EXHIBIT 10.4
PLAZA IV ASSOCIATES, LTD.
A FLORIDA PARTNERSHIP
AND
LIQUIDMETAL TECHNOLOGIES, INC.
LEASE INDEX
NO. ITEM PAGE
--- ---- ----
1. DEFINITIONS............................................................1
2. PREMISES AND TERM......................................................4
3. RENT...................................................................6
4. REAL ESTATE TAXES ADJUSTMENTS..........................................7
5. OPERATING EXPENSE AND UTILITY ADJUSTMENTS..............................7
6. USE OF PREMISES.......................................................11
7. ASSIGNMENT AND SUBLETTING.............................................11
8. ACCESS TO PREMISES....................................................13
9. LANDLORD'S SERVICES...................................................13
10. ELECTRICAL OVERLOAD; STRUCTURAL OVERLOAD..............................15
11. PARKING AREAS AND COMMON AREAS........................................16
12. LEASEHOLD IMPROVEMENTS................................................16
13. REPAIRS AND MAINTENANCE...............................................17
14. ALTERATIONS AND IMPROVEMENTS..........................................17
15. INDEMNITY.............................................................18
16. DAMAGE BY FIRE OR THE ELEMENTS........................................18
17. BUILDING RULES AND REGULATIONS........................................19
18. EMINENT DOMAIN........................................................19
19. SIGNS AND ADVERTISING.................................................19
20. TENANT'S DEFAULT......................................................20
21. INTENTIONALLY OMITTED.................................................23
22. SUBORDINATION AND ATTORNMENT..........................................24
23. QUIET ENJOYMENT.......................................................24
24. DEPOSIT...............................................................25
25. MECHANIC'S LIENS......................................................25
26. FORCE MAJEURE.........................................................25
27. SEVERABILITY..........................................................25
28. HOLDING OVER..........................................................25
29. INTENTIONALLY OMITTED.................................................26
30. RENT A SEPARATE COVENANT..............................................26
31. INTENTIONALLY OMITTED.................................................25
32. ABSENCE OF OPTION.....................................................26
33. CORPORATE TENANCY.....................................................26
34. BROKERAGE COMMISSION..................................................27
35. LANDLORD'S DEFAULT....................................................27
36. NOTICES...............................................................27
37. INSURANCE.............................................................28
NO. ITEM PAGE
--- ---- ----
38. RECORDING.............................................................29
39. STATUTORILY MANDATED NOTIFICATION.....................................29
40. NON-DISCLOSURE........................................................29
41. HAZARDOUS MATERIALS...................................................29
42. UTILITY DEREGULATION..................................................30
43. LEASE INTERPRETATION..................................................31
44. IMPROVEMENT ALLOWANCE.................................................31
45. OPTION TO EXPAND......................................................32
46. TELECOMMUNICATIONS SERVICE PROVIDER...................................34
47. OPTION(S) TO EXTEND...................................................34
48. AMENDMENTS............................................................35
SIGNATURE PAGE........................................................36
EXHIBIT(S)
BUILDING RULES AND REGULATIONS
LEASE
THIS LEASE AGREEMENT ("Lease") is made AS OF THE 4th day of October,
2001, by and between the "Landlord" and the "Tenant" hereafter set forth.
WITNESSETH:
1. DEFINITIONS.
(a) "Landlord": PLAZA IV ASSOCIATES, LTD., A Florida
Limited Partnership
Address: Suite 3160
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
(b) "Tenant": LIQUIDMETAL TECHNOLOGIES, INC.
Address: Suite 3150
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(c) "Premises": Suite Nos. 3150, 3160 and 3170, consisting of a
total of approximately 13,828 square feet of net rentable area
(which the parties expressly and irrevocably agree are
contained in the Premises), as outlined in red on the attached
Exhibit "A" expressly made a part hereof. The Premises are
located on the 31st floor of the structure, hereinafter called
the "Building," located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx, XX
00000. Landlord reserves the sole and exclusive right, at any
time and from time to time, to name and re-name the Building.
The parties expressly and irrevocably agree that there are
13,828 rentable square feet within the Premises and 552,080
rentable square feet within the Building, despite the fact
that such figures may not be actually correct. For the
purposes of Items 1 (i), 1 (j), 4 and 5 (only) of this Lease,
the term "Building" includes its appurtenances, to include its
parking facilities.
AS DESCRIBED ABOVE, THE PREMISES CONSIST OF THREE INCREMENTS
OF SPACE:
(1) SUITE 3150 ("SUITE 3150"), CONSISTING OF
APPROXIMATELY 8,136 SQUARE FEET OF NET RENTABLE AREA
(WHICH THE PARTIES EXPRESSLY AND IRREVOCABLY AGREE
ARE CONTAINED IN SUITE 3150), AS OUTLINED IN BLUE ON
THE ATTACHED EXHIBIT "A-1" EXPRESSLY MADE A PART
HEREOF.
(2) SUITE 3160 ("SUITE 3160"), CONSISTING OF
APPROXIMATELY 2,385 SQUARE FEET OF NET RENTABLE AREA
(WHICH THE PARTIES EXPRESSLY AND IRREVOCABLY AGREE
ARE CONTAINED IN SUITE 3160), AS OUTLINED IN YELLOW
ON SAID EXHIBIT "A-1."
(3) SUITE 3170 ("SUITE 3170"), CONSISTING OF
APPROXIMATELY 3,307 SQUARE FEET OF NET RENTABLE AREA
(WHICH THE PARTIES EXPRESSLY AND IRREVOCABLY AGREE
ARE CONTAINED IN SUITE 3170), AS OUTLINED IN IN
ORANGE ON SAID EXHIBIT "A-1".
(d) "Use of Premises": AS CORPORATE OFFICES.
1
(e) "THE SUITE 3150 COMMENCEMENT DATE" IS AND SHALL BE THE LATER
OF NOVEMBER 1, 2001 ("THE ANTICIPATED SUITE 3150 COMMENCEMENT
DATE") OR, SUBJECT TO THE OTHER CONTENTS OF THIS LEASE (TO
INCLUDE EXHIBIT "B"), THE DATE LANDLORD CAN DELIVER TO TENANT
POSSESSION OF SUITE 3150. IF, HOWEVER, AND NOTWITHSTANDING ANY
STATEMENT OR IMPLICATION TO THE CONTRARY WITHIN ITEM 2 OF THIS
LEASE, TENANT TAKES POSSESSION OF SUITE 3150 [OR ANY
PORTION(S) THEREOF] FOR THE CONDUCT OF ITS BUSINESS THEREFROM
PRIOR TO THE ANTICIPATED SUITE 3150 COMMENCEMENT DATE, THEN
THE DATE TENANT SO TAKES POSSESSION SHALL BE THE SUITE 3150
COMMENCEMENT DATE. UNLESS OTHERWISE PROVIDED IN THIS LEASE,
THE TERM "THE SUITE 3150 COMMENCEMENT DATE" IS AND SHALL BE
SYNONYMOUS WITH THE TERM "THE COMMENCEMENT DATE."
"THE SUITE 3160 COMMENCEMENT DATE" IS AND SHALL BE THE LATER
OF DECEMBER 1, 2001 ("THE ANTICIPATED SUITE 3160 COMMENCEMENT
DATE") OR, SUBJECT TO THE OTHER CONTENTS OF THIS LEASE (TO
INCLUDE EXHIBIT "B"), THE DATE LANDLORD CAN DELIVER TO TENANT
POSSESSION OF SUITE 3160. IF, HOWEVER, AND NOTWITHSTANDING ANY
STATEMENT OR IMPLICATION TO THE CONTRARY WITHIN ITEM 2 OF THIS
LEASE, TENANT TAKES POSSESSION OF SUITE 3160 [OR ANY
PORTION(S) THEREOF] FOR THE CONDUCT OF ITS BUSINESS THEREFROM
PRIOR TO THE ANTICIPATED SUITE 3160 COMMENCEMENT DATE, THEN
THE DATE TENANT SO TAKES POSSESSION SHALL BE THE SUITE 3160
COMMENCEMENT DATE.
"THE SUITE 3170 COMMENCEMENT DATE" IS AND SHALL BE THE LATER
OF JANUARY 1, 2002 ("THE ANTICIPATED SUITE 3170 COMMENCEMENT
DATE"), OR, SUBJECT TO THE OTHER CONTENTS OF THIS LEASE (TO
INCLUDE EXHIBIT "B"), THE DATE LANDLORD CAN DELIVER TO TENANT
POSSESSION OF SUITE 3170. IF, HOWEVER, AND NOTWITHSTANDING ANY
STATEMENT OR IMPLICATION TO THE CONTRARY WITHIN ITEM 2 OF THIS
LEASE, TENANT TAKES POSSESSION OF SUITE 3170 [OR ANY
PORTION(S) THEREOF] FOR THE CONDUCT OF ITS BUSINESS THEREFROM
PRIOR TO THE ANTICIPATED SUITE 3170 COMMENCEMENT DATE, THEN
THE DATE TENANT SO TAKES POSSESSION SHALL BE THE SUITE 3170
COMMENCEMENT DATE.
(f) "THE SUITE 3150 TERM" IS AND SHALL BE FOR A PERIOD OF NOT LESS
THAN SIXTY-TWO (62) MONTHS, BEGINNING ON THE SUITE 3150
COMMENCEMENT DATE AND, SUBJECT TO THE FINAL THREE PARAGRAPHS
OF ITEM 2 BELOW, ENDING AT MIDNIGHT ON THE LAST CALENDAR DAY
OF THE SIXTY-SECOND (62ND) FULL CALENDAR MONTH FOLLOWING THE
SUITE 3150 COMMENCEMENT DATE. UNLESS OTHERWISE PROVIDED IN
THIS LEASE, THE TERM "THE SUITE 3150 TERM" IS AND SHALL BE
SYNONYMOUS WITH THE TERM "THE TERM."
"THE SUITE 3160 TERM" IS AND SHALL BE FOR A PERIOD BEGINNING
ON THE SUITE 3160 COMMENCEMENT DATE AND, SUBJECT TO THE FINAL
THREE PARAGRAPHS OF ITEM 2 BELOW, ENDING AT MIDNIGHT ON THE
LAST CALENDAR DAY OF THE SIXTY-SECOND (62ND) FULL CALENDAR
MONTH FOLLOWING THE SUITE 3150 COMMENCEMENT DATE (WHEREUPON
AND WHEREBY THE SUITE 3150 TERM AND THE SUITE 3160 TERM WILL
BE COTERMINOUS).
"THE SUITE 3170 TERM" IS AND SHALL BE FOR A PERIOD BEGINNING
ON THE SUITE 3170 COMMENCEMENT DATE AND, SUBJECT TO THE FINAL
THREE PARAGRAPHS OF ITEM 2 BELOW, ENDING AT MIDNIGHT ON THE
LAST CALENDAR DAY OF THE SIXTY-SECOND (62ND) FULL CALENDAR
MONTH FOLLOWING THE SUITE 3150 COMMENCEMENT DATE (WHEREUPON
AND WHEREBY THE SUITE 3150 TERM AND THE SUITE 3170 TERM WILL
BE COTERMINOUS).
