EXHIBIT 10.5
LEASE AGREEMENT
ENTERED into this 18th day of May, 2004, by and between PROFESSIONAL
OFFICES PARK V, INC. (hereafter "Landlord"), a corporation organized and
existing under the laws of the Commonwealth of Puerto Rico, and ORIENTAL
FINANCIAL GROUP INC., a financial holding company organized and existing under
the laws of the Commonwealth of Puerto Rico (hereafter "Tenant").
1. THE LAND. Landlord is the owner of that certain parcel of land with an
area of approximately 17,047.5556 square meters, located at State Road Number
1, kilometer 15.1, Marginal Road, Monacillos Xxxx, San Xxxx, Puerto Rico, more
accurately described in the survey attached hereto as EXHIBIT A, with full and
unimpaired access to Xxxxx Xxxx Xxxxxx Xxx xxx Xxxxx Xxxx #0000 (hereafter the
"Land") . The legal description of the Land and its recording data appears in
EXHIBIT B attached hereto.
2. PLANS AND SPECIFICATIONS FOR THE BUILDING. Landlord engaged the
services of Xxxxxxxxx Architects (the "Building Architects")to prepare the plans
and specifications, including but not limited to schematic drawings, design
development, floor plans, parking plans, and final drawings (hereafter the
"Plans and Specifications") for the construction by Landlord of a fifteen (15)
story building on the Land (Tower III), with approximately 130,896 square feet
of rentable space (hereafter the "Building"). The construction plans and
specifications of the Building (hereafter the "Construction Plans") are attached
hereto as EXHIBIT C.
2.1. Landlord has delivered a full copy of the Construction Plans to
Tenant. Tenant shall provide Landlord
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a preliminary floor plan distribution for the Premises (as such term is
hereinafter defined) no later than December 1st, 2004 and the final floor
plan distribution not later than April 1st, 2005.
3. CONSTRUCTION OF BUILDING. Landlord represents to Tenant that
construction of the Building on the Land will be carried out in accordance with
the Plans and Specifications, good construction practice, in a workmanlike
manner and in compliance with all applicable governmental laws and regulations,
including zoning and building codes and regulations.
3.1. As soon as practicable, but not later than one hundred and
twenty (120) days prior to the projected substantial completion date for
the Building established in paragraph 8, as such substantial completion
date may be extended pursuant to paragraph 8.1, Tenant and Tenant's agents
and contractors shall have the required access to the Premises to make
such leasehold improvements to the Premises as may be deemed necessary by
Tenant, and to install Tenant's communications antenna, satellite dish,
building signage, telephone communications, security, and computer systems
and other trade fixtures and equipment (hereinafter collectively
"Tenant's Improvements"), all of which is hereby authorized by Landlord
subject only to the compliance by Tenant with the applicable provisions of
this Agreement. The cost and expenses of Tenant's Improvements shall be
for the account of Tenant. Landlord will coordinate with the Building's
Contractor to insure that Tenant, its agents and contractors shall have
the required access to the Building and the Premises to perform Tenant's
Improvements.
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3.2. CONSTRUCTION OF TENANT'S IMPROVEMENTS. The Building and the
Premises shall be considered ready for the construction of Tenant's
Improvements when it has been enclosed and access to the Building and the
Premises is possible, at a minimum, by means of a construction elevator
(hoist).
3.3. Landlord shall make the improvements to the Premises listed in
EXHIBIT D at its own cost and expense. Landlord shall install a sprinkler
system in all floors of the Building, except for the area in the Premises
designated by Tenant to be occupied by Tenant's data processing equipment.
If required, Tenant shall provide, at its own cost and expense, fire
prevention and safety measures for such areas.
4. THE PREMISES. Tenant shall lease from Landlord the fifth (5th) and
sixth (6th) floors of the Building, each with a rentable area of 21,706 square
feet, for a total rentable area of 43,412 square feet (the "Premises"). The
total rentable area of the Premises and the Building and the percentage that the
Premises represents of the total rentable area of the Building shall be
determined by the Building Architects and verified by Tenant's architects upon
the substantial completion of the Building using the American National Standard
BOMA ANSI 265.1-1980, as reaffirmed in 1989, published by the Building Owners
and Managers Association (the "BOMA System").
4.1. Tenant shall have the option to lease the fourth (4th) floor of
the Building with a rentable area of 21,706 square feet. Tenant's option
of leasing the fourth (4th) floor of the Building will expire on February
1st,
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2005. If Tenant exercises such option, the total rentable area of the
Premises shall be 65,118 square feet, as may be adjusted following the
procedure described above.
4.2. Commencing with rental offers made by Landlord after the
Commencement Date, Tenant shall have the first right of refusal with
respect to leasing of space in the Building by Landlord. Tenant shall have
fifteen (15) business days from Landlord's written notice in which to
accept the space and execute the appropriate lease amendment incorporating
such space into this Agreement. If Tenant fails to accept the space,
Landlord may lease it to another tenant. If Tenant accepts the space, the
Basic Rent (as defined hereinbelow) applicable to the lease of such
additional space by Tenant shall be the same to that offered by Landlord
to the prospective tenant. All other terms and conditions applicable to
the lease of the Premises under this Agreement shall be applicable to the
lease of such additional space.
5. FINANCING. Landlord represents that it has secured at its own risk,
cost and expense, the interim financing necessary for the construction of the
Building as well as its permanent financing, as required to fulfill Landlord's
obligations under this Agreement.
6. AUTHORIZED USE. Landlord represents, warrants, and agrees that the
Land, the Building, the Premises and the use and occupancy of the Premises by
Tenant for the purposes authorized in paragraph 21 of this Agreement shall
comply with all applicable laws and regulations from time to time in effect.
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7. TENANT ACCESS. During the period of construction, Tenant and its
representatives shall have access to the Land, the Building and the Premises at
all reasonable times for the purpose of inspecting the work as it progresses to
determine compliance with this Agreement and the Plans and Specifications.
7.1. Such access by Tenant shall not interfere with construction by
Landlord. No such inspection by Tenant or failure to inspect shall relieve
Landlord of its responsibility for constructing the Building in accordance
with the Plans and Specifications.
8. TIME FOR SUBSTANTIAL COMPLETION. The Building shall be substantially
completed not later than March 31st, 2006. Unavoidable delays solely caused by,
or arising out of, adverse weather conditions, unforeseeable labor or material
shortages, action of the civil authorities or any other cause beyond the control
of Landlord shall extend the construction completion date on a day for day
basis, provided that Landlord notifies Tenant of such occurrence within five (5)
calendar days after the start of any such delay and within five (5) calendar
days after the resumption of work.
8.1. In the event that Landlord or the Building Architects determine
or anticipate that the substantial completion of the Building will not
occur by March 31st, 2006, Landlord shall promptly give Tenant notice of
such delay. If the substantial completion of the Building is not expected
to occur before October 1st, 2006, Tenant shall have the option to
terminate this Agreement at any time by notice to Landlord and, upon such
termination, both parties shall be relieved of all obligations to each
other emanating
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from this Agreement, and neither party shall have any liability to the
other emanating from this Agreement, except that Landlord shall reimburse
Tenant for the cost and expenses of any Tenant's Improvements made by
Tenant pursuant to paragraph 3.1 above; provided, however, that in no
event shall Landlord be responsible for the reimbursement of such cost and
expenses in excess of $10.00 per usable square feet.
