OFFICE LEASE
1.
Basic Lease Provisions.
| 1.1. |
Parties:
This Lease is made and entered into as of the 13th day of
November 2007
(the” Effective Date”) by and between FROST REAL ESTATE HOLDINGS, LLC, a
Florida limited liability company (“Landlord”), and OPKO HEALTH, INC., a
Delaware corporation (“Tenant”).
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| 1.2. |
Premises:
Suite Numbers 1500 and 1180, as shown on Exhibit "A" attached hereto
(the
"Premises").
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| 1.3. |
Rentable
Square Footage of the Premises:
8,320 Square feet (3,245 SF on 15TH
Floor-North + 5,075 on 11th
Floor North). Landlord and Tenant stipulate and agree that the rentable
square footage of the Premises is
correct.
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| 1.4. |
Building
Address:
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000.
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| 1.5. |
Permitted
Use:
General office use in the 15th
and 11th
floor office space, subject to the requirements and limitations contained
in Section 6.
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| 1.6. |
Term:
Five (5) years.
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| 1.7. |
Commencement
Date: August
1, 2007.
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| 1.8. |
Rent: Tenant
shall make rent payments under this Lease on a “gross” basis (the “Rent”),
plus applicable sales tax. The rent shall be increased annually by
four
and one half percent (4.5%) on each anniversary date as follows:
|
|
Lease
Period in Months
|
Annual
Rent
|
|
August
1, 2007- July 31, 2008
|
$211,280
|
|
August
1, 2008- July 31, 2009
|
$252,138
|
|
August
1, 2009- July 31, 2010
|
$263,484
|
|
August
1, 2010- July 31, 2011
|
$275,341
|
|
August
1, 2011- July 31, 2012
|
$287,731
|
| 1.9. |
Intentionally
Omitted.
|
| 1.10. |
Security
Deposit: N/A.
|
| 1.11. |
Sales
Taxes. Tenant
shall pay to Landlord with the monthly payment of Rent all applicable
sales taxes imposed directly upon such rent or this Lease.
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| 1.12. |
Number
of Parking Spaces:
Up to twenty
seven (27)
total spaces of which twenty (20)
are unreserved and seven (7) are reserved spaces, all in accordance
with
the terms of Section 24 hereof.
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| 1.13. |
Real
Estate Brokers:
Landlord:
None
Tenant: None
|
| 1.14. |
Attachments
to Lease: Exhibit
A - "Premises"; and Exhibit B - "Rules and Regulations.
|
| 1.15. |
Addresses
for Notices:
|
|
Landlord:
|
Frost Real Estate Holdings, LLC |
| 0000 Xxxxxxxx Xxxxxxxxx | |
| Xxxxx, Xxxxxxx 00000 | |
| Tenant: | Prior to the Commencement Date: N/A |
| After the Commencement Date: | |
| OPKO HEALTH Inc., | |
| 0000 Xxxxxxxx Xxxx. | |
| Suites:1580, Annex 1 & 1100, | |
| Xxxxx, Xxxxxxx 00000 | |
| Attention: Xxxx Xxxxx |
1
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1.16.
|
Interpretation.
The Basic Lease Provisions shall be interpreted in conjunction with
all of
the other terms and conditions of this Lease. Other terms and conditions
of this Lease modify and expand on the Basic Lease Provisions. If
there is
a conflict between the Basic Lease Provisions and the other terms
and
conditions of this Lease, the other terms and conditions shall control.
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2.
Premises.
2.1.
Lease of Premises.
Landlord hereby leases the Premises to Tenant, together with the right to use
any portions of the Project, as hereinafter defined, that are designated by
Landlord for the common use of tenants and others (the “Common Areas”). The
“Project” consists of the building of which the Premises is a part (the
"Building"), the Common Areas, the land upon which the same are located, along
with all other buildings and improvements thereon or hereunder, including all
parking facilities.
2.2.
Acceptance. Tenant
agrees to accept the Premises in its “as-is” condition existing as of the
Commencement Date.
3. Term.
This
Lease shall be in full force and effect from the Effective Date. The Term and
Commencement Date of this Lease are as specified in Sections 1.6 and 1.7, if
any. If for any reason Landlord cannot deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any liability
therefore, nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder; provided, however, in such a case, the
Commencement Date shall be extended to the date Landlord delivers possession
of
the Premises to Tenant.
4. Rent.
4.1. Rent.
Tenant
shall pay Landlord the Rent for the Premises on the first day of each calendar
month during the Term of this Lease in advance, without notice or demand,
deduction, abatement or offset (unless expressly set forth in this Lease).
Rent
for any partial month during the Term shall be prorated. Rent and all other
amounts payable to Landlord hereunder shall be payable to Landlord in lawful
money of the United States and Tenant shall be responsible for delivering said
amounts to Landlord at the address stated herein or to such other persons or
to
such other places as Landlord may designate in writing. The Rent payments to
be
made by Tenant hereunder are made on a “gross” basis and, except as may be
expressly stated otherwise herein, Tenant shall not be required to make any
additional payments to Landlord for Tenant’s share of any real estate taxes on
the Premises or the Building, for any insurance on the Premises or the Building,
for any common area maintenance charges, for the use of the cafeteria in the
Building, for use of the furniture located within the Premises, for the use
of
the unreserved and reserved parking spaces provided to Tenant herein, or for
the
services to be provided by Landlord under Section 11.1.
4.2 Landlord
and Tenant acknowledge and agree that Tenant and its employees shall have the
right to use the existing cafeteria located within the Building for so long
as
such cafeteria remains open and available. Notwithstanding the foregoing, Tenant
expressly acknowledges and agrees that the cafeteria may be shut down by
Landlord at any time during the Term of this Lease and that the Landlord has
no
obligation to provide a cafeteria under the terms of this Lease.
5. Security
Deposit. N/A.
6. Use.
6.1. Use. The
15th
and
11th
floor
shall be used and occupied only for general office use and other uses compatible
with general office use, and for no other purpose. Notwithstanding any permitted
use provided for in this Lease, Tenant shall not use the 15th
and
11th
floors
for any purpose which would violate the Project's certificate of occupancy,
any
conditional use permit or variance applicable to the Project or violate any
covenants, conditions or other restrictions applicable to the Project. No
exclusive use has been granted to Tenant hereunder.
6.2. Compliance
with Law. Landlord
warrants to Tenant that, to the best of Landlord's knowledge, the Premises,
in
the state existing on the Effective Date, does not violate any covenants or
restrictions of record, or any applicable building code, regulation or ordinance
in effect on such date and may be used for office purposes. Tenant shall, at
Tenant's sole expense, promptly comply with all laws, statutes, codes,
ordinances, orders, covenants, restrictions or record, rating bureaus or
governmental agencies, rules and regulations of any municipal or governmental
entity whether in effect now or later, including, the Americans With
Disabilities Act and all federal, state and local laws and regulations governing
occupational safety and health (“Law(s)”) regarding the operation of Tenant’s
business and the use, condition, configuration and occupation of the Premises.
Tenant shall conduct its business and use the Premises in a lawful manner and
shall not use or permit the use of the Premises or the Common Areas in any
manner that constitutes waste or a nuisance or shall unreasonably disturb other
occupants of the Project. Tenant shall obtain, at its sole expense, any permit
or other governmental authorization required to operate its business from the
Premises. Landlord shall not be liable for the failure of any other tenant
or
person to abide by the requirements of this Section or to otherwise comply
with
applicable Laws, and Tenant shall not be excused from the performance of its
obligations under this Lease due to such a failure.
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7. Maintenance,
Repairs and Alterations.
7.1. Landlord's
Obligations. Landlord
shall keep and maintain in good repair and working order and perform maintenance
upon the (a) structural elements of the Building; (b) mechanical (including
HVAC), electrical, plumbing and fire/life safety systems serving the Building
in
general and the Premises; (c) Common Areas; (d) roof of the Building; (e)
exterior windows of the Building; and (f) elevators serving the Building.
Landlord shall promptly make repairs for which Landlord is responsible.
7.2. Tenant's
Obligations.
(a) Subject
to the requirements of Section 7.3, Tenant shall, at its sole cost and expense,
promptly perform all maintenance and repairs to the Premises that are not
Landlord’s express responsibility under this Lease and shall keep the Premises
in good condition and repair, reasonable wear and tear excepted. Tenant’s repair
and maintenance obligations include, without limitation, repairs to: (a) floor
coverings; (b) interior partitions; (c) doors; (d) the interior side of demising
walls; (e) electronic, fiber, phone and data cabling and related equipment
that
is installed by or for the exclusive benefit of Tenant (collectively, “Cable”);
(f) supplemental air conditioning units, kitchens, including hot water heaters,
plumbing, and similar facilities exclusively serving Tenant; and (g)
Alterations. If Tenant fails to keep the Premises in good condition and repair,
Landlord may, but shall not be obligated to, make any necessary repairs. If
Landlord makes such repairs, Landlord shall xxxx Tenant for the cost of the
repairs as additional rent, and said additional rent shall be payable by Tenant
within ten (10) days.
(b) On
the last day of the Term hereof, or on any sooner termination, Tenant shall
remove all Tenant’s Property, as hereinafter defined, Cable and all designated
Required Removables, as hereinafter defined, from the Premises and quit and
surrender the Premises to Landlord, broom clean, in the same condition as
received, ordinary wear and tear and damage which Landlord is obligated to
repair hereunder excepted. Tenant shall repair any damage to the Premises
occasioned by the installation or removal of Tenant's Property, Cable and
Required Removables. Tenant shall leave the electrical distribution systems,
plumbing systems, lighting fixtures, HVAC ducts and vents, window treatments,
wall coverings, carpets and other floor coverings, doors and door
hardware,
millwork, ceilings and other tenant improvements at the Premises and in good
condition, ordinary wear and tear excepted.
7.3. Alterations
and Additions.
