant's
affairs; or (iv) the commencement by Tenant of a voluntary case under the
federal bankruptcy laws (as now constituted or hereafter amended) or any other
applicable federal or state bankruptcy, insolvency, or other similar law, or the
consent by Tenant to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) for
Tenant or for any substantial part of Tenant's property, or the making by Tenant
of any assignment for the benefit of creditors, or the failure of Tenant
generally to pay its debts as such debts become due, or the taking of corporate
action by Tenant in furtherance of any of the foregoing; or (v) levy upon or
attachment under process against the Premises or Tenant's effects or interest
therein. Upon the occurrence of any event of default beyond applicable notice
and cure period, Landlord, at its option, may, during continuance of such
default, terminate this Lease. Upon such termination by Landlord, Tenant will at
once surrender possession of the Premises to Landlord and remove all of Tenant's
effects therefrom; and landlord may forthwith re-enter the Premises and
repossess the Premises by any applicable action or procedure; and, subject to
applicable law, remove all persons and effects therefrom.
B. Right to Re-Let. Landlord, on Tenant's behalf, without
termination of this Lease, upon Tenant's default or breach of this Agreement, as
set forth in Subparagraph A above, may at Landlord's option, evidenced by Notice
to Tenant, terminate Tenant's right to possession and enter upon and re-let the
Premises at the price obtainable by reasonable effort, without advertisement,
and by private negotiations and for any term Landlord deems proper. Tenant shall
upon receipt of such Notice surrender possession of the Premises to Landlord and
remove all of Tenant's effects which Landlord does not elect to retain pursuant
to Landlord's statutory lien (pursuant to Florida Statute Chapter 83),therefrom
and Landlord may forthwith re-enter the Premises and repossess itself thereof
and remove all persons and effects therefrom in accordance with applicable law.
Tenant shall be liable to Landlord for the deficiency, if any, between the
amount of all Rent "reserved" in this Lease and the Net Rent (defined below), if
any, collected by Landlord in reletting the Premises, which deficiency shall be
due and payable by Tenant for the period in which Rent reserved in the Lease
would have been due and payable. "Net Rent" is gross rents collected less all
reasonable expenses or costs of whatsoever nature incurred by Landlord in
reletting the Premises, including, but not limited to attorneys' fees incurred
in retaking possession of the Premises and/or negotiating a new lease for the
Premises, broker's commissions with respect to the reletting of the Premises
only, rent concessions with respect to the Premises only and the cost of
renovating or remodeling the Premises. The term "reserved" as applied to Rent
shall mean any and all payments to which Landlord is entitled hereunder during
the entire term (Initial Term or Renewal Term, as the case may be) of this
Lease.
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C. Costs. In the event Landlord elects to terminate
this Lease as hereinabove provided and Tenant does not pay the accelerated rent
pursuant to Subparagraph D below, Landlord may, in addition to other remedies it
may have, recover from Tenant all damages Landlord may incur by reason of such
default, including the cost of recovering the Premises, reasonable attorneys'
fees, together with the unamortized (amortized over the Initial Term of this
Lease on a straight line basis and determined as of the first date on which Rent
was due but not paid) portion of a pro rata portion of (i) the Improvement
Allowance, (ii) leasing commissions, and any other cash concession in connection
with this Lease (which shall be amortized over the Initial Term of this Lease)
and including the value at the time of such determination of the excess, if any,
of the amount of Rent reserved in this lease for the remainder of the Term over
the then reasonable rental value of the Premises for the remainder of the Term,
all of which amounts shall be immediately due and payable from Tenant to
Landlord.
D. Acceleration of Rent. Upon Tenant's default, Landlord may
declare immediately due and payable all Monthly Rent and all Additional Rent and
any other charges and assessments against Tenant due or to become due under this
lease, which aggregate amount shall be discounted to present value at a discount
rate of three percent (3%) per annum.
E. Remedies Non-Exclusive. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other remedies
herein provided or any other remedies provided by law, whether at law or in
equity.
F. Landlord's Lien. Landlord shall have, upon default in
payment of Rent by Tenant, a lien in the principal amount of Rent in default,
upon the furniture, machinery, equipment and fixtures usually kept on the
Premises, regardless of whether Tenant or another has possession of the property
mentioned. If in accordance with the provisions of this Lease, Tenant assigns or
sublets all or any part of the Premises, Landlord also shall have a lien for
rent on the described property of the assignee or sublessee.
G. Right to Cure Default. All agreements, covenants,
conditions and provisions to be performed or observed by Tenant under this Lease
shall be at its sole cost and expense and without any abatement of Rent, except
as otherwise specifically provided herein. If Tenant shall fail to pay any sum
of money other than Rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Landlord may, after
providing the required notice and after expiration of the applicable cure
period, but shall not be obligated so to do, and without waiving or releasing
Tenant from any obligations of Tenant, make any such payment or perform any such
other act on Tenant's part to be made or performed as its lease provided. All
sums so paid by Landlord and all necessary incidental costs shall be deemed
Additional Rent hereunder and shall be payable to Landlord within thirty (30)
days of Landlord's Notice demanding payment, together with interest thereon at
the maximum rate of interest permitted to be contracted for by applicable law
and if there is no specific maximum rate of interest permitted to be contracted
for by applicable law then at the rate of fifteen percent (15%) per annum.
Interest shall accrue from the date of expenditure by Landlord to the date of
repayment by Tenant, and Landlord shall have (in addition to any other right or
remedy of Landlord) the same rights and remedies in the event of nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of Rent.
12. LANDLORD'S LIABILITY.
The term "Landlord" as used in this Lease shall mean only the
owner or the successors in interest to the owner from time to time of the
Building. Accordingly, in the event of sale of said Building or leasehold
interest or an assignment of this Lease, upon Notice to Tenant of such transfer
and written assumption by such successor in writing of all obligations arising
subsequent to such transfer, the selling or assigning Landlord shall be and is
hereby entirely freed and relieved of all obligations of Landlord subsequently
accruing, except for uncured Landlord defaults which exist on the date of
transfer and Landlord's indemnification obligations hereunder which relate to
matters arising during that part of the term of this Lease during which Landlord
owned the Building, for which Landlord shall continue to be liable
notwithstanding the transfer of its interest in the Building or Premises. It is
specifically understood and agreed that there shall be no personal liability of
Landlord in respect of any covenant, condition or provisions of this Lease; in
the event of a breach or default by Landlord or any of its obligations under
this Lease, Tenant shall look solely to Landlord's right, title and interest in
the Building, including, but not limited to the sale proceeds therefrom,
insurance proceeds, condemnation proceeds, rent proceeds and insurance proceeds
maintained by Landlord as provided herein with respect to Landlord's contractual
indemnity obligations contained herein, for the satisfaction of Tenant's
remedies.
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13. ASSIGNMENT AND SUBLETTING.
Tenant shall not, without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole and absolute
discretion, upon the delivery by the proposed assignee of such documentation
reflecting said assignee's commercially satisfactory financial condition and
business acumen, assign this Lease or any interest thereunder, or sublet the
Premises or any part thereof, or permit the use of the Premises by any party
other than Tenant. As used herein the term subtenant shall include any assignee
of the Lease or any interest therein. Tenant shall submit to Landlord a written
request for the consent of the Landlord to such assignment or subletting which
request shall be accompanied by the name of the subtenant, a copy of the fully
executed sublease which sublease shall be solely conditioned upon Landlord's
consent thereof, the nature and character of the business of the proposed
subtenant, the proposed use of the Premises, current financial information on
the subtenant, and such additional information as Landlord may reasonably
request. Consent by Landlord to one assignment or sublease shall not constitute
a waiver of the requirement for Landlord's consent in the future, and all later
assignments and subleases shall likewise be made only upon the prior written
consent of Landlord. Subtenants or assignees shall become liable directly to
Landlord for all obligations of Tenant hereunder without, however, relieving
Tenant of its liability under this Lease.
Tenant agrees that the instrument by which any assignment or
subletting consented to by Landlord is accomplished shall expressly provide that
the assignee or subtenant will perform and observe all the agreements,
covenants, conditions and provisions to be performed and observed by Tenant
under this Lease as and when performance and observance is due and that Landlord
shall have the right to enforce such agreements, covenants, conditions and
provisions directly against such assignee or subtenant. Tenant shall in all
cases remain primarily responsible for the performance by any subtenant or
assignee of all such agreements, covenants, conditions and provisions. Any
assignment or subletting without an instrument containing the foregoing
provision shall be void and shall, at the option of the Landlord, constitute a
default hereunder entitling Landlord, among its remedies, to terminate this
Lease.