9. PERFORMANCE BOND. Landlord has secured a bond from the contractor under
the contract for construction of the Building guaranteeing the performance by
such contractor of all the undertakings, covenants, terms, conditions and
agreements to be performed and observed by the contractor under said contract.
10. SUBSTANTIAL COMPLETION. Construction of the Building and the Premises
shall be considered substantially completed when all work has been finished in
accordance with the Plans and Specifications, including the work to be performed
by Landlord on the Premises pursuant to paragraph 3.3, and a preliminary
certificate of occupancy shall have been issued by the appropriate governmental
agency permitting the use and occupancy of the Building and the Premises by
Tenant for the purposes herein authorized.
10.1. Substantial completion of the Building and the Premises shall
include but not be limited to, the following: (i) air conditioning,
plumbing and electrical systems, and elevators installed and operating and
in good working condition; (ii) a temporary or permanent certificate of
occupancy issued by the appropriate government agency,
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permitting the occupancy of the Building and the Premises for the purposes
and use intended by Tenant.
11. INSURANCE DURING CONSTRUCTION. During construction, Landlord shall
maintain such insurance coverage with carriers licensed to do business in Puerto
Rico and acceptable to Tenant, as it may be necessary to protect Tenant from
claims for property damage or bodily injury, including death, which may arise
from and during the construction of the Building and Landlord's work on the
Premises, whether such claims be against Landlord or any contractor or anyone
directly or indirectly employed by either of them. Tenant shall be named as an
additional insured under all such policies. Landlord shall deliver to Tenant an
insurance certificate evidencing such insurance within thirty (30) days from the
date hereof.
12. COMMENCEMENT DATE. Subject to the provisions of paragraphs 10 and 14
of this Agreement, the lease term and the obligation to pay rent shall commence
on the date that the Premises are ready for occupancy by Tenant as defined in
paragraph 14 (the "Commencement Date").
13. INITIAL TERM. The lease term shall be for a period of ten (10) years
commencing on the Commencement Date (the "Initial Term").
14. READY FOR OCCUPANCY. For purposes of paragraph 12 of this Agreement,
the Premises shall be ready for occupancy upon the occurrence of all of the
following to the satisfaction of Tenant: (a) the issuance of a preliminary
certificate of occupancy by the appropriate authorities permitting the use and
occupancy of the Building and the Premises by Tenant for the
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purpose of conducting the business of Tenant. Landlord shall pursue with due
diligence all action required for the issuance of such certificate of occupancy;
(b) the substantial completion of (i) the Building and the Premises, (ii) all
construction, installation, and other work required to be done by Landlord
hereunder; and (iii) the plumbing, air conditioning and electrical systems
serving the Building and the Premises; (c) the means of ingress and egress to
the Building, the Building's parking garage and the Premises are in no manner
obstructed; and (d) Tenant shall have inspected the Land, the Building and the
Premises and notified Landlord to have found them to its satisfaction. Landlord
shall notify Tenant thirty (30) days prior to the date Landlord expects to have
the Premises ready for occupancy, during which period Tenant shall have the
right to inspect.
15. EXTENSIONS OF TERM. Tenant shall have the option to extend the Initial
Term upon the same terms and conditions contained in this Agreement (except that
the rent shall be increased as hereafter provided) for a second term of five (5)
years (hereafter the "First Extended Term") to commence on the day after
expiration of the Initial Term; for a third term of five (5) years (hereafter
the "Second Extended Term"), to commence on the day after expiration of the
First Extended Term and for a fourth term of five (5) years (hereafter the
"Third Extended Term"), to commence on the day after expiration of the Second
Extended Term.
15.1. Not later than twelve (12) months from the date of expiration
of the Initial Term or of any extension thereof, Landlord shall send
Tenant a reminder notice and
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Tenant shall have ninety (90) days from the date of such notice to
exercise its option to extend the term.
15.2. Tenant will have the option to terminate this Agreement at any
time after the end of the fifth (5th) year of the Initial Term and during
any extended term with the payment of a penalty of one (1) year Basic and
Additional Rent (as such terms are defined herein below) and after having
notified Landlord of the exercise of such option at least 120 days prior
to the intended date of termination. The termination penalty will be paid
by Tenant in twelve (12) equal monthly installments of Basic and
Additional Rent following the date of termination. Should Landlord lease
all or part of the Premises during the twelve (12) months following the
termination of the Lease Agreement, the amount to be paid as penalty by
Tenant will be reduced by an amount equal to the Basic and Additional Rent
per square feet payable by the new tenant to Landlord.
16. RENT. Tenant shall pay to Landlord a basic rent for the Premises (the
"Basic Rent") as follows:
16.1. For the Initial Term - $22.63 per rentable square foot per
annum;
16.2. For the First Extended Term - $25.00 per rentable square foot
per annum;
16.3. For the Second Extended Term - $27.63 per rentable square foot
per annum; and
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16.4 For the Third Extended Term - $30.52 per rentable square foot
per annum.
17. PAYMENT OF RENT. Prior to the Commencement Date of the Initial Term,
the aggregate number of rentable square feet in the Premises shall be determined
as provided in paragraph 4 and the rent shall be fixed and established as a full
dollar amount per year and month. All rent shall be payable in legal tender of
the United States of America, without notice or demand, at the address
designated hereunder for notices, in equal monthly installments, in advance on
the first day of each calendar month of the Lease Term. If the Lease Term
commences on a day other than the first day of a calendar month, Tenant shall
pay to Landlord, on or before the Commencement Date, a pro rata portion of the
monthly installment of rent due for such a partial month, such pro rata portion
to be based on the number of days remaining in such partial month after the
Commencement Date.
17.1. No security deposit shall be required.
17.2. The extension of time for payment of any installment of rent,
or the acceptance by Landlord of any payment other than as herein
specified, shall not be a waiver of the rights of Landlord to insist on
that all other payments of rent be made in the manner and at the time
herein specified.
17.3. No payment by Tenant or receipt by Landlord of a lesser amount
than the stipulated monthly rent shall be deemed other than a payment on
account of the earliest rent due, nor shall any endorsement or statement
on any check or on any letter accompanying any payment be deemed an accord
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and satisfaction. Landlord may accept such check or payment without
prejudice to its right to recover the balance of the rent due or to pursue
any other remedy provided for in this Agreement.
17.4. Any amounts payable by Tenant to Landlord not paid when due
shall bear interest at Citibank, N.A. New York base (prime) rate, from due
date until paid. Payment of such interest shall not excuse or cure any
default by Tenant under this Agreement provided, however, that,
notwithstanding the foregoing, the first time in any Lease Year that any
payment due hereunder is not paid on its due date, or within five (5) days
thereafter, no interest shall be due on such late payment if such payment
is made in full not later than five (5) days after its due date.