(a) Tenant
shall not make any alterations, repairs, additions or improvements or install
any Cable (collectively referred to as "Alteration(s)") in, on or about the
Premises or the Project without Landlord's prior written consent, which may
be
given or withheld in Landlord's reasonable discretion. However, Landlord’s
consent shall not be required for any Alteration that satisfies all of the
following criteria (a “Cosmetic Alteration”): (a) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing carpeting; (b) is
not
visible from the exterior of the Premises or the Building; (c) will not affect
the base Building; and (d) does not require work to be performed inside the
walls or above the ceiling of the Premises. Cosmetic Alterations shall be
subject to all the other provisions of this Section 7.3. Prior to starting
work,
Tenant shall furnish Landlord with plans and specifications; names of
contractors reasonably acceptable to Landlord (provided that Landlord may
designate specific contractors with respect to base Building); required permits
and approvals; evidence of contractor’s and subcontractor’s insurance in amounts
reasonably required by Landlord and naming Landlord as an additional insured;
and any security for performance in amounts reasonably required by Landlord.
Changes to the plans and specifications must also be submitted to Landlord
for
its approval. Alterations shall be constructed in a good and workmanlike manner
using materials of a quality reasonably approved by Landlord. Upon completion,
Tenant shall furnish “as-built” plans for non-Cosmetic Alterations, completion
affidavits and full and final waivers of lien. Landlord’s approval of an
Alteration shall not be deemed a representation by Landlord that the Alteration
complies with Law. If as a result of any Alteration made by Tenant, Landlord
is
obligated to comply with any Law and such compliance requires Landlord to make
any improvement or Alteration to any portion of the Project, as a condition
to
Landlord's consent, Landlord shall have the right to require Tenant to pay
to
Landlord prior to the construction of any Alteration by Tenant, the entire
cost
of any improvement or Alteration Landlord is obligated to complete by such
Law.
(b)
All improvements in and to the Premises, including any Alterations, shall remain
upon the Premises at the end of the Term without compensation to Tenant,
provided that Tenant, at its expense, in compliance with the National Electric
Code or other applicable Laws, shall, on or before the expiration of the Term,
remove any Cable. In addition, and specifically excepting any improvements
made
by Landlord prior to the Commencement Date, Landlord, by written notice to
Tenant at least thirty (30) days prior to the expiration of the Term, may
require Tenant, at its expense, to remove any Alterations that in Landlord’s
reasonable judgment are not standard office improvements and are of a nature
that would require removal and repair costs that are materially in excess of
the
removal and repair costs associated with standard office improvements
(collectively referred to as “Required Removables”). Tenant shall repair any
damage caused by the installation or removal of the Cable and Required
Removables.
(c) Tenant
shall pay, when due, all claims for labor or materials furnished or alleged
to
have been furnished to or for Tenant at or for use in the Premises, which claims
are or may be secured by any mechanic's or materialmen's lien against the
Premises or the Project, or any interest therein. If Tenant shall, in good
faith, contest the validity of any such lien, Tenant shall furnish to Landlord
a
surety bond satisfactory to Landlord in an amount equal to not less than one
and
one half times the amount of such contested lien or claim indemnifying Landlord
against liability arising out of such lien or claim. Such bond shall be
sufficient in form and amount to free the Project from the effect of such lien.
In addition, Landlord may require Tenant to pay Landlord's reasonable attorneys'
fees and costs in participating in such action.
7.4. Failure
of Tenant to Remove Property. If
Tenant
fails to remove any of Tenant’s Property as required by Section 7.2 on or before
the expiration or earlier termination of this Lease, Landlord may remove and
store Tenant’s Property at the expense and risk of Tenant. Tenant shall pay
Landlord, upon demand, the expenses and storage charges incurred. If Tenant
fails to remove Tenant’s Property from the Premises or storage, within thirty
(30) days after notice, Landlord may deem all or any part of Tenant’s Property
to be abandoned and title to Tenant’s Property shall vest in
Landlord.
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8. Insurance.
8.1. Insurance-Tenant. Tenant
shall maintain at all times during the Term of this Lease commercial general
liability insurance with coverages acceptable to Landlord, which by way of
example and not limitation, protects Tenant and Landlord (as an additional
insured) against claims for bodily injury, personal injury and property damage
based upon, involving or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be on an occurrence basis providing single limit coverage in an amount
of
not less than Two Million Dollars ($2,000,000) per occurrence with an
"Additional Insured-Managers and Landlords of Premises Endorsement" and contain
the "Amendment of the Pollution Exclusion" for damage caused by heat, smoke
or
fumes from a hostile fire. The policy shall not contain any intra-insured
exclusions as between insured persons or organizations, but shall include
coverage for liability assumed under this Lease as an "insured contract" for
the
performance of Tenant's indemnity obligations under this Lease. If, in the
commercially reasonable opinion of the insurance broker retained by Landlord,
the amount of public liability or property damage insurance coverage at any
time
during the Term is not adequate, Tenant shall increase the insurance coverage
as
required by Landlord’s insurance broker. In no event shall the limits of such
policy be considered as limiting the liability of Tenant under this Lease.
Tenant
may also obtain and keep in force during the Term of this Lease "all risk"
extended coverage property insurance on Tenant's personal property, all tenant
improvements installed at the Premises by Tenant and Tenant's trade fixtures
and
other property (collectively, “Tenant’s Personal Property”). Tenant expressly
acknowledges and agrees that in the event its insurance policy fails to cover
any of Tenant’s Personal Property or excludes coverage for flood, earthquake,
windstorm or any other peril, that neither Tenant nor its insurance company
shall have any right or claim against Landlord or its insurance company as
a
result of damage to Tenant's Personal Property resulting from such failure
of
coverage or excluded peril.
8.2. Insurance-Landlord. Landlord
shall maintain general liability insurance with coverage against such risks
and
in such amounts as Landlord deems advisable insuring Landlord against liability
arising out of the ownership, operation and management of the Project. Landlord
shall also maintain a policy or policies of insurance covering loss or damage
to
the Project in the amount of not less than eighty percent (80%) of the full
replacement cost thereof, as determined by Landlord from time to time. The
terms
and conditions of said policies and the perils and risks covered thereby shall
be determined by Landlord, from time to time, in Landlord's sole discretion.
In
addition, at Landlord's option, Landlord shall obtain and keep in force, during
the Term of this Lease, a policy of rental interruption insurance, with loss
payable to Landlord, which insurance shall, at Landlord's option, also cover
all
Operating Expenses. In addition, Landlord shall have the right to obtain such
additional insurance as is customarily carried by owners or operators of other
comparable office buildings in the geographical area of the Project. Tenant
will
not be named as an additional insured in any insurance policies carried by
Landlord and shall have no right to any proceeds therefrom. The policies
purchased by Landlord shall contain such deductibles as Landlord may determine.
In addition to amounts payable by Tenant in accordance with Section 4.2, Tenant
shall pay any increase in the property insurance premiums for the Project over
what was payable immediately prior to the increase to the extent the increase
is
specified by Landlord's insurance carrier as being caused by the nature of
Tenant's occupancy (other than general office use) or any act or omission of
Tenant.
8.3. Insurance
Policies. Tenant
shall deliver to Landlord certificates of the insurance policies required under
Section 8.1 prior to the earlier of the Commencement Date or the date Tenant
is
provided with possession of the Premises and thereafter as necessary to assure
that Landlord always has current certificates evidencing Tenant’s insurance.
Tenant's insurance policies shall not be cancelable or subject to reduction
of
coverage or other modification except after thirty (30) days prior written
notice to Landlord. Tenant shall, at least thirty (30) days prior to the
expiration of such policies, furnish Landlord with certificates of renewals
thereof. Tenant's insurance policies shall be issued by insurance companies
authorized to do business in the state in which the Project is located, and
said
companies shall maintain during the policy term a "General Policyholders’
Rating" of at least "A" and a financial rating of at least "Class X" (or such
other rating as may be required by any lender having a lien on the Project),
as
set forth in the most recent edition of "Best Insurance Reports." All insurance
obtained by Tenant shall be primary to and not contributory with any similar
insurance carried by Landlord, whose insurance shall be considered excess
insurance only. Landlord, and at Landlord's option, the holder of any mortgage
or deed of trust encumbering the Project and any person or entity managing
the
Project on behalf of Landlord, shall be named as an additional insured on all
insurance policies Tenant is obligated to obtain by Section 8.1 above. Tenant's
commercial general liability insurance policy shall not include deductibles
in
excess of Twenty Thousand Dollars ($20,000) and Tenant’s Property insurance
policy shall not include deductibles in excess of Fifity Thousand Dollars
($50,000), except for any windstorm policy.
8.4. Waiver
of Subrogation. Landlord
and Tenant hereby waive and shall cause their respective insurance carriers
to
waive any and all rights of recovery, claims, actions or causes or action
against the other for any loss or damage with respect to Tenant’s Property, the
Building, the Premises, or any contents thereof, including rights, claims,
actions and causes of action based on negligence, which loss or damage is (or
would have been, had the insurance required by this Lease been carried) covered
by insurance. For the purposes of this wavier, any deductible with respect
to a
party’s insurance shall be deemed covered by and recoverable by such party under
valid and collectable policies of insurance.
9. Damage
or Destruction. Tenant
shall give prompt notice to Landlord in case of any fire or other damage to
the
Premises. If the Premises or the Building are damaged by fire or other casualty,
Landlord shall diligently and as soon as practicable after such damage occurs
(taking into account the time necessary to effectuate a satisfactory settlement
with Landlord's insurance company) repair such damage at its own expense, and,
the Rent and additional rent shall be abated in proportion to the part of the
Premises which is rendered untenantable until such repairs have been completed
(in no event shall damage to any parking areas be deemed to render the Premises
untenantable). However, if available insurance proceeds are insufficient or
if
the Premises or the Building are damaged by fire or other casualty to such
an
extent that the damage, in Landlord's reasonable opinion, cannot be fully
repaired within one hundred eighty (180) days from the date such damage occurs,
Landlord shall provide Tenant with written notice of such fact, and thereafter
either Landlord or Tenant shall have the right, exercised by giving written
notice within such one hundred eighty (180) day period, to terminate this Lease
effective as of the date of such damage.