2
(G) "RENT": SUBJECT TO THE OTHER CONTENTS OF THIS ITEM 1 (G), AND
LIKEWISE SUBJECT TO ITEM 3 OF THIS LEASE, TENANT, BEGINNING
WITH THE COMMENCEMENT DATE AND CONTINUING FOR THE BALANCE OF
THE TERM, SHALL, AS REGARD THE PREMISES, PAY TO LANDLORD BASE
RENT IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:
MONTHS MONTHLY BASE RENT* **
------ ---------------------
SUITE 3150 COMMENCEMENT DATE $14,407.50**
UNTIL DAY BEFORE SUITE 3160
COMMENCEMENT DATE
SUITE 3160 COMMENCEMENT DATE $18,630.94
UNTIL DAY BEFORE SUITE 3170
COMMENCEMENT DATE
SUITE 3170 COMMENCEMENT DATE $24,487.08
UNTIL THE END OF THE FIRST TWELVE
MONTHS OF THE TERM
13 - 24 $25,351.33
25 - 36 $26,215.58
37 - 48 $27,079.83
49 - END OF TERM $27,944.08
*PARTIAL CALENDAR MONTHS SHALL BE PRO-RATED BASED UPON THE
NUMBER OF CALENDAR DAYS WITHIN THE PARTICULARLY APPLICABLE
CALENDAR MONTH(S).
**TENANT SHALL PAY LANDLORD, UPON TENANT'S EXECUTION OF THIS
LEASE AND AS ADVANCE BASE RENT, THE SUM OF $26,201.18
(INCLUSIVE OF APPLICABLE TAX), WHICH SUM REPRESENTS THE FIRST
INCREMENT OF MONTHLY BASE RENT DUE AS REGARD THE ENTIRE
PREMISES UPON THE SUITE 3170 COMMENCEMENT DATE. THEN (I.E.,
FOLLOWING SAID PAYMENT, AND NOTWITHSTANDING THE CONTENTS OF
THE FOREGOING SCHEDULE) TENANT, AS REGARDS SUITE 3150, SHALL
NOT BE OBLIGATED TO PAY LANDLORD ANY BASE RENT DURING THE
SECOND AND THIRD MONTHS (MEASURED FROM THE SUITE 3150
COMMENCEMENT DATE AND NOT NECESSARILY ENDING ON THE FINAL DAY
OF A CALENDAR MONTH) OF THE SUITE 3150 TERM. LIKEWISE,
FOLLOWING SAID PAYMENT OF SAID $26,201.18, AND NOTWITHSTANDING
THE CONTENTS OF THE FOREGOING SCHEDULE, TENANT, AS REGARDS
SUITE 3160, SHALL NOT BE OBLIGATED TO PAY LANDLORD ANY BASE
RENT DURING THE SECOND AND THIRD MONTHS (MEASURED FROM THE
SUITE 3160 COMMENCEMENT DATE AND NOT NECESSARILY ENDING ON THE
FINAL DAY OF A CALENDAR MONTH) OF THE SUITE 3160 TERM.
FURTHERMORE, TENANT SHALL RECEIVE A BASE RENT CREDIT OF
$5,856.15 PER MONTH (TO BE UTILIZED BY TENANT MONTHLY AND NOT
CUMULATIVELY) DURING THE FIRST FOUR MONTHS OF THE SUITE 3170
TERM. See also Item 3. Rent and all other sums payable by
Tenant to Landlord under this Lease, plus any applicable tax,
shall be paid to Landlord, without demand, recoupment,
abatement, deduction or offset, at its office presently
located at Suite 3160, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx,
XX 00000, or at such other place(s) as Landlord may hereafter
AT ANY TIME AND FROM TIME TO TIME specify in writing.
(h) "Security Deposit": NONE; NOT APPLICABLE.
(i) "Operating Expense and Utility Base": THE OPERATING EXPENSES
AND UTILITY COSTS (SEE ITEM 5 BELOW FOR DEFINITIONS) ACTUALLY
INCURRED (ON A PER NET
3
RENTABLE SQUARE FOOT PER ANNUM BASIS) FOR THE OPERATION OF THE
BUILDING AND ITS APPURTENANCES FOR THE CALENDAR YEAR 2002,
ADJUSTED TO REFLECT THE AMOUNT OF OPERATING EXPENSES AND
UTILITY COSTS THAT WOULD HAVE BEEN INCURRED HAD THE BUILDING
BEEN ONE HUNDRED PERCENT (100%) OCCUPIED THROUGHOUT THE ENTIRE
CALENDAR YEAR 2002.
(j) "Real Estate Taxes Base": THE REAL ESTATE TAXES (SEE ITEM 4
BELOW FOR DEFINITION) ACTUALLY INCURRED (ON A PER NET RENTABLE
SQUARE FOOT PER ANNUM BASIS) FOR THE BUILDING AND ITS
APPURTENANCES FOR THE CALENDAR YEAR 2002, ADJUSTED TO REFLECT
THE AMOUNT OF REAL ESTATE TAXES THAT WOULD HAVE BEEN INCURRED
HAD THE BUILDING BEEN ONE HUNDRED PERCENT (100%) OCCUPIED
THROUGHOUT THE ENTIRE CALENDAR YEAR 2002.
(k) "Proportionate Share": The net rentable area in the Premises
(13,828 square feet) divided by the net rentable area in the
Building (552,080 square feet), which equals 2.505 percent. If
Tenant leases from Landlord any additional space in the
Building pursuant to the terms and provisions of this Lease,
then Tenant's Proportionate Share shall be increased
accordingly.
2. PREMISES AND TERM. Landlord, in consideration of the Rent
herein reserved to be paid and of the covenants, conditions and agreements to be
kept and performed by Tenant, hereby leases, lets and demises to Tenant, and
Tenant hereby leases and hires from Landlord, that certain space called the
Premises as described above in Item 1, Section (c).
PROVIDED (BUT NOT OTHERWISE) TENANT EXECUTES THIS LEASE BY OCTOBER 8,
2001;AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT THEREAFTER FULLY, DULY AND
TIMELY COMPLIES WITH EACH, EVERY, ANY AND ALL ITS DUTIES, OBLIGATIONS AND
RESPONSIBILITIES UNDER THIS LEASE (TO INCLUDE ITS EXHIBITS, ATTACHMENTS, ADDENDA
AND AMENDMENTS, IF ANY); AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT BY
OCTOBER 8, 2001, DELIVERS TO LANDLORD, AS REGARDS THE ENTIRETY OF THE WORK
PERTAINING TO SUITE 3150, COMPLETE, SIGNED AND SEALED CONSTRUCTION DRAWINGS FOR
PERMITTING PURPOSES; AND FURTHER PROVIDED (BUT NOT OTHERWISE) LANDLORD'S
CONTRACTOR DOES THE ENTIRETY OF ALL THE WORK; AND EXPRESSLY SUBJECT TO, AND
EXPRESSLY EXCEPT FOR, "FORCE MAJEURE" (ITEM 26), AND LIKEWISE EXPRESSLY SUBJECT
TO, AND EXPRESSLY EXCEPT FOR, ANY FAULT OF, OR FAIRLY ATTRIBUTABLE TO, OR DELAY
CAUSED BY, OR FAIRLY ATTRIBUTABLE TO, TENANT AND/OR ITS AGENTS, EMPLOYEES,
PRINCIPALS, OFFICERS, PARTNERS, SUCCESSORS, ASSIGNS, INVITEES, SUBTENANTS,
ESTIMATORS, CONTRACTORS, CONSULTANTS OR ANY OTHER PARTY, PERSON OR ENTITY FOR
WHOM OR WHICH TENANT FAIRLY SHOULD BE RESPONSIBLE; IF THE WORK PERTAINING TO
SUITE 3150 IS NOT SUBSTANTIALLY COMPLETED BY FEBRUARY 8, 2002, THEN TENANT MAY,
VIA WRITTEN NOTICE TO LANDLORD SO STATING, WHICH NOTICE, TO BE EFFECTIVE, MUST
BE RECEIVED BY LANDLORD DURING THE PERIOD FEBRUARY 9, 2002, THROUGH FEBRUARY 22,
2002, BUT ABSOLUTELY NOT THEREAFTER, TIME BEING ABSOLUTELY OF THE ESSENCE,
CANCEL (AS TENANT'S SOLE AND EXCLUSIVE REMEDY) THIS LEASE IN ITS ENTIRETY,
WHEREUPON THIS LEASE SHALL TERMINATE AND BECOME COMPLETELY AND ABSOLUTELY NULL
AND VOID, JUST AS IF, AND TO THE EXTENT THAT, THE PARTIES HAD NEVER MET AND THIS
LEASE HAD NEVER BEEN EXECUTED, EXCEPT, HOWEVER, LANDLORD SHALL PROMPTLY REFUND
TO TENANT THE $26,201.18 ADVANCE BASE RENT THE SUBJECT OF ITEM 1 (G) OF THIS
LEASE. IF, HOWEVER, ALL THE PROVISIONS, CONTINGENCIES AND CONDITIONS THE SUBJECT
OF THE FIRST SENTENCE OF THIS PARTICULAR PARAGRAPH OF THIS ITEM 2 DO NOT OCCUR
OR ARE NOT MET, THEN, IN ALL INSTANCES AND UNDER ALL CIRCUMSTANCES, THE SUITE
3150 COMMENCEMENT DATE SHALL ABSOLUTELY BE NOVEMBER 1, 2001; IF, ON THE OTHER
HAND, ALL THE PROVISIONS, CONTINGENCIES AND CONDITIONS THE SUBJECT OF THE FIRST
SENTENCE OF THIS PARTICULAR PARAGRAPH OF THIS ITEM 2 DO IN FACT OCCUR AND ARE
MET, BUT LANDLORD'S CONTRACTOR DOES NOT EFFECT BY NOVEMBER 1, 2001, SUBSTANTIAL
COMPLETION OF THE WORK PERTAINING TO SUITE 3150, THEN THE SUITE 3150
COMMENCEMENT DATE SHALL BE THE DATE LANDLORD'S CONTRACTOR DOES EFFECT SUCH
SUBSTANTIAL COMPLETION. IF THE SUITE 3150 COMMENCEMENT DATE IS OTHER THAN
NOVEMBER 1, 2001, THE PARTIES' REPRESENTATIVES SHALL EXECUTE A LETTER AMENDMENT
TO THIS LEASE (WHICH THEY ARE HEREBY AUTHORIZED TO DO) WHEREBY THE SUITE 3150
COMMENCEMENT DATE AND THE EXPIRATION DATE OF THIS LEASE WILL BE
4
SPECIFIED; HOWEVER, THEIR FAILURE TO DO SO SHALL HAVE NO EFFECT ON THE OTHER
CONTENTS OF THIS LEASE, SUCH CONTEMPLATED EXECUTION TO BE MERELY FOR
CLARIFICATION PURPOSES. TENANT SHALL HAVE THIRTY (30) DAYS IMMEDIATELY FOLLOWING
THE SUITE 3150 COMMENCEMENT DATE TO SUBMIT TO LANDLORD IN WRITING A "PUNCH-LIST"
OF ITEMS THAT ARE SOLELY LANDLORD'S RESPONSIBILITY (OR THAT OF LANDLORD'S
CONTRACTOR) AND NEED CORRECTION BY LANDLORD (OR LANDLORD'S CONTRACTOR). LANDLORD
(OR LANDLORD'S CONTRACTOR) SHALL DILIGENTLY AND EXPEDITIOUSLY ADDRESS AND
CORRECT SUCH "PUNCH-LIST" ITEMS, WHEREUPON THEREAFTER TENANT (EXCEPT FOR LATENT
DEFECTS OF A MATERIAL NATURE) SHALL BE CONCLUSIVELY DEEMED TO HAVE ACCEPTED
SUITE 3150 AS COMPLYING FULLY WITH LANDLORD'S (AND LANDLORD'S CONTRACTOR'S)
OBLIGATIONS WITH RESPECT THERETO.