18. NAME; COLOR SCHEME OF BUILDING. During the Initial Term and, if
applicable, the First Extended Term and the Second Extended Term, and provided
that it leases from Landlord at least 43,412 square feet of rentable space in
the Building (as such rentable square footage may be adjusted pursuant to the
provision of paragraph 4), Tenant shall have the exclusive right to (i) select
the exterior and interior color scheme for the Building, except for the color
scheme for the interiors of those premises that may be leased to other tenants,
provided, that the selection of the exterior and the interior color scheme for
the Building is made by Tenant not later than one hundred eighty (180) days
prior to November 16, 2005, the estimated date for the commencement of Tenant's
Improvements as provided in paragraph 3.2 (as it may be extended as provided
herein) and, provided further, that once such selection is made by Tenant, the
color scheme shall remain the same for the duration of this
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Agreement unless Tenant and Landlord shall mutually agree otherwise; (ii) name
and identify the Building with a name, trade name or trademark (or combinations
thereof) selected by Tenant; and (iii) place or install on the Land, the
exterior and interior of the Building, the lobbies of the floors where the
Premises are located, and in the Premises such names, markings, letterings,
signs and other indicia as Tenant shall deem proper or advisable, all in good
taste and in compliance with all applicable laws and regulations. Tenant shall
bear the cost of any name, trade name or trademark (or combinations thereof)
installed by Tenant in the Land, the Building or the Premises. The Building will
be known as the "Oriental Group Building." All Building identifications will
have Oriental Group's name. Tenant will be allowed to place banners and video
displays in the exterior of the Building and signs in the lobby with prior
approval from Landlord which will not be unreasonably denied, delayed or
conditioned. Tenant will be the only institution allowed to place signs in the
exterior of the Building and its lobby.
18.1. Tenant shall pay Landlord an annual fee of $24,000 in equal
monthly installments for the rights described above. In the event that
Tenant exercises its option to lease an additional floor in the Building
as provided in paragraph 4.1, Tenant will not have to pay the $24,000
annual fee provided for above.
18.2 If Tenant does not lease at least 43,412 rentable square feet
in the Building (as may be adjusted pursuant to paragraph 4.), Tenant's
rights with respect to the color scheme and the name and identity of the
Building as described in this paragraph 18 shall cease and Tenant shall no
longer be obligated to pay Landlord the annual fee
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for those rights provided for in paragraph 18.1 above. The above
notwithstanding, while this lease agreement is in effect, the color scheme
and the name and identity of the Building shall never correspond to that
of a competitor of Tenant.
19. ALTERATIONS OR IMPROVEMENTS BY TENANT. Except as otherwise provided in
paragraph 3.1, during the lease term Tenant may, at its own cost and expense,
and with the prior written consent of Landlord, which shall not be unreasonably
withheld, delayed, or conditioned, make structural improvements, betterments,
alterations and additions to the Premises; non-structural improvements,
betterments, alterations, and additions to the Premises shall not require the
prior written consent of Landlord. Title to all improvements, alterations and
additions made by Tenant to the Premises under the provision of paragraph 3.1 or
this paragraph, other than trade fixtures, equipment and other movable property,
shall pass to Landlord upon the expiration or earlier termination of this
Agreement without any compensation to Tenant.
19.1. TENANT'S IMPROVEMENT ALLOWANCE. Notwithstanding anything
herein to the contrary, Landlord shall reimburse Tenant in cash the first
$376,620 spent by Tenant in Tenant's Improvements. Such reimbursement
shall be made by Landlord to Tenant within thirty (30) days after Tenant's
Architect certifies to Landlord that Tenant's Improvements to the Premises
have been completed in accordance with the plans and specifications
therefor. The Tenant's Improvement allowance will increase by $188,310 if
Tenant exercises its option to lease the 4th floor of the Building.
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19.2. Landlord will pay Tenant a minimum of $250,000 to compensate
for unamortized leasehold improvements of Tenant at Premises leased from
Landlord and Landlord's affiliates at the time this lease agreement is
executed (the "vacated premises") , on the first to occur of, (i) one
hundred twenty (120) days from the Commencement Date or (ii) ten (10) days
after receipt of payment from new tenant, as follows:
a. If new tenant (s) for the vacated premises pay(s) Landlord
$250,000 or more for the leasehold improvements to the vacated
premises, Landlord will pay Tenant the amount paid to it by such
tenant(s) plus $100,000;
b. If new tenant (s) for the vacated premises pay(s) Landlord
$150,000 or more but less than $250,000 for the leasehold
improvements to the vacated premises, Landlord will pay Tenant the
amount paid to it by such tenant(s) plus $100,000; and
c. If new tenant(s) for the vacated premises pay (s) Landlord
less than $150,000 for the leasehold improvements to the vacated
premises, Landlord shall pay Tenant $250,000.
19.3. Landlord hereby consents to the installation, maintenance, and
removal by Tenant of up to two (2) satellite dish-type antennas or other
common roof top communication systems on the roof of the Building with the
exception of the elevators roof.
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20. REAL ESTATE TAXES. Tenant shall pay to Landlord as additional rent an
amount equal to Tenant's proportionate share of real property taxes for any tax
year during the lease term ("Tenant's Real Property Taxes") which shall be paid
in accordance with sections (i) through (iii) below. Tenant's Real Property
Taxes shall be prorated on a per diem basis for any partial tax year included
within the lease term. Tenant's Real Property Taxes shall be paid as follows:
(i) Landlord has informed Tenant that it has estimated the
real property taxes on the Land, the Building and the Premises for the
first year of the lease term (base year) at $1.39 per rentable square
feet. Tenant's obligation hereunder shall be to pay such amount as
additional rent as provided in (ii) below until such time as the Land,
Building and Premises are assessed by the taxing authority and the
corresponding tax xxxx is issued by such taxing authority.
(ii) Thereafter, after receipt of the annual property tax xxxx
for the Land and the Building, Landlord shall furnish Tenant a tax
statement together with a copy of said tax xxxx. Commencing on the
Commencement Date, Tenant shall pay one-twelfth (1/12) of Tenant's Real
Property Taxes based on Landlord's estimate as provided in (i) above or as
shown on the current tax statement, on a monthly basis, together with
payments of the Basic Rent, as an estimate and on account of Tenant's Real
Property Taxes for the current year, which payments shall continue until
receipt by Tenant of a tax statement or other notice from Landlord,
pursuant to subsection (iii) below, revising the amount of Tenant's Real
Property Taxes or increasing the amount of monthly estimated payments.