A sublease of any such space shall be subject to all of the
terms hereof, but no subtenant shall have the right to exercise any option to
renew or extend the term hereof, either in whole or in part. Tenant shall
continue to have the right to exercise any then existing option to renew and
extend the term of this Lease.
Any subtenant's use of such space shall be in conformance with
the terms of this Lease including, without limitation, the use requirements and
prohibitions contained herein. Additionally, Tenant shall not sublease any of
such space to any subtenant who is or might become engaged in any activity which
does or could, in the opinion of Landlord, generate excessive flow of customers
or invitees to or from such space, nor to any subtenant that is or could become
engaged in any activity the conduct of which would be considered by reasonably
prudent operators of office buildings in the area of the Premises to be
inconsistent with the operation of an office building in such area or
inconsistent with this Lease.
Tenant shall give Landlord Notice of its desire and intention
to sublease all or some portion of such space not less than sixty (60) days
prior to the commencement of the term of any sublease, and shall, at the same
time, furnish Landlord the items required by the first paragraph of this
Paragraph 13, and Landlord shall have thirty (30) days following the receipt of
such Notice and items within which to give Notice to Tenant of its withholding
of consent to such sublease. Failure by Landlord to timely advise Tenant of its
objection to such proposed sublease, shall be a waiver of any such permitted
objections thereto by Landlord.
The following are additional conditions and restrictions upon
assignment or subletting by Tenant:
A. Any sublease shall be expressly subject and
subordinate to all of the terms and provisions of the Lease;
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B. Tenant agrees not to list or otherwise publicly advertise
the Premises for assignment or subletting at a rental rate less than (a) the
rate of the Rent then payable hereunder for the Premises, (b) the rate at which
Landlord is then offering comparable space in the Building (and Landlord agrees,
upon written request from Tenant, to advise Tenant of such rate), whichever is
lower, but may negotiate a lesser rate or (c) with a real estate or leasing
agent other than Landlord=s designated real estate agent for listing of
leasehold premises within the Building, which may be an affiliated party of
Landlord.
C. Tenant agrees not to offer to assign nor sublet to
a party which is already a tenant of the Project or to a subsidiary, an
affiliate, or a parent of a tenant of the Project;
D. If Tenant shall sublet or assign all or a portion of the
Premises for a rental in excess of the total Rent stipulated herein, which is or
may become due and owing, then Tenant shall pay to Landlord as Additional Rent
all of such excess amount excluding the reasonable costs incurred by Tenant in
connection with the transfer. In addition, Tenant shall also pay to Landlord, as
Additional Rent, all other profit, gain, or consideration realized by Tenant in
connection with the subletting or assignment. Landlord shall have the right to
audit Tenant's books and records during reasonable business hours, at a location
in South Florida reasonably designated by Tenant, upon reasonable notice to
determine the amount of transfer consideration payable to Landlord under this
Subsection D. In the event such audit reveals an understatement of the transfer
consideration in excess of two (2%) percent of the actual transfer consideration
due Landlord, Tenant shall pay for the cost of such audit with ten (10) days
following Landlord's written demand for same;
E. Such subletting or assignment shall not cause
Landlord any cost, and if Landlord incurs any cost whatsoever, then Tenant
agrees to pay the same as Additional Rent;
F. Tenant shall not sublease or assign any portion of
the Premises to any party if such sublease or assignment would violate the
exclusivity clause contained in any lease effecting any portion of the Project;
G. With respect to subletting less than all the
Premises, Tenant at its sole cost and expense, shall provide and permit
reasonable means of ingress to and egress from the space sublet by Tenant;
H. If Landlord consents to an assignment of the
Lease or a sublease of the Premises, Tenant shall not be released from its
obligations under this Lease but shall remain primarily liable for all sums
payable under this Lease;
I. Tenant shall pay to Landlord a transfer fee not to
exceed Two Thousand Five Hundred Dollars ($2,500.00), prior to the effective
date of the proposed transfer in order to reimburse Landlord for all of its
costs and expenses incurred with respect to the transfer; and
J. The proposed transferee is a reputable person or entity of
good character or reputation and has sufficient financial wherewithal to
discharge its obligations under this Lease as determined by Landlord pursuant to
Landlord's criteria for selecting tenants determining whether the proposed
transferee has a net worth, experience and reputation that is in keeping with
the standard set by Landlord for the Building and is not less than the net worth
or value, or member's equity that Tenant had on the Commencement Date.
If Tenant is a corporation, or if Tenant is a general or limited
partnership having a corporation as a general partner, then a sale, assignment,
transfer, exchange or other disposition of stock in such corporation, or a
merger, consolidation or other combination of such operation with another,
wherein operating control of the corporation is acquired by another, shall be
deemed an assignment which is subject to the provisions of this Paragraph 13. If
Tenant is a general or limited partnership, then the sale, assignment, transfer,
exchange or other disposition of a general partner's interest in the Tenant, the
substitution of a general partner in the Tenant, the addition of a general
partner in the Tenant, or the transfer of a majority of the partners' interests
in the partnership shall be deemed an assignment which is subject to the
provisions of this Paragraph 13. For purposes of this Lease, a joint venture
shall be deemed to be a partnership and a joint venturer a partner.
17
If Tenant's interest in this Lease is assigned or if the Premises or
any part thereof are sublet to, or occupied by, or used by, any one other than
Tenant, whether in violation of this Paragraph 13 or not, Landlord may, after
default by Tenant, accept from any assignee, sublessee or any one who claims a
right to the interest of Tenant under this Lease or who occupies any part or the
whole of the Premises the payment of Rent and/or the performance of any of the
other obligations of Tenant under this Lease, but such acceptance shall not be
deemed to be a waiver by Landlord of the breach by Tenant of the provisions of
this Paragraph 13, nor a recognition by Landlord that any such assignee,
sublessee, claimant or occupant has succeeded to the rights of Tenant hereunder,
nor a release by Landlord of Tenant from further performance by Tenant of the
covenants on Tenant's part to be performed under this Lease; provided, however,
that the net amount of rent collected from any such assignee, sublessee,
claimant or occupant shall be applied by Landlord to the Rent to be paid
hereunder.
Notwithstanding anything in this Paragraph 13 to the contrary, within
thirty (30) days of the date that Landlord receives Notice from Tenant that
Tenant desires to assign this Lease or sublet all or any portion of the
Premises, Landlord shall have the right to terminate this Lease effective as of
the date that Tenant proposes to assign this Lease or sublet all or any portion
of the Premises. Said right to terminate this Lease shall be exercised by
Landlord giving Notice of termination within thirty (30) days of the date that
Landlord received Tenant's Notice regarding Tenant's proposed assignment or
sublet.
14. CONDEMNATION.
A. If the whole of the Building or the Premises shall be taken
by condemnation or in any other manner for any public or quasi-public use or
purposes, this Lease and the term and estate hereby granted shall terminate as
of the date of vesting of title on such taking (herein called "Date of the
Taking"), and the Rent shall be prorated and adjusted as of such date.
B. If any part of the Building or the Premises less than the
whole shall be so taken, this Lease shall be unaffected by such taking, except
that (a) if thirty percent (30%) or more of the Building shall be so taken,
Landlord may, at its option, terminate this Lease by giving Tenant Notice to
that effect within ninety (90) days after the Date of the Taking, and (b) if
fifty percent (50%) or more of the rentable square feet of the Premises shall be
so taken and the remaining rentable square feet of the Premises shall not be
reasonably sufficient for Tenant to continue feasible operation of its business,
Tenant may terminate this Lease by giving Landlord Notice to that effect within
ninety (90) days after the Date of the Taking. This Lease shall terminate on the
date specified in such Notice from Landlord or Tenant to the other, provided
that such date shall be not more than ninety (90) days after the giving of such
Notice, and the Rent shall be prorated and adjusted as of such termination date.
Upon such partial taking and this Lease continuing in force as to any part of
the Premises, Monthly Rent and the Tenant's Proportionate Share shall be
equitably adjusted.
C. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without reduction therefrom for any estate
vested in Tenant by this Lease or any value attributable to the unexpired
portion of the term of this Lease and Tenant shall receive no part of such award
except as hereinafter expressly provided in this Subparagraph. Tenant hereby
expressly assigns to Landlord all of its right, title and interest in and to
every such award or payment and waives any right to the value of the unexpired
portion of the term of this Lease; provided, however, Tenant may make a separate
claim against the condemning authority for the value of Tenant's property lost,
and moving expenses incurred, by reason of such taking, if Landlord's award is
not reduced thereby.