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10. Personal
Property Taxes. Tenant
shall pay prior to delinquency all taxes assessed against and levied upon trade
fixtures, furnishings, equipment and all other personal property of Tenant
contained in the Premises or related to Tenant's use of the Premises. If any
of
Tenant's personal property shall be assessed with Landlord's real or personal
property, Tenant shall pay to Landlord the taxes attributable to Tenant within
ten (10) days after receipt of a written statement from Landlord setting forth
the taxes applicable to Tenant's property. Landlord agrees that Landlord shall
be responsible to pay all real property taxes assessed against the Premises
or
the Building of which the Premises is a part.
11. Building
Services; Utilities.
11.1. Services
Provided by Landlord. Subject
to all governmental rules, regulations and guidelines applicable thereto,
Landlord shall provide HVAC to the Premises for normal office use during the
times described in Section 11.2, reasonable amounts of electricity for normal
office lighting and desk-type office machines, water in the Premises or in
the
Common Areas for reasonable and normal drinking and lavatory use, replacement
light bulbs and/or fluorescent tubes and ballasts for standard overhead
fixtures, building standard janitorial services (as more particularly described
on Schedule 1 attached hereto), elevator service and access to the Building
for
the Tenant and its employees 24 hours per day/ 7 days per week subject to the
terms of this Lease and such protective services or monitoring systems, if
any,
as Landlord may reasonably impose and such other services as Landlord reasonably
determines are necessary or appropriate for the Project.
11.2.
Hours of Service. Building
services and utilities shall be provided Monday through Friday from 6:00
a.m. to
10:00
p.m.
HVAC and janitorial service shall not be provided at other times or on
nationally recognized holidays. Nationally recognized holidays shall include,
but shall not necessarily be limited to, New Year's Day, Xxxxxx Xxxxxx Xxxx
Xx.
Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day and Christmas Day. Landlord shall use its best efforts to provide HVAC
to
Tenant at times other than those set forth above subject to (a) the payment
by
Tenant of Landlord's then standard charge for after hours HVAC and (b) Tenant
providing to Landlord at least one (1) business day's advance written notice
of
Tenant's need for after hours HVAC.
11.3. Excess
Usage by Tenant.
Tenant’s
use of Building utilities and services shall not exceed the standard usage
for
the Building. If Tenant does use Building utilities or services in excess of
the
standard usage for the Building, Landlord shall have the right, in addition
to
any other rights or remedies it may have under this Lease, to (a) at Tenant's
expense, install separate metering devices at the Premises, and to charge Tenant
for its usage, (b) require Tenant to pay to Landlord all costs, expenses and
damages incurred by Landlord as a result of such usage, and (c) require Tenant
to stop using excess utilities or services.
11.4. Interruptions. Tenant
agrees that Landlord shall not be liable to Tenant for its failure to furnish,
or any interruption, diminishment or termination of services due to the
application of Laws, the failure of any equipment, the performance of repairs,
improvements or alterations, utility interruptions or the occurrence of a Force
Majeure Event and such failures shall never be deemed to constitute a
constructive eviction of Tenant or relieve Tenant from the obligation of paying
rent or performing any of its obligations under this Lease. Furthermore,
Landlord shall not be liable under any circumstances for loss of property or
for
injury to, or interference with, Tenant's business, including, without
limitation, loss of profits, however occurring, through or in connection with
or
incidental to a failure to furnish any such services or utilities. Landlord
may
comply with voluntary controls or guidelines promulgated by any governmental
entity relating to the use or conservation of energy, water, gas, light or
electricity or the reduction of automobile or other emissions without creating
any liability of Landlord to Tenant under this Lease.
11.5
Failure to Provide Essential Services.
Notwithstanding the provisions of Section 11.4, in the event the Building
experiences an interruption of electrical, telephone, water or HVAC which
prevents Tenant from utilizing the Premises to conduct its business (an
“Interruption”) which Interruption is within the control of Landlord to cure
(i.e. not as a result of the inability of Landlord to obtain the applicable
utility service through no fault of Landlord) (a “Controllable Interruption.”)
Landlord shall commence and diligently pursue the curative action within a
commercially reasonable amount of time after written notice from Tenant of
a
Controllable Interruption. If Landlord fails to commence and diligently pursue
the curative action within a commercially reasonable amount of time after
written notice from Tenant, then Tenant shall have the right, after written
notice to Landlord to expend commercially reasonable market sums to cure the
Controllable Interruption and offset said amount against the next payments
of
Rent due hereunder. This self help provision is specifically limited to
Controllable Interruptions of service which Landlord is responsible for
correction. Notwithstanding the foregoing, Tenant shall be entitled to an
abatement of Rent with respect to a Controllable Interruption commencing with
the sixth (6th) consecutive business day of the Controllable Interruption until
such time as the services are restored.
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12. Assignment
and Subletting.
12.1. Landlord's
Consent Required. Tenant
shall not voluntarily or by operation of law assign, transfer, hypothecate,
mortgage, sublet, or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Premises (hereinafter collectively a
"Transfer"), without Landlord's prior written consent, which consent shall
not
be unreasonably withheld. Landlord shall respond to Tenant’s written request for
consent hereunder within fifteen (15) days after Landlord’s receipt of the
written request from Tenant. Any attempted Transfer without such consent shall
be void and shall constitute a default of this Lease. If the entity(ies) which
directly or indirectly controls the voting shares/rights of Tenant changes
at
any time, such change of ownership or control shall constitute a Transfer unless
Tenant is an entity whose outstanding stock is listed on a recognized securities
exchange or if at least 80% of its voting stock is owned by another entity,
the
voting stock of which is so listed. Tenant's written request for Landlord's
consent shall include all of the following information: (a) financial statements
for the proposed assignee or subtenant, (b) a detailed description of the
business the assignee or subtenant intends to operate at the Premises, (c)
a
copy of the fully executed sublease or assignment agreement, and (d) such other
information as Landlord may reasonably request.
12.2. Standard
For Approval. Landlord
shall not unreasonably withhold its consent to a Transfer provided that Tenant
has complied with each and every requirement, term and condition of this Section
12. It shall be deemed reasonable for Landlord to withhold its consent to a
Transfer if any requirement, term or condition of this Section 12 is not
complied with or: (i) the Transfer would cause Landlord to be in violation
of
its obligations under another lease or agreement to which Landlord is a party;
(ii) in Landlord's reasonable judgment, a proposed assignee or subtenant is
not
a creditworthy party; (iii) a proposed assignee's or subtenant's business will
impose a burden on the Building's parking facilities, elevators, Common Areas
or
utilities that is greater than the burden imposed by Tenant, in Landlord's
reasonable judgment; (iv) a proposed assignee or subtenant refuses to enter
into
a written assignment agreement or sublease, reasonably satisfactory to Landlord,
which provides that it will abide by and assume all of the terms and conditions
of this Lease for the term of any assignment or sublease and containing such
other terms and conditions as Landlord reasonably deems necessary; (v) the
use
of the Premises by the proposed assignee or subtenant will be for a use not
permitted by this Lease; (vi) any guarantor of this Lease refuses to consent
to
the Transfer or to execute a written agreement reaffirming the guaranty; (vii)
Tenant is in default as defined in Section 13.1 at the time of the request
(taking into account any grace and cure periods); (viii) if requested by
Landlord, the assignee or subtenant refuses to sign a non-disturbance and
attornment agreement in favor of Landlord's lender; (ix) Landlord has sued
or
been sued by the proposed assignee or subtenant or has otherwise been involved
in a legal dispute with the proposed assignee or subtenant; (x) the assignee
or
subtenant is involved in a business which is not in keeping with the then
current standards of the Building; (xi) the proposed assignee or subtenant
is a
person or entity then negotiating with Landlord for the lease of space in the
Building; or (xii) the terms of a proposed assignment or subletting will allow
the proposed assignee or subtenant to pay a rent less than the prevailing rental
rate in the Building at the time of Tenant’s request to such
Transfer.
12.3. Additional
Terms and Conditions.
Regardless of Landlord's consent, no Transfer shall release Tenant from Tenant's
obligations hereunder or alter the primary liability of Tenant to pay the rent
and other sums due Landlord hereunder and to perform all other obligations
to be
performed by Tenant hereunder or release any guarantor from its obligations
under its guaranty. Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting. The
consent by Landlord to any Transfer shall not constitute a consent to any
subsequent Transfer by Tenant or to any subsequent or successive Transfer by
an
assignee or subtenant and no assignment or sublease may be modified or amended
without Landlord's prior written consent. However, Landlord may consent to
subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease. In the event of any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors or anyone else responsible for the
performance of this Lease, including any subtenant or assignee, without first
exhausting Landlord's remedies against any other person or entity responsible
therefore to Landlord, or any security held by Landlord. The discovery of the
fact that any financial statement relied upon by Landlord in giving its consent
to an assignment or subletting was materially false shall, at Landlord's
election, render Landlord's consent null and void. Landlord shall not be liable
under this Lease or under any sublease to any subtenant. Any assignee of, or
subtenant under, this Lease shall, by reason of accepting such assignment or
entering into such sublease, be deemed, for the benefit of Landlord, to have
assumed and agreed to conform and comply with each and every term, covenant,
condition and obligation herein to be observed or performed by Tenant during
the
term of said assignment or sublease, other than such obligations as are contrary
or inconsistent with provisions of an assignment or sublease to which Landlord
has specifically consented in writing.
12.4. Transfer
Premium from Assignment or Subletting. Landlord
shall be entitled to receive from Tenant (as and when received by Tenant) as
an
item of additional rent fifty percent (50%) of all amounts received by Tenant
from the subtenant or assignee in excess of the amounts payable by Tenant to
Landlord hereunder (hereinafter the “Transfer Premium”). The Transfer Premium
shall be reduced by the reasonable brokerage commissions and legal fees actually
paid by Tenant in order to assign the Lease or to sublet a portion of the
Premises. "Transfer Premium" shall mean all Rent, additional rent or other
consideration of any type whatsoever payable by the assignee or subtenant in
excess of the Rent and additional rent payable by Tenant under this Lease.
If
less than all of the Premises is transferred, the Rent and the additional rent
shall be determined on a per rentable square foot basis. For purposes of
calculating the Transfer Premium, expenses will be amortized over the life
of
the sublease.
