HIGHWOODS/FLORIDA HOLDINGS, L.P. (“Landlord”) and BROWN & BROWN, INC. (“Tenant”) OFFICE LEASE
Exhibit
10.2(b)
HIGHWOODS/FLORIDA
HOLDINGS, L.P.
(“Landlord”)
and
XXXXX
& XXXXX, INC.
(“Tenant”)
TABLE
OF CONTENTS
Section 1: | Basic Definitions and Provisions |
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a. | Premises |
-5-
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b. | Term |
-5-
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c. | Permitted Use |
-5-
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d. | Occupancy Limitation |
-5-
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e. | Base Rent |
-5-
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f. | Rent Payment Address |
-6-
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g. | Security Deposit |
-6-
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h. | Business Hours |
-6-
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i. | Electrical Service |
-6-
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j. | After Hours HVAC Rate |
-6-
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k. | Parking |
-6-
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l. | Construction Fee |
-6-
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m. | Broker |
-6-
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n. | Notice Addresses |
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Section 2. | Leased Premises | ||
a. | Premises |
-7-
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b. | Rentable Square Foot Determination |
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c. | Common Areas |
-7-
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Section 3: | Term | ||
a. | Commencement and Expiration Dates |
-7-
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b. | Termination by Tenant for Failure to Deliver Possession |
-7-
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c.. | Right to Occupy |
-7-
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d. | Commencement Agreement |
-7-
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Section 4: | Use | ||
a. | Permitted Use |
-7-
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b. | Prohibited Uses |
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c. | Prohibited Equipment in Premises |
-8-
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Section 5: | Rent | ||
a. | Payment Obligations |
-8-
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b. | Base Rent |
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c. | Additional Rent |
-9-
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Section 6: | Security Deposit [Intentionally Omitted] |
-9-
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Section 7: | Services by Landlord |
-9-
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a. | Base Services |
-10-
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b. | Landlord's Maintenance |
-10-
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c. | No Abatement |
-10-
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d. | Tenant's Obligation to Report Defects |
-10-
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e. | Limitation on Landlord's Liability |
-10-
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Section 8: | Tenant’s Acceptance and Maintenance of Premises | ||
a. | Acceptance of Premises |
-10-
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b. | Move-in Obligations |
-10-
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c. | Tenant's Maintenance |
-11-
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d. | Alterations to Premises |
-11-
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e. | Restoration of Premises |
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f. | Landlord's Performance of Tenant's Obligations |
-11-
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g. | Construction Liens |
-11-
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h. | Communications Compliance |
-11-
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Section 9: | Property of Tenant |
-12-
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a. | Property Taxes |
-12-
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b. | Removal |
-12-
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Section 10: | Signs |
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Section 11: | Access to Premises |
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a. | Tenant's Access |
-12-
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b. | Landlord's Access |
-12-
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c. | Emergency Access |
-13-
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Section 12: | Rules and Regulations |
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a. | Laws |
-13-
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b. | Rules and Regulations |
-13-
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Section 13: | Compliance with Laws |
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a. | Tenant's Compliance |
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b. | Landlord's Compliance |
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c. | ADA Notices |
-13-
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Section 14: | Insurance Requirements | ||
a. | Tenant's Liability Insurance |
-13-
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b. | Tenant's Property Insurance |
-13-
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c. | Certificates of Insurance |
-13-
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d. | Insurance Policy Requirements |
-13-
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e. | Landlord's Property Insurance |
-14-
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f. | Mutual Waiver of Subrogation |
-14-
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Section 15: | Indemnity | ||
a. | Indemnity |
-14-
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b. | Defense Obligation |
-14-
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Section 16: | Quiet Enjoyment |
-14-
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Section 17: | Subordination; Attornment; Non-Disturbance; and Estoppel Certificate | ||
a. | Subordination and Attornment |
-14-
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b. | Non-Disturbance |
-15-
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c. | Estoppel Certificates |
-15-
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Section 18: | Assignment - Sublease |
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a. | Landlord Consent |
-15-
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b. | Definition of Assignment |
-15-
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c. | Permitted Assignments/Subleases |
-16-
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d. | Notice to Landlord |
-16-
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e. | Prohibited Assignments/Sublease |
-16-
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f. | Tenant Not Released |
-16-
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g. | Landlord's Right to Collect Sublease Rents Upon Tenant Default |
-16-
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h. | Excess Rents |
-16-
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i. | Landlord's Fees |
-16-
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j. | Unauthorized Assignment or Sublease |
-16-
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Section 19: | Damages to Premises | ||
a. | Landlord's Restoration Obligations |
-16-
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b. | Termination of Lease by Landlord |
-17-
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c. | Termination of Lease by Tenant |
-17-
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d. | Tenant's Restoration Obligations |
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e. | Rent Abatement |
-17-
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f. | Waiver of Claims |
-17-
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Section 20: | Eminent Domain | ||
a. | Effect on Lease |
-17-
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b. | Right to Condemnation Award |
-18-
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Section 21: | Environmental Compliance | ||
a. | Environmental Laws |
-18-
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b. | Tenant's Responsibility |
-18-
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c. | Tenant's Liability |
-18-
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d. | Limitation on Tenant's Liability |
-18-
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e. | Inspections by Landlord |
-18-
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f. | Landlord's Liability |
-18-
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g. | Property |
-18-
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h. | Tenant's Liability after Termination of Lease |
-19-
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ii
Section 22: | Default | ||
a. | Tenant's Default |
-19-
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b. | Landlord's Remedies |
-19-
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c. | Landlord's Expenses |
-20-
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d. | Remedies Cumulative |
-20-
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e. | No Accord and Satisfaction |
-20-
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f. | No Reinstatement |
-20-
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g. | Summary Ejectment |
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Section 23: | Multiple Defaults |
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a. | Loss of Option Rights |
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b. | Increased Security Deposit |
-20-
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c. | Effect on Notice Rights and Cure Periods |
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Section 24: | Bankruptcy | ||
a. | Trustee's Rights |
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b. | Adequate Assurance |
-21-
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c. | Assumption of Lease Obligations |
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Section 25: | Notices | ||
a. | Addresses |
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b. | Form; Delivery; Receipt |
-21-
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c. | Address Changes |
-21-
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d. | Notice by Legal Counsel |
-21-
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Section 26: | Holding Over |
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Section 27: | Right to Relocate [Intentionally Omitted] |
-21-
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Section 28: | Broker’s Commissions | ||
a. | Broker |
-22-
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b. | Landlord's Obligation |
-22-
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c. | Indemnity |
-22-
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Section 29: | Miscellaneous | ||
a. | No Agency |
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b. | Force Majeure |
-22-
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c. | Building Standard Improvements |
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d. | Limitation on Damages |
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e. | Satisfaction of Judgments Against Landlord |
-22-
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f. | Interest |
-22-
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g. | Legal Costs |
-22-
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h. | Sale of Premises or Building |
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i. | Time of the Essence |
-22-
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j. | Tender of Premises |
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k. | Financial Statements |
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l. | Recordation |
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m. | Partial Invalidity |
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n. | Binding Effect |
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o. | Entire Agreement |
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p. | Good Standing |
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q. | Terminology |
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r. | Headings |
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s. | Choice of Law |
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t. | Effective Date |
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u. | Interlineation |
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v. | Patriot Act, Representation |
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w. | Landlord's Default |
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iii
Section 30: | Special Conditions |
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Section 31: | Addenda and Exhibits |
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a. |
Lease
Addendum Number One - “Work Letter”
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b. |
Lease
Addendum Number One - A - “Building Standard
Improvements”
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c. |
Lease
Addendum Number One - B -- “Approved Space Plan”
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d. |
Lease
Addendum Number One - C - “Mini-Blind Layout”
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e. |
Lease
Addendum Number Two - “Additional Rent - Operating Expense Pass
Throughs”
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f. |
Lease
Addendum Number Two - A - “Annual Statement Form”
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g. |
Lease
Addendum Number Three -“Option to Renew Lease Term”
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h. |
Lease
Addendum Number Four -- “Intentionally Omitted”
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i. |
Lease
Addendum Number Five - “Tenant Parking Agreement”
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j. |
Lease
Addendum Number Five—A-- " Location of Reserved Parking, LakePointe Two
Garage”
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k. |
Lease
Addendum Number Five - B - “Parking Reserved for Other Tenants, LakePointe
Two Garage”
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l. |
Lease
Addendum Number Six - “Radon”
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m. |
Lease
Addendum Number Seven - “Right of First Offer”
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n. |
Lease
Addendum Number Seven - A - “First Floor: Right of First Offer
Space”
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o. |
Lease
Addendum Number Seven - B - “Third Floor: Right of First Offer
Space”
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p. |
Lease
Addendum Number Eight—"Cleaning Specifications"
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q. |
Exhibit
A - Premises
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r. |
Exhibit
B - Rules and Regulations
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s. |
Exhibit
C - Commencement Agreement
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t. |
Exhibit
D - Rooftop License Agreement
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u. |
Exhibit
E - Monument Signage
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v. |
Exhibit
F - Subordination, Non-Disturbance and Attornment
Agreement
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iv
State
of Florida:
County
of Hillsborough:
THIS
LEASE ("Lease"),
made this 1st day of July, 2004, by and between HIGHWOODS/FLORIDA
HOLDINGS, L.P..,
a
Delaware Limited Partnership, By: Highwoods Properties, Inc., as agent,
(“Landlord”) and XXXXX
& XXXXX, INC.,
a
Florida corporation, (“Tenant”), provides as follows:
1. | BASIC DEFINITIONS AND PROVISIONS. The following basic definitions and provisions apply to this Lease: | |||
a. | Premises. | Rentable Square Feet: | 40,505 | |
Suite: | 000 | |||
Xxxxxxxx: | Xxxxxxxx | |||
Xxxxxx Address: | 0000 X. Xxxxxx Xxxxxx Xxxx Xxxxxxxxx | |||
Xxxx/Xxxxxx: | Tampa / Hillsborough | |||
State/Zip Code: | Florida / 33607 | |||
b. | Initial Term. | Number of Months: | 87 | |
Commencement Date: | As provided in Lease Addendum Number One (the Work Letter). Target Commencement Date is May 15, 2005. | |||
Expiration Date: | Eighty-seven (87) months from the Commencement Date, as adjusted pursuant to the provisions of Section 3(c). | |||
Estimated Expiration Date August 14, 2012 | ||||
c. | Permitted Use. | General office | ||
d. | Occupancy Limitation. | No more than six (6) persons per one thousand (1,000) rentable square feet (on average). | ||
e. | Base Rent. | The minimum Base Rent for the Initial Term is $5,161,456.54, payable in monthly installments on the 1st day of each month in accordance with the following Base Rent Schedule: |
MONTHS
|
RATE
PSF
|
MONTHLY
RENT
|
CUMULATIVE
RENT
|
5/15/05
- 5/31/05
|
$16.80
|
$56,707.00
|
$31,097.42
|
6/1/05
- 11/30/05
|
$8.40
|
$28,353.50
|
170,121.00
|
12/1/05
- 5/31/06
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$16.80
|
$56,707.00
|
$340,242.00
|
6/1/06
- 5/31/07
|
$17.22
|
$58,124.68
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$697,496.16
|
6/1/07
- 5/31/08
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$17.65
|
$59,576.10
|
$714,913.20
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6/1/08
- 5/31/09
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$18.09
|
$61,061.29
|
$732,735.48
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6/1/09
- 5/31/10
|
$18.54
|
$62,580.23
|
$750,962.76
|
6/1/10
- 5/31/11
|
$19.00
|
$64,132.92
|
$769595.04
|
6/1/11
- 5/31/12
|
$19.48
|
$65,753.12
|
$789,037.44
|
6/1/12
- 8/14/12
|
$19.97
|
$67,407.07
|
$165,256.04
|
BASE
RENT:
|
$5,161,456.54
|
This
rent
schedule shall be modified as appropriate according to the provisions of Section
5(c)(ii) of this Lease.
f. | Rent Payment Address. | HIGHWOODS/FLORIDA HOLDINGS, L.P. | ||
X.X. Xxx 000000 | ||||
Xxxxxxx, Xxxxxxx 00000-0000 | ||||
Attn: Spectrum | ||||
Tax ID# 00-0000000 | ||||
g. | Security Deposit. | $0 | ||
h. | Normal Business Hours. | 7:00 A.M. to 6:00 P.M. Monday through Friday and 7:00 A.M. to 1:00 P.M. on Saturdays (excluding New Years Day, President's Day, Memorial Day, Independence Day, Thanksgiving Day and Christmas Day, together, "Holidays"). | ||
i. | Electrical Service. | As described in Section 8(k) of the Work Letter. | ||
j. | After Hours HVAC Rate. | $25.00 per hour, per floor, with a minimum of two (2) hours per occurrence. | ||
k. | Parking. | Five (5) spaces per 1000 rentable square feet. See Tenant Parking Agreement - Addendum Five. | ||
l. | Construction Fee. | There will be no Construction Supervision Fee for the work described in the Work Letter. A 10% Construction Supervision Fee will be charged for all alterations performed by Landlord. | ||
m. | Tenant’s Broker. | Xxxx Xxx | ||
Xxxxxxx & Xxxxxxxxx of Florida, Inc. | ||||
Xxx Xxxxx Xxxx Xxxxxx | ||||
Xxxxx 0000 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Landlord’s Broker. | Highwoods/Florida GP Corp | |||
0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||
Suite 300 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
n. | Notice Addresses. | |||
LANDLORD:
|
HIGHWOODS/FLORIDA HOLDINGS, L.P. | |||
0000 Xxxxxxxxx Xxxxx, Xxxxx 000 | ||||
Xxxxxxx, Xxxxx Xxxxxxxx 00000 | ||||
Attn: Manager, Lease Administration | ||||
Facsimile #: 919/876-2448 | ||||
with
a copy to:
|
HIGHWOODS PROPERTIES, INC. | |||
0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||
Suite 300 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Attn: Lease Administrator | ||||
TENANT:
[before
CommencementDate]
|
Xxxxx & Xxxxx, Inc. | |||
X.X. Xxx 0000 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Attn: Xxxxxx Xxxxxxx, Esq. | ||||
[after
Commencement Date]
|
Xxxxx & Xxxxx, Inc. | |||
0000 X. Xx. Xxxxxx Xxxxxx Xxxx, Xx. Blvd. | ||||
Suite 400 | ||||
Xxxxx, Xxxxxxx 00000 | ||||
Attn: Xxxxxx Xxxxxxx, Esq. |
ii
2. LEASED
PREMISES.
a. Premises.
Landlord
leases to Tenant and Tenant leases
from Landlord the Premises identified in Section 1a and as more particularly
shown on Exhibit
A,
attached hereto, which will include the elevator lobby area on the fourth
floor.
b. Rentable
Square
Foot Determination.
Landlord
represents that the Rentable Area of the Premises was calculated in accordance
with the American National Standard Method of measuring floor area in office
buildings of the Building Owners and Managers Association (BOMA) International
(ANSI 265.1
-
1966) ("BOMA Standard"), and that the Building contains 146,994 square feet
of
Rentable Area, calculated in accordance with the BOMA Standard.
c. Common
Areas.
Tenant
shall have non-exclusive access to the common areas of the Building. The common
areas generally include space that is not included in portions of the Building
set aside for leasing to tenants or reserved for Landlord’s exclusive use,
including entrances, hallways, lobbies, elevators, restrooms, walkways and
plazas and landscaping, as well as the parking areas and garages identified
in
Lease Addendum Number Five, together with access to the parking areas and
Building (“Common Areas”). Landlord has the exclusive right to (i) designate the
Common Areas, (ii) change the designation of any Common Area and otherwise
modify the Common Areas, and (iii) permit special use of the Common Areas,
including temporary exclusive use for special occasions, provided no such
designation or change shall materially and adversely affect Tenant's access,
parking, or use and enjoyment of the Premises. Tenant shall not interfere with
the rights of others to use the Common Areas. All use of the Common Areas shall
be subject to reasonable rules and regulations promulgated by
Landlord.
3. TERM.
a. Commencement
and Expiration Dates.
The
Initial Term of the Lease commences on the Commencement Date and expires on
the
Expiration Date, as set forth in Section 1b. Tenant has the right to extend
the
Lease Term for up to two (2) Lease Renewal Terms in accordance with Lease
Addendum Number Three. "Lease Term" or "term" means the Initial Term and
exercised Lease Renewal Terms.
b. Termination
by Tenant for Failure to Deliver Possession.
If
Landlord is unable to deliver possession of the Premises by August 15, 2005
(adjusted for any delays resulting from force
majeure
or
Excused Delays as defined in the Work Letter), then Tenant may terminate this
Lease by giving notice to Landlord within fifteen (15) days thereafter. If
for
any reason (including without limitation, force
majeure)
Landlord is unable to deliver possession of the Premises by November 15, 2005,
then Tenant may terminate this Lease by giving notice to Landlord within fifteen
(15) days thereafter.
c. Adjustment
of Expiration Date. If
the
Expiration Date does not occur on the last day of a calendar month, then the
Term shall be extended by the number of days necessary to cause the Expiration
Date to occur on the last day of the last calendar month of the Term. Tenant
shall pay Base Rent and Additional Rent for such additional days at the same
rate payable for the portion of the last calendar month immediately preceding
such extension.
d. Right
to Occupy.
Tenant
shall not occupy the Premises until Tenant has complied with all of the
following requirements: (i) delivery of all certificates of insurance, (ii)
payment of first month’s Rent; and (iii) receipt of a good standing certificate
from the State where Tenant was organized and a certificate of authority to
do
business in the State in which the Premises are located (if different). Tenant’s
failure to comply with these (or any other conditions precedent to occupancy
under the terms of this Lease) shall not delay the Commencement
Date.
e. Commencement
Agreement.
At the
request of either party, Commencement Date, Term, and Expiration Date may be
set
forth in a Commencement Agreement similar to Exhibit
C,
attached
hereto, to be prepared by Landlord and executed by the parties.
4. USE.
a. Permitted
Use.
The
Premises may be used only for Tenant’s Permitted Use as defined in Section 1c
and in accordance with the Occupancy Limitation as set forth in Section
1d.
b. Prohibited
Uses.
Tenant
shall not use the Premises:
iii
i. |
Intentionally
omitted.
|
ii. |
In
any manner that constitutes a nuisance or
trespass;
|
iii. |
In
any manner other than Tenant's Permitted Use which increases any
insurance
premiums, or makes such insurance unavailable to Landlord on the
Building;
provided that, in the event of an increase in Landlord's insurance
premiums which results from Tenant's use of the Premises, Landlord
may
elect to permit the use and charge Tenant for the increase in premiums,
and Tenant’s failure to pay Landlord, on demand, the amount of such
increase shall be an event of default;
|
iv. |
In
any manner that creates demands for electricity, heating or air
conditioning in excess of that stated in paragraph 1.(i), unless
Tenant
agrees to pay the actual, out-of-pocket costs incurred by Landlord
in
providing such excess electricity, including submetering therefor;
or
|
v. |
For
any purpose except the Permitted Use, unless consented to by Landlord
in
writing.
|
c. Prohibited
Equipment in Premises.
Tenant
shall not install any equipment in the Premises that requires electrical power
or cooling beyond the Building's electrical and cooling specifications, as
set
forth in Addendum Number One to the Lease, and as identified by Landlord as
exceeding such specifications at the time of Landlord's approval of Tenant's
plans specify such equipment (“High Demand Equipment”) without Landlord’s prior
written consent which consent shall not be unreasonably withheld, conditioned
or
delayed. No such consent will be given if Landlord determines, in its opinion,
that such equipment may not be safely used in the Premises or that electrical
service is not adequate to support the equipment. Landlord’s consent may be
conditioned, without limitation, upon separate metering of the High Demand
Equipment and Tenant’s payment of all engineering, equipment, installation,
maintenance, removal and restoration costs and utility charges associated with
the High Demand Equipment and the separate meter. If High Demand Equipment
used
in the Premises by Tenant affects the temperature otherwise maintained by the
heating and air conditioning system, Landlord shall have the right to install
supplemental air conditioning units in the Premises with the cost of
engineering, installation, operation and maintenance of the units to be paid
by
Tenant. All costs and expenses relating to High Demand Equipment shall be
Additional Rent, payable by Tenant within thirty (30) days after receipt of
invoice.
5. RENT.
a. Payment
Obligations.
Tenant
shall pay Base Rent and Additional Rent (collectively, “Rent”) on or before the
first day of each calendar month during the Term, as follows:
i. |
Rent
payments shall be sent to the Rent Payment Address set forth in Section
1f.
|
ii. |
Rent
shall be paid without previous demand or notice and without set off
or
deduction (except as otherwise expressly provided in the Lease).
Tenant's
obligation to pay Rent under this Lease is completely separate and
independent from any of Landlord's obligations under this
Lease.
|
iii. |
If
the Commencement Date is a day other than the first day of a calendar
month, or if the Expiration Date is a day other than the last day
of a
calendar month, then Rent for such month shall be (i) prorated, and
(ii)
due and payable on the first day of such
month.
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iv. |
For
each Rent payment Landlord receives after the fifth (5th) day of
the
month, Landlord shall be entitled to a late charge in the amount
of five
percent (5%) of all Rent due for such month. Notwithstanding the
preceding
sentence, no such late payment shall be due for the first two such
late
payments during the Term (including any extensions or renewals thereof)
unless Tenant fails to make such payment within five (5) days after
written notice from Landlord that such payment is past
due.
|
v. |
If
Landlord presents Tenant's check to any bank and Tenant has insufficient
funds to pay for such check, then Landlord shall be entitled to the
maximum lawful bad check fee or five percent (5%) of the amount of
such
check, whichever amount is less.
|
b. Base
Rent.
Tenant
shall pay Base Rent as set forth in Section 1e.
iv
c. Additional
Rent.
In
addition to Base Rent, Tenant shall pay as rent all sums and charges due and
payable by Tenant under this Lease (“Additional Rent”), including, but not
limited to, the following:
i. |
Tenant's
Proportionate Share of the increase in Landlord's Operating Expenses
as
set forth in Lease Addendum Number
Two;
|
ii. |
Any
sales or use tax imposed on Rent collected by Landlord or any tax
on rents
in lieu of ad valorem taxes on the Building, even though laws imposing
such taxes attempt to require Landlord to pay the same; provided,
however,
if any such sales or use tax are imposed on Landlord and Landlord
is
prohibited by applicable law from collecting the amount of such tax
from
Tenant as Additional Rent, then Landlord and Tenant shall amend this
Lease
to increase the Base Rent payable hereunder by the amount of such
increase
so that the economic effect of this Lease prior to the imposition
of such
tax is maintained; and
|
iii. |
Any
construction supervision fees in connection with the construction
of
Tenant Improvements or alterations to the
Premises.
|
Base
Rent
and Additional Rent are referred to in this Lease as "Rent".
6. SECURITY
DEPOSIT.
[INTENTIONALLY OMITTED].
7. SERVICES
BY LANDLORD.
a. Base
Services.