D. If the temporary use or occupancy of all or any part of the
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose during the term of this Lease, Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
or payment for such taking which represents compensation for the use and
occupancy of the Premises, for the taking of Tenant's property and for moving
expenses, and Landlord shall be entitled to receive that portion, if any, which
represents reimbursement for the cost of restoration of the Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue to be
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay in full the Monthly Rent
and Additional Rent when due. If the period of temporary use or occupancy shall
extend beyond the expiration date of this Lease, that part of the award which
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
expiration date and Landlord shall receive so much thereof as represents the
period after such expiration date.
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E. In the event of a taking of less than the whole of the
Building and/or the Property which does not result in termination of this Lease,
or in the event of a taking for a temporary use or occupancy of all or any part
of the Premises which does not result in a termination of this Lease, Landlord,
at its expense, and whether or not any award or awards shall be sufficient for
the purpose, shall proceed with reasonable diligence to repair any remaining
parts of the Building and the Premises (other than Tenant's property) to
substantially their former condition to the extent that the same may be feasible
(subject to reasonable changes which Landlord shall deem desirable) and so as to
constitute a complete and rentable Building and Premises.
15. INSPECTIONS AND ACCESS TO PREMISES.
Landlord or Landlord's agents shall have the right to enter the Premises at all
times subsequent to reasonable notice to Tenant (except that no such notice
shall be required in the case of an emergency) to examine the Premises, to
survey the Premises, to show the prospective purchasers, mortgagees or lessees
of the Building or space therein, and to make such reasonable repairs,
alterations, improvements or additions as Landlord may deem necessary or
desirable to the Premises or to any other portion of the Building or which
Landlord may elect to perform following Tenant's failure to make repairs or
perform any work which Tenant is obligated to perform under this Lease, or for
the purpose of complying with laws, regulations or other requirements of
government authorities. Landlord shall be allowed to take all material into and
upon the Premises that may be required in connection with said activity without
the same constituting an eviction or constructive eviction of Tenant in whole or
in part and the Rent shall not otherwise xxxxx while said activity is being
conducted, by reason of loss or interruption of business of Tenant, or
otherwise, so long as Landlord's activities do not unreasonably interfere with
the operation of Tenant's business. If Tenant shall not be personally present to
open and permit an entry into the Premises, at any time when entry therein shall
be necessary for emergency reasons, Landlord or Landlord's agents may enter by a
master key, or may forcibly enter, without rendering Landlord or such agents
liable therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting the
obligations and covenants of this Lease. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever for the care, supervision or repair of
the Building or any part thereof, other than as herein provided.
16. SUBORDINATION AND LEASE AMENDMENT.
This Lease shall be subject and subordinate to any underlying
land leases and/or mortgages which may now or hereafter affect this Lease or the
Property and to all renewals, extensions, supplements, amendments,
modifications, consolidations and/or replacement of the underlying land leases
and/or mortgages. This clause shall be self-operative and no further instrument
of subordination shall be required to make the interest of any lessor under an
underlying land lease or mortgagee of any mortgage superior to the interest of
Tenant hereunder. However, in confirmation of the subordination set forth in
this Paragraph 16, Tenant shall, at Landlord's request, execute and deliver such
further instruments as may be desired by any holder of a mortgage or by any
lessor under any such underlying land leases and Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any
such certificate or certificates for and on behalf of Tenant if Tenant is unable
to provide such certificate or certificates within five (5) days of Landlord's
request. In the event Landlord's mortgagee shall reasonably require any changes
in or additions to this Lease, Tenant hereby agrees to amend this Lease to
effect such changes or additions and Landlord shall bear the full expense of the
preparation and recording of the necessary written instruments; provided,
however, nothing in this Paragraph 16 shall obligate Tenant to agree to any
change in the amount of Rent required of Tenant hereunder, or to any change in
the term of this Lease.
At any time and from time to time but on not less than five
(5) days' Notice by Landlord, Tenant will execute, acknowledge and deliver to
Landlord, promptly upon request, an estoppel certificate certifying:
A. That this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect as modified, and stating the date and nature of each modification);
B. The date, if any, to which Rent and other sums
payable hereunder have been paid, and the amount of security deposit and prepaid
Rent, if any;
C. That no notice has been received by Tenant of any
default which has not been cured except as to default specified in such
certificate;
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D. That Landlord is not in default hereunder, except as
to default specified in such certificate, nor is there now any fact or condition
which, with notice or lapse of time or both, will become a default;
E. Such other matters as may be reasonably requested
by Landlord or any actual or prospective purchaser or mortgage lender. Any such
certificate may be relied upon by any actual or prospective purchaser, mortgagee
or beneficiary under any deed or mortgage of the Building or any part thereof;
and
F. Tenant hereby appoints Landlord as its attorney-in-fact for
the purpose of preparing the estoppel certificate in the event Tenant is unable
to provide such a certificate within the aforesaid five (5) day period.
If at any time prior to the expiration of the Initial Term or
Renewal Term, as applicable, any underlying land lease shall terminate or be
terminated for any reason, Tenant agrees, at the election and upon written
demand of any owner of the land or the Building, or of the lessor under any such
underlying land lease, or of any mortgagee in possession of the land or the
Building, to attorn, from time to time, to any such owner, lessor or mortgagee,
upon the then executory terms and conditions of this Lease, for the remainder of
the term originally demised in this Lease, provided that such owner, lessor or
mortgagee, as the case may be, or receiver caused to be appointed by any of the
foregoing, shall then be entitled to possession of the Premises. Notwithstanding
the foregoing, this Lease shall not terminate by treason of the termination of
any underlying land lease without the prior written consent of the holder of any
mortgages on the land. The provisions of this paragraph shall inure to the
benefit of any such owner, lessor or mortgagee, shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the terminations of any
such underlying land lease, and shall be self-operative upon any such demand,
and no further instrument shall be required to give effect to said provisions.
Tenant, however, upon demand of any such owner, lessor or mortgagee, agrees to
execute, from time to time, instruments in confirmation of the foregoing
provisions of this paragraph, satisfactory to any such owner, lessor or
mortgagee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this paragraph shall be
construed to impair any right otherwise exercisable by any such owner, lessor or
mortgagee.
17. INDEMNITY.
Tenant covenants and agrees to indemnify and save Landlord and its
agents harmless from and against any and all claims, liabilities, fines,
damages, penalties, suits, and expenses of all kinds or nature, including
reasonable attorneys' fees, disbursements and costs, including those for
appellate matters, which may be imposed upon or incurred by or asserted against
Landlord by reason of or arising out of (i) any occurrences within the Premises
(except when such injury, loss or damage results from the negligence or
intentional acts of Landlord, its agents or employees); (ii) any negligent or
intentional acts of Tenant, its agents, employees, guests, invitees or
contractors; (iii) Tenant's default in the observance or performance of any
obligations set forth in this Lease to be observed or performed by Tenant; or
(iv) Tenant's failure to comply with any of the requirements of Americans with
Disabilities Act ("ADA") or Florida Accessibility Code ("FAC") within the
Premises. The provisions of this Paragraph shall survive the expiration or
sooner termination of this Lease.
18. INSURANCE.
The Tenant covenants to provide on or before the Commencement
Date and keep in force during the Term of this Lease, a comprehensive general
liability insurance policy insuring the Landlord and Tenant against bodily
injury, property damage and personal injury. This policy shall be in the amount
of Two Million Dollars ($2,000,000.00) with respect to bodily injury and One
Million Dollars ($1,000,000.00) with respect to property damage. The policy
shall be written by a good and solvent insurance company qualified to do
business in the State of Florida and approved by Landlord and shall include the
Landlord and Landlord's agent as additional named insureds. The original
policies or certificates thereof, together with evidence of payment therefor,
shall be delivered to Landlord prior to the Commencement Date. Tenant shall
renew said policy not less than thirty (30) days prior to the expiration date
thereof, from time to time, and furnish said renewals and evidence of payment
therefor to Landlord. Such policy or certificates shall contain a provisions
that the insurer will not cancel or materially change the policy without first
giving Landlord thirty (30) days prior written notice.