12.5. Landlord's
Option to Recapture Space. Notwithstanding
anything to the contrary contained in this Section 16, Landlord shall have
the option, by giving written notice to Tenant within thirty (30) days after
receipt of any request by Tenant to assign this Lease or to sublease space
in
the Premises, to terminate this Lease with respect to said space as of the
date
thirty (30) days after Landlord's election. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Premises, the Rent and the number of parking spaces Tenant may use shall be
adjusted on the basis of the number of rentable square feet retained by Tenant
in proportion to the number of rentable square feet contained in the original
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon request of either party, the parties shall execute written
confirmation of same.
12.6. Transfers
to Affiliates and Collateral Assignments to Lenders. Notwithstanding
anything to the contrary contained in the Lease, Tenant
shall have the right, without Landlord’s consent,
to
assign this Lease or sublet
all or any portion of the Premises to: (a) a parent, subsidiary or affiliated
entity of Tenant, or (b) any entity to which all or a substantial portion of
the
assets of Tenant have been transferred, or (c) any entity in connection with
a
merger, sale of stock, consolidation or other corporate reorganization or
transaction involving Tenant (collectively, a “Permitted Transfer”). Tenant
shall also have the right to collaterally assign its interest as a tenant in
this Lease as security for loan(s) to be made to Tenant (a ‘Collateral
Assignment”). Tenant shall provide Landlord with at least ten (10) business days
prior written notice of a Permitted Transfer or a Collateral
Assignment.
13. Default;
Remedies.
13.1. Default
by Tenant. Landlord
and Tenant hereby agree that the occurrence of any one or more of the following
events is a default by Tenant under this Lease and that said default shall
give
Landlord the rights described in Section 13.2. Landlord or Landlord's authorized
agent shall have the right to execute and deliver any notice of default, notice
to pay rent or quit or any other notice Landlord gives Tenant.
6
(a) Tenant's
failure to make any payment of Rent, late charges or any other payment required
to be made by Tenant hereunder, as and when due, where such failure shall
continue for a period of ten (10) days after written notice thereof from
Landlord to Tenant (provided
however that in no event shall Landlord be obligated to provide written notice
more than twice in any twelve month period).
(b) The
abandonment of the Premises by Tenant in which event Landlord shall not be
obligated to give any notice of default to Tenant.
(c) Tenant’s
failure to comply with any of the covenants, conditions or provisions of this
Lease to be observed or performed by Tenant (other than those referenced in
Sections 13.1(a) and (b) above), where such failure shall continue for a
period of twenty (20) days after written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's nonperformance is such that
more than twenty (20) days are reasonably required for its cure, then Tenant
shall be allowed additional time (not to exceed 60 days) as is reasonably
necessary to cure the failure so long as Tenant commences such cure within
said
twenty (20) day period and thereafter diligently pursues such cure to
completion. In the event that Landlord serves Tenant with a notice to quit
or
any other notice pursuant to applicable unlawful detainer statutes, said notice
shall also constitute the notice required by this Section 13.1(c).
(d)
(i)
The
making by Tenant or any guarantor of Tenant's obligations hereunder of any
general arrangement or general assignment for the benefit of creditors; (ii)
the
appointment of a trustee or receiver to take possession of substantially all
of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; (iii) the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where
such
seizure is not discharged within thirty (30) days; or (iv) the insolvency of
Tenant or Tenant becoming subject to state insolvency or federal bankruptcy.
In
the event that any provision of this Section 13.1(d) is unenforceable under
applicable law, such provision shall be of no force or effect.
13.2. Remedies. Upon
the
occurrence of any event of default by Tenant under this Lease, Landlord shall
have the option to pursue any one or more of the following remedies, in addition
to the remedies otherwise provided herein or otherwise available at law or
in
equity, without any notice or demand whatsoever:
(a) Landlord
may cancel and terminate this Lease and dispossess Tenant;
(b) Landlord
may without terminating or canceling this Lease declare all amounts and rents
due under this Lease for the remainder of the Lease Term (or any applicable
extension or renewal thereof) to be immediately due and payable, and thereupon
all rents and other charges due hereunder to the end of the Lease Term or any
renewal term, if applicable, shall be accelerated (after discounting the same
to
their present value).
(c) Landlord may
elect
to enter and repossess the Premises and relet the Premises for Tenant’s account,
holding Tenant liable in damages for all expenses incurred in any such reletting
and for any difference between the amount of rent received from such reletting
and the amount due and payable under the terms of this Lease.
(d) Landlord
may enter upon the Premises and do whatever Tenant is obligated to do under
the
terms of this Lease (and Tenant shall reimburse Landlord on demand for any
expenses which Landlord may incur in effecting compliance with Tenant’s
obligations under this Lease, and Landlord shall not be liable for any damages
resulting to the Tenant from such action), whether caused by the negligence
of
Landlord or otherwise.
All
of
the foregoing rights, remedies, powers and elections of Landlord reserved herein
are cumulative, and pursuit of any of the foregoing remedies shall not preclude
other remedies available under this Lease or provided by law, nor shall pursuit
of any remedy herein provided constitute a forfeiture or waiver of any rent
due
to Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No
waiver by Landlord of any violation or breach of any of the terms, provisions
and covenants herein contained shall be deemed or construed to constitute a
waiver of any other violation or breach of any of the terms, provisions and
covenants herein contained. Forbearance by Landlord to enforce one or more
of
the remedies herein provided upon an event of default, or delay by Landlord
in
enforcing one or more of such remedies upon an event of default, shall not
be
deemed or construed to constitute a waiver of such default. All monies expended
by Landlord for which Tenant is liable under this Lease, and all amounts and
charges due to Landlord under this Lease shall be deemed to constitute rents
and
all rents shall be paid by Tenant to Landlord without any setoff or counterclaim
whatsoever and all past due rents shall bear interest at the maximum legal
rate
per annum and shall be included in any lien for rent.
13.3. Default
by Landlord. Except
with respect to the specific notice and cure periods set forth in Section 11.5
of this Lease, Landlord shall not be in default under this Lease unless
Landlord fails to perform obligations required of Landlord within thirty (30)
days after written notice by Tenant to Landlord and to the holder of any
mortgage or deed of trust encumbering the Project whose name and address shall
have theretofore been furnished to Tenant in writing, specifying wherein
Landlord has failed to perform such obligation; provided, however, that if
the
nature of Landlord's obligation is such that more than thirty (30) days are
required for its cure, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. Tenant
hereby waives its right to recover consequential damages (including, but not
limited to, lost profits) or punitive damages arising out of a Landlord
default. Except
to
the extent Tenant obtains a final judgment of constructive eviction in
accordance with applicable law or as otherwise permitted by applicable law,
in
no event shall Tenant have the right to terminate this Lease as a result of
Landlord’s default, and Tenant’s remedies shall be limited to damages and/or an
injunction. This Lease and the obligations of Tenant hereunder shall not be
affected or impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so, if such inability or delay
is
caused by reason of a Force Majeure Event, and the time for Landlord's
performance shall be extended for the period of any such delay. Any claim,
demand, right or defense by Tenant that arises out of this Lease or the
negotiations which preceded this Lease shall be barred unless Tenant commences
an action thereon, or interposes a defense by reason thereof, within one (1)
year after the date of the inaction, omission, event or action that gave rise
to
such claim, demand, right or defense.
7
13.4. Late
Charges. If
any
installment of Rent or any other sum due from Tenant shall not be received
by
Landlord within five (5) days of when such amount shall be due, then, without
any requirement for notice or demand to Tenant, Tenant shall immediately pay
to
Landlord a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder including
the assessment of interest under Section 13.5.
13.5. Interest
on Past-due Obligations. Except
as
expressly herein provided, any amount due to Landlord that is not paid when
due
shall bear interest at the lesser of ten percent (10%) per annum, or the maximum
rate permitted by applicable law. Payment of such interest shall not excuse
or
cure any default by Tenant under this Lease; provided, however, that interest
shall not be payable on late charges incurred by Tenant nor on any amounts
upon
which late charges are paid by Tenant.
13.6. Payment
of Rent and Security Deposit After Default. If
Tenant
fails to pay Rent or any other monetary obligation due hereunder on the date
it
is due (taking into account any grace and cure period) on at least three
occasions, at Landlord's option, all monetary obligations of Tenant hereunder
shall thereafter be paid by cashiers check, and Tenant shall, upon demand,
provide Landlord with a Security Deposit equal to three (3) months’ Rent. If
Landlord has required Tenant to make said payments by cashiers check or to
provide an additional Security Deposit, Tenant's failure to make a payment
by
cashiers check or to provide an additional Security Deposit, shall be a default
hereunder.
14. Landlord's
Right to Cure Default; Payments by Tenant. If
Tenant
shall fail to perform any of its obligations under this Lease, Landlord shall
have the right to make any such payment or perform any such act on Tenant's
behalf without waiving its rights based upon any default of Tenant and without
releasing Tenant from any obligations hereunder. Tenant shall reimburse Landlord
for the cost of such performance upon demand.
15.
Condemnation. If
the Premises or the Project are taken under the power of eminent domain, or
sold
under the threat of the exercise of said power (all of which are herein called
"Condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever first occurs,
except with respect to a temporary taking lasting less than ninety (90) days
in
which case Tenant’s rent will be proportionately abated but the Lease shall
continue in full force and effect. Any award for the taking of all or any part
of the Premises or the Project under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of
Landlord, whether such award shall be made as compensation for diminution in
value of the leasehold, for good will, for the taking of the fee, as severance
damages, or as damages for tenant improvements; provided, however, that Tenant
shall be entitled to any separate award for loss of or damage to Tenant's
removable personal property and for moving expenses.
16. Broker's
Fee. Tenant
and Landlord each represent and warrant to the other that neither has had any
dealings or entered into any agreements with any person, entity, broker or
finder other than the persons, if any, listed in Section 1.13, in connection
with the negotiation of this Lease, and no other broker, person, or entity
is
entitled to any commission or finder's fee in connection with the negotiation
of
this Lease, and Tenant and Landlord each agree to indemnify, defend and hold
the
other harmless from and against any claims, damages, costs, expenses, attorneys'
fees or liability for compensation or charges which may be claimed by any such
unnamed broker, finder or other similar party by reason of any dealings, actions
or agreements of the indemnifying party.