Provided
that Tenant is not then in default beyond applicable notice and cure periods,
Landlord shall cause to be furnished to the Building, or as applicable, the
Premises, in common with other tenants the following services:
i. |
Hot
and cold water (if available from city mains) for drinking, lavatory
and
toilet purposes.
|
ii. |
Electricity
(if available from the utility supplier) in the capacity specified
in
Lease Addendum Number One.
|
iii. |
Operatorless
elevator service, 24 hours per day, 7 days per
week.
|
iv. |
Building
standard fluorescent lighting fixtures; Tenant shall service, replace
and
maintain at its own expense any incandescent fixtures, table lamps,
or
lighting other than the building standard fluorescent light, and
any
dimmers or lighting controls other than controls for the building
standard
fluorescent lighting.
|
v. |
Heating
and air conditioning for the reasonably comfortable use and occupancy
of
the Premises during Business Hours as set forth in Section 1h; provided
that, heating and cooling conforming to any governmental regulation
prescribing limitations thereon shall be deemed to comply with this
service. Such HVAC system shall incorporate interior variable air
volume
(VAV) distribution and fan powered variable air volume (FPVAV) exterior
distribution. Such system shall maintain interior space conditions,
during
the Building’s Normal Business Hours, of 74+/- 2 degrees Fahrenheit dry
bulb (Fdb), with a relative humidity of 50% +/- 10%, based upon the
following design conditions:
|
a. |
Summer
outside conditions based upon ASHRAE Fundamentals Climactic Conditions
using the 1% Design dry-bulb and mean coincident wet-bulb from the
nearest
listed City.
|
b. |
Winter
outside conditions based upon ASHRAE Fundamental Climactic Conditions
using the 99% Design dry-bulb from the nearest listed
City.
|
c. |
One
person per 200 rentable square
feet.
|
d. |
Twenty
(20) cfm of outside air per person, based upon one person per 200
rentable
square feet.
|
e. |
Night/weekend
setback shall not allow the Premises to drop below 55 degrees Fdb
in the
winter. Unoccupied spaces adjacent to the premises shall be maintained
between 65 and 80 degrees Fdb during the normal business hours of
the
Building.
|
v
vi. |
After
Business Hours, weekend and holiday heating and air conditioning
at the
After Hours HVAC rate set forth in Section 1j, with such charges
subject
to reasonable annual increases so as to reimburse Landlord for the
increased costs of utilities required to provide such
service.
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vii. |
Janitorial
services five (5) days a week (excluding Holidays) after Business
Hours in
accordance with the cleaning specifications attached hereto as Lease
Addendum Number Eight.
|
viii. |
A
reasonable pro-rata share of the unreserved parking spaces of the
Building, for use by Tenant's employees and visitors in common with
the
other tenants and their employees and visitors, as more specifically
provided in Lease Addendum Number Five.
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ix. |
Security
in the Tampa Bay Office Park consisting of a roving guard on duty
from
7:00 a.m. to 11:00 p.m., Monday through Friday except Holidays. At
the
request of a Tenant employee, the guard, while on duty and as available,
will escort the employee to his or her vehicle after Normal Business
Hours. At Tenant's request, Landlord shall provide a guard for additional
hours, at Tenant's cost (which will be equal to Landlord's out-of-pocket
cost, without xxxx-up).
|
b. Landlord’s
Maintenance.
Landlord
shall make all repairs and replacements to the Building (including the
Building's electrical, mechanical, and plumbing systems, elevators, fixtures
and
equipment), Common Areas and Tenant Improvements in the Premises (except for
repairs and replacements that Tenant must make under Section 8) as necessary
to
maintain the Building and Common Areas in a first class condition, similar
to
the condition of comparable office buildings in the Westshore area of Tampa.
Landlord’s maintenance shall include the roof, foundation, exterior walls,
interior structural walls, all structural components, and all Building systems,
such as mechanical, electrical, HVAC, and plumbing. Repairs or replacements
shall be made within a reasonable time (depending on the nature of the repair
or
replacement needed) after receiving notice from Tenant or Landlord having actual
knowledge of the need for a repair or replacement.
c. Abatement.
If for
any reason attributable to either the failure of Landlord to carry out its
obligations hereunder or force
majeure,
a
portion of the Premises becomes unsuitable for Tenant’s employees to perform
their ordinary functions and Tenant shall have ceased its operations in such
portion of the Premises, then after the continuation of such condition for
five
(5) consecutive business days and commencing on the sixth business day, or
alternatively, after the continuation of such condition for more than 12
business days in any calendar year, Base Rent hereunder shall xxxxx
proportionately for such portion of the Premises for the period such condition
persists. Landlord shall have the right to shut down the Building systems
(including electricity and HVAC systems) for required maintenance and safety
inspections (but Landlord shall do so after Normal Business Hours, if
practicable), and in cases of emergency.
d. Tenant’s
Obligation to Report Defects.
Tenant
shall promptly report to Landlord any defective condition in or about the
Premises known to Tenant.
e. Limitation
on Landlord’s Liability.
Landlord
shall not be liable to Tenant for any damage caused to Tenant and its property
due to the Building or any part or appurtenance thereof being improperly
constructed or being or becoming out of repair, or arising from the leaking
of
gas, water, sewer or steam pipes, or from problems with electrical service,
Tenant agreeing to insure against such damage. The preceding sentence is not
intended to release Landlord from its maintenance obligations under this Lease.
8. TENANT'S
ACCEPTANCE AND MAINTENANCE OF PREMISES.
a. Acceptance
of Premises.
Subject
to the terms of the attached Work Letter, Tenant’s occupancy of the Premises is
Tenant’s representation to Landlord that (i) Tenant has examined and inspected
the Premises, (ii) finds the Premises to be as represented by Landlord and
satisfactory for Tenant's intended use, and (iii) constitutes Tenant's
acceptance of the Premises "as is", subject to latent defects and Landlord's
performance of its obligations under the Work Letter. Landlord makes no
representation or warranty as to the condition of the Premises except as may
be
specifically set forth in the Work Letter.
b. Move-In
Obligations.
Tenant
shall schedule its move-in with the Landlord’s Property Manager. Unless
otherwise approved by Landlord’s Property Manager, which approval shall not be
unreasonably withheld, delayed or conditioned, move-in shall not take place
during Business Hours. During Tenant’s move-in, a representative of Tenant must
be on-site with Tenant’s moving company to ensure proper treatment of the
Building and the Premises. Elevators, entrances, hallways and other Common
Areas
must remain in use for the general public during Normal Business Hours. Any
specialized use of elevators or other Common Areas must be coordinated with
Landlord’s Property Manager. Tenant must properly dispose of all packing
material and refuse in accordance with the Rules and Regulations. Any damage
or
destruction to the Building or the Premises due to moving will be the sole
responsibility of Tenant.
vi
c. Tenant’s
Maintenance.
Tenant
shall: (i) keep the Tenant Improvements and fixtures in the Premises (excluding
building systems except when repairs or maintenance are required by Tenant’s
misuse thereof) and the interior surfaces of the Premises in good order; (ii)
make repairs and replacements to the Premises or Building needed because of
Tenant's misuse or negligence; (iii) repair and replace Non-Standard
Improvements, including any special equipment or decorative treatments,
installed by or at Tenant's request that serve the Premises (unless the Lease
is
ended because of casualty loss or condemnation); and (iv) not commit waste.
d. Alterations
to Premises.
Tenant
shall make no structural alterations to the Premises without the prior written
consent of Landlord, which Landlord shall be under no obligation to grant.
If
Tenant desires to make non-structural alterations to the Premises, Tenant shall
be responsible for the design and construction of such alterations, provided
that Tenant obtains Landlord's prior written approval of the plans and
specifications for such alterations, which approval shall not be unreasonably
withheld, conditioned or delayed, and, in that event, Tenant shall ensure that
such alterations are constructed in compliance with Laws and subject to such
reasonable and customary requirements as Landlord may impose on such
construction.
e. Restoration
of Premises.
At the
expiration or earlier termination of this Lease, Tenant shall deliver each
and
every part of the Premises in operable repair and condition, ordinary wear
and
tear and damage by casualty excepted, including all alterations undertaken
by or
at the request of Tenant after the Tenant Improvements are completed, except
that as to any such alteration which is atypical of general office use and
which
imposes upon Landlord materially greater demolition costs as compared to the
Tenant Improvements, Landlord may require Tenant to remove such alterations,
but
only if Landlord so notifies Tenant in writing simultaneously with Landlord's
approval of such alterations. If Tenant has required or installed Non-Standard
Improvements, such improvements shall be removed as part of Tenant’s restoration
obligation, unless at the time of such Non-Standard Improvements were installed,
Landlord agreed in writing that Tenant could abandon such improvements at Lease
expiration. Tenant shall repair any damage caused by the removal of any
Non-Standard Improvements. “Non-Standard Improvements” means such items as (i)
High Demand Equipment and separate meters, (ii) all wiring and cabling from
the
plenum only, (iii) raised floors for computer or communications systems, (iv)
telephone equipment, security systems, and UPS systems, (iv) supplemental HVAC
units and systems, and (v) equipment racks.
f. Landlord’s
Performance of Tenant’s Obligations.
If
Tenant does not perform its maintenance or restoration obligations in a timely
manner, commencing the same within fifteen (15) days after receipt of notice
from Landlord specifying the work needed, and thereafter diligently and
continuously pursuing the work until completion, then Landlord shall have the
right, but not the obligation, to perform such work. Any amounts expended by
Landlord on such maintenance or restoration shall be Additional Rent to be
paid
by Tenant to Landlord within thirty (30) days after demand.
g. Construction
Liens.
Tenant
shall have no power to do any act or make any contract that may create or be
the
foundation of any lien, mortgage or other encumbrance upon the reversionary
or
other estate of Landlord, or any interest of Landlord in the Premises. NO
CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED
TO THE PREMISES SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO
THE
PREMISES OR THE BUILDING. Tenant shall keep the Premises and the Building free
from any liens arising out of any work performed, materials furnished, or
obligations incurred by or on behalf of Tenant. Should any lien or claim of
lien
be filed against the Premises or the Building by reason of any act or omission
of Tenant or any of Tenant’s agents, employees, contractors or representatives,
then Tenant shall cause the same to be canceled and discharged of record by
bond
or otherwise within ten (10) days after the filing thereof. Should Tenant fail
to discharge the lien within ten (10) days, then Landlord may discharge the
lien. The amount paid by Landlord to discharge the lien (whether directly or
by
bond), plus all administrative and legal costs incurred by Landlord, shall
be
Additional Rent payable on demand. The remedies provided herein shall be in
addition to all other remedies available to Landlord under this Lease or
otherwise.
TENANT
SHALL NOTIFY ANY CONTRACTOR PERFORMING ANY CONSTRUCTION WORK IN THE PREMISES
ON
BEHALF OF TENANT THAT THIS LEASE SPECIFICALLY PROVIDES THAT THE INTEREST OF
LANDLORD IN THE PREMISES SHALL NOT BE SUBJECT TO LIENS FOR IMPROVEMENTS MADE
BY
TENANT, AND NO MECHANIC’S LIEN OR OTHER LIEN FOR ANY SUCH LABOR, SERVICES,
MATERIALS, SUPPLIES, MACHINERY, FIXTURES OR EQUIPMENT SHALL ATTACH TO OR AFFECT
THE STATE OR INTEREST OF LANDLORD IN AND TO THE PREMISES, THE BUILDING, OR
ANY
PORTION THEREOF. IN ADDITION, LANDLORD SHALL HAVE THE RIGHT TO POST AND KEEP
POSTED AT ALL REASONABLE TIMES ON THE PREMISES ANY NOTICES WHICH LANDLORD SHALL
BE REQUIRED SO TO POST FOR THE PROTECTION OF LANDLORD AND THE PREMISES FROM
ANY
SUCH LIEN. TENANT AGREES TO PROMPTLY EXECUTE SUCH INSTRUMENTS IN RECORDABLE
FORM
IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF FLORIDA STATUTE SECTION
713.10.
vii
h. Communications
Compliance. Tenant
acknowledges and agrees that any and all telephone and telecommunication
services desired by Tenant shall be ordered and utilized at the sole expense
of
Tenant. Unless Landlord requests otherwise or consents in writing, all of
Tenant’s telecommunications equipment shall be located and remain solely in the
Premises. Landlord shall not have any responsibility for the maintenance of
Tenant’s telecommunications equipment, including wiring; nor for any wiring or
other infrastructure to which Tenant’s telecommunications equipment may be
connected. Tenant agrees that, to the extent any telecommunications service
is
interrupted, curtailed or discontinued, Landlord shall have no obligation or
liability with respect thereto unless resulting from Landlord's negligence
or
willful misconduct. Landlord shall have the right, upon reasonable prior oral
notice to Tenant, to interrupt or turn off telecommunications facilities in
the
event of emergency, or other than in event of an emergency, upon three (3)
business days prior written notice to Tenant, to interrupt or turn off
telecommunications facilities as necessary in connection with repairs to the
Building or installation of telecommunications equipment for other tenants
of
the Building, provided such interruption occurs after Normal Business Hours
whenever practicable. In the event that Tenant wishes at any time to utilize
the
services of a telephone or telecommunications provider whose equipment is not
then servicing the Building, the provider shall not be permitted to install
its
lines or other equipment within the Building without first securing the prior
written approval of Landlord, which approval shall not be unreasonably withheld.
Landlord’s approval may be conditioned in such a manner as to protect Landlord’s
financial interests, the interest of the Building, and the other tenants
therein. The refusal of Landlord to grant its approval to any prospective
telecommunications provider shall not be deemed a default or breach by Landlord
of its obligation under this Lease. The provisions of this paragraph may be
enforced solely by Tenant and Landlord, are not for the benefit of any other
party, and specifically but without limitation, no telephone or
telecommunications provider shall be deemed a third party beneficiary of this
Lease. Tenant shall utilize any wireless communications equipment (other than
usual and customary cellular telephones and wireless LAN's), including antennae
and satellite receiver dishes, within the Premises or the Building, only with
Landlord’s prior written consent or in accordance with the Rooftop License
Agreement. Landlord’s consent may be conditioned in such a manner so as to
protect Landlord’s financial interests, the interests of the Building, and the
other tenants therein. At Landlord’s option, Tenant may be required to remove
any and all telecommunications equipment (including wireless equipment)
installed in the Premises or elsewhere in or on the Building by or on behalf
of
Tenant, including wiring from the plenum only, or other facilities for
telecommunications transmittal upon the expiration or termination of the Lease
and at Tenant’s sole cost.
9. PROPERTY
OF TENANT.
a. Property
Taxes.
Tenant
shall pay when due all taxes levied or assessed upon Tenant's equipment,
fixtures, furniture, leasehold improvements and personal property located in
the
Premises.
b. Removal.
Provided
Tenant is not in default, Tenant may remove all fixtures and equipment which
it
has placed in the Premises; provided, however, Tenant must repair all damages
caused by such removal. If Tenant does not remove its property from the Premises
upon the expiration or earlier termination (for whatever cause) of this Lease,
such property shall be deemed abandoned by Tenant, and Landlord may dispose
of
the same in whatever manner Landlord may elect without any liability to
Tenant.
10. SIGNS.
Tenant
may not erect, install or display any sign or advertising material upon the
exterior of the Building or Premises (including any exterior doors, walls or
windows) without the prior written consent of Landlord, which consent may be
withheld in Landlord’s sole discretion. Door and directory signage shall be
provided and installed by the Landlord in accordance with building standards
at
Tenant’s expense, unless otherwise provided in the Work Letter attached as Lease
Addendum Number One. As long as Tenant is occupying a full floor of the
Building, Tenant shall be allowed lobby signage on the fourth floor. Tenant
shall also be allowed, at Tenant’s expense, exterior monument signage located at
the front of the Building as more precisely described in Exhibit
E
attached
hereto.
11. ACCESS
TO PREMISES.
a. Tenant’s
Access.
Tenant,
its agents, employees, invitees, and guests, shall have access to the Premises
and reasonable ingress and egress to common and public areas of the Building
twenty-four hours a day, seven days a week; provided, however, Landlord by
reasonable regulation may control such access for the comfort, convenience,
safety and protection of all tenants in the Building, or as needed for making
repairs and alterations. Tenant shall be responsible for providing access to
the
Premises to its agents, employees, invitees and guests after Normal Business
Hours and on weekends and Holidays, but in no event shall Tenant’s use of and
access to the Premises outside of Normal Business Hours compromise the security
of the Building.
viii
b. Landlord’s
Access.
Landlord
shall have the right, at all reasonable times and upon reasonable prior oral
notice, either itself or through its authorized agents, to enter the Premises
(i) to make repairs, alterations or changes as Landlord deems necessary (but
only upon one (1) business day’s prior written notice to Tenant, explaining the
nature and location of the construction activities, and provided further that
if
Landlord’s work will materially adversely affect Tenant’s use of a portion of
the Premises, then such work will be performed after Normal Business Hours
and
Landlord will assure that appropriate security personnel are present during
such
work), (ii) to inspect the Premises, mechanical systems and electrical devices,
and (iii) to show the Premises to prospective mortgagees and purchasers. Within
three hundred sixty five (365) days prior to the Expiration Date, Landlord
shall
have the right, either itself or through its authorized agents, to enter the
Premises at all reasonable times upon reasonable prior notice to show
prospective tenants.
c. Emergency
Access.
Landlord
shall have the right to enter the Premises at any time without notice in the
event of an emergency.
12. RULES
AND REGULATIONS.
Tenant
shall comply with the Rules and Regulations attached as Exhibit
B.
The
Rules and Regulations may be reasonably modified from time to time by Landlord,
effective as of the date delivered to Tenant or posted on the Premises, provided
such rules are uniformly applicable to all tenants in the Building. Any conflict
between this Lease and the Rules and Regulations shall be governed by the terms
of this Lease.
13. COMPLIANCE
WITH LAWS.
a. Tenant’s
Compliance.
Tenant,
at Tenant’s sole expense, shall comply with all laws, rules, orders, ordinances,
directions, regulations and requirements of federal, state, county and municipal
authorities now in force, which shall impose any duty upon Landlord or Tenant
with respect to Tenant's use or occupation of the Premises including without
limitation, The Americans With Disabilities Act (the “ADA”)
("Laws").
b. Landlord’s
Compliance.
Landlord, at Landlord’s sole expense, shall comply with all Laws, including
without limitation, the ADA, as they apply to the Common Areas, restrooms and
structural and mechanical elements of the Building. Landlord shall not be
required to make changes to the Common Areas or restrooms of the Building to
comply with ADA standards adopted after construction of the Building unless
specifically required to do so by Law.
c. ADA
Notices.
If
Tenant receives any notices alleging a violation of ADA relating to any portion
of the Building or Premises (including any governmental or regulatory actions
or
investigations regarding non-compliance with ADA), then Tenant shall notify
Landlord in writing within ten (10) days of such notice and provide Landlord
with copies of any such notice.
14. INSURANCE
REQUIREMENTS.
a. Tenant’s
Liability Insurance.
Throughout the Term, Tenant, at its sole cost and expense, shall keep or cause
to be kept Commercial General Liability Insurance (ISO CGL Form CG0001 or its
equivalent) naming Landlord and Landlord's Property Manager as additional
insureds, with a combined single limit, each Occurrence and General
Aggregate-per location of at least TWO MILLION DOLLARS ($2,000,000), which
policy shall insure against liability of Tenant, arising out of and in
connection with Tenant's use of the Premises, and which shall insure the
indemnity provisions contained in this Lease. Not more frequently than once
every three (3) years, Landlord may require the limits to be increased if in
its
reasonable judgment (or that of its mortgagee) the coverage is insufficient
when
compared to the insurance requirements for similar buildings in the Westshore
submarket.
b. Tenant’s
Property Insurance.
Tenant
shall also carry the equivalent of ISO Special Form Property Insurance on
Tenant’s Property for full replacement value. For purposes of this provision,
“Tenant’s Property” shall mean Tenant’s personal property and fixtures, and any
Non-Standard Improvements to the Premises. Tenant shall neither have, nor make,
any claim against Landlord for any loss or damage to the Tenant’s Property,
regardless of the cause of the loss or damage. Tenant shall have the right
to
self-insure against damage to Tenant's Property.
c. Certificates
of Insurance.
Prior to
taking possession of the Premises, and annually thereafter, Tenant shall deliver
to Landlord certificates or other evidence of insurance satisfactory to
Landlord. All such policies shall be non-assessable and shall contain language
to the extent obtainable that (i) any loss shall be payable notwithstanding
any
act or negligence of Landlord or Tenant that might otherwise result in
forfeiture of the insurance, (ii) the policies are primary and non-contributing
with any insurance that Landlord may carry, and (iii) that the carrier will
endeavor to give Landlord written notice before such coverages are cancelled,
non-renewed or reduced. If Tenant fails to provide Landlord with such
certificates or other evidence of insurance coverage, Landlord may obtain such
coverage and the cost of such coverage shall be Additional Rent payable by
Tenant upon demand.
ix
d. Insurance
Policy Requirements.
Tenant’s
insurance policies required by this Lease shall: (i) be issued by insurance
companies licensed to do business in the state in which the Premises are located
with a general policyholder's ratings of at least A- and a financial rating
of
at least VI in the most current Best's Insurance Reports available on the
Commencement Date, or if the Best's ratings are changed or discontinued, the
parties shall agree to a comparable method of rating insurance companies; (ii)
name Landlord and current or future Mortgagee as an additional insured as its
interest may appear [other landlords or tenants may be added as additional
insureds in a blanket policy]; (iii) provide that that the carrier will endeavor
to give Landlord written notice before such coverages are cancelled, non-renewed
or reduced; (iv) be primary policies; (v) provide that any loss shall be payable
notwithstanding any gross negligence of Tenant; (iv) have no deductible
exceeding TEN THOUSAND DOLLARS ($10,000), unless approved in writing by
Landlord; and (v) be maintained during the entire Term and any extension
terms.
e. Landlord’s
Property Insurance.
Landlord
shall keep the Building, including the improvements (but excluding Tenant’s
Property), insured against damage and destruction by perils insured by the
equivalent of ISO Special Form Property Insurance in the amount of the full
replacement value of the Building.
f. Mutual
Waiver of Subrogation.
Anything
in this Lease to the contrary notwithstanding, Landlord hereby releases and
waives unto Tenant (including all partners, stockholders, officers, directors,
employees and agents thereof), its subtenants, successors and assigns, and
Tenant hereby releases and waives unto Landlord (including all partners,
stockholders, officers, directors, employees and agents thereof), its successors
and assigns, all rights of recovery, claims, actions, or causes of action
against the other for any cost of damage to the Premises, the Building, or
any
improvements therein or thereon, or any property of such party therein or
thereon, by reason of fire, the elements, or any other cause which would
typically be insured against under the terms of a special form property
insurance policy in Section 14 hereof, regardless of the amount of proceeds
payable under the insurance policies or the cause or origin including negligence
of the other party hereto. As respects all policies of insurance carried or
maintained pursuant to this Lease, Tenant and Landlord each waive the insurance
carriers’ rights of subrogation.
15. INDEMNITY.
Subject
to the insurance requirements, releases and mutual waivers of subrogation set
forth in this Lease, Landlord and Tenant agrees as follows:
a. Indemnity.
Tenant
shall indemnify and hold Landlord, Landlord's mortgagees, any ground lessor
and
their respective partners, stockholders, officers, directors, employees, and
agents harmless from and against any and all claims, damages, losses,
liabilities, lawsuits, costs and expenses (including reasonable attorneys'
fees
at all tribunal levels) arising out of or related to (i) any activity, work,
or
other thing done, permitted or suffered by Tenant in or about the Premises
or
the Building, (ii) any breach or default by Tenant in the performance of any
of
its obligations under this Lease, or (iii) any act or neglect of Tenant, or
any
officer, agent, employee, contractor, servant, invitee or guest of Tenant.
Landlord shall indemnify and hold harmless Tenant and its partners, directors,
officers, agents, and employees from and against any and all claims, damages,
losses, liabilities, lawsuits, costs and expenses (including attorneys' fees
at
all tribunal levels) arising out of or related to (i) any activity, work, or
other thing done, permitted or suffered by Landlord in or about the Common
Areas, and (ii) any act or neglect of Landlord, or any officer, agent, employee,
contractor, servant, invitee or guest of Landlord.
b. Defense
Obligation.
In
connection with the parties' performance of their indemnity obligations under
Section 15.a, above, the indemnitor shall defend the indemnitee through counsel
acceptable to the indemnitee. The provisions of this Section 15 shall survive
the termination of this Lease.
16. QUIET
ENJOYMENT.
Tenant
shall have quiet enjoyment and possession of the Premises provided no default
exists hereunder beyond applicable notice and cure periods.
17. SUBORDINATION;
ATTORNMENT; NON-DISTURBANCE; AND ESTOPPEL CERTIFICATE.
a. Subordination
and Attornment.