PROVIDED (BUT NOT OTHERWISE) TENANT EXECUTES THIS LEASE BY OCTOBER 8,
2001;AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT THEREAFTER FULLY, DULY AND
TIMELY COMPLIES WITH EACH, EVERY, ANY AND ALL ITS DUTIES, OBLIGATIONS AND
RESPONSIBILITIES UNDER THIS LEASE (TO INCLUDE ITS EXHIBITS, ATTACHMENTS, ADDENDA
AND AMENDMENTS, IF ANY); AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT BY
OCTOBER 22, 2001, DELIVERS TO LANDLORD, AS REGARDS THE ENTIRETY OF THE WORK
PERTAINING TO SUITE 3160, COMPLETE, SIGNED AND SEALED CONSTRUCTION DRAWINGS FOR
PERMITTING PURPOSES; AND FURTHER PROVIDED (BUT NOT OTHERWISE) LANDLORD'S
CONTRACTOR DOES THE ENTIRETY OF ALL THE WORK; AND EXPRESSLY SUBJECT TO, AND
EXPRESSLY EXCEPT FOR, "FORCE MAJEURE" (ITEM 26), AND LIKEWISE EXPRESSLY SUBJECT
TO, AND EXPRESSLY EXCEPT FOR, ANY FAULT OF, OR FAIRLY ATTRIBUTABLE TO, OR DELAY
CAUSED BY, OR FAIRLY ATTRIBUTABLE TO, TENANT AND/OR ITS AGENTS, EMPLOYEES,
PRINCIPALS, OFFICERS, PARTNERS, SUCCESSORS, ASSIGNS, INVITEES, SUBTENANTS,
ESTIMATORS, CONTRACTORS, CONSULTANTS OR ANY OTHER PARTY, PERSON OR ENTITY FOR
WHOM OR WHICH TENANT FAIRLY SHOULD BE RESPONSIBLE; IF THE WORK PERTAINING TO
SUITE 3160 IS NOT SUBSTANTIALLY COMPLETED BY MARCH 8, 2002, THEN TENANT MAY, VIA
WRITTEN NOTICE TO LANDLORD SO STATING, WHICH NOTICE, TO BE EFFECTIVE, MUST BE
RECEIVED BY LANDLORD DURING THE PERIOD MARCH 9, 2002, THROUGH MARCH 22, 2002,
BUT ABSOLUTELY NOT THEREAFTER, TIME BEING ABSOLUTELY OF THE ESSENCE, CANCEL (AS
TENANT'S SOLE AND EXCLUSIVE REMEDY) THIS LEASE IN ITS ENTIRETY, WHEREUPON THIS
LEASE SHALL TERMINATE AND BECOME COMPLETELY AND ABSOLUTELY NULL AND VOID, JUST
AS IF, AND TO THE EXTENT THAT, THE PARTIES HAD NEVER MET AND THIS LEASE HAD
NEVER BEEN EXECUTED, EXCEPT, HOWEVER, LANDLORD SHALL PROMPTLY REFUND TO TENANT
THE $26,201.18 ADVANCE BASE RENT THE SUBJECT OF ITEM 1 (g) OF THIS LEASE. IF,
HOWEVER, ALL THE PROVISIONS, CONTINGENCIES AND CONDITIONS THE SUBJECT OF THE
FIRST SENTENCE OF THIS PARTICULAR PARAGRAPH OF THIS ITEM 2 DO NOT OCCUR OR ARE
NOT MET, THEN, IN ALL INSTANCES AND UNDER ALL CIRCUMSTANCES, THE SUITE 3160
COMMENCEMENT DATE SHALL ABSOLUTELY BE DECEMBER 1, 2001; IF, ON THE OTHER HAND,
ALL THE PROVISIONS, CONTINGENCIES AND CONDITIONS THE SUBJECT OF THE FIRST
SENTENCE OF THIS PARTICULAR PARAGRAPH OF THIS ITEM 2 DO IN FACT OCCUR AND ARE
MET, BUT LANDLORD'S CONTRACTOR DOES NOT EFFECT BY DECEMBER 1, 2001, SUBSTANTIAL
COMPLETION OF THE WORK PERTAINING TO SUITE 3160, THEN THE SUITE 3160
COMMENCEMENT DATE SHALL BE THE DATE LANDLORD'S CONTRACTOR DOES EFFECT SUCH
SUBSTANTIAL COMPLETION. IF THE SUITE 3160 COMMENCEMENT DATE IS OTHER THAN
DECEMBER 1, 2001, THE PARTIES' REPRESENTATIVES SHALL EXECUTE A LETTER AMENDMENT
TO THIS LEASE (WHICH THEY ARE HEREBY AUTHORIZED TO DO) WHEREBY THE SUITE 3160
COMMENCEMENT DATE WILL BE SPECIFIED; HOWEVER, THEIR FAILURE TO DO SO SHALL HAVE
NO EFFECT ON THE OTHER CONTENTS OF THIS LEASE, SUCH CONTEMPLATED EXECUTION TO BE
MERELY FOR CLARIFICATION PURPOSES. TENANT SHALL HAVE THIRTY (30) DAYS
IMMEDIATELY FOLLOWING THE SUITE 3160 COMMENCEMENT DATE TO SUBMIT TO LANDLORD IN
WRITING A "PUNCH-LIST" OF ITEMS THAT ARE SOLELY LANDLORD'S RESPONSIBILITY (OR
THAT OF LANDLORD'S CONTRACTOR) AND NEED CORRECTION BY LANDLORD (OR LANDLORD'S
CONTRACTOR). LANDLORD (OR LANDLORD'S CONTRACTOR) SHALL DILIGENTLY AND
EXPEDITIOUSLY ADDRESS AND CORRECT SUCH "PUNCH-LIST" ITEMS, WHEREUPON THEREAFTER
TENANT (EXCEPT FOR LATENT DEFECTS OF A MATERIAL NATURE) SHALL BE CONCLUSIVELY
DEEMED TO HAVE ACCEPTED SUITE 3160 AS COMPLYING FULLY WITH LANDLORD'S (AND
LANDLORD'S CONTRACTOR'S) OBLIGATIONS WITH RESPECT THERETO.
PROVIDED (BUT NOT OTHERWISE) TENANT EXECUTES THIS LEASE BY OCTOBER 8,
2001;AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT THEREAFTER FULLY, DULY AND
TIMELY COMPLIES
5
WITH EACH, EVERY, ANY AND ALL ITS DUTIES, OBLIGATIONS AND RESPONSIBILITIES UNDER
THIS LEASE (TO INCLUDE ITS EXHIBITS, ATTACHMENTS, ADDENDA AND AMENDMENTS, IF
ANY); AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT BY OCTOBER 22, 2001,
DELIVERS TO LANDLORD, AS REGARDS THE ENTIRETY OF THE WORK PERTAINING TO SUITE
3170, COMPLETE, SIGNED AND SEALED CONSTRUCTION DRAWINGS FOR PERMITTING PURPOSES;
AND FURTHER PROVIDED (BUT NOT OTHERWISE) LANDLORD'S CONTRACTOR DOES THE ENTIRETY
OF ALL THE WORK; AND EXPRESSLY SUBJECT TO, AND EXPRESSLY EXCEPT FOR, "FORCE
MAJEURE" (ITEM 26), AND LIKEWISE EXPRESSLY SUBJECT TO, AND EXPRESSLY EXCEPT FOR,
ANY FAULT OF, OR FAIRLY ATTRIBUTABLE TO, OR DELAY CAUSED BY, OR FAIRLY
ATTRIBUTABLE TO, TENANT AND/OR ITS AGENTS, EMPLOYEES, PRINCIPALS, OFFICERS,
PARTNERS, SUCCESSORS, ASSIGNS, INVITEES, SUBTENANTS, ESTIMATORS, CONTRACTORS,
CONSULTANTS OR ANY OTHER PARTY, PERSON OR ENTITY FOR WHOM OR WHICH TENANT FAIRLY
SHOULD BE RESPONSIBLE; IF THE WORK PERTAINING TO SUITE 3170 IS NOT SUBSTANTIALLY
COMPLETED BY APRIL 8, 2002, THEN TENANT MAY, VIA WRITTEN NOTICE TO LANDLORD SO
STATING, WHICH NOTICE, TO BE EFFECTIVE, MUST BE RECEIVED BY LANDLORD DURING THE
PERIOD APRIL 9, 2002, THROUGH APRIL 22, 2002, BUT ABSOLUTELY NOT THEREAFTER,
TIME BEING ABSOLUTELY OF THE ESSENCE, CANCEL (AS TENANT'S SOLE AND EXCLUSIVE
REMEDY) THIS LEASE IN ITS ENTIRETY, WHEREUPON THIS LEASE SHALL TERMINATE AND
BECOME COMPLETELY AND ABSOLUTELY NULL AND VOID, JUST AS IF, AND TO THE EXTENT
THAT, THE PARTIES HAD NEVER MET AND THIS LEASE HAD NEVER BEEN EXECUTED, EXCEPT,
HOWEVER, LANDLORD SHALL PROMPTLY REFUND TO TENANT THE $26,201.18 ADVANCE BASE
RENT THE SUBJECT OF ITEM 1 (g) OF THIS LEASE. IF, HOWEVER, ALL THE PROVISIONS,
CONTINGENCIES AND CONDITIONS THE SUBJECT OF THE FIRST SENTENCE OF THIS
PARTICULAR PARAGRAPH OF THIS ITEM 2 DO NOT OCCUR OR ARE NOT MET, THEN, IN ALL
INSTANCES AND UNDER ALL CIRCUMSTANCES, THE SUITE 3170 COMMENCEMENT DATE SHALL
ABSOLUTELY BE JANUARY 1, 2002; ; IF, ON THE OTHER HAND, ALL THE PROVISIONS,
CONTINGENCIES AND CONDITIONS THE SUBJECT OF THE FIRST SENTENCE OF THIS
PARTICULAR PARAGRAPH OF THIS ITEM 2 DO IN FACT OCCUR AND ARE MET, BUT LANDLORD'S
CONTRACTOR DOES NOT EFFECT BY JANUARY 1, 2002, SUBSTANTIAL COMPLETION OF THE
WORK PERTAINING TO SUITE 3170, THEN THE SUITE 3170 COMMENCEMENT DATE SHALL BE
THE DATE LANDLORD'S CONTRACTOR DOES EFFECT SUCH SUBSTANTIAL COMPLETION. IF THE
SUITE 3170 COMMENCEMENT DATE IS OTHER THAN JANUARY 1, 2002, THE PARTIES'
REPRESENTATIVES SHALL EXECUTE A LETTER AMENDMENT TO THIS LEASE (WHICH THEY ARE
HEREBY AUTHORIZED TO DO) WHEREBY THE SUITE 3170 COMMENCEMENT DATE WILL BE
SPECIFIED; HOWEVER, THEIR FAILURE TO DO SO SHALL HAVE NO EFFECT ON THE OTHER
CONTENTS OF THIS LEASE, SUCH CONTEMPLATED EXECUTION TO BE MERELY FOR
CLARIFICATION PURPOSES. TENANT SHALL HAVE THIRTY (30) DAYS IMMEDIATELY FOLLOWING
THE SUITE 3170 COMMENCEMENT DATE TO SUBMIT TO LANDLORD IN WRITING A "PUNCH-LIST"
OF ITEMS THAT ARE SOLELY LANDLORD'S RESPONSIBILITY (OR THAT OF LANDLORD'S
CONTRACTOR) AND NEED CORRECTION BY LANDLORD (OR LANDLORD'S CONTRACTOR). LANDLORD
(OR LANDLORD'S CONTRACTOR) SHALL DILIGENTLY AND EXPEDITIOUSLY ADDRESS AND
CORRECT SUCH "PUNCH-LIST" ITEMS, WHEREUPON THEREAFTER TENANT (EXCEPT FOR LATENT
DEFECTS OF A MATERIAL NATURE) SHALL BE CONCLUSIVELY DEEMED TO HAVE ACCEPTED
SUITE 3170 AS COMPLYING FULLY WITH LANDLORD'S (AND LANDLORD'S CONTRACTOR'S)
OBLIGATIONS WITH RESPECT THERETO.