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Tenant, at its expense, shall maintain at all times during the
term of this Lease, "all risk" property insurance covering all of the Tenant's
personal property and improvements and betterments installed by or on behalf of
Tenant within the Premises whether now or in the future for the full insurable
value thereof, to include a replacement cost endorsement, written by a good and
solvent insurance company qualified to do business in the State of Florida,
naming Tenant as the insured. The original policies or certificates thereof,
together with evidence of payment therefor, shall be delivered to Landlord prior
to the Commencement Date. Tenant shall renew said policy not less than thirty
(30) days prior to the expiration date thereof from time to time, and furnish
said renewals and evidence of payment therefor to Landlord. Each such policy
shall be non-cancelable for any cause and not be materially changed without
first giving Landlord thirty (30) days' Notice. Tenant hereby waives any rights
of action against Landlord for loss or damage to Tenant Improvements, fixtures
and personal property in Premises.
Landlord shall at all times during the term of this Lease
insure the Building, Tenant Improvements, Property, and Project against risk of
physical loss under standard fire and extended coverage policies of insurance in
an amount at least equal to the full replacement cost of the Building and Tenant
Improvements. Landlord shall not be obligated to insure any personal property of
Tenant upon or within the Premises, or any improvements which Tenant may
construct on the Premises. Landlord shall, at its own expense, keep in full
force and effect comprehensive general liability insurance with "personal
injury" coverage, with minimum limits of $1,000,000.00 on account of bodily
injuries to, or death of, one or more persons per occurrence and $500,000.00 on
account of damage to property. Landlord's maintaining insurance as required
under this Lease shall not diminish Landlord's obligations under this Lease.
19. FINANCIAL REPORTS.
Intentionally Omitted
20. HOLDING OVER.
Tenant acknowledges that possession of the Premises must be
surrendered to Landlord at the expiration or sooner termination of the Term of
this Lease. Tenant agrees to indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. The parties recognize and agree that
the damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises as aforesaid will be extremely substantial, will
exceed the amount of the Monthly Rent and Additional Rent theretofore payable
hereunder, and will be impossible to accurately measure. Tenant therefore agrees
that if possession of the Premises is not surrendered to Landlord on the date of
the expiration or sooner termination of the Term of this Lease, then Tenant
shall pay to Landlord for each month and for each portion of any month during
which Tenant holds over in the Premises after the expiration or sooner
termination of the Term of this Lease, without the express written consent and
approval of Landlord, a sum equal to two times the aggregate of that portion of
the Monthly Rental and Additional Rental which was payable under this Lease
during the last month of the Term hereof. Nothing herein contained shall be
deemed to permit Tenant to retain possession of the Premises after the
expiration or sooner termination of the Term of this Lease. The provisions of
this Paragraph shall survive the expiration or sooner termination of the term of
this Lease.
21. ENTIRE AGREEMENT - NO WAIVER.
21
This Lease contains the entire agreement of the parties hereto
and no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein, shall be of any force or effect. The
failure of either party to insist in any instance on strict performance of any
covenants or condition hereof, or to exercise any option herein contained, shall
not be construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally but only by an
agreement in writing signed by both parties hereto.
22. HEADINGS.
The headings in this Lease are included for convenience only
and shall not be taken into consideration in any construction or interpretation
of this Lease or any of its provisions.
23. NOTICES.
Any notice required or permitted hereunder to be given by
either party to the other and denominated a "Notice" herein shall be valid only
if in writing and shall be deemed to be duly given only if delivered personally,
sent by overnight courier or sent by registered or certified, postage prepaid
U.S. Postal Service mail addressed to the addresses designated in the BLI Rider
attached hereto, or at such other address for either party as that party may
designate by Notice to the other; Notice shall be deemed given, if delivered
personally, upon delivery thereof, or if mailed, upon the posting thereof with
sufficient postage affixed.
Tenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, the person in charge of the Premises at
the time occupying the Premises; if there is no person occupying the Premises,
then such service may be made by attachment thereof on the main entrance of
Premises.
24. HEIRS AND ASSIGNS - PARTIES.
A. The provisions of this Lease shall bind and inure to the
benefit of the Landlord and Tenant, and their respective successors, heirs,
legal representatives, and assigns (subject to the provisions hereof relating to
restrictions on Tenant's ability to assign), it being understood that the term
"Landlord" as used in this Lease, means only the owner of the Property and the
Building of which the Premises are a part. Should the Building be severed as to
ownership by sale and/or lease, then the owner of the entire Building or less of
the entire Building that has the right to lease space in the Building to tenants
shall be deemed the "Landlord." Tenant shall be bound to any such succeeding
party landlord for performance by Tenant of all the terms, covenants, and
conditions of this Lease and agrees to execute any commercially reasonable
attornment agreement not in conflict with the terms and provisions of this Lease
at the request of any such succeeding Landlord.
B. The parties "Landlord" and "Tenant", and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
25. ATTORNEYS' FEES.
Landlord shall be entitled to recover attorneys' fees and
disbursements incurred in connection with a Tenant default hereunder which does
not result in the commencement of any action or proceeding. If any action is
brought by either Landlord or Tenant against the other relative to the
enforcement of the terms, provisions, covenants and conditions of this Lease or
in regard to any other matter relating to the Lease, the party in whose favor a
final unappealable judgment shall be entered shall be entitled to recover court
costs incurred and reasonable attorneys' and legal assistants' fees, including,
without limitation, such fees in trial, post-judgment, appellate and bankruptcy
proceedings.
26. TIME OF ESSENCE.
Time is of the essence of this Lease.
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27. SECURITY DEPOSIT.
The Security Deposit provided for in the BLI Rider shall be
security for the full and faithful performance and observance by Tenant of the
covenants, terms and conditions of this Lease, including, without limitation,
the payment of Monthly Rent, Additional Rent and any other charges payable under
this Lease. The Security Deposit shall not be escrowed or segregated and no
interest shall be payable on the Security Deposit. It is agreed and acknowledged
by Tenant that the Security Deposit is not an advance payment of Rent or a
measure of Landlord's damages in the case of default by Tenant. Upon the
occurrence of an event of default under this Lease, Landlord may use, apply or
retain the whole or any part of the Security Deposit to the extent required for
the payment of all or any part or component of any payments due to Landlord by
Tenant hereunder, or any other sum as to which Tenant is in default, or for the
payment of any other injury, expense or liability resulting from any event of
default. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand an amount necessary to restore the Security Deposit to
its original amount. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Lease, the
Security Deposit shall be returned to Tenant within sixty (60) days after the
expiration of the term of this Lease provided that the Premises are delivered to
Landlord in accordance with the terms hereof. Upon every sale or lease of the
Building, Landlord shall be released from all liability for the return of the
Security Deposit, and Tenant shall look to the new landlord for its return. The
Security Deposit shall not be assigned or encumbered by Tenant, and any such
assignment or encumbrance shall be void.
28. TENANT IMPROVEMENTS; IMPROVEMENT ALLOWANCE.
Landlord shall provide a tenant improvement allowance as
provided in the BLI Rider ("Improvement Allowance") of $ ZERO, which is $ZERO
per each Rentable Square Foot of the Premises, which shall be used exclusively
for the purposes set forth on Exhibit "F" and shall be disbursed in accordance
with the provisions of Exhibit "F." Tenant shall be responsible for all costs
associated with the design and construction of the Tenant Improvements to the
Premises over and above the Improvement Allowance. To the extent the cost of the
Tenant Improvements are less than the Improvement Allowance, the difference
shall be retained by Landlord.
29. PARKING ARRANGEMENTS AND COMMON AREAS.
A. Use of Parking Areas (other than Garage(s)), Common Areas
and Project Common Areas. In addition to the Premises, other than the Garage(s),
Tenant shall have the right to non-exclusive use, in common with Landlord, other
tenants, and the guests, employees and invitees of same of (a) automobile
parking areas, driveways and footways, and (b) such loading and other facilities
as may be designated from time to time by Landlord, subject to the terms and
conditions of this Lease and to the Rules and Regulations for the use thereof as
prescribed from time to time by Landlord. Landlord hereby grants to Tenant, its
customers and employees, the non-exclusive right to use all available unreserved
parking spaces located in the parking areas serving the Building. The parking
area shall be provided with adequate lighting and shall be maintained in good
condition by Landlord, consistent with the maintenance of other parking
facilities of office buildings in the southeast Florida market; provided that,
Landlord shall have the right at any time and from time to time to change or
modify the design and layout of the parking area(s).
The Common Areas and Project Common Areas subject to the exclusive
control and management of Landlord and Landlord shall have the right to
establish, modify and change and enforce from time to time Rules and Regulations
with respect to the Common Areas and Project Common Areas so long as such rules
are not discriminatory against Tenant. Tenant agrees to abide by and conform
with such rules and regulations.