17. Subordination;
Estoppel Certificates.
17.1.
Subordination. This
Lease and any options granted to Tenant hereunder, upon Landlord’s written
election, shall be subject and subordinate to any ground lease, mortgage, deed
of trust, or any other hypothecation or security now or hereafter placed upon
the Project and to any and all advances made on the security thereof and to
all
renewals, modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of
this
Lease, unless this Lease is otherwise terminated pursuant to its terms. At
the
request of any mortgagee, trustee or ground lessor, Tenant shall attorn to
such
person or entity. If any mortgagee, trustee or ground lessor shall elect to
have
this Lease prior to the lien of its mortgage, deed of trust or ground lease,
and
shall give written notice thereof to Tenant, this Lease shall be deemed prior
to
such mortgage, deed of trust or ground lease, whether this Lease are dated
prior
or subsequent to the date of said mortgage, deed of trust or ground lease or
the
date of recording thereof. In the event of the foreclosure of a security device,
the new owner shall not (a) be liable for any act or omission of any prior
landlord or with respect to events occurring prior to its acquisition of title,
(b) be liable for the breach of this Lease by any prior landlord, (c) be subject
to any offsets or defenses which Tenant may have against the prior landlord
(other than any current rent paid to the Landlord) or (d) be liable to Tenant
for the return of its Security Deposit. Tenant agrees to execute and acknowledge
any documents Landlord reasonably requests that Tenant execute to effectuate
an
attornment, a subordination, or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Tenant's failure
to
execute such documents within ten (10) days after written demand shall
constitute a material default by Tenant hereunder. Landlord represents and
warrants that as of the Commencement Date of this lease, there are no mortgages
or ground leases encumbering the Building of which the Premises are a part.
8
17.2.
Estoppel Certificates. Tenant
shall from time to time, upon not less than ten (10) days' prior written notice
from Landlord, execute, acknowledge and deliver to Landlord a statement in
writing certifying such information as Landlord may reasonably request
including, but not limited to, the following: (a) that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) (b) the date to which the Rent and other charges are paid in advance
and the amounts so payable, (c) that there are not, to Tenant's knowledge,
any
uncured defaults or unfulfilled obligations on the part of Landlord, or
specifying such defaults or unfulfilled obligations, if any are claimed, (d)
that all tenant improvements to be constructed by Landlord, if any, have been
completed in accordance with Landlord's obligations and (e) that Tenant has
taken possession of the Premises. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Project. At Landlord's
option, the failure of Tenant to deliver such statement within such time shall
constitute a material default of Tenant hereunder, or it shall be conclusive
upon Tenant that (a) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (b) there are no uncured
defaults in Landlord's performance, (c) not more than one month's Rent has
been
paid in advance, (d) all tenant improvements to be constructed by Landlord,
if
any, have been completed in accordance with Landlord's obligations and (e)
Tenant has taken possession of the Premises.
18.
Landlord's Liability.
Landlord
shall have the right to transfer all or any portion of its interest in the
Project and to assign this Lease to the transferee. Upon transfer, Landlord
shall automatically be released from all further liability under this Lease;
and
Tenant hereby agrees to look solely to Landlord's transferee for the performance
of Landlord's obligations hereunder after the date of the transfer. Upon such
a
transfer, Landlord shall, at its option, return Tenant's Security Deposit to
Tenant or transfer Tenant's Security Deposit to Landlord's transferee and,
in
either event, Landlord shall have no further liability to Tenant for the return
of its Security Deposit. Subject to the rights of any lender holding a mortgage
or deed of trust encumbering all or part of the Project, Tenant agrees to look
solely to Landlord's equity interest in the Project for the collection of any
judgment requiring the payment of money by Landlord arising out of (a)
Landlord's failure to perform its obligations under this Lease or (b) the
negligence or willful misconduct of Landlord, its partners, employees and
agents. No other property or assets of Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of any judgment
or
writ obtained by Tenant against Landlord. No partner, employee or agent of
Landlord shall be personally liable for the performance of Landlord's
obligations hereunder or be named as a party in any lawsuit arising out of
or
related to, directly or indirectly, this Lease and the obligations of Landlord
hereunder. The obligations under this Lease do not constitute personal
obligations of the individual partners of Landlord and Tenant shall not seek
recourse against the individual partners of Landlord or their assets. In no
event shall Landlord be liable to Tenant for consequential or punitive
damages.
19. Indemnity. Except
to
the extent caused by the gross negligence or willful misconduct of an
Indemnified Party (as hereinafter defined), Tenant
hereby agrees to indemnify, defend and hold harmless Landlord and its employees,
partners, agents, contractors, lenders and ground lessors (said persons and
entities are hereinafter collectively referred to as the "Indemnified Parties")
from and against any and all liability, loss, cost, damage, claims, loss of
rents, liens, judgments, penalties, fines, settlement costs, investigation
costs, cost of consultants and experts, attorneys fees, court costs and other
legal expenses, effects of environmental contamination, cost of environmental
testing, removal, remediation and/or abatement of Hazardous Materials (as said
term are defined below), insurance policy deductibles and other expenses
(hereinafter collectively referred to as "Damages") arising out of or related
to
an Indemnified Matter (as defined below). For purposes of this Section, an
"Indemnified Matter" shall mean any matter for which one or more of the
Indemnified Parties incurs liability or Damages if the liability or Damages
arise out of or involve, directly or indirectly, (a) Tenant's or its employees',
agents', contractors' or invitees' (all of said persons or entities are
hereinafter collectively referred to as "Tenant Parties") use or occupancy
of
the Premises or the Project, (b) any act, omission or neglect of a Tenant Party,
(c) Tenant's failure to perform any of its obligations under the Lease, (d)
the
existence, use or disposal of any Hazardous Material brought on to the project
by a Tenant Party or (e) any other matters for which Tenant has agreed to
indemnify Landlord pursuant to any other provision of this Lease. This indemnity
is intended to apply to the fullest extent permitted by applicable law. Tenant's
obligations under this Section shall survive the expiration or termination
of this Lease unless specifically waived in writing by Landlord after said
expiration or termination.
Landlord
hereby agrees to indemnify, defend and hold harmless Tenant and its employees,
agents, and contractors (said persons and entities are hereinafter collectively
referred to as the “Tenant Indemnified Parties”) from and against any and all
Damages that result from the gross negligence or willful misconduct of Landlord
its employees and its authorized representatives (a “Tenant Indemnified
Matter”). Landlord’s obligations hereunder shall include, but shall not be
limited to (a) compensating the Tenant Indemnified Parties for Damages arising
out of Tenant Indemnified Matters within ten (10) days after written demand
from a Tenant Indemnified Party plus a reasonable period of time for Landlord’s
investigation of the claim and (b) providing a defense, with counsel reasonably
satisfactory to the Tenant Indemnified Party, at Landlord’s sole expense, within
ten (10) days after written demand from the Tenant Indemnified Party, of
any claims, action or proceeding arising out of or relating to an Tenant
Indemnified Matter. This indemnity is intended to apply to the fullest extent
permitted by applicable law. Landlord’s obligations under this section shall
survive the expiration or termination of this Lease unless specifically waived
in writing by Tenant after said expiration or termination. Tenant hereby waives
its right to recover consequential, special, indirect, exemplary or punitive
damages (including but not limited to, lost profits) arising out of a Tenant
Indemnified Matter.
20. Exemption
of Landlord from Liability. Tenant
hereby agrees that Landlord shall not be liable for injury to Tenant's business
or any loss of income therefrom or for loss of or damage to Tenant’s Property,
Tenant's employees, agents, contractors or invitees, or any other person in
or
about the Project, nor shall Landlord be liable for injury to the person of
Tenant, Tenant's employees, agents, contractors or invitees, whether such damage
or injury is caused by or results from any cause whatsoever including, but
not
limited to, theft, criminal activity at the Project, negligent security
measures, bombings or bomb scares, Hazardous Materials, fire, steam,
electricity, gas, water or rain, flooding, breakage of pipes, sprinklers,
plumbing, air conditioning or lighting fixtures, or from any other cause,
whether said damage or injury results from conditions arising upon the Premises
or upon other portions of the Project, or from other sources or places, or
from
new construction or the repair, alteration or improvement of any part of the
Project, unless the cause of the damage or injury arises out of Landlord's
or
its employees', agents' or contractors' grossly negligent or intentional acts.
Landlord shall not be liable for any damages arising from any act or neglect
of
any employees, agents, contractors or invitees of any other tenant, occupant
or
user of the Project, nor from the failure of Landlord to enforce the provisions
of the lease of any other tenant of the Project. Tenant, as a material part
of
the consideration to Landlord hereunder, hereby assumes all risk of damage
to
Tenant's Property or business or injury to persons in, upon or about the Project
arising from any cause, excluding Landlord's gross negligence or the gross
negligence of its employees, agents or contractors, and Tenant hereby waives
all
claims in respect thereof against Landlord, its employees, agents and
contractors.
9
21. Hazardous
Material.
21.1. Indemnity;
Duty to Inform Landlord. Tenant
shall not cause or permit any Hazardous Material (as defined hereinafter) to
be
brought, kept or used in or about the Premises or the Project by Tenant, its
agents, employees, contractors, or invitees. Tenant hereby agrees to indemnify
Landlord from and against any breach by Tenant of the obligations stated in
the
preceding sentence, and agrees to defend and hold Landlord harmless from and
against any and all claims, judgments, damages, penalties, fines, costs,
liabilities, or losses (including, without limitation, diminution in value
of
the Project, damages for the loss or restriction or use of rentable space or
of
any amenity of the Project, damages arising from any adverse impact on marketing
of space in the Project, sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after the Term of this
Lease as result of such breach. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions and any cleanup, remedial removal, or
restoration work required due to the presence of Hazardous Material. If Tenant
knows, or has reasonable cause to believe, that a Hazardous Substance, or a
condition involving or resulting from same, has come to be located in, on or
under or about the Premises or the Project, Tenant shall immediately give
written notice of such fact to Landlord. Tenant shall also immediately give
Landlord (without demand by Landlord) a copy of any statement, report, notice,
registration, application, permit, license, given to or received from, any
governmental authority or private party, or persons entering or occupying the
Premises, concerning the presence, spill, release, discharge of or exposure
to,
any Hazardous Substance or contamination in, on or about the Premises or the
Project. The provisions of this Section 21 shall survive the termination of
the
Lease.