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(iii) All estimated monthly payments shall be subject to an
adjustment when the actual real property taxes for the applicable year can
be verified. If the actual taxes are less than the amounts upon which the
payments previously made by Tenant were based, Tenant shall receive a
credit against the first installment(s) of rent coming due after the end
of the calendar year in which such adjustment is received in the amount by
which Tenant's payment of Tenant's Real Property Taxes exceeded the
payments actually due for the applicable year, or if the lease term has
expired, Landlord shall refund the amount of any such overpayment to
Tenant within fifteen (15) days after determination of the amount due to
Tenant. If the actual taxes are more than the amounts upon which the
payments previously made by Tenant were based, the installment of rent
next coming due shall include the corresponding retroactive adjustment and
subsequent installments of rent shall be adjusted accordingly.
21. USE OF PREMISES. Tenant may use the Premises to conduct its business
consisting of financial services and related activities, including general
office, data processing, employee cafeteria with vending machines, print shop,
storage and related incidental administrative and office use, and for general
office use.
21.1 Tenant shall keep and maintain the Premises in good order,
condition and repair, except to the extent that Landlord is obligated to
do so, and shall keep the Premises free of dirt, rubbish and obstructions.
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22. PARKING.
22.1 Tenant shall be entitled to the exclusive use of 150 reserved
covered parking spaces at no additional cost to Tenant. The locations of
those covered parking spaces are indicated in EXHIBIT E.
22.2 Landlord will provide Tenant 77 additional reserved covered
parking spaces rent free for the first two (2) years of the Lease Term at
the locations indicated in Exhibit E. After the two (2) year rent-free
period, rent for the 77 covered parking spaces will be $90 per parking
space per month.
22.3 Tenant shall have the option to lease from Landlord up to 120
additional reserved covered parking spaces at a cost of $90 per parking
space per month.
22.4 The parking rent is to be paid by Tenant to Landlord as
additional rent within the monthly rent invoice. All Tenant reserved
parking spaces shall be marked on the pavement by Tenant.
22.5 In the event that Tenant leases additional office space in the
Building, Landlord shall provide Tenant 3.6 additional reserved covered
parking spaces for each 1,000 square feet of additional rentable space, at
no cost to Tenant.
22.6 Tenant will have the right to occasional overnight parking of
cars, trucks, and trailers in the parking spaces assigned to it.
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23. UTILITIES. Tenant shall be responsible for the payment of water, gas,
electricity, telephone and similar utility services provided to the Premises and
utilized by Tenant, all of which shall be separately metered.
23.1. Tenant and/or Tenant's telecommunication companies, including
but not limited to, local exchange telecommunication companies and
alternative access vendor service companies, shall have the right of
access to, from and within the Building (including a pathway to the
Premises) for the installation and operation of Tenant's
telecommunications systems including, but not limited to, voice, video,
data, and any other telecommunication services provided over wire, fiber
optic, microwave, wireless, and any other transmission systems, for part
or all of Tenant's telecommunications to, from and within the Building and
the Premises.
24. BUILDING OPERATION AND SERVICES. The Building will be operated as an
office building with normal business operation, Monday through Friday from 7:00
a.m. to 8:00 p.m., and Saturdays from 8:00 a.m. to 12:00 p.m. ("Normal Hours"),
except for the following legal holidays in the Commonwealth of Puerto Rico: New
Year Day (January 1st) , Three Kings Day (January 6th) , Presidents Day, Holy
Friday, Memorial Day, U.S. Independence Day (July 4th) , Puerto Rico
Constitution Day (July 25th) , Labor Day, Elections Day (election years),
Thanksgiving Day, and Christmas Day (December 25). Landlord will provide
flexible access to the Building, to the Building's parking garage, and the
Premises to Tenant's authorized personnel on a 24 hours a day, 7 days a week
basis. The following services shall be provided to the Building and/or the
Premises by Landlord:
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(i) ventilating and air conditioning to provide a reasonably
comfortable temperature and ventilation in the common areas of the
Building and air conditioning for connection to the distribution system on
the floor of the Building where the Premises are located during Normal
Hours;
(ii) water, electric, and telephone services for connection to
the distribution system for these services on the floors of the Building
where the Premises are located;
(iii) cleaning and janitorial services for the Building
excluding the Premises, of a scope, quality and frequency of such services
customarily provided by landlords of first-class office buildings in San
Xxxx, Puerto Rico;
(iv) five (5) fully automatic elevators for the use of tenants
and visitors for access to and from the floors of the Building and its
parking garage;
(v) elevator services for freight and maintenance during
Normal Hours;
(vi) twenty-four (24) hours a day, seven (7) days a week
security services to the Building and the Offices Park which shall consist
of at least one (1) security guard on duty at the entrances of the Offices
Park;
(vii) sprinkler and fire protection system for the Building
and the Premises, including regular checking testing and servicing
thereof;
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(viii) exterminating services for the Building and the
Premises, with a frequency of no less than once a month;
(ix) replacement of lighting tubes, lamp bulbs, and ballast
required in the common areas of the Building.
24.1. The services identified above shall be provided by Landlord as
part of the Building's operating expenses.
24.2. In case Landlord is prevented or delayed in furnishing any
service to be provided by Landlord to Tenant as set forth in this
Agreement for any reason or cause whether or not in Landlord's control,
Landlord shall not be liable to Tenant therefore unless the interruption
continues unremedied for a period of three (3) consecutive business days,
nor shall Tenant be entitled to any abatement or reduction in the Basic
Rent or Additional Rent by reason thereof except as provided below, nor
shall the same give rise to a claim in Tenant's favor that such absence of
Building services constitutes actual or constructive, total or partial
eviction, or renders the Premises untenantable. Landlord shall use its
best efforts to restore such service as soon as reasonably possible.
However, in the event such service is not restored within three (3)
business days, whether or not through the fault of Landlord, to the extent
that Tenant cannot reasonably use all or any part of the Premises, Basic
Rent and Additional Rent shall xxxxx as to such part effective on the
fourth (4th) business day and continue until such service is restored. If
such service is not restored within sixty (60) consecutive days of
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interruption, then Tenant shall have the right and option to cancel and
terminate this Agreement, on ten (10) days written notice to Landlord, and
thereafter shall be relieved of all further liability under this
Agreement.
25. MAINTENANCE, REPAIRS AND JANITORIAL CLEANING SERVICES BY TENANT.
Tenant shall, at its sole cost and expense, maintain, repair and provide
janitorial services to the interior of the Premises, its doorways, windows
(interior cleaning only) and walls, and keep the same in good condition and
repair, reasonable wear and tear excepted.