Neither the Parking Area (inclusive of Garage(s)) nor any Common Area
or Project Common Area shall be used by Tenant, or any agent or employee of
Tenant, for any advertising, political campaigning or other similar use,
including without limitation, the dissemination of advertising or campaigning
leaflets or flyers.
Landlord reserves the right to allocate areas for parking (both inside
and outside the Garage(s)) to or for the benefit of one or more tenants without
any obligation of allocating the same for all tenants or any other tenants.
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In the event Landlord deems it necessary to prevent public access to
the Building, Landlord may from time to time temporarily close portions of the
Common Areas and Project Common Areas, and may erect private boundary markets or
take such steps as deemed appropriate for that purpose but in so doing Landlord
agrees to use its best efforts to prevent any such action from having a material
adverse effect upon the business of Tenant.
B. Use of Garage(s). In the event Landlord elects to construct
the Garage(s), the Garage(s) designated for use by Tenant, and its customers,
guests and employees shall contain not less than the minimum number of parking
spaces required by applicable governmental regulations, inclusive of handicapped
parking spaces. During the Building Hours of Operation, Tenant shall have the
right to park standard size automobiles in the Garage(s) during the term of this
Lease excluding, however, trucks, commercial vehicles and campers in excess of
one ton capacity or possessing more than four (4) wheels, and vehicles with a
height of greater than 6'8", a length greater than 17'6" or a width greater than
8'. The taxes and cost of the operation of the Garage(s) or other parking
facilities for the Building, which may hereafter become available for use by the
occupants of the Building, shall be considered a Cost of Operation and
Maintenance as defined in Paragraph 4A(ii) and such costs shall be reasonably
apportioned between any other buildings benefitted by the Garage(s), in
accordance with Paragraph 4 above. Landlord shall have the right to assign or
not assign specific parking spaces. If Landlord shall assign specific parking
spaces to Tenant, it shall have the right to change such space assignments from
time to time upon Notice to Tenant. If Landlord shall assign specific spaces to
Tenant, Tenant shall park only in its assigned spaces. If Landlord shall not
assign specific spaces to Tenant, then Tenant shall park in available spaces
only, and shall not park in spaces assigned to other parties. In the event
Landlord shall elect to assign parking on a reserved basis, Landlord shall
endeavor, in its reasonable judgment, to allocate spaces to Tenant and other
occupants in the Building of similar size and operation on an equitable basis;
but nothing shall prevent Landlord from entering into special allocation
arrangements with some but not all tenants or occupants. Landlord reserves the
right to convert all or portions of the Garage(s) to a "valet" style parking
program, and to stack vehicles in order to maximize parking capacity, and Tenant
agrees to comply with any reasonable requirements of Landlord in connection
therewith so long as the number of parking spaces allocated for exclusive use by
Tenant's employees and customers is not reduced. "Parking Space" as used in this
Lease shall refer to Tenant's right to park a vehicle in a paved parking space
or to house or to park or have a vehicle housed or parked in the Garage(s) or
other parking facilities serving the Building during the Building Hours of
Operation. Tenant agrees to cause all parties using Parking Spaces, including
Tenant's visitors, to comply with the terms of this Lease including without
limitation parking on a "first-come, first-served" basis.
Tenant shall also have the right to use other Parking Spaces that
become available (as determined by Landlord) from time to time subject to
payment of Landlord's customary charges to the general public therefor (as
described below), the availability of such Parking Spaces from time to time and
Landlord's right to recapture the use of such Parking Spaces at any time if
Landlord determines that it shall require them for other purposes.
In the event Garage(s) are constructed, Landlord shall have the right
to charge Tenant's employees for the privilege of parking in the Garage(s). The
charge shall be consistent with prevailing market rates for garages in the
southeast Florida market.
30. RULES AND REGULATIONS.
Tenant shall observe and comply with the Rules and Regulations
annexed hereto as Exhibit "E" and made a part hereof, and such further
reasonable rules and regulations as Landlord may prescribe on Notice to Tenant
for the safety, care and cleanliness of the Building, and the comfort, quietness
and convenience of other occupants of the Building. Landlord shall enforce the
Rules and Regulations in a consistent manner without discrimination against or
in favor of any particular tenant. If there is any conflict between the terms of
this Lease and the Rules and Regulations, the terms of this Lease shall control.
24
31. BROKER.
Tenant warrants and represents that it has negotiated this
Lease directly with Landlord and Xxxxxx Realty Company ("Landlord's Broker") and
has not authorized or employed, or acted by implication to authorize or to
employ, any other real estate broker or salesman to act for Tenant in connection
with this Lease other than NONE (if this space is not filled in there is no
other broker - if space is filled in, the party identified is hereinafter
referred to as (the "Broker"). Landlord warrants and represents that it has not
authorized or employed, or acted by implication to authorize or to employ, any
other real estate broker or salesman to act for Landlord in connection with this
Lease other than Landlord's Broker. Landlord agrees to pay Broker a commission
pursuant to a separate written agreement between Landlord and Broker, and
Landlord shall be responsible for any commissions due and owing to Landlord's
Broker. Tenant shall hold Landlord harmless from and indemnify and defend
Landlord against any and all claims by any real estate broker or salesman, other
than Landlord's Broker and any other brokers dealt with by Landlord, if any,
including any claim made by Broker in excess of the commission to be paid by
Landlord pursuant to such separate written agreement. Landlord shall indemnify
and hold Tenant harmless against any and all claims by Broker with regard to the
commission to be paid by Landlord pursuant to the separate written agreement
with Broker, Landlord's Broker and any other real estate broker or salesman
dealt with by Landlord, other than brokers dealt with by Tenant, for a
commission or finder's fee as a result of Tenant entering into this Lease.
32. PUBLIC AREAS.
Landlord shall have the right at any time, without the same
constituting an eviction of Tenant or entitling Tenant to any abatement of Rent,
and without otherwise incurring any liability to Tenant to change the
arrangement and/or location of (including the closing of) public entrances,
passageways, parking areas, stores, doorways, corridors, lobbies, elevators,
escalators, stairs, toilets or other public parts of the Building of the
Project, provided that in so doing, Landlord does not deny Tenant and Tenant's
agents, invitees and licensees of reasonable means of access to the Premises and
provided such actions by Landlord or its agents shall not unreasonably interfere
with Tenant's use of the Premises for the conduct of its business therein,
materially and adversely affect Tenant's or its employees' or customers' rights
under this Lease, or materially and adversely affect Tenant's parking or signage
rights granted hereunder.
33. QUIET ENJOYMENT.
Provided Tenant has performed all of the terms, covenants,
agreements and conditions of this Lease, including the payment of Rent and all
other sums due hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises against Landlord and all persons claiming by, through or under
Landlord, for the term herein described, subject to the provisions and
conditions of this Lease.
Landlord agrees to make reasonable efforts to protect the
Tenant from interference or disturbance by third persons; however, the Landlord
shall not be liable for any such interference or disturbance, whether caused by
other tenants of the Landlord or other persons, nor shall the Tenant be released
from any of the obligations of this Lease because of such interference or
disturbances; provided, however, that the foregoing shall not apply if such
disturbance or interference with Tenant's possession of the Premises is due to
Landlord's default under this Lease or if it is due to landlord's or its agent's
or employees' negligent or intentional acts.
34. FORCE MAJEURE.
Neither Landlord nor Tenant shall be required to perform any
term, condition or covenant in this Lease so long as such performance is delayed
or prevented by "Force Majeure", which shall mean labor controversies, strikes
and lockouts (whether lawful or not) either industry-wide or with third parties
other than Landlord and Tenant, respectively, acts of God, material or labor
unavailability, inability to obtain fuel or power, catastrophes, national or
local emergencies, restrictions by any governmental authority, civil riots,
floods, and any other causes not reasonably within the control of Landlord or
Tenant and which by the exercise of due diligence, Landlord, or Tenant,
respectively, is unable, wholly or in part, to prevent or overcome. Lack of
money shall not be deemed Force Majeure.
35. RELATIONSHIP OF THE PARTIES.
Nothing contained herein shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that neither the method of computation of
Rent, nor any other provision contained herein, nor any acts of the parties
herein, shall be deemed to create any relationship between the parties hereto
other than the relationship of Landlord and Tenant.
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36. AUTHORITY.