21.2. Definition
and Consent. The
term
"Hazardous Substance" as used in this Lease shall mean any hazardous substance,
hazardous waste, infectious waste, or toxic substance, product, substance,
chemical, material or waste whose presence, nature, quantity and/or intensity
of
existence, use, manufacture, disposal, transportation, spill, release or affect,
either by itself or in combination with other materials expected to be on the
Premises, is either: (a) potentially injurious to the public health, safety
or
welfare, the environment or the Premises, (b) regulated or monitored by any
governmental entity, (c) a basis for liability of Landlord to any governmental
entity or third party under any federal, state or local statute or common law
theory or (d) defined as a hazardous material or substance by any federal,
state
or local law or regulation. Except for small quantities of ordinary office
supplies such as copier toner, liquid paper, glue, ink and common household
cleaning materials, Tenant shall not cause or permit any Hazardous Substance
to
be brought, kept, or used in or about the Premises or the Project by Tenant,
its
agents, employees, contractors or invitees.
21.3. Inspection;
Compliance. Landlord
and Landlord's employees, agent, contractors and lenders shall have the right
to
enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Tenant with this Section 21. Landlord shall
have
the right to employ experts and/or consultants in connection with its
examination of the Premises and with respect to the installation, operation,
use, monitoring, maintenance, or removal of any Hazardous Substance on or from
the Premises. The costs and expenses of any such inspections shall be paid
by
the party requesting same, unless a contamination, caused or materially
contributed to by Tenant, is found to exist or be imminent, or unless the
inspection is requested or ordered by governmental authority as the result
of
any such existing or imminent violation or contamination. In any such case,
Tenant shall upon request reimburse Landlord for the cost and expenses of such
inspection.
22. Force
Majeure.
Landlord
will not be deemed in default or have liability to Tenant, nor will Tenant
have
any right to terminate this Lease or xxxxx rent or assert a claim of partial
or
constructive eviction, because of Landlord’s failure to perform any of its
obligations under this Lease if the failure is due in part or in full to reasons
beyond Landlord’s reasonable control. Such reasons will include but not be
limited to: fire, earthquake, weather delays or other acts of God, strikes,
boycotts, war, terrorism, bio-terrorism, riot, insurrection, embargoes,
shortages of equipment, labor or materials, utility failure or defect, delays
in
issuance of any necessary governmental permit or approval (including building
permits and certificates of occupancy), any governmental preemption in
connection with a national emergency or any other cause, whether similar or
dissimilar, which is beyond a party’s reasonable control (each, hereinafter, a
“Force Majeure Event”). If this Lease specifies a time period for performance of
an obligation by Landlord, that time period will be extended by the period
of
any delay in Landlord’s performance caused by the Force Majeure
Event.
Tenant
will not
be deemed in default or have liability to Landlord because of Tenant’s failure
to perform any of its obligations under this Lease (other than an obligation
to
pay money) if the failure is due in part or in full to a Force Majeure Event.
If
this Lease specifies a time period for performance of an obligation by Tenant,
that time period will be extended by the period of any delay in Tenant’s
performance caused by the Force Majeure Event.
23. Landlord’s
Rights.
23.1.
Landlord Reservations. Landlord
shall have the right: (a) to change the name and address of the Project or
Building upon not less than ninety (90) days prior written notice; (b) to
provide and install Building standard graphics on or near the door of the
Premises and such portions of the Common Areas as Landlord shall determine,
in
Landlord's sole discretion; (c) to permit any tenant the exclusive right to
conduct any business as long as such exclusive right does not conflict with
any
rights expressly given herein; and (d) to place signs, notices or displays
upon
the roof, interior, exterior or Common Areas of the Project. Tenant shall not
permit anyone, except in an emergency, to go upon the roof of the Building.
Landlord reserves the right to use the exterior walls of the Premises, and
the
area beneath, adjacent to and above the Premises, together with the right to
install, use, maintain and replace equipment, machinery, pipes, conduits and
wiring through the Premises, which serve other parts of the Project, provided
that Landlord's use does not unreasonably interfere with Tenant's use of the
Premises. Landlord reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so
long
as such easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant shall
sign
any of the aforementioned documents within ten (10) days after Landlord's
request and Tenant's failure to do so shall constitute a default by Tenant.
The
obstruction of Tenant's view, air, or light by any structure erected in the
vicinity of the Project, whether by Landlord or third parties, shall in no
way
affect this Lease or impose any liability upon Landlord.
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23.2.
Changes to Project. Landlord
shall have the right, in Landlord's sole discretion, from time to time, to
make
changes to the size, shape, location, number and extent of the improvements
comprising the Project (hereinafter referred to as "Changes") including, but
not
limited to, the Project interior and exterior, the Common Areas, elevators,
escalators, restrooms, HVAC, electrical systems, communication systems, fire
protection and detection systems, plumbing systems, security systems, parking
control systems, driveways, entrances, parking spaces, parking areas and
landscaped areas. In connection with the Changes, Landlord may, among other
things, erect scaffolding or other necessary structures at the Project, limit
or
eliminate access to portions of the Project, including portions of the Common
Areas, or perform work in the Building, which work may create noise, dust or
leave debris in the Building. Tenant hereby agrees that such Changes and
Landlord's actions in connection with such Changes shall in no way constitute
a
constructive eviction of Tenant or entitle Tenant to any abatement of rent.
Landlord shall have no responsibility or for any reason be liable to Tenant
for
any direct or indirect injury to or interference with Tenant's business arising
from the Changes, nor shall Tenant be entitled to any compensation or damages
from Landlord for any inconvenience or annoyance occasioned by such Changes
or
Landlord's actions in connection with such Changes. Landlord agrees to use
commercially reasonable efforts to minimize interference with Tenant’s
operations within the Premises in connection with any such Changes.
23.3.
Landlord's Access. Landlord
and Landlord's agents, contractors and employees shall have the right to enter
the Premises at reasonable times for the purpose of inspecting the Premises,
performing any services required of Landlord, showing the Premises to
prospective purchasers, lenders, or tenants, undertaking safety measures and
making alterations, repairs, improvements or additions to the Premises or to
the
Project. In the event of an emergency, Landlord may gain access to the Premises
by any reasonable means, and Landlord shall not be liable to Tenant for damage
to the Premises or to Tenant's Property resulting from such access. Landlord
shall have the right to retain keys to the locks on the entry doors to the
Premises and all interior doors at the Premises. At Landlord’s option, Landlord
may require Tenant to obtain all keys to door locks at the Premises from
Landlord’s engineering staff or Landlord’s locksmith and to only use Landlord’s
engineering staff or Landlord’s locksmith to change locks at the Premises.
Tenant shall pay Landlord’s or its locksmith’s standard charge for all keys and
other services obtained from Landlord’s engineering staff or
locksmith.
24. Parking.
During
the Term and subject to the rules and regulations attached hereto as Exhibit
"B"
as modified by Landlord from time to time (the "Rules"), Tenant shall be
entitled to use twenty (20)
unreserved parking spaces in the Building’s garage and Tenant shall be entitled
to use seven (7)
reserved
parking spaces in the first floor of the Building’s garage. For purposes of this
Lease, a "parking space" refers to the space in which one (1) motor vehicle
is
intended to park. If Tenant commits or allows in the parking facility any of
the
activities prohibited by the Lease or the Rules, then Landlord shall have the
right, without notice, in addition to such other rights and remedies that it
may
have, to remove or tow away the vehicle involved and charge the cost to Tenant,
which cost shall be immediately payable by Tenant upon demand by Landlord.
Tenant's parking rights are the personal rights of Tenant and Tenant shall
not
transfer, assign, or otherwise convey its parking rights separate and apart
from
this Lease. Landlord agrees that during the term of this Lease, Landlord will
make available guest parking spaces in the Building’s garage.
25. INTENTIONALLY
DELETED.
26. Holding
Over. If
Tenant
remains in possession of the Premises or any part thereof after the expiration
or earlier termination of the term hereof with Landlord's consent, such
occupancy shall be a tenancy from month to month upon all the terms and
conditions of this Lease pertaining to the obligations of Tenant, except that
the monthly Rent payable shall be one hundred fifty percent (150%) of the
monthly Rent that was payable in the month immediately preceding the termination
date of this Lease for the first thirty (30) days of such holdover, and
thereafter the monthly Rent payable shall be two hundred percent (200%) of
the
monthly Rent that was payable in the month immediately preceding the termination
date of this Lease.
If
Tenant remains in possession of the Premises or any part thereof after the
expiration of the Term hereof without Landlord's consent, Tenant shall, at
Landlord's option, be treated as a tenant at sufferance or a trespasser. Nothing
contained herein shall be construed to constitute Landlord's consent to Tenant
holding over at the expiration or earlier termination of the Term of the Lease.
Tenant hereby agrees to indemnify, hold harmless and defend Landlord from any
cost, loss, claim or liability (including attorneys' fees) Landlord may incur
as
a result of Tenant's failure to surrender possession of the Premises to Landlord
upon the termination of this Lease.
27. Perimeter
Access Control. Tenant
hereby acknowledges that Landlord shall have no obligation whatsoever to provide
guard service or other security measures for the benefit of the Premises or
the
Project, and Landlord shall have no liability to Tenant due to its failure
to
provide such services. Tenant assumes all responsibility for the protection
of
Tenant, its agents, employees, contractors and invitees and the property of
Tenant and of Tenant's agents, employees, contractors and invitees from acts
of
third parties. Nothing herein contained shall prevent Landlord, at Landlord's
sole option, from implementing security measures for the Project or any part
thereof, in which event Tenant shall participate in such security measures
and
Tenant’s share of the cost thereof may be charged to Tenant, and Landlord shall
have no liability to Tenant and its agents, employees, contractors and invitees
arising out of Landlord’s negligent provision of security measures. Landlord
shall have the right, but not the obligation, to require all persons entering
or
leaving the Project to identify themselves to a security guard and to reasonably
establish that such person should be permitted access to the
Project.