3. RENT. Tenant, SUBJECT TO THE CONTENTS OF (i) ITEM 1 (g) ABOVE
AND (II) THE FINAL THREE PARAGRAPHS OF ITEM 2 ABOVE, covenants and agrees to
pay, without demand, recoupment, abatement, deduction or offset, to Landlord
Rent and Additional Rent for the Premises on or before the first (1st) day of
the first (1st) full calendar month of the Term hereof and on or before the
first (1st) day of each and every successive calendar month thereafter during
the full Term of this Lease, subject to the adjustments as provided hereinafter,
along with any applicable tax, at the then current rate.
Whenever under the terms of this Lease any sum of money is required to
be paid by Tenant in addition to the Rent herein reserved, whether or not such
sum is herein described as "Additional Rent" or a provision is made for the
collection of said sum as "Additional Rent," said sum shall nevertheless, at
Landlord's option, if not paid when due, be deemed Additional Rent, and shall be
collectible as such with the first installment of Rent thereafter falling due
hereunder. In the event any installment or increment of Rent or Additional Rent
payable under this Lease shall not be paid FOLLOWING DUE NOTICE AND WITHIN THE
CURATIVE PERIOD DESCRIBED
6
IN ITEM 20 (A) OF THIS LEASE, THEN, a "late charge" may be charged (as
Additional Rent) by Landlord for the purpose of defraying the expense and
inconvenience incident to handling such overdue payment and for the purpose of
compensating Landlord for its attendant inconvenience and loss of cash flow.
Said "late charge" shall be the greatest of (a) $200.00, (b) an amount equal to
$20.00 multiplied by the number of days after the due date until such payment is
received by Landlord, or (c) FIVE PERCENT (5%) of the past due amount.
4. REAL ESTATE TAXES ADJUSTMENTS. The parties each acknowledge
that the Rent specified in Items 1 (g) and 3 of this Lease does not provide for
increases in Real Estate Taxes (as hereinafter defined) which may affect the
Premises or the Building, accordingly, during the Term of this Lease, and any
extension(s) thereof, Tenant, beginning JANUARY 1, 2003, shall pay to Landlord,
in the form of Additional Rent (plus any applicable tax), its Proportionate
Share of estimated increased Real Estate Taxes over the base amount as defined
in Item 1, Section (j).
To implement and effect the foregoing obligation of Tenant to
pay its Proportionate Share of the increases in the Real Estate Taxes referenced
in this Item 4, the parties agree that Tenant shall, BEGINNING JANUARY 1, 2003,
pay Landlord on or before the first day of each calendar month one-twelfth
(1/12) of the amount of Tenant's estimated annualized liability for such
increases in such Real Estate Taxes for the then current calendar year. At any
time and from time to time during the then applicable current calendar year,
Landlord (but not unreasonably) may reestimate Tenant's monthly monetary
responsibilities under this Item 4 and Tenant shall pay Landlord such
reestimated amounts. There shall be an annual reconciliation between what Tenant
paid and what Tenant should have paid. Any amount paid by Tenant which exceeds
the correct amount due shall be credited to the next succeeding payment due
under this Item 4. If Tenant has paid less than the correct amount due, Tenant
shall pay the balance within ten (10) days of receipt of written notice from
Landlord. If the Term of this Lease begins or ends other than on the first day
or last day of a calendar year, the subject Real Estate Taxes shall be billed
and adjusted on the basis of such fraction of a calendar year. Tenant's
obligation to pay the adjustments described in this Item 4 shall survive the
expiration or earlier termination of this Lease. Tenant shall have thirty (30)
days immediately following the submission to it by Landlord of each applicable
adjustment calculation to object to such particular calculation. If Tenant fails
duly and timely to object to such particular calculation, which objection, to be
effective, must be in writing and must state the specifics of such particular
objection, then, the parties understand and agree, Landlord's calculation shall
be conclusively deemed to be correct.
The term "Real Estate Taxes" shall include, but not be limited
to, each, every, any and all taxes, assessments, levies and/or other charges (of
any nature or description whatsoever) imposes (or sought to be imposed): (a)
against the real property of which the Building or the Premises are a part
and/or (b) against the appurtenances and/or facilities of, within or serving the
Building or the Premises, by any authority having (or claiming to have) the
power so to tax, assess, levy or charge, whether the same are general or
special, ordinary or extraordinary, foreseen or unforeseen, including, but not
limited to, any city, county, state or federal government, or any school,
agricultural, transportation or environmental control agency, lighting,
drainage, or other improvement district thereof, and said term also shall
include the expenses of contesting the amount or validity of any such taxes,
assessments, levies and/or other charges.
5. OPERATING EXPENSE AND UTILITY ADJUSTMENTS. The parties each
acknowledge that the Rent specified in Items 1 (g) and 3 of this Lease does not
provide for increases in Operating Expenses and Utility Costs (as hereinafter
defined) which may affect the Premises or the Building; accordingly, during the
Term of this Lease, and any extension(s) thereof, Tenant, beginning JANUARY 1,
2003, shall pay to Landlord, in the form of Additional Rent (plus any applicable
tax), its Proportionate Share of estimated increased Operating Expenses and
Utility Costs over the base amount as defined in Item 1, Section (i).
7
To implement and effect the foregoing obligation of Tenant to pay its
Proportionate Share of the increases in the Operating Expenses and Utility Costs
referenced in this Item 5, the parties agree that Tenant shall, BEGINNING
JANUARY 1, 2003, pay Landlord on or before the first day of each calendar month
one-twelfth (1/12) of the amount of Tenant's estimated annualized liability for
such increases in such Operating Expenses and Utility Costs for the then current
calendar year. At any time and from time to time during the then applicable
current calendar year, Landlord (but not unreasonably) may re-estimate Tenant's
monthly monetary responsibilities under this Item 5 and Tenant shall pay
Landlord such re-estimated amounts. There shall be an annual reconciliation
between what Tenant paid and what Tenant should have paid. Any amount paid by
Tenant which exceeds the correct amount due shall be credited to the next
succeeding payment due under this Item 5. If Tenant has paid less than the
correct amount due, Tenant shall pay the balance within THIRTY (30) DAYS days of
receipt of written notice from Landlord. If the Term of this Lease begins or
ends other than on the first day or last day of a calendar year, the subject
Operating Expenses and Utility Costs shall be billed and adjusted on the basis
of such fraction of a calendar year. Tenant's obligation to pay the adjustments
described in this Item 5 shall survive the expiration or earlier termination of
this Lease. Tenant shall have SIXTY (60) days immediately following the
submission to it by Landlord of each applicable adjustment calculation to object
to such particular calculation. If Tenant fails duly and timely to object to
such particular calculation, which objection, to be effective, must be in
writing and must state the specifics of such particular objection, then, the
parties understand and agree, Landlord's calculation shall be conclusively
deemed to be correct.
LANDLORD, SIMULTANEOUSLY WITH ITS SUBMISSION TO TENANT OF EACH
APPLICABLE YEAR-END ADJUSTMENT CALCULATION, SHALL LIKEWISE SUBMIT TO TENANT A
DETAILED STATEMENT OF OPERATING EXPENSES AND UTILITY COSTS, TO INCLUDE BACK-UP
DATA, ALL OF WHICH SHALL BE REASONABLY SUFFICIENT TO ENABLE TENANT TO EVALUATE
THE THEN APPLICABLE YEAR-END ADJUSTMENT CALCULATION. TENANT SHALL HAVE THE
RIGHT, AT REASONABLE TIMES AND AT A REASONABLE PLACE IN TAMPA, FLORIDA,
DESIGNATED BY LANDLORD, TO AUDIT (AND COPY PERTINENT NON-CONFIDENTIAL PORTIONS
OF) LANDLORD'S BOOKS AND RECORDS IN SUPPORT OF THE THEN APPLICABLE YEAR-END
ADJUSTMENT CALCULATION. TENANT ABSOLUTELY MAY NOT, AND ABSOLUTELY SHALL NOT,
UTILIZE A CONTINGENCY FEE AUDITOR. TENANT AGREES THAT IT WILL NOT DIVULGE OR
DISCLOSE [OR ALLOW ITS AUDITOR(S) TO DIVULGE OR DISCLOSE] TO THIRD PARTIES
(OTHER THAN TENANT'S ATTORNEYS, ACCOUNTANTS, AUDITORS, SIMILAR SUCH
PROFESSIONALS OR OTHER PERSONS, WHERE IN EACH INSTANCE SUCH "OUTSIDE" PARTIES
HAVE A BONA-FIDE "NEED TO KNOW") ANY DATA, INFORMATION, ETC., DISCLOSED BY
LANDLORD TO TENANT UNDER THE TERMS AND PROVISIONS OF THIS ITEM 5. IF THERE IS A
TIMELY WRITTEN OBJECTION BY TENANT (SEE THE FINAL TWO SENTENCES OF THE
IMMEDIATELY PRECEDING PARAGRAPH), WHICH WRITTEN OBJECTION MUST INCLUDE DETAILED
BASES THEREFOR, AND IF LANDLORD AND TENANT ARE UNABLE TO RESOLVE SUCH OBJECTION
WITHIN THIRTY (30) DAYS IMMEDIATELY FOLLOWING THE DELIVERY BY TENANT TO LANDLORD
OF SUCH WRITTEN OBJECTION, THEN TENANT SHALL IMMEDIATELY THEREAFTER PAY LANDLORD
WHAT LANDLORD CLAIMS IS DUE. THE DISPUTE MAY THEN BE SUBMITTED BY TENANT TO
BINDING ARBITRATION BY THE AMERICAN ARBITRATION ASSOCIATION IN TAMPA, FLORIDA,
IN ACCORDANCE WITH ITS THEN PREVAILING RULES. JUDGMENT UPON THE ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT IN TAMPA, FLORIDA, HAVING JURISDICTION. THE
ARBITRATORS SHALL HAVE NO POWER TO CHANGE THE PROVISIONS OF THIS LEASE. THE
ARBITRATION PANEL SHALL CONSIST OF THREE ARBITRATORS, ONE OF WHOM SHALL BE A
COMMERCIAL REAL ESTATE ATTORNEY ACTIVELY ENGAGED IN THE PRACTICE OF LAW FOR AT
LEASE THE PREVIOUS 5 YEARS, ANOTHER OF WHOM SHALL BE A CERTIFIED PUBLIC
ACCOUNTANT ACTIVELY ENGAGED IN THE PRACTICE OF ACCOUNTING IN THE COMMERCIAL REAL
ESTATE AREA FOR AT LEAST THE PREVIOUS 5 YEARS, AND THE THIRD OF WHOM SHALL BE A
LICENSED REAL ESTATE BROKER ACTIVELY ENGAGED IN THE COMMERCIAL LEASING BROKERAGE
AREA FOR AT LEAST THE PREVIOUS 5 YEARS. BOTH PARTIES SHALL CONTINUE TO PERFORM
THEIR RESPECTIVE LEASE OBLIGATIONS DURING THE PENDENCY OF ANY ARBITRATION
PROCEEDINGS. IF IT IS DETERMINED BY SUCH ARBITRATION THAT TENANT OVERPAID THE
AMOUNT DUE, THE OVERPAID AMOUNT, TOGETHER WITH INTEREST THEREON AT THE RATE OF
ONE PERCENT (1%) ABOVE THE PRIME RATE FROM TIME TO TIME ANNOUNCED BY AMSOUTH
BANK [OR ITS SUCCESSORS], SHALL BE IMMEDIATELY PAID BY LANDLORD TO TENANT, OR,
AT TENANT'S ELECTION, APPLIED TO THE RENT
8
NEXT DUE UNDER THIS LEASE. FOR THE PURPOSES OF THAT PORTION OF ITEM 20 OF THIS
LEASE DEALING WITH ATTORNEY'S FEES, TENANT SHALL NOT BE DEEMED TO BE "THE
PREVAILING PARTY" UNLESS IT IS DETERMINED (AS ABOVE-DESCRIBED) THAT TENANT
OVERPAID BY MORE THAN FIVE PERCENT (5%) ITS PROPORTIONATE SHARE OF INCREASES IN
SUCH OPERATING EXPENSES AND UTILITY COSTS. LIKEWISE FOR THE PURPOSE OF THAT
PORTION OF ITEM 20 OF THIS LEASE DEALING WITH ATTORNEY'S FEES, LANDLORD SHALL
NOT BE DEEMED TO BE "THE PREVAILING PARTY" UNLESS IT IS DETERMINED (AS
ABOVE-DESCRIBED) THAT TENANT HAS UNDERPAID BY MORE THAN FIVE PERCENT (5%) ITS
PROPORTIONATE SHARE OF INCREASES IN SUCH OPERATING EXPENSES AND UTILITY COSTS.