Tenant
agrees to execute within ten business (10) business days after request to do
so
from Landlord or its mortgagee an agreement:
x
i. |
Making
this Lease superior or subordinate to the interests of the
mortgagee;
|
ii. |
Agreeing
to attorn to the mortgagee;
|
iii. |
Giving
the mortgagee notice of, and a reasonable opportunity (which shall
in no
event be less than thirty (30) days after notice thereof is delivered
to
mortgagee) to cure any Landlord default and agreeing to accept such
cure
if effected by the mortgagee;
|
iv. |
Permitting
the mortgagee (or other purchaser at any foreclosure sale), and its
successors and assigns, on acquiring Landlord's interest in the Premises
and the Lease, to become substitute Landlord hereunder, with liability
only for such Landlord obligations as accrue after Landlord's interest
is
so acquired;
|
v. |
Agreeing
to attorn to any successor Landlord; and
|
vi. |
Containing
such other agreements and covenants on Tenant's part as Landlord's
mortgagee may reasonably request which do not adversely affect Tenant’s
rights under this Lease.
|
b. Non-Disturbance.
Tenant’s
obligation to subordinate its interests or attorn to any mortgagee is
conditioned upon the mortgagee’s agreement not to disturb Tenant’s possession
and quiet enjoyment of the Premises under this Lease so long as Tenant is in
compliance with the terms of the Lease. Landlord shall deliver to Tenant a
non-disturbance agreement reasonably acceptable to Tenant from the holder of
any
existing Mortgage within fifteen (15) days after the Effective Date. Landlord
hereby represents and warrants to Tenant that Landlord owns fee simple title
to
the Building and the real property on which the Building is located, free and
clear of any encumbrance, mortgage or other lien, except for the lien for real
estate taxes not yet due and payable and the mortgage lien in favor of Northwest
Mutual Insurance Company. Within fifteen (15) days after the Effective Date,
Landlord and Tenant shall execute and deliver, and Landlord shall cause
Northwestern Mutual Life Insurance Company to execute and deliver, a
subordination, non-disturbance and attornment agreement in substantially the
form attached hereto as Exhibit
F.
c. Estoppel
Certificates.
Landlord
and Tenant agree to execute within ten (10) business days after request, and
as
often as reasonably requested, estoppel certificates confirming any reasonable
factual matter which is true to the certifying party's knowledge regarding
this
Lease and the Premises, including but not limited to: (i) the date of occupancy,
(ii) Expiration Date, (iii) the amount of Rent due and date to which Rent is
paid, (iii) whether the certifying party has any defense or offsets to the
enforcement of this Lease or the Rent payable, (iv) any default or breach by
the
other party, and (v) whether this Lease, together with any modifications or
amendments, is in full force and effect. The certifying party shall attach
to
such estoppel certificate a copy of each modification or amendment to the
Lease.
18. ASSIGNMENT
- SUBLEASE.
a. Landlord
Consent.
Tenant
may not assign or encumber this Lease or its interest in the Premises arising
under this Lease, and may not sublet all or any part of the Premises without
first obtaining the written consent of Landlord, which consent shall not be
withheld unreasonably. Factors which Landlord may consider in deciding whether
to consent to an assignment or sublease include (without limitation), (i) the
creditworthiness of the assignee, (ii) the proposed use of the Premises, (iii)
whether there is other vacant space in the Building which would satisfy the
requirements of the proposed transferee, (iv) whether the assignee or sublessee
will vacate other space owned by Landlord, (v) whether Landlord is negotiating
with the proposed sublessee or assignee for a lease of other space owned by
Landlord, and (vi) any renovations to the Premises or special services required
by the assignee or sublessee (unless Tenant or such assignee or sublessee agrees
to pay for such renovations or services). Landlord will not consent to an
assignment or sublease that reasonably might result in a use that conflicts
with
the rights of any existing tenant. One consent shall not be the basis for any
further consent.
b. Definition
of Assignment.
For the
purpose of this Section 18, the word "assignment" shall be defined and deemed
to
include the following: (i) if Tenant is a partnership, the withdrawal or change,
whether voluntary, involuntary or by operation of law, of partners owning thirty
percent (30%) or more of the partnership, or the dissolution of the partnership;
(ii) if Tenant consists of more than one person, an assignment, whether
voluntary, involuntary, or by operation of law, by one person to one of the
other persons that is a Tenant; (iii) if Tenant is a corporation, any
dissolution or reorganization of Tenant, or the sale or other transfer of a
controlling percentage (hereafter defined) of capital stock of Tenant other
than
to an affiliate or subsidiary or the sale of fifty-one percent (51%) in value
of
the assets of Tenant; (iv) if Tenant is a limited liability company, the change
of members whose
xi
interest
in the company is fifty percent (50%) or more. The phrase "controlling
percentage" means the ownership of, and the right to vote, stock possessing
at
least fifty-one percent (51%) of the total combined voting power of all classes
of Tenant's capital stock issued, outstanding and entitled to vote for the
election of directors, or such lesser percentage as is required to provide
actual control over the affairs of the corporation; except that if the Tenant
is
a publicly traded company, public trades or sales of the Tenant’s stock on a
national stock exchange shall not be considered an assignment hereunder even
if
the aggregate of the trades of sales exceeds fifty percent (50%) of the capital
stock of the company.
c. Permitted
Assignments/Subleases.
Notwithstanding the foregoing, Tenant may assign this Lease or sublease part
or
all of the Premises without Landlord's consent to: (i) any corporation, limited
liability company, or partnership that controls, is controlled by, or is under
common control with, Tenant at the Commencement Date; or (ii) any corporation
or
limited liability company resulting from the merger or consolidation with Tenant
or to any entity that acquires substantially all of Tenant's assets as a going
concern of the business that is being conducted on the Premises; provided
however, the assignor remains liable under the Lease and the assignee or
sublessee is a bona fide entity and assumes the obligations of Tenant, and
continues the same Permitted Use as provided under Section 4.
d. Notice
to Landlord.
Except
in the case of assignments or sublettings made pursuant to Section 18.c. above,
Landlord must be given prior written notice of every assignment or subletting,
and failure to do so shall be a default hereunder.
e. Prohibited
Assignments/Subleases.
In no
event shall this Lease be assignable by operation of any law, and Tenant's
rights hereunder may not become, and shall not be listed by Tenant as an asset
under any bankruptcy, insolvency or reorganization proceedings. Acceptance
of
Rent by Landlord after any non-permitted assignment or sublease shall not
constitute approval thereof by Landlord.
f. Limitation
on Rights of Assignee/Sublessee. Any
sublease for which Landlord’s consent is required shall not include the right to
exercise any options to renew the Lease Term, expand the Premises, cancel the
Lease, or similar options, unless specifically provided for in the
consent.
g. Tenant
Not Released.
No
assignment or sublease shall release Tenant of any of its obligations under
this
Lease.
h. Landlord’s
Right to Collect Sublease Rents upon Tenant Default.
If the
Premises (or any portion) is sublet and Tenant defaults under its obligations
to
Landlord beyond applicable notice and cure periods, then Landlord is authorized,
at its option, to collect all sublease rents directly from the Sublessee. Tenant
hereby assigns the right to collect the sublease rents to Landlord in the event
of Tenant default beyond applicable notice and cure periods. The collection
of
sublease rents by Landlord shall not relieve Tenant of its obligations under
this Lease, nor shall it create a contractual relationship between Sublessee
and
Landlord or give Sublessee any greater estate or right to the Premises than
contained in its Sublease.
i. Excess
Rents.
If
Landlord consents to any assignment or sublet pursuant to this Section 18,
then
Tenant shall pay Landlord as Additional Rent, fifty percent (50%) of any Bonus
Rent received by Tenant. For purposes of this Lease, “Bonus Rent” shall mean
sums (i) which Tenant receives pursuant to the terms of the assignment or sublet
which are in excess of total Rent which Tenant is obligated to pay Landlord
under this Lease (to be pro-rated if only a portion of the Leased Premises
is
subject to such transfer); less (ii) (a) leasing commissions paid by Tenant;
(b)
other out-of-pocket costs paid by Tenant, including attorneys’ fees, advertising
costs, and expenses of improvements or other expenses of readying the Leased
Premises for occupancy by the transferee; (c) any consideration paid to the
transferee or any third party to induce the transferee to consummate the
transfer; and (d) out-of-pocket costs paid by Tenant for reasonable tenant
improvement work or allowances, and any reasonable rent concessions, all of
which costs, for the purposes of determining the amounts payable to Landlord
shall be amortized on a straight line basis over the term of the Lease in the
case of an assignment or sublease. In no event shall Bonus Rent be payable
in
connection with an assignment or sublease pursuant to Section 18(c). Tenant
shall provide Landlord with written invoices and receipts reasonably
satisfactory to Landlord evidencing costs and expenses paid by Tenant described
in clause (ii) of the immediately preceding sentence.
j. Landlord’s
Fees.
Tenant
shall pay Landlord $500.00 per assignment or sublease transaction in connection
with an assignment or sublease for which consent is required.
xii
k. Unauthorized
Assignment or Sublease.
Any
unauthorized assignment or sublease shall constitute a default under the terms
of this Lease. In addition to its other remedies for Default, Landlord may
elect
to increase Base Rent to 150% of the Base Rent reserved under the terms of
this
Lease.
19. DAMAGES
TO PREMISES.
a. Landlord’s
Restoration Obligations.
If the
Building, Common Areas or Premises are damaged by fire or other casualty
(“Casualty”), then Landlord shall repair and restore the Building, Common Areas
and Premises to substantially the same condition immediately prior to such
Casualty, subject to the following terms and conditions:
i. |
The
casualty must be insured under Landlord's insurance policies, and
Landlord’s obligation is limited to the extent of the insurance proceeds
received by Landlord. Landlord’s duty to repair and restore the Premises
shall not begin until receipt of the insurance
proceeds.
|
ii. |
Landlord’s
lender(s) must permit the insurance proceeds to be used for such
repair
and restoration.
|
iii. |
Landlord
shall have no obligation to repair and restore Tenant’s trade fixtures,
decorations, signs, contents, or any Non-Standard Improvements to
the
Premises.
|
b. Termination
of Lease by Landlord.
Landlord
shall have the option of terminating the Lease if: (i) the Premises is rendered
wholly untenantable; (ii) the Premises is damaged in whole or in part as a
result of a risk which is not covered by Landlord's insurance policies; (iii)
Landlord's lender does not permit a sufficient amount of the insurance proceeds
to be used for restoration purposes; (iv) the Premises is damaged in whole
or in
part during the last two years of the Term; or (v) the Building containing
the
Premises is damaged (whether or not the Premises is damaged) to an extent of
fifty percent (50%) or more of the fair market value thereof. If Landlord elects
to terminate this Lease, then it shall give notice of the cancellation to Tenant
within sixty (60) days after the date of the Casualty. Tenant shall vacate
and
surrender the Premises to Landlord within fifteen (15) days after receipt of
the
notice of termination, and all Rent shall be prorated through the date Tenant
vacates the Premises.
c. Termination
of Lease by Tenant.
Tenant
shall have the option of terminating the Lease if: (i) Landlord has failed
to
substantially restore the damaged Building or Premises within one hundred eighty
(180) days of the Casualty (“Restoration Period”) as extended by force
majeure;
and
Tenant gives Landlord notice of the termination within fifteen (15) days after
the end of the Restoration Period (as extended by any force
majeure
delays),
or (ii) during the last year of the Term, five percent (5%) or more of the
Rentable Area of the Premises is damaged or the Common Areas are damaged, such
that in either case Tenant is materially impaired in its ability to conduct
its
business operations within the Premises as it has prior to the damage. In the
event of such termination, all Rent shall be prorated through the date of Lease
termination. If Landlord is delayed by force
majeure,
then
Landlord must provide Tenant with notice of the delays within fifteen (15)
days
of the force
majeure
event
stating the reason for the delays and a good faith estimate of the length of
the
delays.
d. Tenant’s
Restoration Obligations.
Unless
terminated, the Lease shall remain in full force and effect, and Tenant shall
promptly repair, restore, or replace Tenant's trade fixtures, decorations,
signs, contents, and any Non-Standard Improvements to the Premises. All repair,
restoration or replacement shall be at least to the same condition as existed
prior to the Casualty. The proceeds of all insurance carried by Tenant on its
property shall be held in trust by Tenant for the purposes of such repair,
restoration, or replacement.
e. Rent
Abatement.
If
Premises is rendered wholly untenantable by the Casualty, then the Rent payable
by Tenant shall be fully abated. If the Premises is only partially damaged,
then
Tenant shall continue the operation of Tenant's business in any part not damaged
to the extent reasonably practicable from the standpoint of prudent business
management, and Rent and other charges shall be abated proportionately to the
portion of the Premises rendered untenantable. The abatement shall be from
the
date of the Casualty until fifteen (15) days after the Premises have been
substantially repaired and restored, or until Tenant's business operations
are
restored in the entire Premises, whichever shall first occur. However, if the
Casualty is caused by the negligence or other wrongful conduct of Tenant or
of
Tenant's subtenants, licensees, contractors, or invitees, or their respective
agents or employees, there shall be no abatement of Rent.
f. Waiver
of Claims.
The
abatement of the Rent set forth above is Tenant’s exclusive remedy against
Landlord in the event of a Casualty. Tenant hereby waives all claims against
Landlord for any compensation or damage for loss of use of the whole or any
part
of the Premises and/or for any inconvenience or annoyance occasioned by any
Casualty and any resulting damage, destruction, repair, or
restoration.
xiii
20. EMINENT
DOMAIN.
a. Effect
on Lease.
If
substantially all of the Premises or Common Areas are taken under the power
of
eminent domain (or by conveyance in lieu thereof), then this Lease shall
terminate as of the date possession is taken by the condemnor, and Rent shall
be
adjusted between Landlord and Tenant as of such date. If only a portion of
the
Premises or Common Areas are taken and Tenant can continue use of the remainder
for operation of Tenant's business without material impairment, then this Lease
will not terminate, but Rent shall xxxxx in a just and proportionate amount
to
the loss of use occasioned by the taking.
b. Right
to Condemnation Award.
Landlord
shall be entitled to receive and retain the entire condemnation award for the
taking of the Building and Premises. Tenant shall have no right or claim against
Landlord for any part of any award received by Landlord for the taking. Tenant
shall have no right or claim for any alleged value of the unexpired portion
of
this Lease, or its leasehold estate, or for costs of removal, relocation,
business interruption expense or any other damages arising out of such taking.
Tenant, however, shall not be prevented from making a claim against the
condemning party (but not against Landlord ) for any moving expenses, loss
of
profits, or taking of Tenant’s personal property (other than its leasehold
estate) to which Tenant may be entitled; provided that any such award shall
not
reduce the amount of the award otherwise payable to Landlord for the taking
of
the Building and Premises.
21. ENVIRONMENTAL
COMPLIANCE.
a. Environmental
Laws.
The term
“ Environmental Laws” shall mean all now existing or hereafter enacted or issued
statutes, laws, rules, ordinances, orders, permits and regulations of all state,
federal, local and other governmental and regulatory authorities, agencies
and
bodies applicable to the Premises, pertaining to environmental matters or
regulating, prohibiting or otherwise having to do with asbestos and all other
toxic, radioactive, or hazardous wastes or materials including, but not limited
to, the Federal Clean Air Act, the Federal Water Pollution Control Act, and
the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as from time to time amended.
b. Tenant's
Responsibility.
Tenant
covenants and agrees that it will keep and maintain the Premises at all times
in
compliance with Environmental Laws. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
active or other hazardous substances, or materials on the Property in violation
of Environmental Laws. Tenant shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or in compliance
with the highest standards prevailing in the industry for the storage and use
of
such substances or materials, nor allow to be brought onto the Property any
such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after notice is given to Landlord of the identity of
such substances or materials. No such notice shall be required, however, for
commercially reasonable amounts of ordinary office supplies and janitorial
supplies. Tenant shall execute affidavits, representations and the like, from
time to time, at Landlord's request, concerning Tenant's best knowledge and
belief regarding the presence of hazardous substances or materials on the
Premises.
c. Tenant's
Liability.
Tenant
shall hold Landlord free, harmless, and indemnified from any penalty, fine,
claim, demand, liability, cost, or charge whatsoever which Landlord shall incur,
or which Landlord would otherwise incur, by reason of Tenant's failure to comply
with this Section 21 including, but not limited to: (i) the cost of full
remediation of any contamination to bring the Property into the same condition
as prior to the Commencement Date and into full compliance with all
Environmental Laws; (ii) the reasonable cost of all appropriate tests and
examinations of the Premises to confirm that the Premises and any other
contaminated areas have been remediated and brought into compliance with all
Environmental Laws; and (iii) the reasonable fees and expenses of Landlord's
attorneys, engineers, and consultants incurred by Landlord in enforcing and
confirming compliance with this Section 21.
d. Limitation
on Tenant’s Liability.
Tenant’s
obligations under this Section 21 shall not apply to any condition or matter
constituting a violation of any Environmental Laws: (i) which existed prior
to
the commencement of Tenant's use or occupancy of the Premises; (ii) which was
not caused, in whole or in part, by Tenant or Tenant's agents, employees,
officers, partners, contractors or invitees; or (iii) to the extent such
violation is caused by, or results from the acts or neglects of Landlord or
Landlord's agents, employees, officers, partners, contractors, guests, or
invitees.
e. Inspections
by Landlord.
Landlord and its engineers, technicians, and consultants (collectively the
"Auditors") may, from time to time as Landlord reasonably deems appropriate,
upon at least ten (10) days prior
xiv
written
notice, or such earlier time as appropriate if the schedule for such Audits
has
been set by or in cooperation with a governmental entity, or in the case
of
emergency, conduct periodic tests and examinations ("Audits") of the Premises
to
confirm and monitor Tenant's compliance with this Section 21. Such Audits
shall
be conducted in such a manner as to minimize the interference with Tenant's
Permitted Use; however in all cases, the Audits shall be of such nature and
scope as shall be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 21. Tenant shall reasonably cooperate
with
Landlord and its Auditors in the conduct of such Audits. The cost of such
Audits
shall be paid by Landlord unless an Audit shall disclose a material failure
of
Tenant to comply with this Section 21, in which case, the cost of such Audit,
and the cost of all subsequent Audits made during the Term and within thirty
(30) days thereafter (not to exceed two (2) such Audits per calendar year),
shall be paid for on demand by Tenant.
f. Landlord's
Liability.
Landlord represents and warrants that, to the best of Landlord’s knowledge,
there are no hazardous materials on the Premises or in the Building as of the
Commencement Date in violation of any Environmental Laws. Landlord shall
indemnify and hold Tenant harmless from any liability resulting from any such
violation.
g. Property.
For the
purposes of this Section 21, the term “Property” shall include the Premises,
Building, all Common Areas, the real estate upon which the Building is located;
all personal property (including that owned by Tenant); and the soil, ground
water, and surface water of the real estate upon which the Building is
located.
h. Liability
After Termination of Lease.
The
covenants contained in this Section 21 shall survive the expiration or
termination of this Lease, and shall continue for so long as Landlord or Tenant
and its successors and assigns may be subject to any expense, liability, charge,
penalty, or obligation against which Landlord or Tenant, as the case may be,
has
agreed to indemnify the other under this Section 21.
22. DEFAULT.
a. Tenant’s
Default.
Tenant
shall be in default under this Lease if Tenant:
i. |
Fails
to pay when due any Base Rent, Additional rent, or any other sum
of money
which Tenant is obligated to pay, as provided in this Lease, within
five
(5) days after notice of such failure (except that Landlord shall
not be
required to give more than two (2) such notices in any calendar year,
and
after the giving of such two notices in the same calendar year, Tenant's
failure to pay when due any such payment within the same calendar
year
shall be deemed to constitute a default without the giving of notice);
|
ii. |
Breaches
any other agreement, covenant or obligation in this Lease and such
breach
is not remedied within fifteen (15) days after Landlord gives Tenant
notice specifying the breach, or if such breach cannot, with due
diligence, be cured within fifteen (15) days, Tenant does not commence
curing within fifteen (15) days and with reasonable diligence completely
cure the breach within a reasonable period of time after the
notice;
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iii. |
Files
any petition or action for relief under any creditor's law (including
bankruptcy, reorganization, or similar action), either in state or
federal
court, or has such a petition or action filed against it which is
not
stayed or vacated within sixty (60) days after filing;
or
|
iv. |
Makes
any transfer in fraud of creditors as defined in Xxxxxxx 000 xx xxx
Xxxxxx
Xxxxxx Bankruptcy Code (11 U.S.C. 548, as amended or replaced), has
a
receiver appointed for its assets (and the appointment is not stayed
or
vacated within thirty (30) days), or makes an assignment for benefit
of
creditors.
|
b. Landlord’s
Remedies.
In the
event of a Tenant default which continues beyond applicable notice and cure
periods, Landlord at its option may do one or more of the following:
i. |
Terminate
this Lease and recover all damages caused by Tenant’s breach, including
consequential damages for lost future
rent;
|
ii. |
Repossess
the Premises, with or without terminating, and relet the Premises
at such
amount as Landlord deems
reasonable;
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xv
iii. |
Declare
the entire remaining Base Rent and Additional Rent immediately due
and
payable, less the reasonable amount of rent which Tenant proves could
be
recovered by reletting the Premises for the remainder of the Term,
with
both such amounts discounted to present value at a discount rate
equal to
the U.S. Treasury Xxxx or Note rate with the closest maturity to
the
remaining term of the Lease as selected by
Landlord;
|
iv. |
Bring
action for recovery of all amounts due from
Tenant;
|
v. |
Seize
and hold any personal property of Tenant located in the Premises
and
assert against the same a lien for monies due
Landlord;
|
vi. |
Pursue
any other remedy available in law or equity.
|
c. Landlord’s
Expenses; Attorneys Fees.
All
reasonable expenses of Landlord in repairing, restoring, or altering the
Premises for reletting as general office space, together with leasing fees
and
all other expenses in seeking and obtaining a new Tenant, shall be charged
to
and be a liability of Tenant. The prevailing party's reasonable attorneys'
fees
in pursuing any remedy under this Lease, or in collecting any Rent or Additional
Rent or other amount due under this Lease, shall be paid by the other party.
d. Remedies
Cumulative.
All
rights and remedies provided in this Lease are cumulative, and the exercise
of
any one shall not be an election excluding any other remedy. No exercise by
Landlord of any right or remedy granted herein shall constitute or effect a
termination of this Lease unless Landlord shall so elect by notice delivered
to
Tenant. The failure of either party to exercise its rights in connection with
this Lease or any breach or violation of any term, or any subsequent breach
of
the same or any other term, covenant or condition herein contained shall not
be
a waiver of such term, covenant or condition or any subsequent breach of the
same or any other covenant or condition herein contained.
e. No
Accord and Satisfaction.
No
acceptance of a lesser sum than the Rent, Additional Rent and other sums then
due shall be deemed to be other than on account of the earliest installment
of
such payments due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed as accord and satisfaction,
and the Payee may accept such check or payment without prejudice to Payee’s
right to recover the balance of such installment or pursue any other remedy
provided in this Lease.
f. No
Reinstatement.
No
payment of money by Tenant to Landlord after the expiration or termination
of
this Lease shall reinstate or extend the Term, or make ineffective any notice
of
termination given to Tenant prior to the payment of such money. After the
service of notice or the commencement of a suit, or after final judgment
granting Landlord possession of the Premises, Landlord may receive and collect
any sums due under this Lease, and the payment thereof shall not make
ineffective any notice or in any manner affect any pending suit or any judgment
previously obtained.
g. Summary
Ejectment.
Tenant
agrees that in addition to all other rights and remedies Landlord may obtain
an
order for summary ejectment from any court of competent jurisdiction without
prejudice to Landlord's rights to otherwise collect rents or breach of contract
damages from Tenant.
23. MULTIPLE
DEFAULTS.
a. Loss
of Option Rights.
Tenant
acknowledges that any rights or options of first refusal, or to extend the
Term,
to expand the size of the Premises, to purchase the Premises or the Building,
or
other similar rights or options which have been granted to Tenant under this
Lease are conditioned upon the prompt and diligent performance of the terms
of
this Lease by Tenant. Accordingly, should Tenant default under this Lease beyond
applicable notice and cure periods on three (3) or more occasions during any
twelve (12) month period, in addition to all other remedies available to
Landlord, all such rights and options shall automatically, and without further
action on the part of any party, expire and be of no further force and
effect.
b. Effect
on Notice Rights and Cure Periods.