26. MAINTENANCE AND REPAIRS BY LANDLORD. Landlord shall be responsible for
making all repairs necessary to maintain the plumbing, the fire protection,
sprinkler and security systems, ventilating, air conditioning and electric
systems of the Building and those serving the Premises; the elevators servicing
the Building; the electric feeder lines carrying electricity to the distribution
boxes servicing each floor of the Building (but not including the cost of
maintenance and repair of the electric lines carrying electricity from the
distribution box to the Premises); external windows; and structural components
of the floors (excluding carpet, linoleum, wood, tiles or other flooring
installed by Tenant). Landlord shall be responsible for maintaining any
connections to the Building plumbing, electric and air conditioning systems, and
for making all repairs to the meters installed for measuring utility
consumption. Landlord shall not be obligated to commence any such repairs within
the Premises (other than normal air conditioning maintenance) until after
receipt of written notice from Tenant that such repair is needed. If any such
repair is caused by any act, omission or negligence of Tenant or its employees,
agents, invitees,
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licensees, subtenants, or contractors, Landlord shall have the right to make the
repair at Tenant's sole cost and expense, provided that if the damage
necessitating such repairs is covered by insurance carried by Landlord or
Tenant, the proceeds of such insurance shall be made available by Landlord, or
by Tenant, as the case may be, to cover the cost of such repairs. If Tenant
requires maintenance, servicing, repair or replacement of any special plumbing,
ventilating, air conditioning, electric, fire protection or sprinkler system
installed for the Tenant's benefit in the Premises, such as any special air
extractor equipment, whether or not such system is tied into the standard
Building systems, such maintenance, servicing, repair or replacement shall be
made by Landlord, its agents, or contractors, or, if Tenant shall so determine,
by engineers or contractors engaged by Tenant but, in either event, at the sole
expense of Tenant, unless the need for such repairs is caused solely by the
negligence or willful misconduct of Landlord, its contractors, agents or
employees. Any repairs by Landlord for Tenant's account shall be performed by
Landlord or under Landlord's supervision, and the cost of such repairs shall be
at rates competitive in the San Xxxx market for work of the same type.
26.1. Landlord shall provide regular maintenance to and service the
ventilating and air conditioning equipment servicing the Premises (for
example, without limitation, regular filter changes and fan belt
replacement). Except with regard to repair or replacement following a
casualty or an eminent domain taking, or due to the negligence or willful
misconduct of the Landlord, Tenant shall be responsible for all
maintenance, repair and replacement of any kind and nature of the
Premises, at Tenant's sole expense.
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26.2. If Landlord shall fail to commence repairs or provide
maintenance or services as required by this Agreement within ten (10) days
after notice by Tenant of needed repairs, maintenance or services, Tenant
may cause such repairs, maintenance or services to be made or provided by
others for the account of Landlord. Tenant may make or provide for the
account of Landlord such temporary emergency repairs and services as may
deemed necessary by Tenant.
27. OPERATING EXPENSES; INSURANCE AND TENANT'S REAL PROPERTY TAXES. During
the terms of this Agreement, Tenant shall pay in addition to the Basic Rent,
Tenant's proportionate share of all operating expenses, insurance and Tenant's
Real Property Taxes for each operating year (the "Additional Rent"), in
accordance with the following:
27.1. Operating expenses shall be all costs incurred by Landlord for
the operation, repair and maintenance of: (i) the common areas, parking
spaces, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, common area lighting facilities, surrounding areas to
the Offices Park, and fences and gates; (ii) trash disposal services;
(iii) tenant's directories; (iv) fire detection systems, including
sprinkler system maintenance and repair; (v) security services; (vi)
management services related to the operation of the Building; (vii) any
other service to be provided by Landlord related to the operation of the
Building; (viii) insurance premiums and deductibles over the Land and the
Building; and real property taxes for the Land and the Building.
-24-
27.2. Operating expenses shall not include any special assessment
that will have the effect of increasing the value of the Land or the
Building; repairs or other work occasioned by fire, hurricane, flooding,
windstorm or other insured casualty or hazard, to the extent that Landlord
receives proceeds of insurance therefore; any capital repairs or
improvements made by Landlord to the Land or the Building; depreciation of
the Building; brokers commissions for procuring tenants; advertising
expenses; cost of renovating rental spaces; principal or interest payments
for any financing; the cost of correcting any construction defects in the
Land or the Building; or any other expenses of Landlord not directly
related to the operation of the Land or the Building. Tenant's share of
management or administration services for the Land and Building shall not
exceed four percent (4%) of Tenant's net rental payments for the Premises.
27.3. All operating expenses shall be "net" and, for that purpose,
shall be reduced by the amount of any reimbursement or credit received or
receivable by Landlord directly related to an item of cost that is
included in operating expenses.
27.4. Not later than the Commencement Date, and the commencement of
each lease year thereafter, Landlord shall submit for the review of
Tenant, Landlord's budget of operating expenses for the Land, the Building
and the Offices Park for the next lease year (hereafter the "Proposed
Schedule of Operating Expenses").
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27.5. Tenant's proportionate share of operating expenses for the
Land and Building shall be calculated by dividing the total number of
rentable square feet in the Premises by the total number of square feet of
rentable space in the Building, and multiplying this result by the
operating expenses per rentable square feet reflected in the Proposed
Schedule of Operating Expenses for the Land and the Building.
27.6. Tenant's proportionate share of operating expenses for the
Offices Park shall be calculated by dividing the total number of rentable
square feet in the Premises by the total number of square feet of rentable
space in the Offices Park, and multiplying this result by the operating
expenses per rentable square feet reflected in the Proposed Schedule of
Operating Expenses for the Offices Park.
27.7. Tenant's Additional Rent shall be payable by Tenant in
advance, in twelve equal monthly installments, together with the payment
of Basic Rent.
27.8. Not later than forty-five (45) calendar days after the close
of each calendar year, Landlord shall submit for the review and approval
of Tenant a schedule of actual operating expenses incurred by Landlord in
connection with the operation of the Land, the Building, and the Offices
Park (hereafter the "Schedule of Actual Operating Expenses") for the
immediately preceding calendar year. Tenant shall have access to the books
and records of Landlord pertaining to the Schedule of Operating Expenses,
and the right to audit, review and copy such books and records for the
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calendar year in question, except in case of fraud in which the term will
be extended for an additional three (3) years. Any differences between the
Proposed Scheduled of Operating Expenses and the Actual Schedule of
Operating Expenses shall be promptly paid by Tenant or credited by
Landlord, as the case may be.
27.9. Notwithstanding any provision herein above contained to the
contrary, for the first three (3) years of the Initial Term, the operating
expenses per rentable square foot shall be $5.50 plus Tenant's
proportionate share of the insurance costs for the Building and the Land,
provided however, that the operating expenses for the first three (3)
years of the Initial Term are subject to increase only with respect to (i)
security and payroll in the event of a Federal Minimum Wage increase and
(ii) an increase in the Building's utilities costs exceeding 10% of the
rates in effect on the Commencement Date.
27.10. Notwithstanding the provisions of this paragraph 27, it is
hereby understood and agreed that, excluding any increases in real
property taxes and insurance expenses, increases with respect to operating
expenses payable by Tenant hereunder shall never exceed 3% from one
calendar year to the next commencing with the fourth (4th) lease year of
the Initial Term. In computing the 3% limitation referred to above,
increases in the cost of service provided by third party contractors and
increases in utilities costs in excess of 10% shall be excluded.
28. RIGHT OF ENTRY TO REPAIR. Landlord shall have the right to enter the
Premises from time to time to inspect or to
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make repairs and maintenance. Except for the event of an emergency threatening
bodily injury or substantial property damage, such inspections, repairs, and
maintenance shall be performed with prior reasonable notice to Tenant, in such
reasonable manner and at such reasonable times as shall not interfere with
Tenant's business operations. In exercising its right of entry, Landlord, its
agents and employees shall comply with all rules and regulations as Tenant may
have implemented and notified to Landlord.