SUBJECT TO THE FOREGOING, THE ARBITRATORS SHALL HAVE THE POWER TO AWARD TO "THE
PREVAILING PARTY" (AS ABOVE-DEFINED) REASONABLE ATTORNEY'S FEES AND REASONABLE
EXPENSES AND COSTS.
The term "Operating Expenses" shall include, but not be limited to, the
annual expenses of Landlord for the operation, management, repair and
maintenance of the Premises and the Building which are presently or hereafter
reasonable or customary for the operation, management, repair and maintenance of
this type of Premises and Building, and shall include, but not be limited to,
management salaries, consultants' fees (to include, but not be limited to,
consultants engaged with respect to the provision of services to the Premises
and/or the Building), maintenance and janitorial expense, the provision of
services to the Building, costs of maintenance, repairs and replacements,
compliance with applicable current and future laws, rules, codes, regulations,
etc., management and operation of the Building, taxes and fees, employee
benefits, administrative salaries, costs and fees, insurance, security and
landscaping. ANYTHING ELSEWHERE WITHIN THIS ITEM 5 TO THE CONTRARY
NOTWITHSTANDING, (A) TENANT'S ANNUAL OBLIGATIONS UNDER THIS ITEM 5 TO PAY
INCREASES IN "CONTROLLABLE" (I.E., OTHER THAN TAXES, UTILITIES, INSURANCE AND
GOVERNMENTALLY - MANDATED EXPENSES) EXPENSES SHALL NOT DURING THE ORIGINAL TERM
OF THIS LEASE INCREASE BY MORE THAN A CUMULATIVE AVERAGE OF FOUR PERCENT (4%)
PER ANNUM, BUT (B) THERE SHALL BE NO LIKE "CAP" ON "NON - CONTROLLABLE" (I.E.,
TAXES, UTILITIES, INSURANCE AND GOVERNMENTALLY - MANDATED EXPENSES) EXPENSES;
FURTHERMORE, SAID "CAP" SHALL NOT BE APPLICABLE DURING ANY EXTENSION TERM(S).
The term "Utility Costs" shall include Landlord's annual expenses for the
operation and maintenance of the Building and the Premises with respect to
charges, costs and taxes for furnishing heat, air-conditioning, electricity,
water, sewerage, gas, garbage removal, etc. The defined terms the subject of
this particular paragraph are for definitional purposes only and shall not
impose any obligation whatsoever upon Landlord to incur any expense or provide
any service within such defined terms.
NOTWITHSTANDING ANYTHING IN THIS LEASE TO THE CONTRARY, OPERATING
EXPENSES SHALL NOT INCLUDE COSTS FOR (I) NEVERTHELESS SUBJECT TO THE FINAL
PARAGRAPH OF THIS ITEM 5, CAPITAL IMPROVEMENTS MADE TO THE BUILDING, EXCEPT FOR
ITEMS WHICH ARE GENERALLY CONSIDERED MAINTENANCE AND REPAIR ITEMS, SUCH AS
PAINTING OF COMMON AREAS, AND THE LIKE; (II) REPAIR, REPLACEMENTS AND GENERAL
MAINTENANCE PAID BY PROCEEDS OF INSURANCE OR SOLELY (AS OPPOSED TO IN COMMON) BY
TENANT OR OTHER THIRD PARTIES; (III) INTEREST, AMORTIZATION OR OTHER PAYMENTS ON
LOANS TO LANDLORD; (IV) DEPRECIATION; (V) LEASING COMMISSIONS; (VI) LEGAL
EXPENSES FOR SERVICES, OTHER THAN THOSE THAT BENEFIT THE BUILDING TENANTS
GENERALLY (E.G., TAX DISPUTES); (VII) RENOVATING OR OTHERWISE IMPROVING SPACE
FOR OCCUPANTS OF THE BUILDING OR VACANT SPACE IN THE BUILDING; (VIII) REAL
ESTATE TAXES (SEE ITEM 4); (IX) FEDERAL INCOME TAXES IMPOSED ON OR MEASURED BY
THE INCOME OF LANDLORD FROM THE OPERATION OF THE BUILDING; (X) COSTS OF REPAIRS,
RESTORATION, REPLACEMENTS OR OTHER WORK OCCASIONED BY A FIRE, WINDSTORM OR OTHER
CASUALTY OF AN INSURABLE NATURE (WHETHER THE RESULTING DAMAGE OR DESTRUCTION BE
TOTAL OR PARTIAL), (BUT SPECIFICALLY EXCLUDING THE COSTS OF ANY DEDUCTIBLES PAID
BY LANDLORD, WHICH MAY BE INCLUDED IN OPERATING EXPENSES), B) THE EXERCISE BY
GOVERNMENTAL AUTHORITIES OF THE RIGHT OF EMINENT DOMAIN, WHETHER SUCH TAKING BE
TOTAL OR PARTIAL, OR C) THE NEGLIGENCE OR INTENTIONAL TORT OF LANDLORD, OR ANY
SUBSIDIARY OR AFFILIATE OF LANDLORD, OR ANY OTHER TENANT IN THE BUILDING OR ANY
REPRESENTATIVE, EMPLOYEE OR AGENT OF ANY OF THE FOREGOING (BUT SPECIFICALLY
EXCLUDING THE COSTS OF ANY DEDUCTIBLES PAID BY LANDLORD, WHICH MAY BE INCLUDED
IN OPERATING COSTS); (XI) LEASING COMMISSIONS, ATTORNEY'S FEES (EXCEPT FOR THOSE
REASONABLE ATTORNEY'S FEES IN CONNECTION WITH ENFORCING RULES AND REGULATIONS),
COSTS,
9
DISBURSEMENTS AND OTHER EXPENSES INCURRED IN CONNECTION WITH NEGOTIATIONS FOR
LEASES WITH TENANTS, OR PROSPECTIVE TENANTS, OR OTHER OCCUPANTS OF THE BUILDING,
OR SIMILAR COSTS INCURRED IN CONNECTION WITH DISPUTES WITH TENANTS, OTHER
OCCUPANTS, OR PROSPECTIVE TENANTS OR SIMILAR COSTS AND EXPENSES INCURRED IN
CONNECTION WITH NEGOTIATIONS OR DISPUTES WITH MANAGEMENT AGENTS, PURCHASERS OR
MORTGAGEES OF THE BUILDING; (xii) ALLOWANCES, CONCESSIONS AND OTHER COSTS AND
EXPENSES INCURRED IN COMPLETING, FIXTURING, FURNISHING, RENOVATING OR OTHERWISE
IMPROVING, DECORATING OR REDECORATING SPACE FOR TENANTS (INCLUDING TENANT),
PROSPECTIVE TENANTS OR OTHER OCCUPANTS AND PROSPECTIVE OCCUPANTS OF THE
BUILDING, OR VACANT LEASABLE SPACE IN THE BUILDING; (xiii) COSTS OF THE INITIAL
CONSTRUCTION OF THE BUILDING; (xiv) PAYMENTS OF PRINCIPAL AND INTEREST OR OTHER
FINANCE CHARGES MADE ON ANY DEBT AND RENTAL PAYMENTS MADE UNDER ANY GROUND OR
UNDERLYING LEASE OR LEASES; (xv) COSTS INCURRED IN CONNECTION WITH THE SALES,
FINANCING, REFINANCING, MORTGAGING, SELLING OR CHANGE OF OWNERSHIP OF THE
BUILDING, INCLUDING BROKERAGE COMMISSIONS, ATTORNEYS' AND ACCOUNTANTS' FEES,
CLOSING COSTS, TITLE INSURANCE PREMIUMS, TRANSFER TAXES AND INTEREST CHARGES;
(xvi) COSTS, FINES, INTEREST, PENALTIES, LEGAL FEES OR COSTS OF LITIGATION
INCURRED DUE TO THE LATE PAYMENT OF TAXES, UTILITY BILLS AND OTHER COSTS
INCURRED BY LANDLORD'S FAILURE TO MAKE SUCH PAYMENTS WHEN DUE UNLESS SUCH LATE
PAYMENT WAS CAUSED, IN WHOLE OR IN PART, BY TENANT'S FAILURE TO TIMELY PAY ITS
RENTAL OBLIGATIONS HEREUNDER; (xvii) COSTS INCURRED BY LANDLORD FOR TRUSTEE'S
FEES, PARTNERSHIP ORGANIZATIONAL EXPENSES AND ACCOUNTING FEES EXCEPT ACCOUNTING
FEES RELATING TO THE OWNERSHIP AND OPERATION OF THE BUILDING; (xviii) LANDLORD'S
GENERAL CORPORATE OVERHEAD AND GENERAL AND ADMINISTRATIVE EXPENSES; (xix)
RENTALS AND OTHER RELATED EXPENSES INCURRED IN LEASING AIR CONDITIONING SYSTEMS,
ELEVATORS OR OTHER EQUIPMENT ORDINARILY CONSIDERED TO BE OF A CAPITAL NATURE,
EXCEPT A) EQUIPMENT NOT AFFIXED TO THE BUILDING WHICH IS USED IN PROVIDING
JANITORIAL OR SIMILAR SERVICES AND B) EQUIPMENT RENTED TO PROVIDE TEMPORARY
SERVICES, INCLUDING DURING INTERRUPTION OF BUILDING SERVICES; (xx) ALL AMOUNTS
WHICH WOULD OTHERWISE BE INCLUDED IN OPERATING COSTS WHICH ARE PAID TO ANY
AFFILIATE OF LANDLORD, OR ANY REPRESENTATIVE, EMPLOYEE OR AGENT OF SAME, TO THE
EXTENT THE COSTS OF SUCH SERVICES EXCEED THE COMPETITIVE RATES (AS REASONABLY
DETERMINED BY LANDLORD) FOR SIMILAR SERVICES OF COMPARABLE QUALITY RENDERED BY
PERSONS OR ENTITIES OF SIMILAR SKILL, COMPETENCE AND EXPERIENCE; (xxi)
ADVERTISING AND PROMOTIONAL COSTS ASSOCIATED WITH THE LEASING OF THE BUILDING
DIRECTLY RELATED TO THE OPERATION OF THE BUILDING; (xxiii) WAGES AND SALARIES
FOR EMPLOYEES ABOVE THE LEVEL OF THE BUILDING'S MANAGER, (xxiv) EXPENSES FOR THE
DEFENSE OF THE LANDLORD'S TITLE TO THE PREMISES OR THE BUILDING; (xxv)
CHARITABLE OR POLITICAL CONTRIBUTIONS; (xxvi) ANY AMOUNTS EXPENDED BY LANDLORD
AS ENVIRONMENTAL RESPONSE COSTS FOR REMOVAL, ENCLOSURE, ENCAPSULATION, CLEANUP,
REMEDIATION, OR OTHER ACTIVITIES REGARDING LANDLORD'S COMPLIANCE WITH FEDERAL,
STATE, MUNICIPAL OR LOCAL HAZARDOUS WASTE ENVIRONMENTAL LAWS, REGULATIONS OR
ORDINANCES; (xxvii) COSTS TO CORRECT DEFECTS IN THE ORIGINAL CONSTRUCTION OF THE
BUILDING; (xxviii) EXPENSES PAID DIRECTLY BY TENANT FOR ANY REASON (SUCH AS
EXCESSIVE UTILITY USE); (xxix) OTHER AMOUNTS PAYABLE AS A RESULT OF LANDLORD'S
VIOLATION OR FAILURE TO COMPLY WITH ANY GOVERNMENTAL REGULATIONS AND RULES OR
ANY COURT ORDER, DECREE OR JUDGMENT UNLESS SUCH NON-COMPLIANCE IS CAUSED BY
TENANT AND/OR A PERSON, PARTY OR ENTITY FOR WHOM OR WHICH TENANT FAIRLY SHOULD
BE RESPONSIBLE; AND (xxx) MANAGEMENT FEES IN EXCESS OF THREE PERCENT (3%) OF THE
RENT AND/OR ADDITIONAL RENT COLLECTED FROM THE TENANTS (TO INCLUDE TENANT) OF
THE BUILDING.