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28. Signs. Tenant
shall not place any sign upon the Premises (including on the inside or the
outside of the doors or windows of the Premises) or the Project without
Landlord's prior written consent, which may be given or withheld in Landlord's
reasonable discretion. Landlord shall have the right to place any sign it deems
appropriate on any portion of the Project except the interior of the Premises.
Any sign Landlord permits Tenant to place upon the Premises shall be maintained
by Tenant, at Tenant's sole expense. If Landlord permits Tenant to include
its
name in the Building's directory, the cost of placing Tenant's name in the
directory and the cost of any subsequent modifications thereto shall be paid
by
Tenant, at Tenant's sole expense. Landlord acknowledges and agrees that Tenant
shall have the right to place a sign identifying the Premises and a sign
identifying that certain of Tenant’s principals are the holders of a Florida
real estate broker’s licenses outside of the Tenant’s principal entrance to the
Premises with Landlord's prior written consent, such consent not to be
unreasonably withheld, delayed or conditioned. Landlord further acknowledges
that Landlord shall either (i) provide a building directory identifying the
Tenant’s suite in the lobby of the Building or (ii) advise the Landlord’s
receptionist seated in the lobby of the Building to direct Tenant’s customers
and guests to Tenant’s suite within the Building.
29. Notices. All
notices required or permitted by this Lease shall be in writing and shall be
delivered (a) by hand, (b) by U.S. Postal Service certified mail, return receipt
requested, or (c) by U.S. Postal Service Express Mail, Federal Express or other
overnight courier and shall be deemed sufficiently given if served in a manner
specified in this Section. The addresses set forth in Section 1.15 of this
Lease
shall be the address of each party for notice purposes. Landlord or Tenant
may
by written notice to the other specify a different address or addresses for
notices purposes, except that upon Tenant's taking possession of the Premises,
the Premises shall constitute Tenant's address for the purpose of mailing or
delivering notices to Tenant. Any notice sent by certified mail, return receipt
requested, shall be deemed given three (3) days after deposited with the U.S.
Postal Service. Notices delivered by U.S. Express Mail, Federal Express or
other
courier shall be deemed given on the date delivered by the carrier to the
appropriate party's address for notice purposes. If notice is received on
Saturday, Sunday or a legal holiday, it shall be deemed received on the next
business day. Nothing contained herein shall be construed to limit Landlord's
right to serve any notice to pay rent or quit or similar notice by any method
permitted by applicable law, and any such notice shall be effective if served
in
accordance with any method permitted by applicable law whether or not the
requirements of this Section have been met. Tenant hereby elects domicile at
the
Premises for the purpose of service of all notices, writs of summons or other
legal documents or process in any suit, action or proceeding which Landlord
or
any mortgagee may undertake under this Lease. Notice from Landlord may be given
to Tenant by Landlord or Landlord’s agent or attorney.
30. Miscellaneous.
30.1. Severability. The
invalidity of any provision of this Lease as determined by a court of competent
jurisdiction shall in no way affect the validity of any other provision
hereof.
30.2. Time
of Essence. Time
is
of the essence with respect to each of the obligations to be performed by Tenant
and Landlord under this Lease.
30.3. Incorporation
of Prior Agreements. This
Lease and the attachments listed in Section 1.14 contain all agreements of
the
parties with respect to the lease of the Premises and any other matter mentioned
herein. No prior or contemporaneous agreement or understanding pertaining to
any
such matter shall be effective. Except as otherwise stated in this Lease, Tenant
hereby acknowledges that no real estate broker nor Landlord or any employee
or
agents of any of said persons has made any oral or written warranties or
representations to Tenant concerning the condition or use by Tenant of the
Premises or the Project or concerning any other matter addressed by this
Lease.
30.4. Waivers. No
waiver
by Landlord or Tenant of any provision hereof shall be deemed a waiver of any
other provision hereof or of any subsequent breach by Landlord or Tenant of
the
same or any other provision. Landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent
to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder
by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent
so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent. No acceptance by Landlord of partial payment
of
any sum due from Tenant shall be deemed a waiver by Landlord of its right to
receive the full amount due, nor shall any endorsement or statement on any
check
or accompanying letter from Tenant be deemed an accord and satisfaction. Tenant
hereby waives for Tenant and all those claiming under Tenant all rights now
or
hereafter existing to redeem by order or judgment of any court or by legal
process or writ, Tenant's right of occupancy of the Premises after any
termination of this Lease. This Lease shall be construed as though the covenants
contained herein are independent and not dependent and Tenant hereby waives
the
benefit of any statute to the contrary. All provisions of this Lease to be
observed or performed by Tenant are both covenants and conditions.
30.5. Amendments.
This
Lease may be modified in writing only, signed by the parties in interest at
the
time of the modification.
30.6. Binding
Effect; Choice of Law; Conflict. Subject
to any provision hereof restricting assignment or subletting by Tenant, this
Lease shall bind the parties, their heirs, personal representatives, successors
and assigns. This Lease shall be governed by the laws of the state in which
the
Project is located and any litigation concerning this Lease between the parties
hereto shall be initiated in the county in which the Project is located. Except
as otherwise provided herein to the contrary, any conflict between the printed
provisions, exhibits, addenda or riders of this Lease and the typewritten or
handwritten provisions, if any, shall be controlled by the typewritten or
handwritten provisions.
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30.7. Attorneys'
Fees. If
Landlord or Tenant brings an action to enforce the terms hereof or declare
rights hereunder, the prevailing party in any such action, or appeal thereon,
shall be entitled to its reasonable attorneys' fees and court costs to be paid
by the losing party as fixed by the court in the same or separate suit, and
whether or not such action is pursued to decision or judgment. The attorneys'
fee award shall not be computed in accordance with any court fee schedule,
but
shall be such as to fully reimburse all attorneys' fees and court costs
reasonably incurred in good faith. Landlord shall be entitled to reasonable
attorneys' fees and all other costs and expenses incurred in the preparation
and
service of notices of default and consultations in connection therewith, whether
or not a legal action is subsequently commenced in connection with such default.
Landlord and Tenant agree that attorneys’ fees incurred with respect to defaults
and bankruptcy are actual pecuniary losses within the meaning of Section
365(b)(1)(B) of the Bankruptcy Code or any successor statute.
30.8. Auctions. Tenant
shall not conduct, nor permit to be conducted, either voluntarily or
involuntarily, any auction upon the Premises or the Common Areas. The holding
of
any auction on the Premises or Common Areas in violation of this Section 30.8
shall constitute a material default hereunder.
30.9. Merger;
Relationship of Parties. The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, or a termination by Landlord, shall not result in the merger of
Landlord's and Tenant's estates, and shall, at the option of Landlord, terminate
all or any existing subtenancies or may, at the option of Landlord, operate
as
an assignment to Landlord of any or all of such subtenancies. Nothing contained
in this Lease shall be deemed or construed by the parties hereto or by any
third
party to create the relationship of principal and agent, partnership, joint
venturer or any association between Landlord and Tenant.
30.10. Quiet
Possession. Subject
to the other terms and conditions of this Lease, and the rights of any lender,
and provided Tenant is not in default hereunder, Tenant shall have quiet
possession of the Premises for the entire Term hereof, subject to all of the
provisions of this Lease.
30.11. Authority;
Multiple Parties. If
Tenant is a corporation, trust, general or limited partnership, or other entity,
Tenant, and each individual executing this Lease on behalf of such entity,
represents and warrants that such individual is duly authorized to execute
and
deliver this Lease on behalf of said entity, that said entity is duly authorized
to enter into this Lease, and that this Lease is enforceable against said entity
in accordance with its terms. If Tenant is a corporation, trust or partnership,
Tenant shall deliver to Landlord upon demand evidence of such authority
satisfactory to Landlord. If more than one person or entity is named as Tenant
herein, the obligations of Tenant shall be the joint and several responsibility
of all persons or entities named herein as Tenant. Service of a notice in
accordance with Section 29 on one Tenant shall be deemed service of notice
on
all Tenants.
30.12. Interpretation. This
Lease shall be interpreted as if it was prepared by both parties and ambiguities
shall not be resolved in favor of Tenant because all or a portion of this Lease
was prepared by Landlord. The captions contained in this Lease are for
convenience only and shall not be deemed to limit or alter the meaning of this
Lease. As used in this Lease the words tenant and landlord include the plural
as
well as the singular. Words used in the neuter gender include the masculine
and
feminine gender. The deletion of any printed, typed or other portion of this
Lease shall not evidence the parties’ intention to contradict such deleted
portion. Such deleted portion shall be deemed not to have been inserted in
this
Lease. Notwithstanding anything to the contrary contained in this Lease, if
the
Term of the Lease has not commenced within twenty-one (21) years after the
date
of this Lease, this Lease shall automatically terminate on the twenty-first
(21st) anniversary of such date. The sole purpose of this provision is to avoid
any interpretation of this Lease as a violation of the Rule Against
Perpetuities, or any other rule of law or equity concerning restraints on
alienation.
30.13. Prohibition
Against Recording. Neither
this Lease, nor any memorandum, affidavit or other writing with respect thereto,
shall be recorded by Tenant or by anyone acting through, under or on behalf
of
Tenant. Landlord shall have the right to record a memorandum of this Lease,
and
Tenant shall execute, acknowledge and deliver to Landlord for recording a
commercially reasonable form of memorandum prepared by Landlord.
30.14. Rules
and Regulations. Tenant
agrees to abide by and conform to the Rules and to cause its employees,
suppliers, customers and invitees to so abide and conform. Landlord shall have
the right, from time to time, to modify, amend and enforce the Rules. Landlord
shall not be responsible to Tenant for the failure of other persons including,
but not limited to, other tenants, their agents, employees and invitees to
comply with the Rules.
30.15. Intentionally
Omitted.
30.16. Attachments. The
items
listed in Section 1.14 are a part of this Lease and are incorporated herein
by
this reference.