Should
Tenant default under this Lease beyond applicable notice and cure periods on
three (3) or more occasions during any twelve (12) month period, in addition
to
all other remedies available to Landlord, any notice requirements or cure
periods otherwise set forth in this Lease with respect to a subsequent default
by Tenant within such twelve (12) month period shall not apply.
xvi
24. BANKRUPTCY.
a. Trustee’s
Rights.
Landlord
and Tenant understand that, notwithstanding contrary terms in this Lease, a
trustee or debtor in possession under the United States Bankruptcy Code, as
amended, (the "Code") may have certain rights to assume or assign this Lease.
This Lease shall not be construed to give the trustee or debtor in possession
any rights greater than the minimum rights granted under the Code.
b. Adequate
Assurance.
Landlord
and Tenant acknowledge that, pursuant to the Code, Landlord is entitled to
adequate assurances of future performance of the provisions of this Lease.
The
parties agree that the term “adequate assurance” shall include at least the
following:
i . |
In
order to assure Landlord that any proposed assignee will have the
resources with which to pay all Rent payable pursuant to the provisions
of
this Lease, any proposed assignee must have, as demonstrated to Landlord’s
satisfaction, a net worth (as defined in accordance with generally
accepted accounting principles consistently applied) of not less
than the
net worth of Tenant on the Effective Date (as hereinafter defined),
increased by seven percent (7%), compounded annually, for each year
from
the Effective Date through the date of the proposed assignment. It
is
understood and agreed that the financial condition and resources
of Tenant
were a material inducement to Landlord in entering into this
Lease.
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ii. |
Any
proposed assignee must have been engaged in the conduct of business
for
the five (5) years prior to any such proposed assignment, which business
does not violate the Use provisions under Section 4 above, and such
proposed assignee shall continue to engage in the Permitted Use under
Section 4. It is understood that Landlord’s asset will be substantially
impaired if the trustee in bankruptcy or any assignee of this Lease
makes
any use of the Premises other than the Permitted
Use.
|
c. Assumption
of Lease Obligations.
Any
proposed assignee of this Lease must assume and agree to be bound by the
provisions of this Lease.
25. NOTICES.
a. Addresses.
All
notices, demands and requests by Landlord or Tenant shall be sent to the Notice
Addresses set forth in Section 1m, or to such other address as a party may
specify by duly given notice.
b. Form;
Delivery; Receipt. ALL
NOTICES, DEMANDS AND REQUESTS WHICH MAY BE GIVEN OR WHICH ARE REQUIRED TO BE
GIVEN BY EITHER PARTY TO THE OTHER MUST BE IN WRITING UNLESS OTHERWISE
SPECIFIED.
Notices,
demands or requests shall be deemed to have been properly given for all purposes
if (i) delivered against a written receipt of delivery, (ii) mailed by express,
registered or certified mail of the United States Postal Service, return receipt
requested, postage prepaid, or (iii) delivered to a nationally recognized
overnight courier service for next business day delivery to the receiving
party's address as set forth above. Each such notice, demand or request shall
be
deemed to have been received upon the earlier of the actual receipt or refusal
by the addressee or three (3) business days after deposit thereof at any main
or
branch United States post office if sent in accordance with subsection (ii)
above, and the next business day after deposit thereof with the courier if
sent
pursuant to subsection (iii) above.
c. Address
Changes.
The
parties shall notify the other of any change in address, which notification
must
be at least fifteen (15) days in advance of it being effective.
d. Notice
by Legal Counsel.
Notices
may be given on behalf of any party by such party's legal counsel.
26. HOLDING
OVER.
If
Tenant holds over after the Expiration Date or other termination of this Lease,
such holding over shall not be a renewal of this Lease but shall create a
tenancy-at-will. Tenant shall continue to be bound by all of the terms and
conditions of this Lease, except that during such tenancy-at-will Tenant shall
pay to Landlord (i) Base Rent at the rate equal to one hundred and fifty percent
(150%) of that provided for as of the expiration or termination date, and (ii)
any and all Operating Expenses and other forms of Additional Rent payable under
this Lease.
27. RIGHT
TO RELOCATE.
[INTENTIONALLY OMITTED]
xvii
28. BROKER'S
COMMISSIONS.
a. Broker.
Each
party represents and warrants to the other that it has not dealt with any real
estate broker, finder or other person with respect to this Lease in any manner,
except the Broker identified in Section 1m.
b. Landlord’s
Obligation.
Landlord
shall pay any commissions or fees that are payable to the Broker with respect
to
this Lease pursuant to Landlord’s separate agreement with the
Broker.
c. Indemnity.
Each
party shall indemnify and hold the other party harmless from any and all damages
resulting from claims that may be asserted against the other party by any other
broker, finder or other person (including, without limitation, any substitute
or
replacement broker claiming to have been engaged by indemnifying party in the
future), claiming to have dealt with the indemnifying party in connection with
this Lease. The provisions of this Section shall survive the termination of
this
Lease.
29. MISCELLANEOUS.
a. No
Agency.
Tenant
is not, may not become, and shall never represent itself to be an agent of
Landlord, and Tenant acknowledges that Landlord's title to the Building is
paramount, and that it can do nothing to affect or impair Landlord's title.
b. Force
Majeure.
The term
“force
majeure”
means:
fire, flood, extreme weather, labor disputes, strike, lock-out, riot, government
interference (including regulation, appropriation or rationing), unusual delay
in governmental permitting, unusual delay in deliveries or unavailability of
materials, unavoidable casualties, Act of God, or other causes beyond the
obligor’s reasonable control.
c. Building
Standard Improvements.
The term
“Building Standard Improvements” shall mean the descriptive narrative of
building standards described in Section 2 of the Work Letter.
d. Limitation
on Damages.
Notwithstanding any other provisions in this Lease, neither party shall be
liable to the other for any special, consequential, incidental or punitive
damages.
e. Satisfaction
of Judgments Against Landlord.
If
Landlord, or its employees, officers, directors, stockholders or partners are
ordered to pay Tenant a money judgment because of Landlord's default under
this
Lease, said money judgment may only be enforced against and satisfied out of:
(i) Landlord's interest in the Building in which the Premises are located
including the rental income and proceeds from sale; (ii) prepaid estimated
Additional Rent; and (iii) any insurance or condemnation proceeds received
because of damage or condemnation to, or of, said Building that are available
for use by Landlord. No other assets of Landlord or said other parties
exculpated by the preceding sentence shall be liable for, or subject to, any
such money judgment.
f. Interest.
Should
either party fail to pay any amount due to the other within 30 days of the
date
such amount is due (whether Base Rent, Additional Rent, or any other payment
obligation), then the amount due shall begin accruing interest at the rate
of
18% per annum, compounded monthly, or the highest permissible rate under
applicable usury law, whichever is less, until paid.
g. Legal
Costs.
Should
one party to this Lease prevail in any legal proceedings against the other
for
breach of any provision in this Lease, then the non-prevailing party shall
be
liable for the costs and expenses of the prevailing party, including its
reasonable attorneys' fees (at all tribunal levels).
h. Sale
of Premises or Building.
Landlord
may sell the Premises or the Building without affecting the obligations of
Tenant hereunder; upon the sale of the Premises or the Building, Landlord shall
be relieved of all responsibility for the Premises and shall be released from
any liability thereafter accruing under this Lease, provided the entity
succeeding to Landlord's interest with respect thereto shall assume all
obligations of Landlord under this Lease accruing after such transfer.
i. Time
of the Essence.
Time is
of the essence in the performance of all obligations under the terms of this
Lease.
xviii
j. Tender
of Premises.
The
delivery of a key or other such tender of possession of the Premises to Landlord
or to an employee of Landlord shall not operate as a termination of this Lease
or a surrender of the Premises unless requested in writing by
Landlord.
k. Financial
Statements. If
Tenant’s financial statements cease to be publicly available, then upon request
of Landlord, Tenant agrees to furnish to Landlord copies of Tenant’s most recent
annual and quarterly financial statements, audited if available. The financial
statements shall be prepared in accordance with generally accepted accounting
principles, consistently applied. The financial statements shall include a
balance sheet and a statement of profit and loss, and the annual financial
statement shall also include a statement of changes in financial position and
appropriate explanatory notes. Landlord may deliver the financial statements
to
any prospective or existing mortgagee or purchaser of the Building.
l. Recordation.
This
Lease may not be recorded without Landlord's prior written consent, but Tenant
and Landlord agree, upon the request of the other party, to execute a memorandum
hereof for recording purposes.
m. Partial
Invalidity.
The
invalidity of any portion of this Lease shall not invalidate the remaining
portions of the Lease.
n. Binding
Effect.
This
Lease shall be binding upon the respective parties hereto, and upon their heirs,
executors, successors and assigns.
o. Entire
Agreement.
This
Lease supersedes and cancels all prior negotiations between the parties, and
no
changes shall be effective unless in writing signed by both parties. Tenant
acknowledges and agrees that it has not relied upon any statements,
representations, agreements or warranties except those expressed in this Lease,
and that this Lease contains the entire agreement of the parties hereto with
respect to the subject matter hereof.
p. Good
Standing.
If
requested by Landlord, Tenant shall furnish appropriate legal documentation
evidencing the valid existence in good standing of Tenant, and the authority
of
any person signing this Lease to act for the Tenant. If Tenant signs as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby covenant and warrant that Tenant is a duly authorized and existing
corporation, that Tenant has and is qualified to do business in the State in
which the Premises are located, that the corporation has a full right and
authority to enter into this Lease and that each of the persons signing on
behalf of the corporation is authorized to do so. Landlord hereby represents
to
Tenant that Landlord has full right and authority to enter into this Lease
and
that each of the persons signing this Lease on Landlord's behalf is authorized
to do so.
q. Terminology.
The
singular shall include the plural, and the masculine, feminine or neuter
includes the other.
r. Headings.
Headings
of sections are for convenience only and shall not be considered in construing
the meaning of the contents of such section.
s. Choice
of Law.
This
Lease shall be interpreted and enforced in accordance with the laws of the
State
in which the Premises are located.
t. Effective
Date.
The
submission of this Lease to Tenant for review does not constitute a reservation
of or option for the Premises, and this Lease shall become effective as a
contract only upon the execution and delivery by both Landlord and Tenant.
The
date of execution shall be entered on the top of the first page of this Lease
by
Landlord, and shall be the date on which the last party signed the Lease, or
as
otherwise may be specifically agreed by both parties. Such date, once inserted,
shall be established as the final day of ratification by all parties to this
Lease, and shall be the date for use throughout this Lease as the "Effective
Date".
u. Interlineation.
Whenever in this Lease any printed portion has been stricken, whether or not
any
related provision has been added, Landlord and Tenant specifically agree that
this Lease shall be construed as if the provisions or material so stricken
were
never included herein, and that no inference shall be drawn from the
provisions or material so stricken that would be inconsistent in any way with
the construction or interpretation of this Lease which would be appropriate
if
such provisions or material had never been contained herein.
Landlord and Tenant further agree that no inference shall be drawn from any
provisions or material added that would be inconsistent in any way with the
construction or interpretation of this Lease that would be appropriate if
such provisions or material had been included in the original version of
the Lease.
xix
v. Patriot
Act Representation. Landlord
and Tenant represent and warrant to each other that it is not acting, directly
or indirectly, for or on behalf of any person, group, entity or nation named
by
the United States Treasury Department as a Specially Designated National and
Blocked Person, or for or on behalf of any person, group, entity or nation
designated in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; and that it is not engaged in this
transaction directly or indirectly on behalf of, or facilitating this
transaction directly or indirectly on behalf of, any such person, group, entity
or nation.
w. Landlord’s
Default. If
Landlord defaults in the performance of any of its obligations under this Lease,
which default results in a condition which materially interferes with Tenant’s
conduct of its business, and such default is not attributable to (i) adherence
to Laws; (ii) the negligent or intentional act or neglect of Tenant or its
agents, employees, contractors, subtenants, licensees or invitees; or (iii)
Force Majeure or any other cause not within the reasonable control of Landlord,
and such default continues for a period of more than thirty (30) days after
receipt of written notice from Tenant specifying such default (except in case
of
emergency, following which such default continues for two business days after
receipt of such notice), or if such default requires more than thirty (30)
days
to cure, then if Landlord fails to commence curing such default within the
thirty (30) day period or fails to thereafter diligently continue curing such
default until completion, then Tenant, in addition to all other rights or
remedies which Tenant is entitled to under this Lease, at law or in equity,
and
provided Tenant is not in default hereunder beyond applicable notice and cure
periods, shall have the right to do or cause to be done, on behalf of and for
the account of Landlord, whatever Landlord is obligated to do under the terms
of
this Lease, and Landlord agrees to reimburse Tenant on demand for any and all
costs and expenses which Tenant may incur in thus effecting compliance with
Landlord’s obligations under this Lease, not to exceed in the aggregate the
amount of one month’s Base Rent, together with Interest through the date such
reimbursement is received by Tenant, and if Landlord fails to make such
reimbursement within ten (10) days after demand for such reimbursement, Tenant
may deduct such costs and expenses from any Rent thereafter accruing hereunder
up to the maximum set-off described herein; provided, however, if Landlord
in
good faith disputes the occurrence of the default or Tenant’s right to offset
the amount claimed, Tenant shall have the right, until such dispute is resolved,
to offset only the amount that is not in dispute. Before doing any work on,
to
or affecting the roof of the Building, Tenant agrees to give Landlord three
(3)
day’s written notice thereof (except in the event of an emergency, when a the
two-business-day notice described above shall suffice, provided such notice
notifies Landlord of Tenant’s intent to do work on, to or affecting the roof of
the Building), setting forth the time such work will be performed, and Landlord
shall have the right to be present when such work is performed.
x. Cable
Television Access Facilities. Landlord
will cooperate to provide cable television access facilities to the Building
in
accordance with it license agreement with Time Warner. Tenant shall coordinate
with the service provider bringing service to the Premises, which shall be
at
Tenant’s expense. Landlord will permit Tenant the ability to install a rooftop
satellite antenna from which Tenant will have the ability to access television
signals. All such access to and use of the roof of the Building will be
conducted pursuant to the Rooftop License Agreement attached hereto as
Exhibit
D.
30. SPECIAL
CONDITIONS.
The
following special conditions, if any, shall apply, and where in conflict with
earlier provisions in this Lease shall control:
None.
31. ADDENDA
AND EXHIBITS. If
any
addenda are noted below, such addenda are incorporated herein and made a part
of
this Lease.
a. |
Lease
Addendum Number One - “Work Letter”
|
b. |
Lease
Addendum Number One - A - “Building Standard
Improvements”
|
c. |
Lease
Addendum Number One - B -- “Approved Space
Plan”
|
d. |
Lease
Addendum Number One - C - “Mini-Blind
Layout”
|
e. |
Lease Addendum Number Two - “Additional Rent -
Operating Expense Pass
Throughs”
|
f. |
Lease Addendum Number Two -A- “Annual Statement
Form”
|
g. |
Lease
Addendum Number Three - “Option to Renew Lease
Term”
|
h. |
Lease
Addendum Number Four - “Intentionally
Omitted”
|
i. |
Lease
Addendum Number Five - “Tenant Parking
Agreement”
|
j. |
Lease
Addendum Number Five -A-- "Location of Reserved Parking, LakePointe
Two
Garage”
|
k. |
Lease
Addendum Number Five - B - “Parking Reserved for Other Tenants, LakePointe
Two Garage”
|
l. |
Lease
Addendum Number Six -
“Radon”
|
xx
m. |
Lease
Addendum Number Seven - “Right of First
Offer”
|
n. |
Lease
Addendum Number Seven - A - “First Floor: Right of First Offer
Space”
|
o. |
Lease
Addendum Number Seven - B - “Third Floor: Right of First Offer
Space”
|
p. |
Lease
Addendum Number Eight—"Cleaning
Specifications"
|
q. |
Exhibit
A - Premises
|
r. |
Exhibit
B - Rules and Regulations
|
s. |
Exhibit
C - Commencement Agreement
|
t. |
Exhibit
D - Rooftop License Agreement
|
u. |
Exhibit
E - Monument Signage
|
v. |
Exhibit
F - Subordination, Non-Disturbance and Attornment
Agreement
|
IN
WITNESS WHEREOF, Landlord and Tenant have executed this lease in three
originals, all as of the day and year first above written.
LANDLORD: | |||
WITNESSES: | HIGHWOODS/FLORIDA HOLDINGS, L.P. | ||
a Delaware limited partnership | |||
/s/ Xxxxx Xxxxx | By: |
Highwoods/Florida GP Corp.,
its general partner
|
|
Xxxxx
Xxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxx | |
Print Name
|
Xxxxxxx X. Xxxxxx | ||
Title: | Vice President - Tampa | ||
/s/ Xxx X. Xxxxxxx | Date: | 7-1-04 | |
Xxx X. Xxxxxxx | |||
Print Name | |||
TENANT: | |||
XXXXX & XXXXX, INC. | |||
WITNESSES: | |||
By: | /s/ C. Xxx Xxxxxxx | ||
/s/ Xxxxxx X. Xxxxxxx | C. Xxx Xxxxxxx | ||
Title: | Regional Executive Vice President | ||
Xxxxxx X. Xxxxxxx | |||
Print Name | Date: | 6-25-04 | |
/s/ Xxx Xxxxx | |||
Xxx Xxxxx | |||
Print Name |
xxi
LEASE
ADDENDUM NUMBER ONE [ALLOWANCE]
WORK
LETTER.
This
Lease Addendum Number One (the “First Addendum”) sets forth the rights and
obligations of Landlord and Tenant with respect to space planning, engineering,
final workshop drawings, and the construction and installation of any
improvements to the Premises to be completed before the Commencement Date
("Tenant Improvements"). This First Addendum contemplates that the performance
of this work will proceed in four stages in accordance with the following
schedule: (i) preparation of a space plan; (ii) final design and engineering
and
preparation of final plans and working drawings; (iii) preparation by the
Contractor (as hereinafter defined) of an estimate of the additional cost of
the
initial Tenant Improvements; (iv) submission and approval of plans by
appropriate governmental authorities and construction and installation of the
Tenant Improvements by the Delivery Date.
In
consideration of the mutual covenants hereinafter contained, Landlord and Tenant
do mutually agree to the following:
1. Allowance.
Landlord
agrees to provide an allowance of $22.00
per
rentable square foot, to design, engineer, install, supply and otherwise to
construct the Tenant Improvements in the Premises that will become a part of
the
Building (the "Allowance"). Tenant is fully responsible for the payment of
all
costs in connection with the Tenant Improvements in excess of the Allowance.
This Allowance is available to Tenant for Tenant’s use only within one (1) year
after the Commencement Date (the “Allowance Use Date”). Any portion of the
Allowance not used by Tenant by the Allowance Use Date shall automatically
terminate and be of no further use to Tenant. Notwithstanding the first sentence
of this paragraph, Tenant may utilize up to $5.00 per rentable square foot
of
the Allowance towards costs associated with moving (the "Moving Cost"), and
Landlord shall pay the invoices of Tenant's movers (but not in excess of $5.00
per rentable square foot) within thirty (30) days after receipt of such invoices
together with Tenant's written instruction to pay the amount set forth in such
invoices. At Tenant’s request, any portion of the Allowance which Tenant is
entitled to require Landlord to pay toward the Moving Costs but which Tenant
has
not required Landlord to pay shall be credited toward Tenant’s next payment(s)
of monthly Base Rent.
2. Space
Planning, Design and Working Drawings.
Tenant’s
architect, Urban Studios (or other architect or engineer selected by Tenant)
(the “Architect”), will do the following at Tenant’s expense (which expense may
be deducted from the Allowance):
a. Prepare
space plans and designs, engineering and construction plans for the Tenant
Improvements to the Premises. Landlord has furnished Tenant and Architect base
building drawings and documents recently created by Dimensions Plus. A
descriptive narrative of building standard materials ("Building Standard
Improvements") is attached hereto as Lease Addendum Number One-A.
b. Attend
a
reasonable number of meetings with Tenant to define Tenant’s
requirements.
c. Complete
construction drawings for Tenant's partition layout, reflected ceiling grid,
telephone and electrical outlets, keying, and finish schedule.
d. Complete
mechanical plans where necessary (for installation of air conditioning system
and duct work, and heating and electrical facilities) for the work to be done
in
the Premises.
e. All
plans
and working drawings for the construction and completion of the Premises (the
“Plans”) shall be subject to Landlord's prior written approval not to be
unreasonably withheld, delayed or conditioned. Landlord shall, within ten (10)
days after receipt thereof from Tenant, either: (i) approve the Plans without
modification but subject to the Long Lead Conditions set forth below, or (ii)
approve the Plans subject to modification to address Landlord’s reasonable and
detailed comments and objections thereto (which will include recommended
modifications to resolve such objections), and subject further to the Long
Lead
Conditions, and Tenant will provide Landlord with any additional information
requested as soon as practicable. Thereafter Landlord and Tenant will work
diligently to reach agreement on changes to be made to the Plans. If Landlord
fails to respond within such ten (10) day period set forth above, Landlord
shall
be deemed to have approved the submitted Plans, subject to the Long Lead
Conditions.
If
the
Contractor bid selection process reveals that the Plans contain design elements
or require materials that would delay Landlord’s delivery of the Premises to
Tenant by up to thirty (30) days after the scheduled Delivery Date, Landlord
may
by written notice to Tenant included in Landlord's submittal of the bids to
xxii
Tenant,
condition its approval of the Plans (the "Long Lead Conditions") on Tenant’s
accepting responsibility for delay (specifically identifying such design
elements or materials and the number of days of anticipated delay), and Landlord
may condition its approval of the Plans on Tenant accepting responsibility
for
any additional costs if the estimated cost for any improvements under the Plans
is more than the Allowance (specifically identifying the additional estimated
cost for such improvements). If the Contractor bid selection process reveals
that the Plans contain design elements or require materials that would delay
Landlord’s delivery of the Premises to Tenant by more than thirty (30) days
after the scheduled Delivery Date, Landlord and Tenant shall fully cooperate
in
substituting reasonably equivalent design elements or materials to permit
Landlord to deliver the Premises by the Delivery Date. Tenant will be
responsible for any additional costs associated with such substitutions.
f. The
Plans
shall be prepared in conformity with all Laws, including, without limitation,
the ADA.
g. Any
changes or modifications Tenant desires to make to the Plans which require
resubmittal to the permitting agency or which involve a change in use or
function of any portion of the Initial Premises shall also be subject to
Landlord's prior approval as set forth in subsection d. above.
h. Notwithstanding
anything to the contrary set forth herein, Landlord shall have the right to
approve or disapprove any improvements that will be visible to the exterior
of
the Premises, or which may affect the structural, mechanical, electrical or
plumbing systems of the Building, which approval will not be unreasonably
withheld, conditioned or delayed.
3. Tenant
Plan Delivery Date.
a. As
of the
date of this Lease, Tenant and Landlord have not approved a final space plan
but
agree that the final plan will be similar to the conceptual space plan attached
hereto as Lease Addendum Number One-B.
b. Tenant
covenants and agrees to work with Architect so that final Plans for the Tenant
Improvements meeting all requirements of the City of Tampa (but which shall
not
require Tenant’s finish schedule unless required by the City of Tampa) are
delivered to Landlord not later than November 1, 2004 (the "Tenant Plan Delivery
Date"), and Tenant’s finish schedule shall be delivered to Landlord within sixty
(60 ) days thereafter. Time is of the essence in the delivery of the final
Plans. Tenant agrees to obtain from Architect and provide to Landlord
preliminary Plans when the Plans are approximately 65% complete. Tenant
acknowledges that it is vital the final Plans be delivered to Landlord by the
Tenant Plan Delivery Date in order to allow Landlord sufficient time to review
such Plans, to discuss with Tenant any changes therein which Landlord believes
to be necessary or desirable, to enable the Contractor to prepare an estimate
of
the cost of the Tenant Improvements, to obtain required permits, and to
substantially complete the Tenant Improvements within the time frame provided
in
the Lease.
4. TI
Work and Materials at Tenant's Expense.