If Landlord in its sole discretion in operating the Building chooses to
install any energy or labor saving devices, equipment, fixtures or appliances to
or in the Building that otherwise might be considered a capital expenditure AND
SUCH EXPENDITURE RESULTS IN A REDUCTION IN ANY OPERATING EXPENSE THEN BEING
CHARGED TO TENANT HEREUNDER, then Landlord may (BUT ONLY TO THE EXTENT OF THE
ACTUAL SAVINGS) depreciate the cost of the equipment, device, appliance or
fixture into the Operating Expenses of the Building, including interest at a
reasonable rate, all according to generally accepted accounting principles
applied on a consistent basis.
10
6. USE OF PREMISES. The Premises shall be used by Tenant as
described above in Item 1, Section (d), and for no other business or purpose
whatsoever without the prior written discretionary consent of Landlord. Tenant
shall not do or permit to be done in or about the Premises, nor bring or keep or
permit to be brought or kept therein, anything which is prohibited by, or will
in any way conflict with, any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated, or
which is presently or hereafter prohibited by any standard form of fire
insurance policy or will presently or hereafter in any way increase the existing
rate of or affect any fire or other insurance upon the Building or any of its
contents, or presently or hereafter cause a cancellation of any insurance policy
covering the Building or any part thereof or any of its contents. Tenant shall
not do or permit anything to be done in or about the Premises which will
presently or hereafter in any way obstruct or interfere with the rights of other
tenants of the Building, or injure or annoy them or use or allow to be used the
Premises for any improper, immoral, unlawful or objectionable purpose (as
determined by Landlord); nor shall Tenant cause, maintain, or permit any
nuisance (as determined by Landlord or by law) in or about the Premises or
commit or suffer to be committed any waste in, on, or about the Premises. Tenant
shall be responsible for all losses and damages to Landlord as a result of
Tenant's failure to use, occupy and surrender the Premises in strict accordance
with the contents of this Lease, and such responsibility shall survive the
expiration or earlier termination of this Lease. Tenant, at Tenant's expense,
shall comply with all laws, rules, orders, statutes, ordinances, directions,
regulations and requirements of all federal, state, county and municipal
authorities pertaining to Tenant's use and occupancy of the Premises and with
the recorded covenants, conditions and restrictions pertaining thereto,
regardless of when they become effective or applicable, including, without
limitation, all applicable federal, state and local laws, regulations or
ordinances pertaining to air and water quality, Hazardous Materials, waste
disposal, air emissions and other environmental matters, all zoning and other
land use matters, and with any direction of any public officer or officials
which shall impose any duty upon Landlord or Tenant with respect to the use or
occupation of the Premises. For the purposes of this Item 6, the term "Tenant"
includes Tenant's agents, employees, principals, officers, successors, assigns,
subtenants, invitees, contractors and consultants. IT IS (AND SHALL BE)
LANDLORD'S RESPONSIBILITY AND SOLE EXPENSE, SUBJECT TO ITEM 5 ABOVE, TO CAUSE
THE COMMON AREAS OF THE BUILDING TO BE IN COMPLIANCE WITH THE AMERICANS WITH
DISABILITIES ACT AND ANY SIMILAR SUCH STATE, COUNTY OR MUNICIPAL LAWS,
ORDINANCES, REGULATIONS, ETC.
7. ASSIGNMENT AND SUBLETTING. Tenant shall not assign the right
of occupancy under this Lease, or any other interest therein, or sublet the
Premises, or any portion thereof, without the prior written consent of Landlord,
which CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. TENANT SHALL HAVE
THE RIGHT, WITHOUT FIRST SECURING LANDLORD'S PRIOR WRITTEN CONSENT THERETO
(PRIOR WRITTEN NOTICE THEREOF FROM TENANT TO LANDLORD IS REQUIRED, HOWEVER), TO
ASSIGN THIS LEASE, OR SUBLET PORTION(S) OF THE PREMISES, TO TENANT'S BONA-FIDE
SUBSIDIARY OR AFFILIATE. IN THE EVENT TENANT COMPLETELY VACATES THE PREMISES AND
THE PREMISES REMAIN COMPLETELY VACANT DURING TENANT'S MARKETING EFFORTS TO
ASSIGN THIS LEASE AND/OR SUBLET THE ENTIRE PREMISES, THEN TENANT SHALL RECEIVE A
CREDIT AGAINST BASE RENT FOR JANITORIAL SERVICES THEREBY MADE NOT NECESSARY (AS
A RESULT OF TENANT'S NOT OCCUPYING THE ENTIRE PREMISES). Tenant absolutely shall
have no right of assignment or subletting if it is THEN IN UNCURED default of
this Lease. Any permitted assignment or sublease of all or any portion(s) of the
Premises must contain a waiver of claims against Landlord by the assignee/
subtenant and will require the assignee's/subtenant's insurer(s) to issue waiver
of subrogation rights endorsements to all policies of insurance carried in
connection with the Premises and/or the contents thereof, all such waivers to be
in substance and form prescribed by Landlord. If Landlord elects to grant its
written consent to any proposed assignment or sublease (whether by Tenant or by
others claiming by or through Tenant), Tenant or such others agree to pay
Landlord an administrative fee in a reasonable amount (but not MORE THAN $500.00
AND NOT less than $150.00), plus REASONABLE attorney's fees (NOT TO EXCEED
$215.00/HOUR) to process and approve such assignment or sublease, and Landlord
may prescribe the substance and form of such assignment or sublease.
11
Notwithstanding any assignment of this Lease, or the subletting of the
Premises, or any portion thereof, Tenant shall continue to be fully liable for
the performance of the terms, conditions and covenants of this Lease, including,
but not limited to, the payment of Rent and Additional Rent. The continuing
liability the subject of the immediately preceding sentence shall be absolute
and unconditional and shall remain in full force and effect without regard to,
and shall not be released, discharged, diminished, reduced or in any other way
affected by,: (a) any amendment or modification of, or supplement to, this Lease
or any further assignment or transfer thereof or any further sublease pertaining
thereto; or (b) any action taken or not taken by Landlord against any assignee
or sublessee; or (c) any agreement which modifies any of the rights or
obligations of the parties (or their respective successors) under this Lease; or
(d) any agreement which extends the time within which an obligation under this
Lease is to be performed; or (e) any waiver of the performance of an obligation
required under this Lease; or (f) any failure to enforce any of the obligations
set forth in this Lease; or (g) any exercise or non-exercise by Tenant or any
assignee or any sublessee of Tenant's, such assignee's or such sublessee's
rights and/or options under this Lease. Consent by Landlord to one or more
assignments or sublettings shall not operate as a waiver of Landlord's rights as
to any subsequent assignments or sublettings. Landlord shall have the additional
option, which shall be exercised by providing Tenant with written notice, of
terminating Tenant's rights and obligations under this Lease rather than
permitting any assignment or subletting by Tenant, any statement or implication
in this Lease or at law to the contrary notwithstanding.
If Landlord permits any assignment or subletting by Tenant and if the
monies (no matter how characterized) received as a result of such assignment or
subletting [when compared to the monies still payable by Tenant to Landlord] be
greater than would have been received hereunder had not Landlord permitted such
assignment or subletting, then FIFTY PERCENT (50%) OF the excess shall be
payable by Tenant to Landlord. If there are one or more assignments or
sublettings by Tenant to which Landlord consents, then any and all extension
options to be exercised subsequent to the date of such assignment or subletting
and all options to lease additional space in the Building to be exercised
subsequent to the date of such assignment or subletting are absolutely waived
and terminated at Landlord's sole discretion. In the event of the transfer and
assignment by Landlord of its interest in this Lease and/or sale of the Building
containing the Premises, either of which it may do at its sole option, Landlord
shall thereby be released from any further obligations hereunder, and Tenant
agrees to look solely to such successor in interest of Landlord for performance
of such obligations. The provisions of Item 36 hereafter dealing with "Notices"
shall be amended to provide the correct names and addresses of the assignee or
sublessee. Any breach of this Item 7 by Tenant will constitute an automatic
default under the terms of this Lease, per Item 20 hereof.