Each person executing this Lease on behalf of Tenant does
hereby covenant and warrant that (i) Tenant is an entity in good standing of the
nature stated in the BLI Rider; (ii) the execution and delivery of this Lease is
within the authority of the person doing so on behalf of Tenant; (iii) Tenant is
duly organized and validly existing under the laws of the state of its
formation, is authorized to transact business in the State of Florida, with full
legal power and authority to perform its obligations as contemplated by this
Lease. Each person executing this Lease on behalf of Landlord does hereby
covenant and warrant that (i) Landlord is duly incorporated and validly existing
under the laws of the State of New York; (ii) Landlord is qualified to do
business in the State of Florida; (iii) Landlord has full corporate right and
authority to enter into this Lease and to perform all of its obligations
hereunder; (iv) Landlord is the fee simple owner of the Property and has the
right to lease the Premises; and (v) each person signing this Lease on behalf of
the corporation is duly and validly authorized to do so; and (vi) the execution
of this Lease by Landlord and the performance of the obligations of Landlord
under and by virtue of this Lease will not result in a breach of, or constitute
a default under, any agreement or other instrument to which Landlord is a party
or by which Landlord may be bound or affected.
37. RADON GAS.
Pursuant to Florida law Landlord notifies Tenant of the
following:
RADON IS NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS
ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY
PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER
TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES
HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL
INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED
FROM YOUR COUNTY PUBLIC HEALTH UNIT.
38. HAZARDOUS SUBSTANCES.
Definitions. The following terms as used in this Paragraph
39 shall have the meanings set forth below:
(a) "Hazardous Substances" shall mean any hazardous or toxic
substances, materials or wastes, including, but not limited to any flammable
explosives, radioactive materials, friable asbestos, PCB's, electrical
transformers, batteries, paints, solvents, chemicals, petroleum products, or
other man-made materials with hazardous, carcinogenic or toxic characteristics,
and such other solid, semi-solid, liquid or gaseous substances which are toxic,
ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant, or
animal health or well-being, and those substances, materials, and wastes listed
in the United States Department of Transportation Table (49 CFR 972.101) or by
the Environmental Protection Agency, as hazardous substances (40 CFR Part 302,
and amendments thereto) or such substances, materials and wastes which are or
become regulated under any applicable local, state ore federal law including,
without limitation, any material, waste or substance which is (a) petroleum, (b)
asbestos, (c) polychlorinated biphenyls, (d) designated as a "hazardous
substance", "hazardous waste", "hazardous materials", "toxic substances",
"contaminants", or other pollution under any applicable Environmental Laws.
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(b) "Environmental Laws" shall mean any applicable
present or future federal, state or local laws, ordinances, rules or regulations
pertaining to Hazardous Substances, industrial hygiene, indoor air quality, OSHA
regulations or environmental conditions, including, but not limited to, the
following statutes and regulations as amended from time to time: (i) the Federal
Clean Air Act, 42 U.S.C. Section 7401 et. seq.; (ii) the Federal Clean Water
Act, 33 U.S.C. Section 1151 et. seq.; (iii) the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901 et. seq.; (iv) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
Section 9601 et. seq., as amended by Superfund Amendments and Reauthorization
Act of 1986 ("XXXX"), Pub. L. Xx. 00-000, 00 Xxxx. 0000; (v) the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1802; (vi) the National
Environment Policy Act, 42 U.S.C. Section 1857 et. seq.; (vii) The Toxic
Substance Control Act of 1976, 15 U.S.C. Section 2601 et. seq.; (viii) the
regulations of the Environmental Protection Agency, 33 CFR and 40 CFR; and (ix)
Chapters 373, 376, 380, and 403 Florida Statutes, and rules relating thereto,
including Chapters 17, 27 , and 40, Florida Administrative Code.
(c) "Claims" shall mean, individually and collectively, any
claims, actions, administrative proceedings, judgments, damages, punitive
damages, penalties, fines, costs, liabilities, sums paid in settlement,
interest, losses or expenses incurred by Landlord (including reasonable
attorneys' and legal assistants' fees, whether incurred in enforcing this
Agreement, collecting any sums due hereunder, settlement negotiations, at trial,
appeal or in bankruptcy proceedings), consultant fees and expert fees, together
with all other costs and expenses of any kind or nature, that arise directly or
indirectly from or in connection with Tenant's disposal, handling, use, storage,
or transportation of Hazardous Substances within the Premises, Building,
Property or Project in violation of the Environmental Laws, whether occurring or
suspected to have occurred before, on or after the date of this Lease.
Tenant shall indemnify and hold Landlord harmless from all Claims
resulting from any violations or alleged violations by Tenant, Tenant's
employees, licensees, invitees or agents of any Environmental Laws. This
indemnity shall survive the expiration or early termination of the Lease.
Notwithstanding the foregoing, Tenant shall not be responsible for liable for
the presence or storage of Hazardous Substances, including but not limited to,
asbestos, which exist in the Building or the Project (exclusive of the
Premises), unless any such responsibility or liability arises as a result of
Tenant's or its employees', agents' or contractors' acts or omissions or the
construction of the Tenant Improvements. Landlord hereby represents and warrants
to Tenant that there are no Hazardous Substances in the Building (exclusive of
the Tenant Improvements) in violation of any Environmental Laws. If the Building
(exclusive of the Premises) is in violation of the Environmental Laws as a
result of acts or omissions of Landlord or Landlord's agents, employees, or
contractors, Landlord, at its sole cost and expense, shall be responsible for
removal, remediation, and/or encapsulation of the same as required by the
Environmental Laws. Landlord shall indemnify, defend and hold Tenant harmless
from and against any and all claims, liabilities, injuries, damages, costs and
expenses (including reasonable attorneys' and legal assistants' fees, whether
incurred in enforcing this paragraph, collecting any sums due hereunder,
settlement negotiations, at trial, appeal or in bankruptcy proceedings )
incurred by Tenant and directly arising out of or related to any breach by
Landlord of Landlord's representations and warranties or covenants contained in
this paragraph, which indemnity shall survive the expiration or early
termination of the Lease.
39. SAVING PROVISION.
If any provision of this Lease, or its application to any situation shall be
invalid or unenforceable to any extent, the remainder of this Lease, or the
application thereof to situations other than that as to which it is invalid or
unenforceable, shall not be affected thereby, and every provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
40. REMEDIES CUMULATIVE.
The rights given to Landlord herein are in addition to any
rights that may be given to Landlord by a statute or under law.
41. EFFECTIVENESS OF LEASE.
This Lease shall have no binding force or effect and shall
neither confer any rights nor ignore any obligations, including brokerage
obligations, on either Landlord or Tenant unless and until both Landlord and
Tenant shall execute this Lease and executed counterparts of this Lease shall
have been delivered to both Landlord and Tenant.
42. GUARANTEE OF LEASE. Intentionally Omitted
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43. RELOCATION.
Recognizing that the Building is large and the needs of
tenants as to space may vary from time to time, and in order for Landlord to
accommodate Tenant and prospective tenants, Landlord expressly reserves the
right, prior to and/or during the Lease Term, at Landlord's sole expense, to
move Tenant from the Premises and relocate Tenant in other space of Landlord's
choosing of approximately the same dimensions and size within the Building,
which other space will be decorated by Landlord at its expense. Landlord shall,
in exercising its right to relocate the Tenant, make said decision in full
consideration and deference to the nature of Tenant's business which business
operates on a twenty-four (24) hour basis, seven (7) days per week. Landlord may
use decorations and materials from the existing Premises, or other materials, so
that the space in which Tenant is relocated will be comparable in its interior
design and decoration to the space from which Tenant is removed. During the
relocation period Landlord will use reasonable efforts not to unduly interfere
with Tenant's business activities and Landlord agrees to substantially complete
the relocation within a reasonable time under all then existing circumstances.
This Lease and each of its terms and conditions will remain in full force and
effect and be applicable to any such new space and such new space will be deemed
to be the Premises demised hereunder; upon request Tenant will execute such
documents which may be requested to evidence, acknowledge and confirm the
relocation (but it will be effective even in the absence of such confirmation).
Landlord's obligation for expenses of removal and relocation will be the actual
cost of relocating and decorating Tenant's new space, and Tenant agrees that
Landlord's exercise of its election to remove and relocate Tenant will not
release Tenant in whole or in part from its obligations hereunder for the full
Lease Term. No rights granted in this Lease to Tenant, including the right of
peaceful possession and quiet enjoyment, will be deemed breached or interfered
with by reason of Landlord's exercise of the relocation right reserved herein.
Provided that Landlord complies with its obligation under this
Section 44, Tenant acknowledges and agrees that Tenant's relocation shall not
release Tenant, in whole or in part, from its obligations hereunder for the full
Lease Term. Provided that Landlord complies with its obligations under this
Section 44, no rights granted in this Lease to Tenant, including the right of
peaceful possession and quiet enjoyment, will be deemed breached or interfered
with by reason of Landlord's exercise of the right to relocate Tenant as herein
reserved.