29. ENVIRONMENTAL MATTERS. Landlord covenants, warrants, and represents
that the Premises, the Building, and the Land will be free of any friable
asbestos containing materials.
Landlord covenants, warrants, and represents that to the best of its
knowledge, after thorough investigation, the Premises, the Building, and the
Land do not (or will not) contain any environmental contaminants ("toxic
contamination") of any kind (including PCBs, except for PCBs that are totally
contained within light fixtures and exterior transformers) and will not have a
magnetic flux density ("MFD") level greater than 10 milliGauss in any one
location, nor an average MFD level greater than 5 milliGauss throughout the
Premises. At any time during the term of this Agreement, Tenant shall have the
right and option to investigate the Building and the Premises for the presence
of asbestos and PCBs and MFD levels and to investigate the Land for the presence
of toxic contaminants.
Landlord covenants, represents, and warrants that all common areas
and Building systems shall be maintained in such a way as to keep airborne
concentrations of the spores and other
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by-products of toxic or hazardous molds and other biota to levels that will not
be injurious to human health.
Landlord agrees to indemnify and hold Tenant harmless from any and
all damages, losses, expenses (including reasonable attorneys' fees), claims or
actions related to or arising out of any subsequent discovery of friable
asbestos or toxic contamination at the Premises, the Building or the Land (but
excluding Tenant's Improvements.) In the event of such a finding, or in the
event of any breach of a covenant, warranty or representation by Landlord under
this paragraph, in addition to all other rights and remedies available by
Tenant, Tenant shall have the option of terminating this Agreement without
penalty of any kind and be released from any liability under the Agreement after
the date of such termination.
29.1. Tenant agrees to indemnify, defend, and hold harmless
Landlord, its employees, agents, officers, directors, and assigns from any
and all claims, liabilities, costs (including reasonable attorney's fees),
and damages out of Tenant's use of the Premises for the release,
threatened release, storage, generation, transportation, reclamation,
recycling or disposal of any hazardous waste, toxic substance, or any
other regulated substance. Such indemnification shall require Tenant to
remedy at Tenant's sole cost and expense any release or threatened release
of hazardous waste or any regulated substance and shall require Tenant to
comply with all federal and local statutes, rules, regulations,
ordinances, orders and permits applicable to hazardous waste, toxic
substance, or any other regulated substance.
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30. INSURANCE BY LANDLORD. Landlord shall, at all times during the term of
this Agreement and any extension thereof, at Landlord's own cost and expense,
procure and continue in force insurance coverage: (i) for loss or damage to the
Land and the Building, including the Premises (other than Tenant's
Improvements), in the amount of the replacement value, providing protection
against all perils included within the classification of fire, standard extended
coverage, including vandalism and malicious mischief, earthquake, collapse and
sprinkler leakage; and (ii) for bodily injury liability and property damage
liability insurance coverage in an amount of not less than $3,000,000 for injury
or death to any person or for damage to property arising from any one
occurrence. Upon completion of all construction work Landlord and Tenant shall
determine whether or not it is advisable to procure flood insurance and, if so,
set adequate limits of coverage for said peril.
30.1. For purposes of Landlord obtaining the required insurance
coverage, Tenant shall notify Landlord of the cost of Tenant's
Improvements, not later than thirty (30) days after their completion date.
31. INSURANCE BY TENANT. Tenant shall, at all times during the term of
this Agreement and any extension thereof, at Tenant's own cost and expense,
procure and continue in force insurance coverage for: (i) loss or damage to
Tenant's Improvements; (ii) loss or damage to Tenant's personal property
including furniture, fixtures and equipment providing protection against all
perils included within the classification of fire, standard extended coverage,
including vandalism and malicious mischief, earthquake, and sprinkler leakage;
and (iii) bodily injury liability and property damage liability insurance
coverage in an
-30-
amount of not less than $3,000,000 for injury or death to any person or for
damage to property arising from any one occurrence. Landlord shall be named as
additional insured under such policies, and all such policies shall provide for
payment for loss thereunder to Tenant or Landlord, as their interest may
appear.
32. INSURANCE POLICIES. All insurance policies shall be with insurance
companies licensed to do business in the Commonwealth of Puerto Rico. Each party
shall furnish to the other the corresponding certificates of insurance upon
reasonable request. No such policy shall be cancelable or subject to reduction
of coverage or to any other modification materially affecting coverage except
after thirty (30) days prior written notice to the party named as an additional
insured. Renewal premiums on such insurance shall be paid not less than ten (10)
days prior to expiration of such insurance and the insuring party shall deliver
evidence of such renewal to the other party.
32.1. If either party shall fail to procure and maintain the
required insurance coverage, the other may, but shall not be required to,
procure and maintain the same at the expense of the other party.
32.2. Each party shall cooperate with the other in collecting any
insurance proceeds due, and shall execute, acknowledge and deliver proofs
of loss and other instruments facilitating such collection.
33. LEASE AGREEMENTS PRESENTLY IN EFFECT. Tenant and Landlord are parties
to the following lease agreements in effect on the date of execution of this
Agreement: POP IV (1) dated
-31-
January 29, 1999; POP IV(2), dated December l, 1999; POP V (offices) dated April
3, 2001; and POP V (Bank Branch) dated November 9, 2000 (the "Present Leases")
33.1 In consideration for entering into this Agreement, Tenant and
Landlord have agreed as follows with respect to the Present Leases:
a. All of Tenant's obligations under the Present Leases shall
cease and terminate on the Commencement Date, except with respect to the
Bank Branch; and
b. Except with respect to the Bank Branch, the Basic Rent
under the Present Leases in effect on the date of execution of this
Agreement shall be the applicable Basic Rent for all of the spaces under
the Present Leases to the date of termination of the Present Leases as
provided in a. above.
34. DAMAGE OR DESTRUCTION. If the Land, the Building or the Premises are
damaged or destroyed by fire or other casualty insurable under the terms of this
Agreement, Landlord shall promptly repair, replace or rebuild the same. Tenant
shall cooperate with Landlord in processing any insurance claims.
34.1. In the event of such repair, replacement or rebuilding, rent
shall be abated in proportion to the extent to which Tenant is deprived of
the use and occupancy of the Premises. The full rent shall again become
payable after the completion of such repair, replacement or rebuilding.
-32-
34.2. If the Land or the Building is damaged or destroyed to the
extent that Tenant cannot reasonably continue to use and occupy the
Premises and it will take more than ninety (90) days from the date of the
casualty to repair, replace or rebuild, or if Landlord does not repair,
replace or rebuild within ninety (90) days from the date of the casualty,
then Tenant at its option may terminate this Agreement, effective as of
the date of the occurrence of such damage or destruction. In the event
that Tenant elects to terminate this Agreement pursuant to the provisions
of this paragraph 34.2, Tenant shall have no other remedy, nor any further
claims against Landlord, for Landlord's failure to repair, replace or
rebuild the Land or the Building, unless such damage or destruction was
caused by a negligent act or omission of Landlord, or by those for which
Landlord is responsible for at law.