LANDLORD SHALL NOT BE DEEMED TO HAVE UNREASONABLY WITHHELD ITS CONSENT
TO A PROPOSED ASSIGNMENT OF THIS LEASE OR TO A PROPOSED SUBLEASE OF PART OR ALL
OF THE PREMISES IF SUCH CONSENT IS WITHHELD BECAUSE: (i) TENANT IS THEN IN
UNCURED DEFAULT OF THIS LEASE; OR (ii) FOLLOWING THE APPLICABLE CURATIVE
OPPORTUNITY DESCRIBED IN ITEM 20 OF THIS LEASE, LANDLORD HAS GIVEN TENANT ANY
NOTICE OF TERMINATION OF THIS LEASE OR TERMINATION OF TENANT'S RIGHTS UNDER THIS
LEASE; OR (iii) EITHER THE PORTION OF THE PREMISES WHICH TENANT PROPOSES TO
SUBLEASE, OR THE REMAINING PORTION OF THE PREMISES, OR THE MEANS OF INGRESS AND
EGRESS TO EITHER THE PORTION OF THE PREMISES WHICH TENANT PROPOSES TO SUBLEASE
OR THE REMAINING PORTION OF THE PREMISES, OR THE PROPOSED USE OF THE PREMISES OR
ANY PORTION THEREOF BY THE PROPOSED ASSIGNEE OR SUBTENANT WILL VIOLATE ANY CITY,
COUNTY, STATE OR FEDERAL LAW, ORDINANCE, STATUTE, CODE OR REGULATION, INCLUDING,
WITHOUT LIMITATION, ANY
12
APPLICABLE BUILDING CODE OR ZONING ORDINANCE; OR (IV) THE PROPOSED USE OF THE
PREMISES BY THE PROPOSED ASSIGNEE OR SUBTENANT DOES NOT OR WOULD NOT CONFORM
WITH THE USE SET FORTH IN ITEM 1(D) OF THIS LEASE; OR (V) IN THE REASONABLE
JUDGEMENT OF LANDLORD, THE PROPOSED ASSIGNEE OR SUBTENANT, WHEN COMPARED TO
OTHER TENANTS IN THE BUILDING OR IN CLASS A OFFICE BUILDINGS IN DOWNTOWN TAMPA,
FLORIDA, SUBSTANTIALLY SIMILAR TO THE BUILDING, IS OF A CHARACTER OR REPUTATION
OR IS ENGAGED IN A BUSINESS WHICH WOULD BE HARMFUL TO THE IMAGE AND REPUTATION
OF THE BUILDING OR LANDLORD; OR (VI) THE PROPOSED ASSIGNEE OR SUBTENANT IS A
GOVERNMENTAL ENTITY (OR SUBDIVISION OR AGENCY THEREOF); OR (VII) THE PROPOSED
ASSIGNEE OR SUBTENANT IS A CURRENT PROSPECTIVE TENANT INVOLVED IN WRITTEN
NEGOTIATIONS WITH LANDLORD FOR SPACE AVAILABLE FOR LEASE ELSEWHERE WITHIN THE
BUILDING. FURTHERMORE, IT SHALL NOT BE UNREASONABLE FOR LANDLORD TO REFUSE TO
CONSENT TO A PROPOSED ASSIGNMENT OR SUBLEASE IF THE PREMISES OR ANY OTHER
PORTION OF THE BUILDING WOULD BECOME SUBJECT TO ADDITIONAL OR DIFFERENT
GOVERNMENTAL REGULATIONS AS A DIRECT OR INDIRECT CONSEQUENCE OF (A) THE PROPOSED
ASSIGNMENT OR SUBLEASE, AND/OR (B) THE PROPOSED ASSIGNEE'S OR SUBLESSEE'S USE
AND OCCUPANCY OF THE PREMISES OR THE BUILDING. THE FOREGOING, TENANT UNDERSTANDS
AND ACKNOWLEDGES, ARE MERELY EXAMPLES OF REASONS FOR WHICH LANDLORD MAY WITHHOLD
ITS CONSENT AND SHALL NOT BE DEEMED EXCLUSIVE OF ANY PERMITTED REASONS FOR WHICH
LANDLORD MAY WITHHOLD ITS CONSENT, WHETHER SIMILAR OR DISSIMILAR TO THE
FOREGOING EXAMPLES. TENANT AGREES THAT ALL ADVERTISING BY TENANT OR ON TENANT'S
BEHALF WITH RESPECT TO THE ASSIGNMENT OF THIS LEASE OR THE SUBLETTING OF ALL OR
ANY PART OF THE PREMISES MUST BE APPROVED IN WRITING BY LANDLORD PRIOR TO
PUBLICATION, SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD.
8. ACCESS TO PREMISES. Landlord or its authorized designate(s)
shall have the right, at any time and from time to time, to enter upon the
Premises for the purposes of inspecting the same, preventing waste, conducting
construction and/or alteration and/or maintenance activities, making such
repairs as Landlord may consider appropriate and/or necessary (but without any
obligation to do so except as expressly provided for herein), and showing the
Premises to prospective tenants, mortgagees and/or purchasers. If during the
last month of the Term, Tenant shall have removed all or substantially all of
Tenant's property therefrom, Landlord may immediately enter and alter, renovate
and redecorate the Premises without elimination or abatement of Rent or
Additional Rent or incurring liability to Tenant for any compensation or offsets
in Rent or Additional Rent and charges owed and such acts shall have no effect
upon this Lease.
SUBJECT TO FORCE MAJEURE AND SUCH RESTRICTIONS AS LANDLORD MAY
REASONABLY IMPOSE, AND EXCEPT FOR BONA-FIDE EMERGENCY CIRCUMSTANCES, THE
PREMISES SHALL BE AVAILABLE FOR TENANT'S ACCESS THERETO TWENTY-FOUR (24) HOURS
PER DAY, SEVEN (7) DAYS PER WEEK, EVERY DAY OF THE YEAR. SUCH CONTINUOUS ACCESS
RIGHT SHALL ALSO INCLUDE ACCESS TO THE COMMON AREAS SERVING THE PREMISES AND TO
THE PARKING FACILITY SERVING THE BUILDING.
9. LANDLORD'S SERVICES. Landlord shall, at its expense, furnish
the Premises with (i) electricity, subject to Item 10 of this Lease; (ii) heat
and air-conditioning ("HVAC") during reasonable and usual business hours (i.e.,
8 A.M to 6 P.M, Mondays through Fridays, and 8 A.M. to noon on Saturdays;
Sundays and nationally - recognized holidays excepted in all instances)
reasonably required for the occupation of the Premises, such heat and
air-conditioning to be provided by utilizing the existing Building systems, it
being expressly understood and agreed by the parties that Landlord specifically
shall not be liable for any losses or damages of any nature whatsoever incurred
by Tenant due to any failure of the equipment to function properly, or while it
is being repaired, or due to any governmental laws, regulations or restrictions
pertaining to the furnishing or use of such heat and air-conditioning; (iii)
elevator service; (iv) lighting replacement for Building Standard lights; (v)
toilet room supplies; (vi) daily janitor service during the time and in the
manner that such janitor service is customarily furnished in first class office
buildings in the metropolitan area where the Building is located; (vii) water;
(viii) sewerage; AND, (IX) SUBJECT TO FORCE MAJEURE AND SUCH RESTRICTIONS AS
LANDLORD MAY REASONABLY IMPOSE, PUBLIC ACCESS TO THE BUILDING 7:00 A.M
13
TO 7:00 P.M., MONDAYS THROUGH FRIDAYS. The foregoing services are designated
"Building Standard."
ANY HVAC OUTSIDE THE HOURS AND DAYS THE SUBJECT OF (II) ABOVE ARE
HEREBY DESIGNATED AS "AFTER-HOURS HVAC" AND SHALL BE SUBJECT (INITIALLY) TO A
CHARGE OF $30.00 PER HOUR (FULL OR PARTIAL), PLUS APPLICABLE TAX(ES), WHICH
$30.00/HOUR RATE LANDLORD REPRESENTS TO TENANT IS GENERALLY UNIFORMLY CURRENTLY
APPLICABLE TO THE TENANTS OF THE BUILDING, BUT WHICH RATE, TENANT AGREES, SHALL
BE SUBJECT TO REASONABLE (AND GENERALLY UNIFORM) ADJUSTMENT(S) DURING THE TERM
(AS MAY BE EXTENDED) OF THIS LEASE, ANY SUCH ADJUSTMENT(S) TO BE COMMENSURATE
WITH ANY INCREASES IN HVAC EXPENSES LANDLORD MAY INCUR. NOTWITHSTANDING THE
CONTENTS OF THE IMMEDIATELY PRECEDING SENTENCE, TENANT SHALL BE ENTITLED TO TWO
(2) HOURS OF "FREE" AFTER-HOURS HVAC SERVICES EACH CALENDAR MONTH AND TENANT MAY
(UNLIKE THE "FREE" VISITORS' PARKING THE SUBJECT OF ITEM 11 BELOW) "ACCUMULATE"
ANY UNUSED HOURS FOR USE IN FUTURE MONTH(S).
Tenant agrees that Landlord is only responsible for Building Standard
maintenance and Building Standard services. If other, more complete or special
services and maintenance (over Building Standard) are required, then Tenant
solely shall be and is responsible for same and for any and all expenses and
costs of any nature whatsoever associated with same. To this end, Tenant is and
shall be solely responsible for any expenses and costs of any nature whatsoever
associated with, among other things, maintaining upgraded tenant improvements in
the Premises, replacing non-Building Standard lighting fixtures and bulbs in the
Premises, servicing, operating and maintaining any separate and non-Building
Standard HVAC systems and facilities serving the Premises, etc.
Landlord shall not be liable for any damages directly or indirectly or
consequentially resulting from, nor shall any Rent or Additional Rent herein set
forth be reduced or abated by reason of, (1) installation, use, or interruption
of use of any equipment in connection with the furnishing of any of the
foregoing services, or (2) failure to furnish, or delay in furnishing, any such
services when such failure or delay is caused by accident or any condition
beyond the reasonable control of Landlord or by the making of necessary repairs
or improvements to the Premises or to the Building or because of any
governmental laws, regulations or restrictions. The temporary failure to furnish
any such services shall not be construed as an eviction of Tenant or relieve
Tenant from the duty of observing and performing each, every, any and all of the
provisions of this Lease.
NOTWITHSTANDING ANYTHING HEREINABOVE IN THIS ITEM 9 TO THE CONTRARY,
BUT NEVERTHELESS EXPRESSLY SUBJECT TO, AND EXCEPT FOR, "FORCE MAJEURE" (ITEM
26), AND NEVERTHELESS EXPRESSLY SUBJECT TO, AND EXCEPT FOR, ANY FAULT OF, OR
FAIRLY ATTRIBUTABLE TO, OR XXXXX CAUSED BY, OR FAIRLY ATTRIBUTABLE TO, TENANT OR
ITS AGENTS, EMPLOYEES, PRINCIPALS, OFFICERS, SUCCESSORS, INVITEES, CONTRACTORS,
CONSULTANTS OR ANY OTHER PERSON, PARTY OR ENTITY FOR WHOM OR WHICH TENANT FAIRLY
SHOULD BE RESPONSIBLE, IF THERE IS AN INTERRUPTION IN ESSENTIAL SERVICES (AS
HEREINAFTER DEFINED) TO BE PROVIDED BY LANDLORD TO TENANT UNDER THIS ITEM 9 AND
SUCH INTERRUPTION CONTINUES FOR A PERIOD IN EXCESS OF FIVE (5) CONSECUTIVE
BUSINESS DAYS FOLLOWING WRITTEN NOTICE THEREOF FROM TENANT TO LANDLORD, THEN
TENANT, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO AN ABATEMENT OF
RENT AND ADDITIONAL RENT FOR THE PERIOD THAT SUCH ESSENTIAL SERVICES ARE NOT
PROVIDED. "ESSENTIAL SERVICES" ARE DEFINED AS HVAC, MECHANICAL, PLUMBING,
ELECTRICAL AND ELEVATOR SERVICES AND SHALL INCLUDE REASONABLE ACCESS TO THE
PREMISES BY TENANT AND ITS BUSINESS INVITEES. FURTHERMORE, AND NOTWITHSTANDING
ANYTHING HEREINABOVE IN THIS ITEM 9 TO THE CONTRARY, BUT NEVERTHELESS EXPRESSLY
SUBJECT TO, AND EXCEPT FOR, "FORCE MAJEURE" (ITEM 26), AND NEVERTHELESS
EXPRESSLY SUBJECT TO, AND EXCEPT FOR, ANY FAULT OF, OR FAIRLY ATTRIBUTABLE TO,
OR DELAY CAUSED BY, OR FAIRLY ATTRIBUTABLE TO, TENANT OR ITS AGENTS, EMPLOYEES,
PRINCIPALS, OFFICERS, SUCCESSORS, INVITEES, CONTRACTORS, CONSULTANTS OR ANY
OTHER PERSON, PARTY OR ENTITY FOR WHOM OR WHICH TENANT FAIRLY SHOULD BE
RESPONSIBLE, IF THERE IS AN INTERRUPTION IN ESSENTIAL SERVICES TO BE PROVIDED BY
LANDLORD TO TENANT UNDER THIS ITEM 9 AND SUCH INTERRUPTION CONTINUES FOR A
PERIOD IN EXCESS OF THIRTY (30) CONSECUTIVE CALENDAR DAYS
14
FOLLOWING WRITTEN NOTICE THEREOF FROM TENANT TO LANDLORD, THEN TENANT, AS ITS
SOLE AND EXCLUSIVE REMEDY, MAY, AT ANY TIME THEREAFTER UNTIL SUCH ESSENTIAL
SERVICES ARE RESTORED, BUT NOT THEREAFTER, TIME BEING ABSOLUTELY OF THE ESSENCE,
UPON WRITTEN NOTICE TO LANDLORD SO STATING, CANCEL THE THEN REMAINING BALANCE OF
THE THEN APPLICABLE TERM OF THIS LEASE, WHEREUPON NEITHER PARTY SHALL HAVE ANY
FURTHER OBLIGATIONS OF ANY NATURE WHATSOEVER TO THE OTHER.