On
Tenant’s behalf, Landlord shall select a licensed general contractor or
contractors (the “Contractor”) to construct and install the Tenant Improvements
in accordance with the Plans (the “TI Work”) at Tenant’s expense (which expense
may be deducted from the Allowance). Landlord shall competitively bid
construction of the TI Work to a minimum of three (3) qualified general
contractors, and shall select the qualified low bidder. Tenant shall have the
right to recommend qualified general contractors to participate in the bidding
process and the right to review all bids, such review not to exceed five (5)
business days from Landlord’s submission to Tenant. Landlord will inform Tenant
of the identity of the Contractors on Landlord’s bid list. Landlord shall
coordinate and facilitate all communications between Tenant and the
Contractor.
a. Prior
to
entering into a contract with the successful bidder or commencing the TI Work,
Landlord shall submit to Tenant the bid of the successful contractor that shall
include the Contractor’s cost for completing the TI Work (including the
Contractor's general conditions, overhead and profit), the Contractor’s defined
general conditions and mechanism for determining fee xxxx-ups for change orders,
and any changes to the scheduled completion date from that contemplated by
Landlord and Tenant. Tenant shall have five (5) business days to review and
approve the cost of the TI Work. Landlord shall not authorize the Contractor
to
proceed with the TI Work until the cost is mutually agreed upon and approved
in
writing and delivered to Landlord. Thereafter, Landlord will enter into a
guaranteed maximum price construction contract with the successful bidder (the
"Construction Contract"). Tenant shall not be responsible (either through
application of the Allowance or otherwise) for costs in excess of the amount
so
approved unless Tenant authorizes a Change under subsection 4.b., below or
the
excess costs result from Tenant’s design errors.
xxiii
b. At
any
time after Landlord's final approval of the Plans, Tenant may authorize changes
or modifications to the Plans, which authorization must be in writing, signed
by
Tenant (“Changes” or “Change Order”). Within
five (5) business days after the Tenant notifies the Landlord of the requested
Change Order, Landlord shall deliver to Tenant an analysis of the additional
cost or savings involved, and the impact on the Tenant Improvement schedule,
if
any. Calculation of the additional cost or savings shall be based upon the
terms
of the approved Construction Contract. If Tenant fails to approve in writing
the
Landlord’s submission within two (2) business days following receipt thereof,
the same shall be deemed disapproved by Tenant and Landlord shall not make
the
Change. If Landlord fails to timely provide a statement of the delay with the
estimated cost or savings to make the change associated with any requested
Change, or if the delay as anticipated in Landlord's notice fails to occur,
Landlord will not be permitted to claim any such delay. Tenant agrees to process
Change Orders in a timely fashion. Tenant acknowledges that the following items
may also result in Change Orders:
i. Municipal
or other governmental inspectors require changes to the Tenant Improvements.
In
such event, Landlord will notify the Tenant of the required changes, and the
cost of such changes and the responsibility for any delay resulting therefrom
shall be the responsibility of the (A) Tenant, if the required changes result
from Tenant’s design, or (B) Landlord, if the required changes result from the
construction of the Tenant Improvements.
ii. Materials
which Landlord identified in writing to Tenant as long-lead items at the time
of
Contractor bid selection are not readily available, require quick ship charges,
or require substitution.
iii. Due
to a
delay caused by Tenant, the upfit schedule requires expedited review to get
permits, which will increase the costs of the permitting process.
c. Landlord
shall ensure that all TI Work and Landlord Work shall be performed in a good
and
workmanlike manner and in accordance with all applicable Laws and regulations
and with the final approved Plans. Landlord will supervise and coordinate all
construction. All Tenant Improvements shall be deemed the property of Landlord
upon construction or installation.
5. Signage
and Keys.
Landlord
shall provide the following in accordance with building standards at Tenant’s
Expense (which expense may be deducted from the Allowance): (i) door and
directory signage; (ii) suite and Building keys or entry cards.
6. Commencement
Date.
a. The
Commencement Date shall be the earlier of (i) the date on or after May 15,
2005,
which is thirty (30) days after the Delivery Date, and (ii) the date Tenant
begins fully staffed operation of business in all portions of the Premises.
Landlord will proceed diligently and make commercially reasonable efforts to
achieve a Delivery Date of not later than April 1, 2005. The Delivery Date
shall
be the date when both the TI Work and Landlord’s Work have been substantially
completed in accordance with this Work Letter (excluding items of work and
adjustment of equipment and fixtures that can be completed after the Premises
are occupied without causing material interference with Tenant's use of the
Premises -- i.e., "punch list items"). As used herein, “substantially completed”
shall mean the earlier of: (i) the date Landlord has the Premises ready for
occupancy by Tenant as evidenced by (a) a permanent or temporary Certificate
of
Occupancy, and (b) a certificate of substantial completion as to the TI Work
and
Landlord’s Work as issued by the Xxxxxx Group, Inc., with the fee for issuance
of such certificate being shared equally by Landlord and Tenant, or (ii) the
date Landlord could have substantially completed the TI Work and Landlord's
Work
had there been no Excused Delays. Landlord will permit Tenant access to the
Building and Premises on and after April 1, 2005 (regardless of whether Delivery
Date has occurred) for the purpose of installing cabling and other fixtures
and
equipment. Landlord will deliver to Tenant possession of the Premises on the
Delivery Date for Tenant’s set-up, installation of furniture and equipment,
move-in, and start-up of business operations. Such early occupancy and use
of
the Premises by Tenant will be done in coordination with Landlord and Contractor
and will be carried out with the minimum of interruption and disruption of
Contractor’s construction, and will be subject to the reasonable requirements of
Landlord and Contractor. If Landlord fails to achieve Delivery Date by April
15,
2005 other than as a result of force
majeure
or
Excused Delay, the Commencement Date will be delayed one day for each such
day
or delay, and beginning on the Commencement Date, Landlord will reimburse Tenant
the amount of Tenant’s holdover premium charged by Tenant’s existing landlord
under its existing lease, in an amount of up to $51,395.78 per month, plus
sales
tax (except that if Tenant's existing landlord has notified Tenant that it
is
negotiating with a prospective lessee of Tenant's premises under the existing
lease, the holdover premium for which Landlord shall reimburse Tenant may be
up
to $103,505.56 per month, as more specifically provided in Section 18 of
Tenant's existing lease).
xxiv
b. Notwithstanding
the foregoing, if Landlord shall be delayed in delivering possession of the
Premises as a result of:
i. Tenant’s
failure to approve the space plan within the time specified;
ii.
Tenant's
failure to furnish to Landlord the final Plans on or before the Tenant Plan
Delivery Date;
iii. Tenant's
failure to approve Landlord's cost estimates within the time
specified;
iv. Tenant’s
failure to timely respond to change orders;
v. Tenant's
changes in the Tenant Improvements or the Plans (notwithstanding Landlord's
approval of any such changes);
vi. Tenant's
request for changes in or modifications to the Plans subsequent to the Tenant
Plan Delivery Date;
vii. Inability
to obtain materials, finishes or installations requested by Tenant that are
not
part of the Building Standard Improvements and which were identified as long
lead items by Landlord as part of its comments to the Contractor bid selection
process;
viii. The
performance of any work by any person, firm or corporation employed or retained
by Tenant; or
ix. Any
other
act or omission by Tenant or its agents, representatives, and/or employees
(the
items in subsections 6(b)(i-ix) shall sometimes be referred to herein
collectively as the “Excused Delays”);
then,
in
any such event, for purposes of determining the Delivery Date, the Premises
shall be deemed to have been delivered to Tenant on the date that Landlord
and
the Xxxxxx Group, Inc., determine that the TI Work and Landlord Work would
have
been substantially completed and ready for delivery if such Excused Delays
had
not occurred. Any Excused Delay must be claimed by Landlord by reasonable
written notice to Tenant within five (5) business days after it became aware
(or
in the exercise of reasonable diligence should have been aware) of the event
claimed to be such a delay.
7. Tenant
Improvement Expenses in Excess of the Allowance.
Tenant
agrees to pay to Landlord, promptly upon being billed therefor, all costs and
expenses in excess of the Allowance incurred in connection with the TI Work.
Tenant will be billed for such costs and expenses as follows: (i) fifty
percent (50%)
of such
costs and expenses shall be due and payable upon Tenant's approval of the cost
estimates for the Tenant Improvements; and (ii) fifty
percent (50%)
of such
costs and expenses shall be due and payable when such work is substantially
completed and the Premises are ready for delivery to Tenant. Within one sixty
(60) days after the Commencement Date, Landlord shall deliver to Tenant a final
reconciliation of costs and expenses paid in connection with the TI
Work.
8. Landlord
Work.
Landlord shall complete the following work (“Landlord’s Work”) in compliance
with Laws, and at its sole cost and expense, within time periods necessary
to
coordinate with and not delay construction of the TI Work (with all such
Landlord Work completed by the Delivery Date):
a. Retrofit
of VAV boxes with new Alerton system (digital control system for
HVAC).
b. Refurbished
restrooms on the fourth (4th)
floor.
Such restrooms shall have adequate ventilation and exhaust and the urinals
and
toilets shall be refurbished and in proper working order and shall be similar
to
what has been completed on the first floor. Landlord will have construction
drawings for such restrooms completed and submitted for permit approval not
later than September 1, 2004.
xxv
c. Landlord
shall install a supplemental HVAC unit, the specifications of which shall be
reasonably agreeable to Landlord and Tenant, on the rooftop, which unit will
be
separately metered. Any costs associated with installing and metering
supplemental HVAC for Tenant’s equipment rooms shall be funded by the Allowance.
d. Sprinkler
system in Premises with main loop installed and ready for final
drops.
e. Fully
operable fire protection and life safety systems supporting the Premises and
Common Areas, into which Tenant may connect its smoke detectors, strobes,
speaker system, panels, and like items within the Premises at no additional
cost, charge or expense, but the cost of connection those items to the life
safety systems and the cost of those items themselves will be part of the
Allowance. Any upgrades to the Base Building systems necessary to accommodate
such items and meet current code will be conducted at Landlord’s expense.
f. Base
Building window treatments, specifically, mini-blinds, on all office and
conference room windows (including atrium windows). The mini-blinds shown on
Lease Addendum Number One - C will be replaced, and all others will be in good
condition and appearance and in good working order.
g. Landlord
shall demolish and remove existing improvements from the plenum of the Premises
in accordance with Tenant's mechanical engineering plan (including without
limitation, demolition and removal of the PA system, as well as non-building
standard electrical equipment, HVAC ductwork, VAV boxes and related equipment,
and cabling). Landlord shall also demolish and remove from the Premises the
data
racks, the UPS equipment and the raised flooring.
h. Landlord
will ensure that the Building envelope is watertight, and will repair all water
damage to windows and drywall to effect such assurance.
i. A
fully
installed and operational heating, ventilating and air conditioning (HVAC)
system which shall incorporate interior variable air volume (VAV) distribution
and fan powered variable air volume (FPVAV) exterior distribution.
j. Landlord
shall provide electrical power at points of supply identified in the Plans
at no
less than 2.55 xxxxx per square foot of rentable area on 120/208 volt,
three-phase/four-wire circuits, and no less than 2.55 xxxxx per square foot
of
rentable area on 277/480 volt, three-phase/four-wire circuits. Landlord
represents that the 277/488 volt, three-phase main power available to the
Building is 8 xxxxx per foot of rentable area. This total wattage includes,
but
is not limited to, applying power for the Building, i.e. mechanical, elevators,
lighting systems and low voltage power electrical outlets.
k. One
(1)
2” domestic water line to Building and Premises at 60 PSI.
Landlord
shall supply utilities and use of freight elevators during Tenant’s construction
and move-in period at no additional charge. Landlord will provide Tenant and
Tenant’s contractors or vendors access to chasers, risers and ceiling areas for
installation of wiring, plumbing and equipment.
9. Repairs
and Corrections.
Landlord
shall provide Tenant a one-year warranty from the date of delivery of the
Premises for defective workmanship and materials. All manufacturers’ and
builders’ warranties with respect to the Work shall be issued to or transferred
without recourse to both Landlord and Tenant. Tenant shall repair or correct
any
defective work or materials installed by Tenant or any contractor other than
the
Contractor selected by Landlord, or any work or materials that prove defective
as a result of any act or omission of Tenant or any of its employees, agents,
invitees, licensees, subtenants, customers, clients, or guests.
10. Inspection
of Premises; Possession by Tenant.
Prior to
taking possession of the Premises, Tenant and Landlord shall inspect the
Premises and Tenant shall give Landlord notice of any defects or incomplete
work
(“Punchlist”). Tenant’s possession of the Premises constitutes acknowledgment by
Tenant that the Premises are in good condition and that all work and materials
provided by Landlord are satisfactory as of such date of occupancy, except
as to
(i) any defects or incomplete work set forth in the Punchlist, (ii) latent
defects, and (iii) any equipment that is used seasonally if Tenant takes
possession of the Premises during a season when such equipment is not in
use.
xxvi
11. Access
During Construction.
During
construction of the Tenant Improvements and with prior approval of Landlord,
Tenant shall be permitted reasonable access to the Premises for the purposes
of
taking measurements, making plans, installing trade fixtures, and doing such
other work as may be appropriate or desirable to enable Tenant to assume
possession of and operate in the Premises; provided, however, that such access
does not interfere with or delay construction work on the Premises and does
not
include moving furniture or similar items into the Premises. Prior to any such
entry, Tenant shall comply with all insurance provisions of the Lease. All
waiver and indemnity provisions of the Lease shall apply upon Tenant’s entry of
the Premises.
xxvii
LEASE
ADDENDUM NUMBER ONE - A
[BUILDING
STANDARD IMPROVEMENTS]
SPECTRUM
BUILDING STANDARD MATERIALS AND FINISHES
Building
Standard Materials:
The
following items or equivalents, are Building Standard Materials that are
required for all tenant improvement projects.
A. |
WALLS:
|
Note:
All
finished gyp. board shall be painted with two (2) coats latex flat finish
(unless otherwise noted).
1. |
Tenant
demising wall (1 Hr. rated):
|
3-5/8”
metal stud walls with 3-½” insulation, 5/8” type “x” g.w.b. each side. Studs
spaced @ 16” on center. (1hr. wall extend to roof deck).
2. |
Interior
Walls:
|
3-5/8”
metal studs with 5/8” gyp. board on each side. Studs spaced @ 24” on center.
Walls are to be flush with ceiling grid, except in areas requiring sound
attenuation (e.g. restrooms).
B. |
DOORS:
|
1. |
Interior:
|
3’-0”
x
8’-0” solid core cherry hardwood doors, stain grade finish.
2. |
Frame:
|
16-gauge
hollow metal knock down.
3. |
Hardware:
|
All
doors
to have passage latchsets unless otherwise noted. All doors over 7’-0” in height
shall have four (4) hinges (minimum). (Schlage or equal lever hardware - brushed
stainless finish, as approved by Landlord).
C. |
CEILINGS:
|
1. |
Tiles
and Grid:
|
2’
x
2’
suspended lay-in scored acoustical white ceiling tile and grid.
D. |
ELECTRICAL:
|
xxviii
1. |
Office
Lighting:
|
2’
x
4’
parabolic fluorescent light fixtures with electronic ballasts. (Approximately
one (1) fixture per 000 xxxxxx xxxx xx xxxxxxx xxxx).
2. |
Office
Outlets:
|
All
electrical wiring in accordance with all national and local electrical codes
(all wiring shall be copper). Approximately three (3) 110-volt duplex
convenience outlets per office.
Open
office areas to have outlets spaced approximately @ 12’-0” o.c.
E. |
TELEPHONE
|
Outlet
box and ¾” conduit stubbed 6” above ceiling provided at a ratio of 5 per 1000
s.f.
F. |
HEATING
AND AIR
CONDITIONING
|
1. |
HVAC
|
Building
standard heating ventilating and air conditioning system, is a variable volume
system with duct and diffuser distribution and zoned thermostatic controls.
Designed to provide comfortable interior conditions compatible with normal
standard of comfort for one person per 150 square feet of usable area. The
building perimeter shall have linear diffusers, interior space shall have grid
diffusers. Maximum size of each zone will be 1,500 square feet.
2. |
Diffusers:
|
2
x 2
perforated face diffusers. Color to match ceiling grid. (Metalaire 72000 series
or equal).
Thermostats/VAV
Boxes:
VAV/PIU
installed with medium pressure duct.
Thermostats
per tenant improvement plans. Additional thermostats and VAV boxes required
by
tenant plans in excess of base building design to be included as a tenant
improvement cost.
G. |
FLOOR
COVERING:
|
1. |
Carpet:
|
Mohawk
nylon cut pile, 30 oz., or nylon loop, 26 oz., both glue down, color to be
selected by Tenant, or equivalent.
2. |
Base:
|
2
½
“
rubber cove base, color to be selected by Tenant.
3. |
Vinyl
Tile:
|
1/8
inch
vinyl composition tile, color to be selected by Tenant.
xxix
H. |
LIFE
SAFETY:
|
1. |
Sprinkler:
|
Base
building sprinklers to be adjusted by tenant improvement contractor to meet
Tenant Improvement requirements. Additional heads required as a result of tenant
space plan are a Tenant Improvement cost.
2. |
Annunciaters
(audible and visual):
|
Per
code.
xxx
LEASE
ADDENDUM NUMBER ONE - B
APPROVED
SPACE PLAN
xxxi
LEASE
ADDENDUM ONE - C
MINI-BLIND
LAYOUT

xxxii
LEASE
ADDENDUM NUMBER TWO [BASE YEAR calendar year]
ADDITIONAL
RENT - OPERATING EXPENSE PASS THROUGHS.
For the
calendar year commencing on January
1, 2006 and
for
each calendar year thereafter, Tenant shall pay to Landlord, as Additional
Rent,
Tenant's Proportionate Share of any increase in Operating Expenses (as
hereinafter defined) incurred by Landlord's operation or maintenance of the
Building above the Operating Expenses Landlord incurred during the Base Year
(as
hereinafter defined).
For
purposes of calculating Tenant's Proportionate Share of real and personal
property taxes, Landlord shall use the Base Year or the year in which the
Building and improvements are completed and are fully assessed, whichever shall
be later. Except as provided below in connection with costs associated with
parking areas, Tenant's Proportionate Share shall be calculated by dividing
the
rentable square feet of the Premises (approximately 40,505) by the rentable
square feet of the Building (approximately 146,994), which equals 27.56%.
If
during any calendar year (including the Base Year) the occupancy of the rentable
area of the Building is less than 95% full, then Operating Expenses (as
hereinafter defined) will be adjusted for such calendar year to a rate of 95%
occupancy. Tenant's Proportionate Share of costs pertaining to parking areas
shall mean a fraction, the numerator of which is the number of parking spaces
which Tenant is permitted to use in the Lakepointe II and Pavilion garages,
and
the denominator of which is the greater of the number of parking spaces in
the
Lakepointe II and Pavilion garages or the number of parking space use rights
granted in such garages.
For
the
calendar year commencing on January
1, 2006 and
for
each calendar year thereafter during the Term, Landlord shall reasonably
estimate the amount the Operating Expenses shall increase for such calendar
year
above the Operating Expenses incurred during the Base Year. Landlord shall
send
to Tenant a written statement on a form substantially similar to the Annual
Statement form, showing the amount of Tenant's Proportionate Share of any
estimated increase in Operating Expenses, and Tenant shall pay to Landlord,
monthly or annually, Tenant's Proportionate Share of such increase in Operating
Expenses. Within ninety (90) days after the end of each calendar year or as
soon
as possible thereafter, Landlord shall send to Tenant a copy of the Annual
Statement on the form attached hereto as Lease
Addendum Number Two - A,
or some
other similar form adopted by Landlord, detailing the prior year's Operating
Expenses and Tenant's Proportionate Share of any increase. Pursuant to the
Annual Statement, Tenant shall pay to Landlord Additional Rent as owed or
Landlord shall adjust Tenant's next due Rent payment(s) if Landlord owes Tenant
a credit. After the Expiration Date, Landlord shall send Tenant the final Annual
Statement for the Term, and Tenant shall pay to Landlord Additional Rent as
owed
or if Landlord owes Tenant a credit, then Landlord shall pay Tenant a refund.
If
there is a decrease in Operating Expenses in any subsequent year below Operating
Expenses for the Base Year then no additional rent shall be due on account
of
Operating Expenses, but Tenant shall not be entitled to any credit, refund
or
other payment that would reduce the amount of other additional rent or Base
Rent
owed. If this Lease expires or terminates on a day other than December 31,
then
Additional Rent shall be prorated on a 365-day calendar year (or 366 if a leap
year). All payments or adjustments for Additional Rent shall be made within
thirty (30) days after the applicable Statement is sent to Tenant.
Notwithstanding
anything to the contrary contained in this Lease Addendum Number Two or the
Lease, Tenant shall not be obligated to pay Controllable Expenses in any
calendar year which exceed by more than five percent (5%) the Controllable
Expenses for the immediately preceding calendar year (including the Base Year).
"Controllable Expenses" means all Operating Expenses except taxes, assessments,
insurance and utilities. In no event will Tenant be obligated to pay estimated
Controllable Expenses in excess of such cap.
The
term
“Base Year” shall mean the twelve month period beginning on the January 1, 2005
and ending on December 31, 2005.
The
term
"Operating Expenses" shall mean all direct costs incurred by Landlord in the
provision of services to tenants and in the operation, repair and maintenance
of
the Building and Common Areas as determined by generally accepted accounting
principles, including, but not limited to ad valorem real and personal property
taxes (calculated at the greatest discount for early payment and paid over
the
greatest number of installments permitted), hazard and liability insurance
premiums, utilities, heat, air conditioning, janitorial service, labor,
materials, supplies, equipment and tools, permits, licenses, inspection fees,
management fees (not in excess of four percent (4%) of Building Base Rent),
and
common area expenses; provided, however, the term "Operating Expenses" shall
not
include depreciation on the Building or equipment therein, interest, executive
salaries, real estate brokers’ commissions, or other expenses that do not relate
to the operation of the Building. The annual statement of Operating Expenses
shall be accounted for and reported in accordance with generally accepted
accounting principles (the "Annual Statement").