35. CONDEMNATION. In the event that the whole of the Land or the Building
shall be condemned or taken in any manner for any public or quasi-public use,
this Agreement shall forthwith cease and terminate as of the date of vesting of
title in the condemning authority. In the event that only a part of the Land or
the Building shall be so condemned or taken then, effective as of the date of
such vesting of title, the rent hereunder for such part shall be equitably
abated and this Agreement shall continue unaffected as to such part not so
taken, unless terminated as hereafter provided.
35.1. If only a part of the Land or the Building shall be so
condemned or taken and after Tenant and Landlord come to an agreement that
the remaining part is inadequate for the continued use of the Premises by
Tenant, then Tenant
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may, at its option, terminate this Agreement effective as of the date of
such vesting of title.
35.2. If only a part of the Land or Building shall be so condemned
or taken and this Agreement is not terminated as provided herein, Landlord
shall, at its expense, restore with all due diligence the remaining
portions of the Land and Building, as nearly as practicable to the same
condition as they were in prior to such condemnation or taking. If such
restoration shall not be effected within ninety (90) days after the
vesting of title to the portion of the Land or Building taken, Tenant
shall have the right to terminate this Agreement effective as of the date
of such vesting of title.
35.3. All compensation awarded for any such taking or conveyance,
whether for the whole or a part of the leased premises, shall go to and
shall be the sole property of Landlord, whether such damages shall be
awarded as compensation for the unexpired portion of, or diminution in the
value of, the leasehold or for compensation, or damages to the leased
premises or otherwise; and the tenant hereby assigns to Landlord all of
Tenant's right, title and interest in and to any and all such compensation
provided, however, that nothing herein contained shall be construed to
preclude Tenant from prosecuting any claim directly against the condemning
authority, but not against Landlord, for Tenant's relocation and moving
expense, provided further that no such claim shall diminish or otherwise
affect Landlord's real estate property award.
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36. QUIET ENJOYMENT. Tenant's right to quiet enjoyment of the Premises
shall not be disturbed in any respect by Landlord or his successor, transferees
and assigns if Tenant is not in default. In the event Landlord shall sell,
transfer or encumber all or any portion of the Land or the Building, or its
leasehold interest by operation of law, foreclosure or otherwise, or if the
premises become subject to the jurisdiction of the bankruptcy court, then it
shall be deemed and construed without further agreement that Tenant shall be
promptly notified, and that any assignee, transferee, successor, buyer, or third
party, including any person appointed by such bankruptcy court has reaffirmed
this Agreement, attorney Tenant, and assumed and agreed to take subject to this
Agreement and agreed to carry out all covenants, terms and conditions of this
Agreement.
37. DEFAULT BY TENANT. The occurrence of any one of the following events
shall constitute a material default and breach of this Agreement by Tenant: (i)
the abandonment of the Premises; (ii) failure to make any monthly installment of
rent or any other payment when and as due and such failure shall continue for a
period of thirty (30) days after written notice to Tenant; or (iii) failure to
observe or perform any of the covenants, conditions or provisions of this
Agreement, where such failure shall continue for a period of sixty (60) days
after written notice from Landlord, provided, however, that Tenant shall not be
deemed to be in default if Tenant commenced such cure within said sixty (60)
days period and thereafter diligently pursues such cure to completion; or (iv)
the making by Tenant of any general assignment or general arrangement for the
benefit of creditors, or the filing by or for reorganization or arrangement
under any law relating to bankruptcy, or the appointment of a trustee or
receiver to take possession of substantially all of Tenant's
-35-
assets or of Tenant's interest in this Agreement, or the attachment, execution
or other judicial seizure of substantially all of the Tenant's assets interest
in this Agreement, unless any such action is dismissed or discharged within
ninety (90) days.
37.1. In the event of any such material default or breach by Tenant,
Landlord may at any time thereafter, with notice and demand and without
limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default or breach: (i) terminate the Lease
Agreement and Tenant's right to possession of the Premises by any lawful
means, in which case Tenant shall after notice and demand surrender
possession of the Premises; and (ii) pursue any other remedy now or
hereafter available to Landlord under the Lease Agreement or by law.
37.2. Should Landlord terminate this Agreement for default, in
addition to any other remedies Landlord may have, Landlord may recover
from Tenant all damages suffered by reason of such default, including the
cost of recovering and reletting the Premises and reasonable attorney's
fees.
38. DEFAULT BY LANDLORD. Landlord shall be in default if Landlord fails in
the observance or performance of any of Landlord's covenants, conditions,
agreements or obligations contained in the Lease Agreement and such failure
continues for a period of sixty (60) days after notice from Tenant.
38.1. In the event Landlord is in default of any payment or other
obligation to a third party, including any tax payments owed on the Land
or the Building, and such default may place in jeopardy Landlord's
interest over the
-36-
Land, the Building or this Agreement, or may place in jeopardy Tenant's
rights under this Agreement, Landlord shall timely notify Tenant of such
default, and Tenant shall have the right, but not the obligation, to cure
Landlord's default, and the right to collect from Landlord the amount of
any payment made or reasonable expenses incurred for Landlord.
38.2. Tenant may recover from Landlord all damages incurred by
Tenant by reason of Landlord's default, including reasonable attorney's
fees, and may pursue any other remedy available under this Agreement or by
law.
39. RECORDATION OF LEASE. This Agreement shall be recordable in the
appropriate Registry of Property, as a lien. Tenant shall pay all expenses
related to the execution and recordation of the public deed containing the terms
and conditions of this Agreement. Landlord shall execute all such documents as
may be necessary to obtain such recordation. Tenant shall pay for all expenses
related to the cancellation of the lease and its recordation in the Registry of
Property.
40. NOTICES. Any notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including
telefax and e-mail communications) and shall be (as elected by the person giving
the notice) hand delivered by messenger or courier service, telecommunicated, or
mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, at the respective addresses of each party
set forth below:
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If to Landlord, to
Professional Offices Park V, Inc.
attention: Xxxxxxx Xxxx del Xxxxxx
X.X. Xxx 00000
Xxx Xxxx, Xxxxxx Xxxx 00000-0000, or
XXX@xxxxxxxxxxxxxxxxxxxxxx.xxx
If to Tenant, to
Oriental Group
attention: Xxxxxxxx Xxxxxxxx
X.X. Xxx 000000
Xxx Xxxx, Xxxxxx Xxxx, 00000-0000, or
XXXXXXXXXX@xxxxxxxxxx.xxx
With copies to:
Xxxxxx Xxxx
XX Xxx 000000
Xxx Xxxx, Xxxxxx Xxxx 00000-0000, or
XXXXX@xxxxxxxxxx.xxx, and
Xxxxxx X. Xxxxxxxxx
XxXxxxxxx Xxxxxx
X.X. Xxx 000000
Xxx Xxxx, Xxxxxx Xxxx 00000-0000, or
XXX@xxxxx.xxx
Each such notice shall be deemed delivered (i) on the date delivered
receipt acknowledged if by personal delivery, (ii) on the date of transmission
with confirmed answer back if by telefax, or (iii) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
By giving to the other party at least fifteen (15) days prior
written notice thereof, such party and its permitted successors and assigns
shall have the right from time to time and at any time during the term of this
Agreement to change their respective addresses.