30.17. Confidentiality. Tenant
acknowledges and agrees that the terms of this Lease are confidential and
constitute proprietary information of Landlord. Disclosure of the terms hereof
could adversely affect the ability of Landlord to negotiate other leases with
respect to the Project and may impair Landlord's relationship with other tenants
of the Project. Tenant agrees that, except as otherwise required by law
(including to comply with its obligations under the Federal Securities Laws),
it
and its partners, officers, directors, employees, brokers, and attorneys, if
any, shall not disclose the terms and conditions of this Lease to any other
person or entity without the prior written consent of Landlord which may be
given or withheld by Landlord, in Landlord's sole discretion. It is understood
and agreed that damages alone would be an inadequate remedy for the breach
of
this provision by Tenant, and Landlord shall also have the right to seek
specific performance of this provision and to seek injunctive relief to prevent
its breach or continued breach.
Landlord
agrees that it will not publicize the terms of this Lease without Tenant’s prior
written consent, which consent will not be unreasonably withheld, delayed or
conditioned.
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30.18 Lease
of Furniture. Landlord
hereby also leases to Tenant the furniture and other items listed on Exhibit
“C”
attached hereto (the “Furniture”) during the term of this Lease at no additional
cost to Tenant beyond the Rent stated herein. Tenant accepts the Furniture
in
its “as-is” condition existing as of the Commencement Date of this Lease. Tenant
agrees to return the Furniture to Landlord at the expiration or earlier
termination of this Lease in the same condition as when it was received,
ordinary wear and tear excepted. Landlord warrants that it owns all of the
furniture.
31. OFAC
Certification.
31.1.
Tenant
certifies that: (i) it is not acting, directly or indirectly, for or on behalf
of any person, group, entity, or nation named by any Executive Order or the
United States Treasury Department as a terrorist, “Specially Designated National
and Blocked Person,” or other banned or blocked person, entity, nation, or
transaction pursuant to any law, order, rule, or regulation that is enforced
or
administered by the Office of Foreign Assets Control; and (ii) it is not engaged
in this transaction, directly or indirectly on behalf of, or instigating or
facilitating this transaction, directly or indirectly on behalf of, any such
person, group, entity, or nation.
31.2.
Tenant
hereby agrees to defend, indemnify, and hold harmless Landlord from and against
any and all claims, damages, losses, risks, liabilities, and expenses (including
attorney’s fees and costs) arising from or related to any breach of the
foregoing certification.
32.
RADON DISCLOSURE.
Tenant
is hereby advised that 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. The foregoing disclosure is provided to comply with state
law and is for informational purposes only. Landlord has not conducted radon
testing with respect to the Building and specifically disclaims any and all
representations and warranties as to the absence of radon gas or radon producing
conditions in connection with the Building and the Premises.
33. WAIVER
OF JURY TRIAL. LANDLORD
AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY CAUSE
OF
ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR
HEARING BROUGHT BY EITHER LANDLORD AGAINST TENANT OR TENANT AGAINST LANDLORD
ON
ANY MATTER WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE,
THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY
UNDER ANY LAW, STATUTE, OR REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER
IN EFFECT.
LANDLORD
AND TENANT ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND REVIEWED THIS LEASE
AND
EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW
THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT,
AT
THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH
RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN THE
OPPORTUNITY TO HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS
EXECUTION. PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD'S AGENT AND
SUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASE
THE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THE
PREMISES. THIS LEASE SHALL BECOME BINDING UPON LANDLORD AND TENANT ONLY WHEN
FULLY EXECUTED BY BOTH PARTIES AND WHEN LANDLORD HAS DELIVERED A FULLY EXECUTED
ORIGINAL OF THIS LEASE TO TENANT.
34.
EXPANSION RIGHT.
At any
time prior to July 1, 2008, Tenant shall have the right to provide Landlord
with
notice in writing that Tenant will lease the remaining 1120 square feet on
the
north portion of the 11th
floor,
and at any time prior to December 31, 2008 Tenant shall have the right to
provide Landlord with notice in writing that Tenant will lease all or a portion
of the south portion of the 11th
floor
(the “Expansion Space”). The terms of the lease for the Expansion Space shall be
the same as the terms contained in this Lease, except that the Rent to be paid
by Tenant for such Expansion Space shall be the then prevailing rate as
determined by Landlord. Tenant’s right to lease such Expansion Space shall
automatically terminate if Tenant fails to timely notify Landlord in writing
that Tenant will lease the Expansion Space.
35.
OPTIONS TO RENEW.
A. Provided
no default exists and Tenant is occupying the entire Premises at the time of
such election, Tenant may renew this Lease for one (1) additional period of
five (5) years (the “First Extension Term”) on the same terms provided in
this Lease (except as set forth below), by delivering written notice (the "First
Renewal Notice") of the exercise thereof to Landlord at least nine (9)
months prior to the expiration date of this Lease. Upon Tenant’s timely notice
of the exercise of the option to renew, the Lease shall be extended on the
same
terms provided in this Lease, except as follows:
|
(a)
|
The
Rent payable during such First Extension Term shall be the prevailing
rental rate, as determined by Landlord in its commercially reasonable
discretion (and with Landlord’s delivery, if requested by Tenant, of the
basis for such determination), for buildings comparable to the Building,
at the commencement of such First Extension Term, for space of equivalent
quality, size, utility and location, with the length of the First
Extension Term and the credit standing of Tenant to be taken into
account;
and
|
14
|
(b)
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Landlord
shall lease to Tenant the Premises in their then current condition,
and
Landlord shall not provide to Tenant any allowances (e.g., moving
allowance, construction allowance, tenant improvements allowance
and the
like) or other tenant inducements.
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Landlord
shall deliver written notice (the "Landlord Notice")
to
Tenant, within thirty (30) days after Landlord's receipt of a timely First
Renewal Notice, which sets forth the Rent determined by Landlord to be payable
during the First Extension Term after consideration of the factors set forth
under clause (a) above. Tenant shall have the right, within ten (10) days
following the date of the Landlord Notice, to deliver written notice (the
"First
Revocation Notice")
to
Landlord that Tenant elects to revoke its exercise of the renewal option. If
Tenant delivers a First Revocation Notice, Tenant shall have no further right
to
extend the term of this Lease and this Lease shall terminate upon the expiration
of the initial term hereof. If Tenant timely delivers a First Renewal Notice
but
fails to timely deliver a First Revocation Notice, this Lease shall be extended
on the terms set forth above and at the Rent specified in the Landlord
Notice.
Tenant's
right to extend the term of this Lease shall terminate if (i) this Lease or
Tenant's right to possession of the Premises is terminated, (ii) Tenant, at
any
time during the Lease Term, assigns any of its interest in this Lease or sublets
any portion of the Premises other than as permitted under the terms of Section
12.6 hereof, (iii) Tenant delivers a First Revocation Notice, or (iv) Tenant
fails to timely exercise its option under this Section 34A. , time being of
the
essence with respect to Tenant's exercise thereof.
B. Provided
no default exists and Tenant is occupying the entire Premises at the time of
such election, Tenant may renew this Lease for a second additional period of
five (5) years (the “Second Extension Term”) on the same terms provided in
this Lease (except as set forth below), by delivering written notice (the
"Second Renewal Notice") of the exercise thereof to Landlord at least nine
(9) months prior to the expiration date of the First Extension Term. Upon
Tenant’s timely notice of the exercise of the option to renew, the Lease shall
be extended on the same terms provided in this Lease, except as
follows:
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(a)
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The
Rent payable during such Second Extension Term shall be the prevailing
rental rate, as determined by Landlord in its commercially reasonable
discretion (and with Landlord’s delivery, if requested by Tenant, of the
basis for such determination), for buildings comparable to the Building,
at the commencement of such Second Extension Term, for space of equivalent
quality, size, utility and location, with the length of the Second
Extension Term and the credit standing of Tenant to be taken into
account;
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(b)
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Tenant
shall have no further renewal options unless hereafter expressly
granted
by Landlord in writing; and
|
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(c)
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Landlord
shall lease to Tenant the Premises in their then current condition,
and
Landlord shall not provide to Tenant any allowances (e.g., moving
allowance, construction allowance, tenant improvements allowance
and the
like) or other tenant inducements.
|
Landlord
shall deliver written notice (the "Landlord Notice")
to
Tenant, within thirty (30) days after Landlord's receipt of a timely Second
Renewal Notice, which sets forth the Rent determined by Landlord to be payable
during the Second Extension Term after consideration of the factors set forth
under clause (a) above. Tenant shall have the right, within ten (10) days
following the date of the Landlord Notice, to deliver written notice (the
"Second
Revocation Notice")
to
Landlord that Tenant elects to revoke its exercise of the renewal option. If
Tenant delivers a Second Revocation Notice, Tenant shall have no further right
to extend the term of this Lease and this Lease shall terminate upon the
expiration of the initial term hereof. If Tenant timely delivers a Second
Renewal Notice but fails to timely deliver a Second Revocation Notice, this
Lease shall be extended on the terms set forth above and at the Rent specified
in the Landlord Notice.
Tenant's
right to extend the term of this Lease shall terminate if (i) this Lease or
Tenant's right to possession of the Premises is terminated, (ii) Tenant, at
any
time during the Lease Term, assigns any of its interest in this Lease or sublets
any portion of the Premises other than as permitted under the terms of Section
12.6 hereof, (iii) Tenant delivers a Second Revocation Notice, or (iv) Tenant
fails to timely exercise its option under this Section 34B. , time being of
the
essence with respect to Tenant's exercise thereof.
[SIGNATURE
PAGE FOLLOWS]
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WITNESSES:
_____________________________________
Print
Name: _________________________________
__________________________________________
Print
Name:_________________________________
|
LANDLORD:
FROST
REAL ESTATE HOLDINGS, LLC
a
Florida limited liability company
By:
/s/ Xxxxxx
Xxx-Xxxx
Name:
Xxxxxx
Xxx-Xxxx
Title:
VP Engineering
Services
|
|
__________________________________________
Print
Name:_________________________________
__________________________________________
Print
Name:_________________________________
|
TENANT:
OPKO
HEALTH INC.,
a
Delaware corporation
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx
Xxxxx
Title:
Chief Accounting Officer and Treasurer
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