The
following items shall be excluded from Operating Expenses:
xxxiii
(a)
|
Cost
of decorating, redecorating, or special cleaning or other services
not
provided on a regular basis to tenants of the
Building;
|
(b)
|
Wages,
salaries, fees, and fringe benefits paid to executive personnel above
the
level of a Property Manager;
|
(c)
|
Any
charge for depreciation or amortization of the Building or equipment
and
any interest or other financing charge, including interest on capital
invested, and any charge for bad debt losses, rent losses and reserves
for
such losses;
|
(d)
|
Any
charge for Landlord’s income taxes, excess profit taxes, franchise taxes,
or similar taxes on Landlord’s business, including personal property taxes
on Landlord's personal property;
|
(e)
|
All
costs relating to activities for the solicitation and execution of
leases
of space in the Building, including, without limitation, costs of
leasing
commissions, legal, space planning, and
construction;
|
(f)
|
All
costs and expenses of operation and maintenance of the parking areas
other
than Lakepointe II and Pavilion parking
facilities;
|
(g)
|
All
costs for which Tenant or any other tenant in the Building is being
charged other than pursuant to the operating expense
clauses;
|
(h)
|
The
cost of any electric current furnished to the Premises or any rentable
area of the Building for purposes other than the operation of building
equipment and machinery and the lighting of public toilets, stairways,
shaftways, and building machinery or fan
rooms;
|
(i)
|
The
cost of structural repairs to the Building, including the correction
of
defects in the construction of the Building or in the Building equipment,
including structural repairs to the roof, curtain wall, foundation,
floor
slabs, except for normal caulking and
maintenance;
|
(j)
|
The
cost of any repair made by Landlord because of the total or partial
destruction of the Building or the condemnation of a portion of the
Building;
|
(k) |
Any increase in insurance premium
to the
extent that such increase is caused or attributable to the use, occupancy
or act of Landlord or another tenant, and insurance on leasehold
improvements in the premises leased or to be leased to other
tenants;
|
(l)
|
The
cost of any items for which landlord is reimbursed by insurance,
condemnation awards, other tenants or any other
source;
|
(m)
|
The
costs incurred in connection with the original construction of the
Building, or in connection with any additions, capital improvements
or
capital repairs, to the Building subsequent to the date of original
construction;
|
(n)
|
The
cost of any repairs, alterations, additions, changes, replacements,
and
other items which under generally accepted accounting principles
are
properly classified as capital expenditures to the extent they upgrade
or
improve the Building as opposed to replace existing items which have
worn
out;
|
(o)
|
Any
operating expense representing any amount paid to a related corporation,
entity, or person which is in excess of the amount which would be
paid in
excess of prevailing charges for such
services;
|
(p)
|
The
cost of tools and equipment used initially in the construction, operation,
repair and maintenance of the
Building;
|
(q)
|
The
cost of any work or service performed for or facilities furnished
to any
tenant of the Building to a greater extent or in a manner more favorable
to such tenant than that performed for or furnished to
tenant;
|
(r)
|
The
cost of alterations of space in the Building leased to other
tenants;
|
(s)
|
The
cost of overtime or other expense to landlord in curing its defaults
or
performing work expressly provided in this Lease to be borne at Landlord’s
expenses;
|
xxxiv
(t)
|
Capital
improvements or expenditures incurred to reduce Operating Expenses
except
that such improvements or expenditures shall be included in Operating
Expenses to the lesser of the annual amortized amount of said improvements
or expenditures (over the useful life of the improvement or item)
or the
actual savings;
|
(u)
|
Ground
rent or similar payments to a ground
lessor;
|
(v)
|
Costs
arising from the presence of mold, fungus, asbestos or other hazardous
materials or substances in or about or below the land or the Building,
including, without limitation, hazardous substances in the groundwater
or
soil, such costs to include the cost of removal, abatement, or treatment
of mold, fungus, asbestos or any other hazardous material or substance,
except to the extent caused by Tenant, Tenant shall be solely responsible
for such costs;
|
(w)
|
Wages,
salaries or other compensation paid to offsite employees or other
employees of Landlord who are not assigned full-time to the operation,
management, maintenance, or repair of the Building in excess of the
pro-rata amount of the value thereof attributable to such activities
relating to the Building;
|
(x)
|
The
cost of advertising and public relations and promotional costs associated
with the promotion or leasing of the Building and costs of signs
in or on
the Building identifying the owners of the Building or any tenant
of the
Building;
|
(y)
|
The
cost of utilities and other similar expenses incurred directly or
on
behalf of retail tenants in the
Building;
|
(z)
The
cost of any fines or penalties incurred due to the violation by Landlord of
any
governmental rule or authority. This is not intended to exclude costs incurred
in complying with such rule or authority if otherwise includable in Operating
Expenses.
(aa)
|
The
cost incurred in connection with disputes with tenants, other occupants,
or prospective tenants, or costs and expenses incurred in connection
with
negotiations or disputes with employees, consultants, management
agents,
leasing agents, purchasers or mortgagees of the
Building;
|
(bb)
|
The
cost of allowances, concessions, permits, licenses, inspections,
and other
costs and expenses incurred in completing, fixturing, furnishing,
renovating or otherwise improving, decorating or redecorating space
for
tenants (including tenant), prospective tenants or other occupants
or
prospective occupants of the Building, or vacant leasable space in
the
Building, or constructing or finishing demising walls and public
corridors
with respect to any such space;
|
(cc)
|
Costs
incurred in connection with the sale, financing, refinancing, mortgaging,
selling or change of ownership of the
Building;
|
(dd) | Costs, fines, interest, penalties, legal fees or costs of litigation incurred due to the late payment of taxes, utility bills and other costs incurred by Landlord's failure to make such payments when due; |
(ee)
|
Costs
incurred by Landlord which are associated with the operation of the
business of the legal entity which constitutes Landlord as the same
is
separate and apart from the cost of the operation of the Building,
including legal entity formation and legal entity accounting (including
the incremental accounting fees relating to the operation of the
Building
to the extent incurred separately in reporting operating results
to the
Building's owners or lenders);
|
(ff)
|
General
overhead, general administrative expenses, accounting, recordkeeping
and
clerical support of Landlord or the management agent not relating
to the
operation of the Building;
|
(gg)
|
Rentals
and other related expenses incurred in leasing air conditioning systems,
elevators or other equipment ordinarily considered to be of a capital
nature, except equipment not affixed to the Building which is used
in
providing janitorial or other services;
|
(hh)
|
Rent
or rental-related expenses (such as expense reimbursements similar
to the
Additional Rent Tenant pays for Operating Expenses) for Landlord's
leasing
office or other employee office space not used for the purpose
of managing
the Building or for any space in the Building set aside for storage
facilities, or other facilities provided for the benefit of certain
(but
not all) tenants;
|
xxxv
(ii) | Moving expense costs of tenants of the Building; |
(jj)
|
Costs
incurred for any items to the extent covered by a manufacturer's,
materialmen's, vendor or contractor's
warranty;
|
(kk)
|
Costs
of overtime HVAC service whether provided to the Tenant or any other
tenant of the Building;
|
(ll) | The cost of repairs necessitated by the gross negligence of Landlord, its agents or employees, and the costs of repairs, replacements or maintenance required to cure a condition at the Building or Common Areas which violates Laws; |
(mm)
|
Consulting
costs and expenses paid by Landlord unless they relate exclusively
to
improving management or operation of the
Building;
|
(nn)
|
Vault
rental or other vault charges, except for the rental of one
lockbox;
|
(oo)
|
The
cost of services provided or other costs incurred in connection with
the
operation of retail or other ancillary operations owned, operated
or
subsidized by Landlord; and
|
(pp)
|
Any
other expense or cost which under generally accepted accounting principles
("GAAP"), would not be considered a normal maintenance or operating
expense of an office building, except for the cost of landscaping
and the
replacement of floor or wall coverings in Common Areas of the Building,
the cost of which shall be amortized on a straight-line basis over
the
reasonably estimated actual useful life of each such
item.
|
Landlord
and Tenant intend that Operating Expenses paid by Tenant under this Lease
reimburse Landlord for any actual increase in Operating Expenses incurred by
Landlord over those incurred during the Base Year but not provide a profit
to
Landlord.
Tenant,
at its expense, shall have the right, on one occasion per calendar year, at
a
reasonable time and at Landlord’s Tampa offices, to audit Landlord's books and
records relating to items affecting Operating Expenses for the Base Year and
any
subsequent calendar year or years; provided that Tenant's right to audit shall
expire within one (1) year after Landlord has furnished to Tenant the Annual
Statement for the applicable calendar year if Tenant has not notified Landlord
in writing of Tenant's election to conduct an audit. Notwithstanding the
foregoing, Tenant may defer its audit of the Base Year until its initial audit
of a subsequent calendar year.
If
Tenant
has timely exercised its option to conduct an audit, Tenant shall have a period
of ninety (90) days in which to complete the audit, which ninety (90) day period
shall commence after Landlord has afforded Tenant full access to such documents
(in a location within the Building) as are necessary to conduct the audit
including, without limitation, work papers prepared by Landlord's bookkeepers
and accountants, canceled checks, invoices, and such other documents as may
be
reasonably required. Landlord shall cooperate with Tenant as to facilitate
the
performance of Tenant's audit.
In
the
event that it is ultimately determined (by agreement of the parties, by a final
court determination, or otherwise) that the actual Operating Expenses for any
year is less than the amount set forth in Annual Statement, then Landlord shall
reimburse Tenant for such overcharge within fifteen (15) days of receipt of
notice thereof. If the overcharge is by an amount in excess of four (4) percent
(4%), Landlord shall also reimburse Tenant for the cost or fees paid by Tenant
in connection with such audit and shall also pay interest at the Maximum Rate
on
the overcharge from the date that the statement of Operating Expenses was
delivered to Tenant until the date that Landlord has reimbursed Tenant for
such
overcharge. In the event that it is ultimately determined (by agreement of
the
parties, by a final court determination, or otherwise) that the actual Operating
Expenses for any year is greater than the amount set forth in Annual Statement,
then Tenant shall pay the additional amount due with its next installment of
Rent due no earlier than fifteen (15) days after such determination. Tenant's
audit and reimbursement rights herein contained shall survive expiration or
termination of this Lease.
xxxvi
LEASE
ADDENDUM NUMBER TWO - A
ANNUAL
STATEMENT FORM
xxxvii
LEASE
ADDENDUM NUMBER THREE
OPTION
TO RENEW LEASE TERM
1. Option
to Extend.
Tenant
shall have the right and option to renew the Lease (the "Renewal Option") for
two (2) additional periods of five (5) years each (the “Renewal Lease Terms”) (a
separate notice is required for each Renewal Lease Term); provided, however,
such Renewal Option is contingent upon the following (i) Tenant is not in
default beyond applicable notice and cure periods at the time Tenant gives
Landlord notice of Tenant’s intention to exercise the Renewal Option; (ii) upon
the Expiration Date or the expiration of any Renewal Lease Term, Tenant has
no
outstanding default beyond applicable notice and cure periods; (iii) Tenant
is
not disqualified by multiple defaults as provided in the Lease; and (iv) Tenant
(or its assignee or subtenant) is occupying the Premises. Following the
expiration of the second (2nd)
Renewal
Term, Tenant shall have no further right to renew the Lease pursuant to this
section.
2. Exercise
of Option. Tenant
shall exercise each Renewal Option by giving Landlord notice no less than nine
(9) months prior to the Expiration Date or the last day of any Renewal Lease
Term. If Tenant fails to give such notice to Landlord prior to the date that
is
nine (9) months prior to the Expiration Date, then Tenant shall forfeit the
Renewal Option. If Tenant exercises the Renewal Option, then during any such
Renewal Lease Term, Landlord and Tenant’s respective rights, duties and
obligations shall be governed by the terms and conditions of the Lease. Time
is
of the essence in exercising the Renewal Option.
3. Term.
If
Tenant exercises the Renewal Option, then during any such Renewal Lease Term,
all references to the term “Term”, as used in the Lease, shall mean the “Renewal
Lease Term”.
4. Base
Rent for Renewal Lease Term.
The Base
Rent for the Renewal Lease Term shall be the Fair Market Rental Rate, determined
as follows:
Definition.
The
term "Fair
Market Rental Rate"
shall
mean the market rental rate for the pertinent Renewal Option for which such
determination is being made for office space in comparable low rise office
buildings in the Westshore office market area ("AREA") for leases of space
of
equivalent quality, size, utility, and location. Such determination shall take
into account all relevant factors, including, without limitation, the following
matters: the credit standing of Tenant; the payment of any real estate
commission; the length of the term; expense stops or base years; the fact that
Landlord will experience no vacancy period and that Tenant will not suffer
the
costs and business interruption associated with moving its offices and
negotiating a new lease; the condition of and alterations required to comparable
premises as compared to the condition of the Premises; construction allowances
and other tenant concessions that would be available to tenants comparable
to
Tenant in the AREA (such as moving expense allowance, free rent periods, and
lease assumption and take-over provisions, if any).
Determination.
Landlord shall deliver to Tenant notice of the Fair Market Rental Rate (the
"FMR
Notice") for the Premises for the Renewal Lease Term in question within thirty
(30) days after Tenant exercises the option giving rise to the need to determine
the Fair Market Rental Rate. If Tenant disagrees with Landlord's assessment
of
the Fair Market Rental Rate specified in a FMR Notice, then it shall so notify
Landlord in writing within thirty (30) days after delivery of such FMR Notice
(the “Objection Notice”), electing either to withdraw Tenant’s exercise of the
Renewal Option or to proceed to determine the Fair Market Rate in accordance
with the procedure set forth in this paragraph (“FMR Arbitration”). If Tenant
fails to give the Objection Notice within the thirty (30) days after delivery
of
the FMR Notice, then Tenant shall be deemed to have withdrawn its exercise
of
the Renewal Option. If Tenant timely gives the Objection Notice, but fails
to
elect either to withdraw its exercise of the Renewal Option or to proceed with
FMR Arbitration, Tenant shall be deemed to have withdrawn its exercise of the
Renewal Option. If in the Objection Notice Tenant elects to proceed with FMR
Arbitration, Landlord and Tenant shall meet to attempt to determine the Fair
Market Rental Rate. If Tenant and Landlord are unable to agree on such Fair
Market Rental Rate within ten (10) business days after delivery of the Objection
Notice, then Landlord and Tenant shall each appoint an independent real estate
appraiser with at least ten (10) years' commercial real estate appraisal
experience in the AREA market, each of whom shall make a determination of the
Fair Market Rental Rate
xxxviii
within
twenty (20) days after their selection hereunder. If Tenant and Landlord are
unable to agree upon and select one of the determinations made by the initial
two (2) appraisers within ten (10) business days after receipt of the two
determinations, the two appraisers shall then, within five (5) days thereafter,
select an independent third appraiser with like qualifications. If the two
appraisers are unable to agree on the third appraiser within such five (5)
day
period, either Landlord or Tenant, by giving five (5) days prior notice thereof
to the other, may apply to the then presiding judge of the Circuit Court for
Hillsborough County, Florida, for selection of a third appraiser who meets
the
qualifications stated above. Within twenty (20) days after the selection of
the
third appraiser, the third appraiser shall make a determination of the Fair
Market Rental Rate by selecting whichever of the two determinations made by
the
initial two appraisers is closer to the actual Fair Market Rental Rate in the
opinion of such third appraiser, which determination shall be binding on
Landlord and Tenant. The third appraiser shall have no discretion other than
to
select one or the other determination of the initial two appraisers as set
forth
herein.
Tenant
and Landlord shall each bear the entire cost of the appraiser selected by it
and
shall share equally the cost of the third appraiser.
Administration.
If
Tenant has exercised the Renewal Option and the Fair Market Rental Rate for
the
Renewal Lease Term has not been determined in accordance with this section
by
the time that Rent for the Renewal Lease Term is to commence in accordance
with
the terms hereof, then Tenant shall pay Rent for the Renewal Lease Term based
on
the Fair Market Rental Rate proposed by Landlord pursuant to this section until
such time as the Fair Market Rental Rate has been so determined, at which time
appropriate cash adjustments shall be made between Landlord and Tenant such
that
Tenant is charged Rent based on the Fair Market Rental Rate (as finally
determined pursuant to this section) for the Renewal Lease Term during the
interval in question.
xxxix
LEASE
ADDENDUM NUMBER FOUR
INTENTIONALLY
OMITTED
xl
LEASE
ADDENDUM NUMBER FIVE
TENANT
PARKING AGREEMENT
1. The
parties hereby acknowledge that they have heretofore entered, or are
contemporaneously herewith entering, a certain lease dated
______________,
2004
(the “Lease”) for premises known as Suite 400
(the
“Premises”) located in the property known as Spectrum
(the
“Property”). In the event of any conflict between the Lease and this Agreement,
the latter shall control.
2. Landlord
hereby grants to Tenant and persons designated by Tenant, for the Term of the
Lease, and for no additional consideration, the right to use 5 parking spaces
per 1000 rentable square feet of space in the Premises in the parking areas
designated herein, which spaces shall include Tenant’s pro-rata share of all
handicapped (0.06/1000 rentable square feet) and visitor (0.07/1000 rentable
square feet) parking in the LakePointe Two and Pavilion garages, such
allocations being subject to change as required by law. Tenant may access and
use four (4) spaces per 1,000 rentable square feet in the LakePointe Two garage.
All remaining spaces to which Tenant is entitled shall be in the Pavilion
garage. Of the spaces Tenant is permitted to use in the LakePointe Two garage,
twenty-one (21) shall be reserved for Tenant’s exclusive use. The location of
the reserved parking spaces shall be as indicated on attached Lease Addendum
Five-A. Each of Tenant’s employees shall be given stickers for their cars
identifying the garage to be used by the employee and shall use only the garage
identified. Landlord shall have the right to convert any existing parking to
secure parking at any time by installing a control device. The Term of this
agreement shall commence on the Commencement Date under the Lease and shall
continue until the earlier to occur of the Expiration Date under the Lease
or,
termination of the Lease. Tenant may, from time to time, request additional
parking spaces, and if Landlord shall provide the same, such spaces shall be
provided and used on a month-to-month basis, and otherwise on the foregoing
terms and provisions, and such monthly parking charges as Landlord shall
establish from time to time. Tenant acknowledges that Landlord has entered
into
agreements with PriceWaterhouseCoopers
and AT&T (and their respective subtentants) and certain other tenants
pursuant to which portions of the parking spaces in the LakePointe Two garage
have been reserved for the exclusive use of those tenants as depicted in Lease
Addendum Five-B. Nonetheless, Landlord
agrees to limit the number of reserved parking spaces in the
Lakepointe
Two
garage to an aggregate of one space per 1000 rentable square feet of space
leased by all tenants using the LakePointe
Two garage, with the total number of such reserved parking spaces in LakePointe
Two garage not exceeding 752 spaces (the "Reserved Parking Limit").
In the
Pavilion garage, Landlord shall, at Landlord’s option, either (i) reserve and
designate for Tenant’s exclusive use 40 parking spaces,
which
spaces shall be located in a contiguous block, shall be located on the third
or
fourth floor of the garage, and shall be near to or adjacent to the north or
south stairwell,
or (ii)
limit the number of reserved parking spaces in the Pavilion garage to one space
per 1000 rentable square feet of space leased by all tenants using the Pavilion
garage (not to exceed 430 reserved parking spaces).
3. Tenant
shall at all times comply with all applicable ordinances, rules, regulations,
codes, laws, statutes and requirements of all federal, state, county and
municipal governmental bodies or their subdivisions respecting the use of the
designated parking area. Landlord reserves the right to adopt, modify and
enforce reasonable Rules governing the use of the designated parking area from
time to time, including any key-card, sticker or other identification or
entrance system. The Rules set forth hereinafter are currently in effect.
Landlord may refuse to permit any person who violates such Rules to park in
the
designated parking area, and any violation of the Rules shall subject the car
to
removal from the designated parking area.
4. Except
as
provided in Section 2 above, the parking spaces hereunder shall be provided
on
an unreserved “first-come, first-served” basis, but Landlord shall not grant
parking rights to tenants or others reasonably anticipated to result in
availability to Tenant of less than 5 parking spaces per 1,000 rentable square
feet contained in the Premises. Tenant acknowledges that Landlord has or may
arrange for the designated parking area to be operated by an independent
contractor, not affiliated with Landlord. In such event, Tenant acknowledges
that Landlord shall have no liability for claims arising through acts or
omissions of such independent contractor, if such contractor is reputable.
Except for intentional acts or gross negligence, Landlord shall have no
liability whatsoever for any damage to property or any other items located
in
the designated parking area, nor for any personal injuries or death arising
out
of any matter relating to the designated parking area, and in all events, Tenant
agrees to look first to its insurance carrier and to require that Tenant’s
employees look first to their respective insurance carriers for payment of
any
losses sustained in connection with any use of the designated parking area.
Tenant hereby waives on behalf of its insurance carriers all rights of
subrogation against Landlord or Landlord’s agents. Landlord reserves the right
to assign specific spaces, and to reserve spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other parties,
and Tenant and persons designated by Tenant hereunder shall not park in any
such
assigned or reserved spaces. Landlord also reserves the right to close all
or
any portion of the designated parking area in order to make repairs or perform
maintenance services, or to alter, modify, re-stripe or renovate the designated
parking area, or if required by casualty, strike, condemnation, act of God,
governmental law or requirement or other reason beyond Landlord’s reasonable
control. In such event, Landlord shall use commercially reasonable efforts
to
provide a substitute parking area for the period of unavailability if such
parking is available in the vicinity of the Building, located as close to the
Building as possible (which may be located in an unpaved area).
xli
5. If
Tenant
shall default under this Agreement and fails to cure such default within ten
(10) days after notice from Landlord, Landlord shall have the right to remove
from the designated parking area any vehicles hereunder which shall have been
involved or shall have been owned or driven by parties involved in causing
such
default, without liability therefor whatsoever. Tenant shall communicate to
its
employees the Rules set forth at the end of this Lease Addendum Number Five.
In
addition, if Tenant shall default under this Agreement, Landlord shall have
the
right to cancel this Agreement on ten (10) days’ written notice, unless within
such ten (10) day period, Tenant cures such default. Such cancellation right
shall be cumulative and in addition to any other rights or remedies available
to
Landlord at law or equity, or provided under the Lease (all of which rights
and
remedies under the Lease are hereby incorporated herein, as though fully set
forth). Any default by Tenant under the Lease shall be a default under this
Agreement, and any default under this Agreement shall be a default under the
Lease. Notwithstanding anything herein to the contrary, a default or other
failure to observe the rules and regulations by a user of the parking area
shall
not constitute a default by Tenant under the Lease, but rather, such user's
rights to use the parking area shall be revoked if such default or failure
continues for more than two (2) business days after notice to such
user.
RULES
(i
)
|
Designated
parking area hours shall be available to Tenant and its employees
24 hours
a day, year round, but there shall be no overnight parking (except
when
the driver is using the Premises or traveling on business).
|
(ii)
|
Cars
must be parked entirely within the stall lines painted on the floor,
and
only small cars may be parked in areas reserved for small
cars.
|
(iii) | All directional signs and arrows must be observed. |
(iv) | The speed limit shall be five (5) miles per hour. |
(v) | Spaces reserved for handicapped parking must be used only by vehicles properly designated. |
(vi)
|
Parking
is prohibited in all areas not expressly designated for parking,
including
without limitation:
|
(vi)
|
Parking
is prohibited in all areas not expressly designated for parking,
including
without limitation:
|
(a) areas
not
striped for parking
(b) aisles
(c) where
“no
parking” signs are posted
(d) ramps
(e) loading
zones
(vii)
|
Parking
key cards or any other devices or forms of identification or entry
supplied by Landlord shall remain the property of Landlord. Such
devices
must be displayed as requested and may not be mutilated in any manner.
The
serial number of the parking identification device may not be obliterated.
Devices are not transferable and any device in the possession of
an
unauthorized holder will be void.
|
(viii)
|
If
applicable, monthly fees shall be payable in advance prior to the
first
day of each month. Failure to do so within five (5) days after notice
will
automatically cancel parking privileges and a charge at the prevailing
daily parking rate will be due. No deductions or allowances from
the
monthly rate will be made for days on which the designated parking
area is
not used by Tenant or its
designees.
|
(ix)
|
Designated
parking area managers or attendants are not authorized to make or
allow
any exceptions to these Rules.
|
(x)
|
Every
xxxxxx is required to park and lock his own
car.
|
(xi)
|
Loss
or theft of parking identification, key cards or other such devices
must
be reported to Landlord or any garage manager immediately. Any parking
devices reported lost or stolen found on any unauthorized car will
be
confiscated and the illegal holder will be subject to prosecution.