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41. RESERVED.
42. SURRENDER. Upon expiration or sooner termination of this Agreement,
Tenant shall surrender the Premises to Landlord, including all improvements and
additions constructed or placed by Tenant thereon, except Tenant's trade
fixtures, equipment and other movable property, broom clean, free of
subtenancies, and in good condition and repair, reasonable wear and tear, damage
by fire or other casualty and other conditions not the responsibility or
obligation of Tenant to repair or replace excepted.
42.1. Any trade fixtures, equipment or personal property of Tenant
or to any subtenant, not removed shall be deemed abandoned and become the
property of Landlord without any payment or offset therefore. Or, if
Landlord shall elect, Landlord may remove such fixtures, equipment or
property from the Premises and store them at Tenant's risk and expense.
Tenant shall repair and restore, and save Landlord harmless from, all
damage to the Premises caused by such removal, whether by Tenant or by
Landlord.
43. HOLDING OVER. If Tenant remains in possession of the Premises or any
part thereof after the expiration or termination of the Third Extended Term of
this Agreement without the express written consent of Landlord, such occupancy
shall be a tenancy from month to month at a rental per square foot of 15% over
the last monthly rental plus all other charges payable hereunder, and upon all
the terms hereof applicable to a month-to-month tenancy. Notwithstanding, such
holding over by Tenant shall in no event exceed ninety (90) days.
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44. ASSIGNMENT AND SUBLETTING. Tenant may not assign or transfer the Lease
Agreement or sublet the Premises either in whole or in part without Landlord's
prior written consent, which consent shall not be unreasonably withheld, delayed
or conditioned.
44.1 Notwithstanding anything to the contrary provided above, Tenant
shall have the right, without obtaining Landlord's consent to assign its
interest in or sublet the Premises or any part thereof at any time during
the lease term, to any parent, subsidiary or affiliate corporation or
entity of Tenant; or to the surviving corporation or entity (the
"Surviving Entity") in connection with a merger, consolidation,
amalgamation or acquisition involving tenant or any of its parents,
affiliates or subsidiaries; nor shall any such consent be required in the
case of an assignment or sublease to any person, firm or corporation, or
any group or combination thereof, who is acquiring all or most of the
assets of Tenant, provided that the acquirer undertakes in writing to
respect the lease Agreement. In addition, the following shall not be
deemed to be an assignment by Tenant of this Agreement: (i) the sale or
offering for sale to the public, either pursuant to a public or private
offering, of the stock of Tenant or its parent entity or of new stock of
Tenant or its parent entity; (ii) the sale or transfer of stock by any
stockholders of tenant or its parent entity either through or over a
recognized exchange or over-the-counter or privately, and (iii) the sale
or transfer of stock pursuant to a will, trust or by gift or devise.
Tenant covenants to advise Landlord of the occurrence of any such event.
In connection with any assignment of this Agreement to a Surviving Entity,
-40-
effective as of the date of such assignment, tenant shall be released from
all liability under this Agreement, provided that the Surviving Entity
assumes all of Tenant's obligation hereunder and agrees to perform all of
the obligations of Tenant under this Agreement and that Landlord has
consented in writing to such release of Tenant from liability under this
Lease Agreement, which consent shall not be unreasonably withheld, delayed
or conditioned.
44.2 Tenant's request for Landlord's consent shall be in writing and
contain the name, address, and description of the business of the proposed
assignee or subtenant, its most recent financial statement and other
evidence of financial responsibility and a copy of the proposed sublease
or assignment.
44.3 Within thirty (30) days from receipt of such request that
includes the information described in Paragraph 44.2 above, Landlord shall
grant or refuse its consent to the proposed assignment, provided, however,
that if Landlord shall not notify Tenant to the contrary within said
thirty (30) day period, Landlord shall be deemed to have consented to such
assignment or sublease.
45. INDEMNITY. Tenant and Landlord shall promptly and mutually indemnify
and save each other harmless and their agents, servants and employees against
and from any and all liability, fines, suits, claims, demands, expenses and
actions arising by reason of injury to persons or property or violation of any
law or ordinance occurring in the Premises, caused in whole or in part by any
act or omission on the part of the Tenant or Landlord, or their employees
(whether or not acting within the
-41-
scope of employment) servants, agents, licensees, visitors, assigns or tenants
or by any use or occupancy of the Premises or any breach, violation or non
performance of any covenant in this Agreement on their part to be observed or
performed.
46. BROKERS. Landlord represents and warrants that Landlord did not engage
or deal with any real estate broker in connection with this Agreement. Tenant
represents and warrants that Tenant did not engage or deal with any real estate
broker in connection with this Agreement. Landlord agrees to save and hold
harmless Tenant of and from any brokerage commission or finder's fee claimed
with respect to the Agreement, any extension or renewal thereof, any purchase of
the Land or the Building by Tenant pursuant to its rights hereunder.
47. CONSENT NOT UNREASONABLY WITHHELD. Whenever the consent or approval of
Landlord or Tenant is required or requested, such consent or approval shall not
be unreasonably withheld or delayed.
48. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Puerto Rico. The invalidity or unenforceability of any provision
of this Agreement shall not affect or impair any other provision.
49. CUMULATIVE RIGHTS. The failure of any of the parties to insist upon a
strict performance of any term or condition of this Agreement shall not be a
waiver of any right or remedy, or a waiver of any subsequent breach of such term
or condition.
49.1 All rights and remedies of the parties are cumulative. The
exercise of one or more rights or remedies
-42-
shall not exclude or waive the right to exercise any other. All such
rights and remedies may be exercised and enforced concurrently and
whenever and as often as the parties deems necessary. The rights and
remedies of the parties are in addition to those available as a matter of
law.
50. SUCCESSORS AND ASSIGNS. The covenants, terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors, and assigns.
51. ENTIRE AGREEMENT. This Agreement supersedes and cancels any and all
previous negotiations, arrangements, understandings, agreements,
representations, and warranties, if any, between the parties, and none thereof
shall be used to interpret or construe this Agreement. This Agreement may not be
changed or modified except by agreement in writing executed by the parties.
52. SEVERABILITY. The invalidity of any provision of this Agreement as
determined by a court of competent jurisdiction shall not affect the validity of
any other provision.
Executed in San Xxxx, Puerto Rico, on the date first written above.
PROFESSIONAL OFFICES PARK V, INC. ORIENTAL FINANCIAL GROUP, INC.
/s/ Xxxxxxx Xxxx del Corral /s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxx Xxxx del Corral Xxxxxxxx Xxxxxxxx
President Executive Vice President