If Landlord exercises its relocation right under this
paragraph, (i) Tenant will be given ninety (90) days prior notice in writing and
(ii) Landlord will reimburse Tenant for the reasonable cost of telephone
relocation necessitated by the exercise of said right of relocation.
44. WAIVER.
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN CONNECTION
WITH (i) THIS LEASE, (ii) THE PREMISES, (iii) TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR (iv) THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY. TENANT FURTHER
WAIVES THE RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY NATURE IN ANY
ACTION OR PROCEEDING COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF THE PREMISES.
IF TENANT VIOLATES THIS PROVISION BY FILING A PERMISSIVE COUNTERCLAIM, WITHOUT
PREJUDICE TO LANDLORD'S RIGHT TO HAVE SUCH COUNTERCLAIM DISMISSED, THE PARTIES
STIPULATE THAT SHOULD THE COURT PERMIT TENANT TO MAINTAIN THE COUNTERCLAIM, THE
COUNTERCLAIM SHALL BE SEVERED AND TRIED SEPARATELY FROM THE ACTION FOR
POSSESSION PURSUANT TO RULE 1.270(b) OF THE FLORIDA RULES OF CIVIL PROCEDURE OR
OTHER SUMMARY PROCEDURES SET FORTH IN SECTION 51.011, FLORIDA STATUTES (1993).
THE WAIVERS SET FORTH IN THIS SECTION ARE MADE KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY BY TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
IN THE MAKING OF THIS WAIVER BY INDEPENDENT COUNSEL, SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH COUNSEL.
THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD IN AGREEING TO ENTER INTO
THIS LEASE.
45. ENTIRE AGREEMENT.
This Lease, together with the BLI Rider, exhibits, schedules,
addenda and guaranties (as the case may be) fully incorporated into this Lease
by this reference, contains the entire agreement between the parties hereto
regarding the subject matters referenced herein and supersedes all prior oral
and written agreements between them regarding such matters. This Lease may be
modified only by an agreement in writing dated and signed by Landlord and Tenant
after the date hereof.
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46. MISCELLANEOUS.
1. If Tenant has a lease for other space in the Building, an Event of Default by
Tenant under such lease will constitute a default hereunder.
2. If any term or condition of this Lease or the application thereof to any
person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Lease, or the application of such term or condition to persons
or circumstances other than those as to which it is held invalid or
unenforceable, is not to be affected thereby and each term and condition of this
Lease is to be valid and enforceable to the fullest extent permitted by law.
This Lease will be construed in accordance with the laws of the State of
Florida.
3. Submission of this Lease to Tenant does not constitute an offer, and this
Lease becomes effective only upon execution and delivery by both Landlord and
Tenant.
4. Tenant acknowledges that it has not relied upon any statement,
representation, prior or contemporaneous written or oral promises, agreements or
warranties, except such as are expressed herein.
5. Tenant agrees to pay, before delinquency, all taxes assessed during the Lease
Term agreement (i) all personal property, trade fixtures, and improvements
located in or upon the Premises and (ii) any occupancy interest of Tenant in the
Premises. Landlord agrees to pay all real estate taxes and assessments against
the Building before the Building would be sold by tax deed to pay such
delinquent taxes.
6. If Tenant, with Landlord's consent, occupies the Premises or any part thereof
for the purpose of conducting business prior to the Rent Commencement Date all
provisions of this Lease will be in full force and effect commencing upon such
occupancy, and Base Rent and Additional Rent, where applicable, for such period
will be paid by Tenant at the same rate herein specified.
7. Each party represents and warrants that it has not dealt with any agent or
broker in connection with this transaction except for Xxxxxx Realty, Inc. and
the agents or brokers specifically set forth in the BLI Rider whose commissions
shall be paid by Landlord pursuant to separate agreement. If either party's
representation and warranty proves to be untrue, such party will indemnify the
other party against all resulting liabilities, costs, expenses, claims, demands
and causes of action, including reasonable attorneys' fees and costs through all
appellate actions and proceedings, if any. The foregoing will survive the end of
the Lease Term.
8. Neither this Lease nor any memorandum hereof will be recorded by Tenant.
9. Nothing contained in this Lease shall be deemed by the parties hereto or by
any third party to create the relationship of principal and agent, partnership,
joint venturer or any association between Landlord and Tenant, it being
expressly understood and agreed that neither the method of computation of Rent
nor any other provisions contained in this Lease nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
10. Whenever in this Lease the context allows, the word "including" will be
deemed to mean "including without limitation". The headings of articles,
sections or paragraphs are for convenience only and shall not be relevant for
purposes of interpretation of the provisions of this Lease.
11. Except as otherwise stated in this Lease, this Lease does not create, nor
will Tenant have, any express or implied easement for or other rights to air,
light or view over or about the Building or any part thereof.
12. Landlord reserves the right, upon reasonable advance notice to Tenant,
except in the case of an emergency, to use, install, monitor, and repair pipes,
ducts and conduits within the walls, columns, and ceilings of the Premises.
Landlord shall use all reasonable efforts to not materially interfere with
Tenant's peaceful use and occupancy of the Premises.
29
13. Any acts to be performed by Landlord under or in connection with this Lease
may be delegated by Landlord to its managing agent or other authorized person or
firm. Provided, however that any such delegation shall not reduce or alter the
obligations to be performed by Landlord as set forth in this Lease.
14. It is acknowledged that each of the parties hereto has been fully
represented by legal counsel and that each of such legal counsel has contributed
substantially to the content of this Lease. Accordingly, this Lease shall not be
more strictly construed against either party hereto by reason of the fact that
one party may have drafted or prepared any or all of the terms and provisions
hereof.
15. Landlord and Tenant acknowledge that the terms and provisions of this Lease
have been negotiated based upon a variety of factors, occurring at a coincident
point in time, including, but not limited to: (i) the individual principals
involved and the financial strength of Tenant, (ii) the nature of Tenant's
business and use of the Premises, (iii) the current leasing market place and the
economic conditions affecting rental rates, (iv) the present and projected
tenant mix of the Building, and (v) the projected juxtaposition of tenants on
the floor(s) upon which the Premises are located and the floors within the
Building. Therefore, recognizing the totality, uniqueness, complexity and
interrelation of the aforementioned factors, the Tenant agrees to use its best
efforts not to disseminate in any manner whatsoever, (whether by word of mouth,
mechanical reproduction, physical tender or by any manner of visual or aural
transmission or review) the terms and conditions of this Lease to third parties
who could in any way be considered presently or in the future as prospective
tenants for this or any other leasehold property with which Landlord may be
involved.
16. If more than one person or entity is named herein as Tenant, their liability
hereunder will be joint and several. In case Tenant is a corporation, Tenant (a)
represents and warrants that this Lease has been duly authorized, executed and
delivered by and on behalf of Tenant and constitutes the valid and binding
agreement of Tenant in accordance with the terms hereof, and (b) Tenant shall
deliver to Landlord or its agent, within three (3) business days of the
execution of this Lease, executed by Tenant, certified resolutions of the board
of directors authorizing Tenant's execution and delivery of this Lease and the
performance of Tenant's obligations hereunder. In case Tenant is a partnership,
Tenant represents and warrants that all of the persons who are general or
managing partners in said partnership have executed this Lease on behalf of
Tenant, or that this Lease has been executed and delivered pursuant to and in
conformity with a valid and effective authorization therefor by all of the
general or managing partners of such partnership, and is and constitutes the
valid and binding agreement of the partnership and every partner therein in
accordance with its terms. It is agreed that each and every present and future
partner in Tenant, to the extent that Tenant is a partnership, shall be and
remain at all times jointly and severally liable hereunder and that neither the
death, resignation or withdrawal of any partner, nor the subsequent modification
or waiver of any of the terms and provisions of this Lease, shall release the
liability of such partner under the terms of this Lease unless and until
Landlord shall have consented in writing to such release.
17. Landlord has made no inquiries about and makes no representations (express
or implied) concerning whether Tenant's proposed use of the Premises is
permitted under applicable law, including applicable zoning law; should Tenant's
proposed use be prohibited, Tenant shall be obligated to comply with applicable
law and this Lease shall nevertheless remain in full force and effect.