Lost or
stolen devices found by Tenant or its employees must be reported
to the
office of the designated parking area
immediately.
|
xliii
(xii)
|
Washing,
waxing, cleaning or servicing of any vehicle by the customer and/or
his
agents is prohibited. Parking spaces may be used only for parking
automobiles.
|
(xiii)
|
Tenant
agrees to acquaint all persons to whom Tenant assigns parking space
with
these Rules.
|
xliii
LEASE
ADDENDUM NUMBER FIVE—A
LOCATION
OF RESERVED PARKING
LakePoint
Two Garage

xliv
LEASE
ADDENDUM NUMBER FIVE - B
PARKING
RESERVED TO OTHER TENANTS
LakePointe
Two Garage
xlv
LEASE
ADDENDUM NUMBER SIX
RADON
The
following disclosure is made pursuant to Section 404.056 of the Florida
statutes: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks
to
persons who are exposed to it over time. Levels of radon that exceed federal
and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public
health
unit.
xlvi
LEASE
ADDENDUM NUMBER SEVEN
RIGHT
OF FIRST OFFER
Provided
Tenant is not in default under this Lease, and subject only to the rights
of
current tenant AT&T (and its assignees, excluding Landlord or any affiliate
of Landlord) under the currently existing terms of its lease, Tenant shall
have
an ongoing right of first offer ("Right of First Offer"): (i) to lease space
on
the first floor of the Building, consisting of approximately 3,499 rentable
square feet, as more particularly shown on Lease Addendum Number Seven -
A, and,
(ii) in addition to the right set forth in (i) above, provided that Landlord
has
created a multi-tenant environment on the third floor or otherwise leases
or
desires to lease space on that floor in increments of less than the full
floor,
to lease space on the third floor of the Building, consisting of approximately
4,000 rentable square feet, and as more particularly shown on Lease Addendum
Number Seven - B attached to this Addendum (each "First Offer Space"). Before
Landlord offers either First Offer Space to any prospective or existing tenant,
Landlord shall provide written notice to Tenant of its availability for lease
by
Tenant (the "Offer Notice"). Tenant shall have ten (10) days from receipt
of the
Offer Notice to give written notice of Tenant's intent to exercise the Right
of
First Offer and to lease the First Offer Space identified in the Offer Notice
upon the same terms and conditions as contained in this Lease, including
without
limitation, the Allowance, except that the Base Rent will be the Fair Market
Rental Rate, as defined in accordance with Lease Addendum Number Three and
the
remaining Term under this Lease from the date of Tenant's exercise of the
Right
of First Offer (including any exercised Renewal Term) shall be at least three
(3) years, and if less than three (3) years remain in the Term of this Lease,
the Term of this Lease shall be deemed automatically extended upon Tenant's
exercise of the Right of First Offer so as to expire on the third anniversary
of
such exercise, with Base Rent for any such extended Term equal to the Fair
Market Rental Rate. Failure by Tenant to so notify Landlord within such ten
(10)
day period shall be deemed a waiver of Tenant's rights hereunder as to the
First
Offer Space identified in the Offer Notice, and Landlord may then lease that
First Offer Space to a third party, provided Landlord and such third party
execute a lease which includes that First Offer Space within twelve (12)
months
after Tenant waives, or is deemed to waive, its Right of First Offer for
such
space. Failing that, Landlord shall again offer that First Offer Space to
Tenant
before leasing that space to a third party.
Determination Within
ten (10) days after Tenant exercises its Right of First Offer, Landlord shall
deliver to Tenant notice for the Fair Market Rental Rate (the "FMR Notice")
for
the pertinent First Offer Space. If Tenant disagrees with Landlord's assessment
of the Fair Market Rental Rate specified in a FMR Notice, it shall so notify
Landlord in writing within ten (10) days after receipt of such FMR Notice
(the
“Objection Notice”), electing either to withdraw Tenant’s exercise of the Right
of First Offer or to proceed to determine the Fair Market Rental Rate in
accordance with the procedure set forth in this paragraph (“FMR Arbitration”).
If Tenant fails to give the Objection Notice within ten (10) days after receipt
of the FMR Notice, then Tenant shall be deemed to have withdrawn its exercise
of
the Right of First Offer. If Tenant timely gives the Objection Notice, but
fails
to elect either to withdraw its exercise of the Right of First Offer or to
proceed with FMR Arbitration, Tenant shall be deemed to have withdrawn its
exercise of the Right of First Offer. If in the Objection Notice Tenant elects
to proceed with FMR Arbitration, Landlord and Tenant shall meet to attempt
to
determine the Fair Market Rental Rate. If Tenant and Landlord are unable
to
agree on such Fair Market Rental Rate within ten (10) days after delivery
after
the Objection Notice, then Landlord and Tenant shall each appoint an independent
real estate appraiser with at least ten (10) years' commercial real estate
appraisal experience in the AREA market, each of whom shall make a determination
of the Fair Market Rental Rate within twenty (20) days after their selection
hereunder. If Tenant and Landlord are unable to agree upon and select one
of the
determinations made by the initial two (2) appraisers within ten (10) business
days after receipt of the two determinations, the two appraisers shall then,
within five (5) days thereafter, select an independent third appraiser with
like
qualifications. If the two appraisers are unable to agree on the third appraiser
within such five (5) day period, either Landlord or Tenant, by giving five
(5)
days prior notice thereof to the other, may apply to the then presiding judge
of
the Circuit Court for Hillsborough County, Florida, for selection of a third
appraiser who meets the qualifications stated above. Within twenty (20) days
after the selection of the third appraiser, the third appraiser shall make
a
determination of the Fair Market Rental Rate by selecting whichever of the
two
determinations made by the initial two appraisers is closer to the actual
Fair
Market Rental Rate in the opinion of such third appraiser, which determination
shall be binding on Landlord and Tenant. The third appraiser shall have no
discretion other than to select one or the other determination of the initial
two appraisers as set forth herein. Tenant and Landlord shall each bear the
entire cost of the appraiser selected by it and shall share equally the cost
of
the third appraiser.
Administration.
Tenant
shall design and construct all leasehold improvements in the First Offer
Space,
and Rent will commence 120 days after delivery of the First Offer Space to
Tenant for commencement of construction. If Tenant has exercised the Right
of
First Offer and the Fair Market Rental Rate Term has not been determined
in
accordance with this section by the time that Rent for the First Offer Space
is
to commence in accordance with the terms hereof, then Tenant shall pay Rent
for
the First Offer Space based on the Fair Market Rental Rate proposed by Landlord
pursuant to this section until such time as the Fair Market Rental Rate has
been
so determined, at which time appropriate cash
xlvii
adjustments
shall be made between Landlord and Tenant such that Tenant is charged Rent
based
on the Fair Market Rental Rate (as finally determined pursuant to this section)
for the First Offer Space during the interval in question.
xlviii
LEASE
ADDENDUM NUMBER SEVEN - A
FIRST
FLOOR: RIGHT OF FIRST OFFER SPACE
xlix
LEASE
ADDENDUM NUMBER SEVEN - B
THIRD
FLOOR: RIGHT OF FIRST OFFER SPACE
l
LEASE
ADDENDUM NUMBER EIGHT
CLEANING
SPECIFICATIONS
li
EXHIBIT
A
PREMISES
lii
EXHIBIT
B
RULES
AND REGULATIONS
1. |
Access
to Building.
On Saturdays, Sundays, Holidays and weekdays between the hours
of 6:00
P.M. and 8:00 A.M., access to the Building and/or to the halls,
corridors,
elevators or stairways in the Building may be restricted and
access shall
be gained by use of a key or electronic card to the outside doors
of the
Buildings. Landlord may from time to time establish security
controls for
the purpose of regulating access to the Building. Tenant shall
be
responsible for providing access to the Premises for its agents,
employees, invitees and guests at times access is restricted,
and shall
comply with all such security regulations so
established.
|
2. |
Protecting
Premises.
The last member of Tenant to leave the Premises shall close and
securely
lock all doors or other means of entry to the Premises and shut
off all
lights and equipment in the
Premises.
|
3. |
Building
Directories.
The directories for the Building in the form selected by Landlord
shall be
used exclusively for the display of the name and location of
tenants. Any
additional names and/or name change requested by Tenant to be
displayed in
the directories must be approved by Landlord and, if approved,
will be
provided at the sole expense of
Tenant.
|
4. |
Large
Articles.
Furniture, freight and other large or heavy articles may be brought
into
the Building only at times and in the manner designated by Landlord
and
always at Tenant's sole responsibility. All damage done to the
Building,
its furnishings, fixtures or equipment by moving or maintaining
such
furniture, freight or articles shall be repaired at Tenant’s
expense.
|
5. |
Signs.
Tenant shall not paint, display, inscribe, maintain or affix
any sign,
placard, picture, advertisement, name, notice, lettering or direction
on
any part of the outside or inside of the Building, or on any
part of the
inside of the Premises which can be seen from the outside of
the Premises,
including windows and doors, without the written consent of Landlord,
and
then only such name or names or matter and in such color, size,
style,
character and material as shall be first approved by Landlord
in writing.
Landlord, without notice to Tenant, reserves the right to remove,
at
Tenant's expense, all matters other than that provided for
above.
|
6. |
Defacing
Premises and Overloading.
Tenant shall not place anything or allow anything to be placed
in the
Premises near the glass of any door, partition, wall or window
that may be
unsightly from outside the Premises. Tenant shall not place or
permit to
be placed any article of any kind on any window ledge or on the
exterior
walls; blinds, shades, awnings or other forms of inside or outside
window
ventilators or similar devices shall not be placed in or about
the outside
windows in the Premises except to the extent that the character,
shape,
color, material and make thereof is approved by Landlord. Tenant
shall not
do any painting or decorating in the Premises or install any
floor
cover-ings in the Premises or make, paint, cut or drill into,
or in any
way deface any part of the Premises or Building without in each
instance
obtaining the prior written consent of Landlord, which consent
will not be
unreasonably withheld, delayed or conditioned. Tenant shall not
overload
any floor or part thereof in the Premises, or any facility in
the Building
or any public corridors or elevators therein by bringing in or
removing
any large or heavy articles and Landlord may direct and control
the
location of safes, files, and all other heavy articles and, if
considered
necessary by Landlord may require Tenant at its expense to supply
whatever
supplementary supports necessary to properly distribute the
weight.
|
7. |
Obstruction
of Public Areas.
Tenant shall not, whether temporarily, accidentally or otherwise,
allow
anything to remain in, place or store anything in, or obstruct
in any way,
any sidewalk, court, hall, passageway, entrance, or shipping
area. Tenant
shall lend its full cooperation to keep such areas free from
all
obstruction and in a clean and sightly condition, and move all
supplies,
furniture and equipment as soon as received directly to the Premises,
and
shall move all such items and waste (other than waste customarily
removed
by Building employees) that are at any time being taken from
the Premises
directly to the areas designated for disposal. All courts, passageways,
entrances, exits, elevators, escalators, stairways, corridors,
halls and
roofs are not for the use of the general public and Landlord
shall in all
cases retain the right to control and prevent access thereto
by all
persons whose presence, in the judgment of Landlord, shall be
prejudicial
to the safety, character, reputation and interest of the Building
and its
tenants; provided, however, that nothing herein contained shall
be
construed to prevent such access to persons with whom Tenant
deals within
the normal course of Tenant's business so long as such persons
are not
engaged in illegal
activities.
|
8. |
Additional
Locks.
Tenant shall not attach, or permit to be attached, additional
locks or
similar devices to any door or window, change existing locks
or the
mechanism thereof, or make or permit to be made any keys for
any door
other than those provided by Landlord. Upon termination of this
Lease or
of Tenant's posses-sion, Tenant shall immediately surrender all
keys to
the Premises. Notwithstanding the foregoing, Tenant shall be
permitted
|
liii
to
install keypads or other security locks on
all perimeter and stairwell doors; provided, however, that all
such
facilities shall comply with all local codes and ordinances and
Landlord
will be furnished with keys or other
access.
|
9. |
Communications
or Utility Connections.
If Tenant desires signal, alarm or other utility or similar service
connections installed or changed, then Tenant shall not install
or change
the same without the approval of Landlord, which approval will
not be
unreasonably withheld, delayed or conditioned, and then only
under
direction of Landlord and at Tenant's expense. Initial installation
of any
such facilities will be conducted as a part of the work done
pursuant to,
and shall be governed by the terms of, the Work Letter.
|
10. |
Office
of the Building.
Service requirements of Tenant will be attended to only upon
application
at the office of Highwoods Properties, Inc. Employees of Landlord
shall
not perform, and Tenant shall not engage them to do any work
outside of
their duties unless specifically authorized by
Landlord.
|
11. |
Restrooms.
The restrooms, toilets, urinals, vanities and the other apparatus
shall
not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever
shall be
thrown therein. The expense of any breakage, stoppage or damage
resulting
from the violation of this rule shall be borne by the Tenant
whom, or
whose employees or invitees, shall have caused
it.
|
12. |
Intoxication.
Landlord reserves the right to exclude or expel from the Building
any
person who, in the judgment of Landlord, is intoxicated, or under
the
influence of liquor or drugs, or who in any way violates any
of the Rules
and Regulations of the
Building.
|
13. |
Nuisances
and Certain Other Prohibited Uses.
Except as otherwise permitted under the Lease, Tenant shall not
(a)
install or operate any internal combus-tion engine, boiler, machinery,
refrigerating, heating or air conditioning apparatus in or about
the
Premises; (b) engage in any mechanical business, or in any service
in or
about the Premises or Building, except those ordinarily embraced
within
the Permitted Use as specified in Section 3 of the Lease; (c)
use the
Premises for housing, lodging, or sleep-ing purposes; (d) place
any radio
or television antennae on the roof or on or in any part of the
inside or
outside of the Building other than the inside of the Premises,
or place a
musical or sound producing instrument or device inside or outside
the
Premises which may be heard outside the Premises; (e) use any
power source
for the operation of any equipment or device other than dry cell
batteries
or electricity; (f) operate any electrical device from which
may emanate
waves that could interfere with or impair radio or television
broadcasting
or reception from or in the Building or elsewhere; (g) bring
or permit to
be in the Building any bicycle, other vehicle, dog (except in
the company
of a blind person), other animal or bird; (h) make or permit
any
objectionable noise or odor to emanate from the Premises; (i)
disturb,
harass, solicit or canvass any occupant of the Building; (j)
do anything
in or about the Premises which could be a nuisance or tend to
injure the
reputation of the Building; (k) allow any firearms in the Building
or the
Premises except as approved by Landlord in
writing.
|
14. |
Solicitation.
Tenant shall not canvass other tenants in the Building to solicit
business
or contributions and shall not exhibit, sell or offer to sell,
use, rent
or exchange any products or services in or from the Premises
unless
ordinarily embraced within the Tenant's Permitted Use as specified
in
Section 3 of the Lease.
|
15. |
Energy
Conservation.
Tenant shall not waste electricity, water, heat or air conditioning
and
agrees to reasonably cooperate with Landlord to ensure the most
effective
operation of the Building's heating and air conditioning, and
shall not
allow the adjustment (except by Landlord's authorized Building
personnel)
of any controls.
|
16. |
Building
Security.
At all times other than normal business hours the exterior Building
doors
and suite entry door(s) must be kept locked to assist in security.
Problems in Building and suite security should be directed to
Landlord at
(000) 000-0000.
|
17. |
Parking.
Parking is in designated parking areas only. There shall be no
vehicles in
"no parking" zones or at curbs. Handicapped spaces are for handicapped
persons only and the Police Department will ticket unauthor-ized
(unidentified) cars in handicapped spaces. Landlord reserves
the right to
remove vehicles that do not comply with the Lease or these Rules
and
Regulations and Tenant shall indemnify and hold harmless Landlord
from its
reasonable exercise of these rights with respect to the vehicles
of Tenant
and its employees, agents and
invitees.
|
18. |
Janitorial
Service.
The janitorial staff will remove all trash from trashcans. Any
container
or boxes left
|
liv
in
hallways or apparently discarded unless
clearly and conspicuously labeled DO NOT REMOVE may be removed
without
liability to Tenant. Any large volume of trash resulting from
delivery of
furniture, equipment, etc., should be removed by the delivery
company,
Tenant, or Landlord at Tenant's expense. Janitorial service will
be
provided after hours five (5) days a week. All requests for trash
removal
other than normal janitorial services should be directed to Landlord
at
(000) 000-0000.
|
lv
EXHIBIT
C
COMMENCEMENT
AGREEMENT
This
COMMENCEMENT AGREEMENT (the “Commencement Agreement”), made and entered into as
of this _______ day of ________________, 2004, by and between HIGHWOODS/FLORIDA
HOLDINGS, L. P., a
Delaware Partnership, with its principal office at 0000 Xxxxxxxxx Xxxxx,
Xxxxx
000, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (“Landlord”) and ______________________________________________________________,
a
_________________________________________ Corporation, with its principal
office
at _______________________________________________________________
(“Tenant”);
W
I T N E S S E T H :
WHEREAS,
Tenant and Landlord entered into that certain Lease Agreement dated
___________________ (the “Lease”), for space designated as Suite ________,
comprising approximately ___________ rentable square feet, in the
______________________ Building, located at
___________________________________________, City of _____________, County
of
_______________, State of Florida; and
WHEREAS,
the parties desire to establish the Commencement Date and Expiration Date
as set
forth below,
NOW,
THEREFORE, in
consideration of the mutual and reciprocal promises herein contained, Tenant
and
Landlord hereby agree that said Lease hereinafter described be, and the same
is
hereby modified in the following particulars:
1. The
term
of the Lease by and between Landlord and Tenant actually commenced on
___________________ (the “Commencement Date”). The initial term of said Lease
shall terminate on ___________________ (the “Expiration Date”). Section 3,
entitled “Term”, and all references to the Commencement Date and Termination
Date in the Lease are hereby amended.
2. Except
as
modified and amended by this Commencement Agreement, the Lease shall remain
in
full force and effect.
lvi
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be duly
executed, as of the day and year first above written.
LANDLORD: | |||
WITNESSES: | HIGHWOODS/FLORIDA HOLDINGS, L.P. | ||
a Delaware limited partnership
|
|||
By:
|
Highwoods/Florida GP Corp.,
its general partner
|
||
_____________________________________ | |||
By: | _____________________________________ | ||
_____________________________________
|
Xxxxxxx X. Xxxxxx | ||
Print
Name
|
Title: | Vice
President -
Tampa |
|
|
Date: | ___________________________ | |
_____________________________________
|
|||
_____________________________________
|
|||
Print
Name
|
|||
TENANT: | |||
WITNESSES: | |||
_______ DO NOT SIGN -- EXHIBIT
ONLY____________
|
|||
_____________________________________ |
Signature
Line
|
||
__________________________________________ | By: | _____________________________________ | |
Print
Name
|
Print Name | ||
|
|||
_____________________________________
|
Title: | _____________________________________ | |
_____________________________________
|
|||
Print
Name
|
Date: |
___________________________
|
lvii
EXHIBIT
D
[ROOFTOP
LICENSE AGREEMENT]
ROOFTOP
LICENSE. (a)
Grant.
Landlord
hereby grants to Tenant the non-exclusive right (hereinafter collectively
the
“Rooftop Rights”):
i. |
To
install, operate, maintain and remove, at Tenant’s sole expense and risk,
certain rooftop communications equipment (hereinafter the “Equipment”) as
described in Exhibit
D-1
attached hereto and made a part
hereof.
|
ii. |
To
install, maintain, operate, and replace at Tenant’s sole expense and risk,
certain connecting equipment, including, but not limited to,
the cables,
conduits, and connecting hardware necessary for the operation
of the
Equipment (hereinafter the "Connecting
Equipment”).
|
iii. |
To
pull such Connecting Equipment through the Building Common Areas
(if
existing risers are full, Tenant shall use a separate raceway
to be
installed by Tenant at Tenant’s sole cost and expense with routing as
approved by Landlord) for the purpose of connecting Tenant’s rooftop
Equipment to the related Equipment located in Tenant’s lease
Premises.
|
(b)
Grant
Non-exclusive. The
Rooftop Rights granted herein are not exclusive and Landlord reserves the
right
to grant, renew or extend rooftop communications rights to others; provided
such
rights do not render Tenant’s utilization of the site impractical. If Landlord
grants Rooftop Rights to any future tenant, operator or licensee (“Future
Licensee”), and such Future Licensee’s equipment interferes with Tenant’s
operation and use of it Equipment, Landlord will direct the Future Licensee
to
take all steps reasonably necessary to reduce the level of interference to
a
level that does not materially impair Tenant’s operation and use of its
Equipment. If such Future Licensee cannot or does not reduce the interference
to
a level that does not materially impair Tenant’s operation and use of its
Equipment, Landlord shall terminate the license with such Future Licensee
and
require the Future Licensee to remove the equipment causing such
interference.
(c)
Term.
The
Rooftop Rights granted to Tenant by Landlord shall have an expiration date
co-terminous with the Lease Term (unless sooner terminated by Landlord or
Tenant
as provided herein).
(d)
Use.
Tenant
agrees to use the Equipment and Connecting Equipment exclusively for its
own
use. Tenant shall not use the Equipment or Connecting Equipment to provide
services to any outside party without Landlord’s prior written consent, it being
acknowledged that changes in the use of Tenant’s Equipment or Connecting
Equipment may increase the value of the Rooftop Rights granted herein. Tenant
shall not utilize the Equipment or Connecting Equipment in any manner that
is in
violation of any governmental laws, rules or regulations, whether now existing
or hereinafter enacted or which is in violation of the Building Rules and
Regulations. Tenant may not make any use of the Equipment or Connecting
Equipment that (i) is or may be a nuisance or trespass or otherwise disturbs
the
other tenants in the Building, (ii) increases any insurance premiums, or
(iii)
makes such insurance unavailable to Landlord on the Building under the insurer’s
standard underwriting criteria. Landlord makes no warranty or representation
that the Building, the Building rooftop, or any improvements therein (including
without limitation any existing equipment rooms, conduits, cables, and other
spaces and products related to the operation or installation Tenant’s Equipment)
(hereinafter collectively the “Equipment Space”) are suitable for Tenant’s
intended use. Landlord further makes no warranty or representation that Tenant’s
rooftop equipment will not be affected by or suffer interference from existing
rooftop equipment, provided such existing equipment is operating in compliance
with the terms and conditions allowed by the applicable rooftop agreement.
Tenant acknowledges (i) that Tenant shall perform all necessary studies and
reports to determine the suitability of the Equipment Space for Tenant’s
intended us; (ii) that Tenant has not relied on any statements, representations,
or any other indications (whether verbal, written, or both) made by Landlord,
its employees, officers, agents, representatives, contractors, or brokers
regarding the condition and suitability of the Equipment Space for Tenant’s
intended use; and (iii) that Tenant has inspected the Equipment Space and
accepts the same “as is” and agrees that Landlord is under no obligation to
perform any work or provide any materials in preparation for the installation,
maintenance or operation of Tenant’s Equipment or Connecting Equipment. Tenant
further acknowledges that the Equipment Space may be accessed by Landlord’s
authorized representatives, including but not limited to, authorized personnel
representing other communications carriers, and agents, employees, contractors,
representatives, and subcontractors, of Landlord.
(e)Termination.
Provided Tenant is not then in default, Tenant may terminate its Rooftop
Rights
at any time, with or without cause, with thirty (30) days priors written
notice
to Landlord. Termination rights granted to Landlord and Tenant in the Lease
shall also be fully applicable to the Rooftop Rights granted
herein.
lviii
(f)
Rent.
Intentionally deleted.
(g)
Equipment.
The
Equipment and the Connecting Equipment shall be installed behind the rooftop
screen to be constructed on the roof of the Building, and otherwise in strict
accordance with the covenants of the _______________, the specifications
set
forth in Exhibit D-1 and any subsequent plans and specifications approved
by
Landlord as set forth herein. Tenant shall at all times operate and maintain
the
Equipment and the Connecting Equipment in good condition and in compliance
with
all federal, state, and local laws, ordinances, and rules. Equipment
replacements shall be restricted to equipment substantially similar in function
and size to the Equipment described in Exhibit D-1. The installation of any
additional equipment or equipment dissimilar in function or size to that
described in Exhibit D-1 with Landlord's prior approval, not to be unreasonably
withheld or delayed, shall be deemed an act of default by Tenant. Tenant
shall
not place any load upon any floor or upon the roof of the Building contrary
to
the weight, method of installation and position reasonably prescribed by
Landlord. The Equipment and Connecting Equipment shall remain at the sole
risk
of Tenant, and Landlord shall not be liable for any damage, theft,
misappropriation or loss regardless of the cause thereof, and Tenant expressly
waives any and all claims it may have against Landlord with respect to the
same.
(h)
Equipment Installation.
Prior to
the commencement of any work or the installation of any Equipment or Connecting
Equipment, Tenant shall:
i. |
Prepare
and deliver to Landlord an outline of the Building rooftop, indicating
the
proposed location of the rooftop Equipment, a description of
the proposed
method of installation, and the proposed routing of any rooftop
Connecting
Equipment. Tenant shall also describe, in reasonable detail,
the proposed
routing of all non-rooftop Connecting Equipment. No work shall
commence
until Landlord has approved, in writing, all construction and
installation
plans, which approval shall not be unreasonably withheld or delayed.