18. Notwithstanding anything to the contrary in this Lease, if Landlord or
Tenant cannot perform any of its non-monetary obligations due to events beyond
that party's control, the time provided for performing such obligations shall be
extended by a period of time equal to the duration of such events. Events beyond
either party's control include, but are not limited to, hurricanes and floods
and other acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions. Nothing herein contained shall constitute
a waiver or mitigation of Tenant's responsibility to pay Rent.
30
19. In the event of any litigation under this Lease the prevailing party will be
reimbursed by the non-prevailing party for all reasonable attorneys' fees and
costs including through all appellate actions and proceedings, including
bankruptcy proceedings.
47. NO REPRESENTATIONS.
This Lease and the schedules and riders attached, form part of
this Lease together with the Rules and Regulations adopted and promulgated by
Landlord and set forth all the covenants, promises, assurances, agreements,
representations, conditions, warranties, statements and understandings
("Representations") between Landlord and Tenant concerning the Premises and the
Building and there are no Representations, either oral or written between them
other than those in this Lease. This Lease supersedes and revokes all previous
negotiations, arrangements, letters of intent, offers to lease, lease proposals,
brochures, Representations and information conveyed whether oral or in writing,
between the parties hereto or their respective representatives or any other
person purporting to represent Landlord or Tenant. Tenant acknowledges it has
not been induced to enter into this Lease by any representations not set forth
in this Lease, and has not relied on any such Representations, no such
Representations shall be used in the interpretation or construction of this
Lease, and the Landlord shall have no liability for any consequences arising as
a result of any such Representations. Except as herein otherwise provided, no
subsequent alteration, amendment, change, or addition to this Lease shall be
binding upon Landlord or Tenant unless in writing and signed by each of them.
48. GOVERNING LAW.
This Lease shall be governed by and construed in accordance
with the laws of the State of Florida and venue for any suit, action or other
proceeding in regard to or arising out of this Lease shall be exclusively in
Palm Beach County, Florida, unless prohibited by applicable law.
49. COUNTERPARTS.
This Lease may be executed in several counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
50. EARLY TERMINATION.
Either party shall have the unilateral right to terminate this
Lease by giving a minimum of sixty (60) days prior written notice to the other
party of its intention to terminate ("Termination Notice Period"). Neither party
shall be in Default of the Lease at the time of the notice or during the
Termination Notice Period. Rent and all other Lease obligations shall be adhered
to during the Termination Notice Period.
31
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals, as of the day and year first above written.
Signed, sealed and delivered
in the presence of: TENANT: I Games Entertainment, Inc.,
a Nevada corporation
(1)_____________________________ By:__________________________(SEAL)
Print Name: ____________________ Name:________________________
Title: _____________________
(2) ____________________________
Print Name:_____________________
LANDLORD:
ARBERN INVESTORS IV, L.P.,
a Delaware limited partnership
By: Arbern Building Company,Inc.,
a Delaware corporation authorized
to do business in Florida
(1)_____________________________ By:__________________________(SEAL)
Print Name:_____________________ Name: _______________________
Title: ____________________
(2)_____________________________
Print Name:_____________________
32
EXHIBIT "A"
FLOOR PLAN OF PREMISES
33
EXHIBIT "B"
INTENTIONALLY OMITTED
34
EXHIBIT "C"
DESCRIPTION OF PROJECT
35
EXHIBIT "D"
DESCRIPTION OF PROPERTY
36
EXHIBIT "E"
RULES AND REGULATIONS
37
EXHIBIT "F"
TENANT IMPROVEMENT ALLOWANCE
38
EXHIBIT "G"
GUARANTEE OF LEASE
FOR VALUE RECEIVED, and in consideration for and as an inducement to
XXXXXX MANAGEMENT CO., as Agent for ARBERN INVESTORS IV, L.P., as LANDLORD to
lease the PREMISES referred to in the annexed LEASE dated _______, 1999, (the
"LEASE) to ________________, as TENANT therein named, the undersigned,
("Guaranty"), subject to receiving prompt written notice of any default by
TENANT for which performance is required hereunder, does hereby guaranty to
LANDLORD the punctual payment of the Base Rent, Overhead Rent and all Additional
Rent and other charges (hereinafter collectively called "RENTS") and the due
performance of all the other terms, covenants and conditions contained in said
LEASE on the part of the TENANT to be paid and/or to be performed thereunder,
and if any default shall be made by the TENANT under said LEASE, the undersigned
does hereby covenant and agree to pay to the LANDLORD in each and every instance
such sum or sums of money as the TENANT is and shall become liable for and/or
obligated to pay under said LEASE and/or fully to satisfy and perform such other
terms, covenants and conditions of said LEASE on the part of the TENANT to be
performed thereunder and, provided LANDLORD is the prevailing party in any such
action, to pay also any and all damages, expenses and attorneys fees (hereafter
collectively called "DAMAGES") that may be suffered or incurred by LANDLORD in
consequence of the nonpayment of said RENTS or the nonperformance of any such
other terms, covenants and conditions of said LEASE; Provided, however, that
LANDLORD shall pay the undersigned's attorney's fees and expenses in any such
action where the undersigned in the prevailing party; such payments of RENTS to
be made monthly or at such other intervals as the same shall or may become
payable under said LEASE, including any accelerations thereof, such performance
of said other terms, covenants and conditions to be made when due under said
LEASE and such DAMAGES to be paid when incurred by LANDLORD, all without
requiring any notice from LANDLORD of proof of notice or demand, all of which
the undersigned hereby expressly waives; and the maintenance of any action or
proceeding by the LANDLORD to recover any sum or sums that may be or become due
under said LEASES, or to secure the performance of any of the other terms,
covenants and conditions of said LEASE or to recover damages, shall not preclude
the LANDLORD from thereafter instituting and maintaining subsequent actions or
proceedings for any subsequent default or defaults of TENANT under said LEASE.
The undersigned does hereby consent that without affecting the liability of the
undersigned under this Guaranty and without notice to the undersigned, time may
be given by LANDLORD to TENANT for payment of RENTS and performance of said
other terms, covenants and conditions, or any of them, and such time extended
and indulgences granted, from time to time, or the TENANT may be dispossessed or
the LANDLORD may avail itself of or exercise any or all of the rights and/or
remedies against the TENANT provided by law or by said LEASE, and may proceed
either against the TENANT alone or jointly against the TENANT and the
undersigned or against the undersigned alone without proceeding against the
TENANT. The undersigned does hereby further consent to any subsequent change,
modification and/or amendment of said LEASE in any of its terms, covenants or
conditions, or in the RENTS payable thereunder, and/or to any assignment or
assignments of said LEASE, and/or to any renewals or extensions thereof (AOPTION
PERIODS@), all of which may be made without notice to or consent of the
undersigned and except to the extent provided in Section 13.A. of the Lease,
without in any manner releasing or relieving the undersigned from liability
under this Guaranty. The undersigned does hereby further agree that in respect
of any payments made by the undersigned hereunder, the undersigned shall not
have any rights based on suretyship or otherwise to stand in the place of
LANDLORD so as to compete with LANDLORD as a creditor of TENANT, unless and
until all claims of LANDLORD under said LEASE shall have been fully paid and
satisfied. The undersigned acknowledges receipt of valuable consideration
received in its undertaking of this LEASE in that TENANT is a wholly owned
subsidiary of the undersigned and it is acknowledged by the undersigned that the
LEASE herein guaranteed by the undersigned is of benefit and value to the
undersigned and would not have been negotiated or consummated by LANDLORD
without this LEASE Guaranty being executed and delivered by the undersigned. As
a further inducement to LANDLORD to made said LEASE and in consideration
therefor, LANDLORD and the undersigned hereby agree that in any action,
proceeding or counterclaim brought by either LANDLORD or the undersigned against
the other on any matters whatsoever arising out of or in any way connected with
said LEASE or this Guaranty, that LANDLORD and the undersigned shall and do
hereby waive trial by jury. This Guaranty or any of the provisions hereof cannot
be modified, waived or terminated, unless in writing, signed by the parties
hereto. The provisions of this Guaranty shall apply to and bind and inure to the
benefit of the undersigned and LANDLORD and their respective heirs, legal
representatives, successors and assigns. In any suit or action under this
Guaranty, the prevailing party shall be entitled to payment of all attorneys'
fees incurred in connection with enforcing this guaranty including, without
limitation, fees at the trial and all appellate levels.
39
IN WITNESS WHEREOF, the undersigned have executed, or caused to be
executed, this Guaranty on _____________, 2000.
GUARANTOR:
WITNESSES: __________________________________
__________________________________ By:_______________________________
__________________________________ Title:____________________________
Address:__________________________
40