Landlord shall indicate its approval or disapproval and notify
Tenant of
any required changes within ten (10) business days after Landlord
receives
such plans from Tenant. In no event shall Landlord’s approval or change of
such plans be deemed a representation that Tenant’s Equipment and
Connecting Equipment will not cause interference with other systems
in the
Building or that Tenant’s plans comply with applicable laws, rules or
regulations; such responsibility shall remain solely with
Tenant.
|
ii. |
Tenant
warrants that the installation of the Equipment and Connecting
Equipment
shall be in strict compliance with (i) Exhibit D-1 attached hereto;
(ii)
any subsequent plans and specifications approved by Landlord;
(iii) all
Equipment manufacturer’s recommendations; and (iii) all applicable laws,
rules or regulations. Tenant shall not make any material modifications
to
the Equipment Space without Landlord’s prior written approval, which
Landlord shall determine tin its soles discretion. Tenant shall
also
insure that the installation and construction shall be performed
in a
neat, responsible, and workmanlike manner, using generally accepted
construction standards, consistent with such reasonable requirements
as
shall be imposed by Landlord. Tenant shall promptly notify when
all work
has been completed and all work shall be inspected by Landlord.
Within
five (5) business days following Tenant’s completion of the installation,
Tenant shall provided Landlord with documentation evidencing
that all
applicable permits, licenses, and approvals required for the
installation,
maintenance, and operation of the Equipment and Connecting Equipment
have
been obtained.
|
iii. |
Tenant
acknowledges that the structural integrity of the load bearing
capability
of the roof, the moisture resistance of the roof membrane, and
the ability
of Landlord to safely access all parts of the roof are of critical
importance to Landlord. Tenant agrees that all specifications
and plans
will provide sufficient specificity to ensure that these concerns
are
protected. Tenant shall not make any penetrations of the roof
membrane
without the Landlord’s prior written approval. Any penetrations of the
roof membrane approved by Landlord shall be made at Tenant’s sole cost and
expense by a qualified roofing contractor selected by Landlord
to ensure
full compliance with the terms of all existing roof warranties.
Tenant
shall be fully liable to Landlord for any unauthorized activities
that
violate the terms of any warranty on the roof membrane and results
in the
full or partial loss of any roof warranty coverage otherwise
available to
Landlord. Tenant shall handle all parts, materials, and substances
capable
of damaging the roof membrane in a manner that fully protects
the
integrity of the membrane. Any roof damage caused by Tenant or
any of
Tenant’s agents, representative, employees, contractors, subcontractors
or
invitees shall be made at Tenant’s sole cost and expense by a roofing
|
lix
contractor
selected by Landlord. Landlord, in
its sole discretion, may require Tenant to install, at Tenant’s sole cost
and expense, rooftop walk pads if Landlord considers such pads
necessary
to protect the integrity of the roof
membrane.
|
iv. |
Tenant,
in the exercise of its Rooftop Rights granted herein, shall not
at any
time (as determined by Landlord in its sole judgment), disrupt
Building
operations, including but not limited to, blocking access to
or in any way
obstructing Building entrances, lobbies, hallways, elevators,
or interfere
or hinder the use of the Building’s loading docks. Any work activities
deemed disruptive to Building operations, including but not limited
to
core drillings, must be performed after normal business hours
as defined
by Landlord.
|
v. |
Tenant
shall, at is sole cost and expense, repair or refinish any surface
of the
Building damaged by or during the installation, operation, maintenance
or
removal of Tenant’s Equipment or Connecting Equipment and caused by Tenant
or any of its agents, representatives, employees, contractors,
subcontractors, or invitees. In the event Tenant fails to promptly
repair
or refinish any such damage, Landlord may, in its sole discretion,
repair
or refinish such damage to Landlord’s satisfaction and Tenant shall
reimburse Landlord for all costs and expenses incurred in such
repair or
refinishing together with an administrative charge of fifteen
percent
(15%) of such costs and expenses. All such sums shall be deemed
to be
Additional Rent payable to
Landlord.
|
vi. |
Tenant
shall attach a label to (i) all rooftop Equipment and Connecting
Equipment
located on the rooftop and (ii) to all cabling passing through
all
Building common area equipment and telephone rooms. Each label
shall
included, at a minimum, the following
information:
|
a. |
Tenant’s
name;
|
b. |
Rooftop
Lease #;
|
c. |
If
cabling, the floor where the cable originates and the floor where
it
terminates;
|
vii. |
Tenant
shall obtain, at its sole cost and expense, prior to the commencement
of
any construction activities or Equipment or Connecting Equipment
installations, any necessary federal, state, and municipal permits,
licenses and approvals. Tenant’s Equipment and Connecting Equipment shall
comply with all applicable safety standards, as modified from
time to
time, of any governing body with jurisdiction over Tenant’s
operations.
|
viii. |
Any
specialized use of the elevators must be coordinated with Landlord’s
property manager.
|
ix. |
Tenant
must properly dispose of all packing material and refuse in accordance
with the Rules and
Regulations.
|
(i)Tenant’s
Covenants.
a.
|
Tenant
shall at its sole cost and expense, maintain the Equipment and
Connecting
Equipment in proper operating condition and maintain same in a
safe
condition.
|
b. |
Tenant’s
Equipment and Connecting Equipment shall not disrupt, adversely
affect, or
interfere with (i) the operation of any existing communications
equipment
at the Building, (ii) any tenant’s or occupant’s use or operation of
communications or computer devices, or (iii) the operation of any
Building
system. In the event interference occurs, Tenant shall correct
such
interference within twenty-four (24) hours after receiving written
notice
that such interference is possibly caused by Tenant’s Equipment. Landlord
reserves the right to disconnect power to any of Tenant’s Equipment in the
event Tenant fails to correct such interference within such twenty-four
(24) hour period. Tenant hereby releases Landlord from any and
all
liability and damages, which results or possibly results from any
such
disconnection.
|
(j)
Utility Service.
In the
event Tenant’s Equipment requires utility service beyond the limits set forth in
the Lease, Tenant shall pay for all related utility costs. Subject to
availability as determined by Landlord in its reasonable discretion, Tenant
may
connect to the existing electrical service to the Building provided that
lx
Tenant,
at Tenant’s sole expense, installs an Emon Dmon sub-meter capable of measuring
both electricity consumption and demand. In such event, Tenant shall reimburse
Landlord for the costs of Tenant’s electrical use, including Landlord’s
administrative charge of $20.00 per month for meter reading and administrative
processing. Landlord shall invoice Tenant on a monthly basis (or such other
billing cycle as may be mutually acceptable to both Landlord and Tenant),
and
all sum due related to Tenant’s electrical usage shall be due to Landlord as
Additional Rent. Landlord shall have no liability to Tenant or any third
party
for any interruption, curtailment, stoppage, or suspension of any utility
service.
(k)
Access.
Tenant
hereby acknowledges that for reasons of safety and security, Landlord must
restrict access to the Building rooftop and Building common areas to authorized
personnel only. Landlord agrees that Tenant’s authorized representative shall
have access to the Equipment Space during normal business hours (typically
defined as 7:30 a.m. to 4:30 p.m., Monday through Friday, excluding Holidays)
free of charge. Access after normal business hours will require Landlord
to
dispatch personnel and Tenant shall reimburse Landlord, as Additional Rent,
for
the associated personnel costs at Landlord’s then current overtime hourly
billable rate (Landlord’s overtime rate is currently $52.50 per hour). Except in
the event of an emergency, Tenant agrees to give at least twenty-four (24)
hours
notice to Landlord of its intent to enter the Equipment Space. At the time
such
notice is given, Tenant shall inform Landlord of the names of the person(s)
who
will be accessing the Equipment Space, the reasons for the entry, and the
expected duration of the work to be performed. Tenant acknowledges that Landlord
may not maintain personnel on-site and any requested access without prior
notification may result in unavoidable and unpredictable delays. At no time
shall Tenant or any of Tenant’s agents, employees, contractors, subcontractors,
or representative attempt to connection, tamper with, adjust, alter, or
otherwise affect the operation of any equipment or systems belonging to Landlord
or any other third-party without the prior written approval of Landlord or
the
affected third-party, as appropriate. Landlord reserves the right, in its
sole
discretion, to select or approve any contractor whose work activities will
connect, interact with, or potentially affect any Building equipment or
systems.
(l)
Relocation.
Landlord, at its sole expense and discretion, may require Tenant to relocate
any
or all of the Equipment and Connecting Equipment located on the rooftop or
within the Building, provided that such relocation does not materially and
adversely impair the operation of the Equipment and Connecting Equipment
or
materially degrade the quality of transmission of the Equipment and Connecting
Equipment. In the event Landlord requires Tenant to relocate Tenant’s Equipment
or Connecting Equipment, as the case may be, Tenant shall within sixty (60)
days
either: (i) terminate this License upon written notice to Landlord; or (ii)
commence efforts to relocate the Equipment or the Connecting Equipment, as
the
case may be, and complete their relocation with on hundred twenty (120) days
of
the date of Landlord’s original notice to Tenant to relocate, in which event
Landlord shall reimburse Tenant for any reasonable, actual, out-of-pocket
costs
or expenses paid by Tenant to third parties in connection with such relocation.
Landlord will permit Tenant to perform a standard cutover procedure, if required
by any relocation of Equipment, which will ensure that the relocated Equipment
is operational for services prior to discontinuing service from the old
location. In the event all or a portion of the roof membrane must be repaired
or
replaced, or any other Building maintenance need arises that requires the
temporary removal of the Equipment and Connecting Equipment, Tenant shall
be
fully responsible, at its sole cost and expense, for the removal and
re-installation of all Equipment. Except in the case of emergencies, Landlord
shall provide Tenant with forty-eight (48) hours notice of any planned repairs
or replacements that will require the removal of Tenant’s Equipment, unless
Landlord is unable to provide forty-eight (48) hours notice due to the nature
of
the repair or replacement, in which event Landlord shall provide as much
notice
as reasonably possible. Landlord shall promptly notify Tenant when the repair
or
replacement is complete and the re-installation of the Equipment may commence.
All Equipment shall be re-installed in strict accordance with the specifications
previously approved by Landlord and in effect at the time of the Equipment’s
removal. Landlord shall have no liability to Tenant or any third-party for
any
losses incurred as a result of the relocation and re-installation.
(m)
Removal.
Provided Tenant is not in default under the terms of the Lease or its
obligations under the Rooftop Rights granted herein, Tenant may, prior to
the
Expiration Date, remove its Equipment from the Building; provided, however,
Tenant shall repair all damage caused by such removal and perform such
restoration as may be required under the terms of the Lease. In any event,
Tenant shall remove all of its Equipment and Connecting Equipment (unless
Tenant
obtains Landlord’s prior written consent to allow the Connecting Equipment, or
portions thereof, to remain in place and become the property of Landlord,
such
consent to be at Landlord’s sole discretion) prior to the Expiration Date or
earlier termination (for whatever cause) of Tenant’s Rooftop Rights. In the
event Tenant’s Equipment and Connecting Equipment or any portion thereof
(excepting any Connecting Equipment to remain in place per Landlord’s consent as
described above) is not removed prior to the Expiration Date or earlier
termination of Tenant’s Rooftop Rights, such property shall be deemed abandoned
by Tenant and Landlord may dispose of same in whatever manner Landlord may
elect
without any liability to Tenant. Any expenses incurred by Landlord as a result
of the removal and disposition of
lxi
Tenant’s
Equipment and Connecting Equipment, or any portion thereof, deemed abandoned
by
Tenant shall be paid to Landlord by Tenant within thirty (30) days of Tenant’s
receipt of Landlord’s invoice.
(n)
Assignment - Sublicense.
Tenant
shall not assign, sublicense, or otherwise transfer the Rooftop Rights or
any
portion there of without Landlord’s prior written consent, which Landlord shall
determine in its sole discretion. Not withstanding the foregoing, Tenant
shall
have the right, without Landlord’s consent, but upon written notification to
Landlord, to assign or sublicense Tenant’s Rooftop Rights to any permitted
subtenant or assignee which assumes the obligations of Tenant, and continues
the
same permitted use set for the in the terms and conditions set forth herein.
Landlord must be given prior written notice of any such assignment or
sublicense, and failure to do so shall be a default by Tenant hereunder.
Acceptance of Rooftop Rent payments by Landlord after any non-permitted
assignment shall not constitute approval thereof by Landlord. In no event
shall
Tenant’s Rooftop Rights be assignable by operation of any law, and Tenant’s
rights hereunder may not become, and shall not be listed by Tenant s an asset
under any bankruptcy, insolvency or reorganization proceedings. Tenant is
not,
may not become, and shall never represent itself to be an agent of Landlord,
and
Tenant acknowledges that Landlord’s title is paramount, and that it can do
nothing to affect or impair Landlord’s title. If Tenant’s Rooftop Rights shall
be assigned or sublicensed by Tenant at a Rooftop Rent that exceeds the Rooftop
Rent to be paid to Landlord hereunder, then any such excess shall be paid
over
to Landlord by Tenant.
lxii
EXHIBIT
D-1 TO ROOFTOP LICENSE AGREEMENT
[Equipment]
lxiii
EXHIBIT
E
[MONUMENT
SIGNAGE]
lxiv
EXHIBIT
F
[NON-DISTURBANCE
AND ATTORNMENT AGREEMENT]
(Sample)
RECORDING
REQUESTED BY
_____________________________
WHEN
RECORDED MAIL TO
The
Northwestern Mutual Life Ins. Co.
000
Xxxx
Xxxxxxxxx Xxx. - Xx X00XX
Xxxxxxxxx,
XX 00000
Attn:
Loan
No. SPACE ABOVE THIS
LINE FOR RECORDER’S
USE
NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS
AGREEMENT is entered into as
of , 2004, between Xxxxx & Xxxxx, Inc., a Florida
corporation, whose mailing address is 000 X. Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxx, Xxxxxxx 00000 ("Tenant"), Highwoods/Florida Holdings, L.P.,
a Delaware limited partnership, whose mailing address is 3111 X. Xxxxxx
Xxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, ("Borrower"), and
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation
("Lender"), whose address for notices is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000, Attention: Real Estate Investment Department, Reference Loan No.
.
RECITALS
A. Tenant
is the
lessee or successor to the lessee, and Borrower is the lessor or successor
to
the lessor under a certain lease dated , 2004 (the
"Lease").
B. Lender
has
made, or will make, a mortgage loan to be secured by a mortgage, deed to
secure
a debt or deed of trust from Borrower for the benefit of Lender (as it may
be
amended, restated or otherwise modified from time to time, the "Lien
Instrument") encumbering the fee title to and/or leasehold interest in the
land
described in Exhibit A attached hereto and the improvements thereon
(collectively, the "Property"), wherein the premises covered by the Lease
(the
"Demised Premises") are located.
C. Borrower
and
Lender have executed, or will execute, an Absolute
lxv
Assignment
of Leases and Rents (the "Absolute Assignment"), pursuant to which (i) the
Lease
is assigned to Lender and (ii) Lender grants a license back to Borrower
permitting Borrower to collect all rents, income and other sums payable under
the Lease until the revocation by Lender of such license, at which time all
rents, income and other sums payable under the Lease are to be paid to
Lender.
D. Lender
has required
the execution of this Agreement by Borrower and Tenant as a condition to
Lender
making the requested mortgage loan or consenting to the Lease, and Tenant
has
required the execution of this Agreement by Lender and Borrower as a condition
to Tenant entering into the Lease.
E. Tenant
acknowledges
that, as its consideration for entering into this Agreement, Tenant will
benefit
by entering into an agreement with Lender concerning Tenant’s relationship with
any purchaser or transferee of the Property (including Lender) in the event
of
foreclosure of the Lien Instrument or a transfer of the Property by deed
in lieu
of foreclosure (any such purchaser or transferee and each of their respective
successors or assigns is hereinafter referred to as "Successor
Landlord").
AGREEMENT
NOW,
THEREFORE, in consideration of the
foregoing, the mutual covenants and agreements contained herein, and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Tenant, Borrower and Lender agree as follows:
1. Tenant
and Borrower
agree for the benefit of Lender that:
(a)
|
Tenant
shall not pay, and Borrower shall not accept, any rent or additional
rent
more than one month in advance;
|
(b)
|
Except
as specifically provided in the Lease, Tenant and Borrower will
not enter
into any agreement for the cancellation of the Lease or the surrender
of
the Demised Premises without Lender’s prior written
consent;
|
(c)
|
Tenant
and Borrower will not enter into any agreement amending or modifying
the
Lease without Lender’s prior written consent, except for amendments or
modifications specifically contemplated in the Lease, including
without
limitation, those confirming the lease commencement date, the rent
commencement date, the term, the square footage leased, the renewal
or
extension of the Lease, or the leasing of additional space at the
Property;
|
(d)
|
Tenant
will not terminate the Lease because of a default thereunder by
|
lxvi
Borrower
unless Tenant shall have first given Lender
written notice and a reasonable opportunity to cure such default;
and
(e)
|
Tenant,
upon receipt of notice from Lender that it has exercised its rights
under
the Absolute Assignment and revoked the license granted to Borrower
to
collect all rents, income and other sums payable under the Lease,
shall
pay to Lender all rent and other payments then or thereafter due
under the
Lease, and any such payments to Lender shall be credited against
the rent
or other obligations due under the Lease as if made to
Borrower.
|
(f)
|
Tenant
will not conduct any dry cleaning operations on the Demised Premises
using
chlorinated solvents nor will Tenant use any chlorinated solvents
in the
operation of their business on the Demised
Premises.
|
(g)
|
Tenant
shall pay any and all termination fees due and payable under the
Lease
directly to Lender to be held by Lender/directly to Lender
to be held
in an account satisfactory to Lender and such fees shall be applied by
Lender as follows: [DRAFTER: INSERT LANGUAGE PER STAC 320/321 OF
LOAN
COMMITMENT.]
|
2. Subject
to the terms
of this Agreement, the Lease is hereby subordinated in all respects to the
Lien
Instrument and to all renewals, modifications and extensions thereof, subject
to
the terms and conditions hereinafter set forth in this Agreement, but Tenant
waives, to the fullest extent it may lawfully do so, the provisions of any
statute or rule of law now or hereafter in effect that may give or purport
to
give it any right or election to terminate or otherwise adversely affect
the
Lease or the obligations of Tenant thereunder by reason of any foreclosure
proceeding.
3. Borrower,
Tenant and
Lender agree that, unless Lender shall otherwise consent in writing, the
fee
title to, or any leasehold interest in, the Property and the leasehold estate
created by the Lease shall not merge but shall remain separate and distinct,
notwithstanding the union of said estates either in Borrower or Tenant or
any
third party by purchase, assignment or otherwise.
4. If
the interests of
Borrower in the Property are acquired by a Successor Landlord:
(a)
|
If
Tenant shall not then be in default in the payment of rent or other
sums
due under the Lease or be otherwise in material default under the
Lease
(in each case, beyond the expiration of applicable notice and cure
periods), the Lease shall not terminate or be terminated and the
rights of
Tenant thereunder shall continue in full force and effect except
as
provided in this Agreement;
|
lxvii
(b)
|
Tenant
agrees to attorn to Successor Landlord as its lessor; Tenant shall
be
bound under all of the terms, covenants and conditions of the Lease
for
the balance of the term thereof, including any renewal options
which are
exercised in accordance with the terms of the
Lease;
|
(c)
|
The
interests so acquired shall not merge with any other interests
of
Successor Landlord in the Property if such merger would result
in the
termination of the Lease;
|
(d)
|
If,
notwithstanding any other provisions of this Agreement, the acquisition
by
Successor Landlord of the interests of Borrower in the Property
results,
in whole or part, in the termination of the Lease, there shall
be deemed
to have been created a lease between Successor Landlord and Tenant
on the
same terms and conditions as the Lease for the remainder of the
term of
the Lease, except as modified by this Agreement, with renewal options,
if
any; and
|
(e)
|
Successor
Landlord shall be bound to Tenant under all of the terms, covenants
and
conditions of the Lease, and Tenant shall, from and after Successor
Landlord’s acquisition of the interests of Borrower in the real estate,
have the same remedies against Successor Landlord for the breach
of the
Lease that Tenant would have had under the Lease against Borrower
if the
Successor Landlord had not succeeded to the interests of Borrower;
provided, however, that Successor Landlord shall not
be:
|
(i)
|
Liable
for the breach of any representations or warranties set forth in
the Lease
or for any act, omission or obligation of any landlord (including
Borrower) or any other party occurring or accruing prior to the
date of
Successor Landlord’s acquisition of the interests of Borrower in the
Demised Premises, except for any repair and maintenance obligations
of a
continuing nature as of the date of such
acquisition;
|
(ii)
|
Subject
to any offsets or defenses which Tenant might have against any
landlord
(including Borrower) prior to the date of Successor Landlord’s acquisition
of the interests of Borrower in the Demised Premises except to
the extent
that such offsets (a) were used to fund the Allowance (as defined
in the
Lease), including interest, or to fund the repairs, maintenance
or other
actions
|
lxviii
which
would otherwise be an obligation of Successor
Landlord upon its acquisition of the interests of Borrower in the Property
and
(b) in the case of Lender becoming Successor Landlord, concerning which Lender
has in fact received timely notice and an opportunity to cure prior to Tenant
gaining, or taking action by which it would gain, the right to so offset
against
rents;
(iii)
|
Liable
for the return of any xecurity deposit under the Lease unless such
security deposit shall have been actually deposited with Successor
Lanlord;Premises to any third party;
|
(iv)
|
Bound
to Tenant for any claims arising subsequent to the date upon which
Successor Landlord transfers its interest in the Demised Premises
to any
third party;
|
(v)
|
Liable
to Tenant under any indemnification provisions set forth in the
Lease
arising prior to Successor Landlord's acquisition of the interests
of
Borrower in the Property; or
|
(vi)
|
Liable
for any damages in excess of Successor Landlord’s equity in the
Property.
|
The
provisions of this paragraph shall be effective and self-operative immediately
upon Successor Landlord succeeding to the interests of Borrower without the
execution of any other instrument.
5. Tenant
represents and warrants that Tenant, to its actual knowledge: (i) is not
a
person or entity with whom Lender is restricted from doing business with
under
regulations of the Office of Foreign Asset Control ("OFAC") of the Department
of
the Treasury (including, but not limited to, those named on OFAC's Specially
Designated and Blocked Persons list) or under any statute, executive order
(including, but not limited to, the September 24, 2001 Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action; (ii) is not
knowingly engaged in, and shall not knowingly engage in, any dealings or
transaction or knowingly be otherwise associated with such persons or entities
described in (i) above; and (iii) is not a person or entity whose activities
violate the International Money Laundering Abatement and Financial
Anti-Terrorism Act of 2001 or the regulations or orders thereunder.
lxix
6. This
Agreement may
not be modified orally or in any other manner except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
In the
event of any conflict between the terms of this Agreement and the terms of
the
Lease, the terms of this Agreement shall prevail. This Agreement shall inure
to
the benefit of and be binding upon the parties hereto, their respective heirs,
successors and assigns, and shall remain in full force and effect
notwithstanding any renewal, extension, increase, or refinance of the
indebtedness secured by the Lien Instrument, without further confirmation.
Upon
recorded satisfaction of the Lien Instrument, this Agreement shall become
null
and void and be of no further effect.
lxx
IN
WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.
TENANT: | XXXXX & XXXXX, INC. | |
|
|
|
By: | _____________________________________________________ | |
|
Attest: |
_______________________________________________
|
Secretary | ||
BORROWER:
|
HIGHWOODS/FLORIDA
HOLDINGS,
L.P.,
a
Delaware limited partnership
|
|
|
By:
Highwoods/Florida GP Corp.,
its
general partner
|
|
By:
|
_______________________________________
|
|
Xxxxxxx X. Xxxxxx | ||
Title:
|
Vice President - Tampa | |
Attest:
|
_______________________________________
|
|
LENDER: |
THE
NORTHWESTERN MUTUAL
LIFE
INSURANCE COMPANY, a
Wisconsin
corporation
|
|
By: |
Northwestern
Investment
Management
Company, LLC, a
Delaware
limited liability
company,
its wholly-owned
affiliate
and authorized
representative
|
|
By:
_______________________________
, Managing Director
|
||
Attest:
____________________________
,
Assistant Secretary
|
lxxi