10. ELECTRICAL OVERLOAD; STRUCTURAL OVERLOAD.
A. Tenant's use of electrical services furnished by
Landlord shall be subject to the following:
(1) Tenant's electrical equipment shall be
restricted to that equipment which
individually does not have a rated capacity
greater than .5 kilowatts per hour and/or
require voltage other than 120/208 volts,
single phase. Collectively, Tenant's
equipment shall not have an electrical
design load greater than (A) an average of 3
xxxxx per square foot (including overhead
lighting) OR (B) THAT OF A SIMILARLY
SITUATED (AS FAR AS TYPICAL ELECTRICAL
CONSUMPTION) TENANT WITHIN THE BUILDING.
(2) Tenant's overhead lighting shall not have a
design load greater than an average of 2
xxxxx per square foot.
(3) If Tenant's consumption of electrical
services exceeds either the rated capacities
and/or design loads as per subsections (1)
and (2) above, then Tenant shall remove such
equipment and/or lighting to achieve
compliance within ten (10) days after
receiving notice from Landlord. Or upon
receiving Landlord's prior written approval,
such equipment and/or lighting may remain in
the Premises, subject to the following:
(a) Tenant shall pay for all costs of
installation and maintenance of
submeter, wiring, air-conditioning
and other items required by
Landlord, in Landlord's discretion,
to accommodate Tenant's excess
design loads and capacities;
(b) Tenant shall pay to Landlord, upon
demand, the cost of the excess
demand and consumption of electrical
service at rates determined by
Landlord which shall be in
accordance with any applicable laws.
B. Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which such floor was designed to
carry and which may be allowed by law. Landlord reserves the right to prescribe
the weight and position of all heavy equipment and similar items, and to
prescribe the reinforcing necessary, if any, which in the opinion of Landlord
may be required under the circumstances, such reinforcing to be at Tenant's
pre-paid expense.
15
11. PARKING AREAS AND COMMON AREAS. Landlord shall keep and
maintain in good condition any parking areas that may be provided. Landlord
reserves the right to control the method, manner and time of parking in parking
spaces. Landlord shall not be responsible at all, any statement or implication
elsewhere in this Lease to the contrary notwithstanding, for the security of the
parking areas provided pursuant to this Lease. Any and all parking charges
payable by Tenant, whether to Landlord or to Landlord's designate(s), shall be
Additional Rent; furthermore, if Tenant fails to pay duly, fully and timely such
parking charges, Landlord [or its designate(s)] may discontinue, without notice
to Tenant (or anyone else), the availability of the parking space(s) the subject
of such parking charges, no matter by whom such parking spaces are or were being
utilized or are in the future to be utilized, anything to the contrary elsewhere
in this Lease notwithstanding. During the Term (as may be extended) of this
Lease, Landlord shall provide Tenant with FIFTEEN (15) NON - RESERVED
("FIRST-COME-FIRST-SERVED") PARKING SPACES AND FOUR (4) RESERVED PARKING SPACES.
THE RATE FOR EACH SUCH NON - RESERVED SPACE SHALL (INITIALLY) BE $110.00 PER
SPACE PER MONTH [PLUS APPLICABLE TAX(ES)] AND THE RATE FOR EACH SUCH RESERVED
SPACE SHALL (INITIALLY) BE $185.00 PER SPACE PER MONTH [PLUS APPLICABLE
TAX(ES)], SUCH RATES TO BE SUBJECT TO ADJUSTMENT(S) DURING THE TERM (AS MAY BE
EXTENDED) OF THIS LEASE, SUCH ADJUSTED RATES, HOWEVER, NOT TO BE IN EXCESS OF
WHAT LANDLORD GENERALLY UNIFORMLY CHARGES OTHER TENANTS IN THE BUILDING FOR LIKE
SPACES. ALL PARKING SPACES THE SUBJECT OF THIS ITEM 11 SHALL BE LOCATED WITHIN
THE PARKING GARAGE A PART OF THE BUILDING. LANDLORD RESERVES THE RIGHT TO
DESIGNATE (AND RE-DESIGNATE) AT ANY TIME, AND FROM TIME TO TIME, THE LOCATION(S)
OF ALL PARKING SPACES THE SUBJECT OF THIS ITEM 11. SUBJECT TO THE OTHER CONTENTS
OF THIS ITEM 11, IF TENANT EXERCISES THE OPTION TO EXPAND THE SUBJECT OF ITEM 45
OF THIS LEASE, TENANT SHALL BE ENTITLED TO SEVEN (7) ADDITIONAL NON - RESERVED
PARKING SPACES AND TWO (2) ADDITIONAL RESERVED PARKING SPACES. FURTHERMORE, BUT
SUBJECT TO SUCH GUIDELINES AND PROCEDURES AS LANDLORD MAY NOT UNREASONABLY
PRESCRIBE, TENANT SHALL BE ENTITLED TO FOURTEEN (14) HOURS PER CALENDAR MONTH OF
"FREE" PARKING FOR TENANT'S BUSINESS VISITORS, BUT TENANT MAY NOT (UNLIKE THE
"FREE" AFTER-HOURS HVAC THE SUBJECT OF ITEM 9 ABOVE) ACCUMULATE ANY UNUSED
HOURS.
Any statement or implication elsewhere in this Lease to the
contrary notwithstanding, Landlord shall have the unrestricted right, which
shall not be subject to Tenant's prior notice or consent, to change the size,
use, capacity, configuration, shape or nature of the Building, its common areas
and its appurtenances.
12. LEASEHOLD IMPROVEMENTS. SUBJECT TO ITEM 44. OF THIS LEASE, THE
Premises are rented "as is," without any additional services or improvements to
be rendered by Landlord, other than those services described in Item 9 and such
other services or improvements as may be described in Exhibit "B" attached
hereto and expressly made a part hereof. If Landlord is to additionally alter,
remodel, improve, or do any physical act or thing to the space as presently
constituted or as described in Exhibit "B", same shall be at the sole expense of
Tenant and shall be effected only by an "Extra Work Agreement" signed by the
parties. In the absence of an "Extra Work Agreement" signed by the parties,
Landlord is under no obligation to make any such alteration, remodeling or
improvement or do any physical act or thing to the space. Referencing the
contents of this Item 12, Items 13 and 14 below, Exhibit "B" hereto and any such
Extra Work Agreement(s), Landlord's consent to any such repairs, maintenance,
alterations, additions, improvements or other work and/or Landlord's approval of
the plans, specifications and drawings associated therewith shall create no
responsibility or liability on the part of Landlord or its contractor(s) or
architect(s) for their completeness, design sufficiency or compliance with
applicable laws, rules, codes, regulations, etc., but rather such
responsibility/liability shall be borne by Tenant; NEVERTHELESS, LANDLORD'S
ARCHITECT SHALL CONFIRM IN WRITING TO TENANT THAT THE WORK (AND IF APPLICABLE,
THE EXPANSION SPACE WORK) COMPLIES WITH ALL THEN (RESPECTIVELY) APPLICABLE
CODES, LAWS, REGULATIONS, RULES, ETC., PERTAINING THERETO.
Any and all extraordinary expenses and costs of any nature whatsoever
attributable to the installation, maintenance and/or removal of telephone
equipment, computer equipment and
16
the like shall be borne solely by Tenant. Tenant's telephone equipment shall be
restricted to, and must be installed within, the Premises.
13. REPAIRS AND MAINTENANCE. Landlord will, at its own cost and
expense, except as may be provided elsewhere herein, make necessary repairs of
damage to the Building corridors, lobby, structural members of the Building, and
equipment used to provide the Building Standard services referred to in Item 9,
unless any such damage is caused by acts or omissions of Tenant, its agents,
customers, employees, principals, contractors, consultants, assigns, subtenants
or invitees, in which event Tenant will bear the cost of such repairs. Tenant
will allow no maintenance or repairs to be done in, on, to or about the Premises
other than by a contractor (such term to include all degrees and levels of
subcontractors) approved by Landlord in writing prior to any such maintenance or
repairs being undertaken. Landlord shall be entitled to require such contractor
to be bonded and insured in such amounts and with such companies as Landlord may
in its discretion prescribe. Tenant will not injure the Premises or the Building
but will maintain the Premises in a clean, attractive condition and in good
repair, except as to damage to be repaired by Landlord as provided above. Upon
termination of this Lease, Tenant will surrender and deliver the Premises to
Landlord in the same condition in which they existed at the commencement of this
Lease, excepting only ordinary wear and tear and damage arising from any cause
not required to be repaired by Tenant. This Item 13 shall not apply in the case
of damage or destruction by fire or other casualty which is covered by insurance
maintained by Landlord on the Building (as to which Item 16 hereof shall apply)
or damage resulting from an Eminent Domain taking (as to which Item 18 hereof
shall apply).
SUBJECT TO, AND EXCEPT FOR, "FORCE MAJEURE" (ITEM 26), AND LIKEWISE
SUBJECT TO, AND EXCEPT FOR, ANY FAULT OF, OR FAIRLY ATTRIBUTABLE TO, OR DELAY
CAUSED BY, OR FAIRLY ATTRIBUTABLE TO, TENANT OR ITS AGENTS, EMPLOYEES,
PRINCIPALS, OFFICERS, SUCCESSORS, CONTRACTORS, CONSULTANTS OR ANY OTHER PERSON,
PARTY OR ENTITY FOR WHOM OR WHICH TENANT FAIRLY SHOULD BE RESPONSIBLE, IF
LANDLORD MATERIALLY, ADVERSELY, DEMONSTRABLY AND SUBSTANTIALLY FAILS TO MEET ITS
REPAIR AND MAINTENANCE OBLIGATIONS UNDER THIS ITEM 13 AND SUCH MATERIAL,
ADVERSE, DEMONSTRABLE AND SUBSTANTIAL FAILURE CONTINUES FOR A PERIOD IN EXCESS
OF FIVE (5) CONSECUTIVE BUSINESS DAYS FOLLOWING WRITTEN NOTICE THEREOF FROM
TENANT TO LANDLORD, THEN TENANT, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE
ENTITLED TO AN ABATEMENT OF RENT AND ADDITIONAL RENT FOR THE PERIOD THAT SUCH
MATERIAL, ADVERSE, DEMONSTRABLE AND SUBSTANTIAL FAILURE CONTINUES, TO (BUT NOT
BEYOND) THE PROPORTIONATE EXTENT THAT SUCH MATERIAL, ADVERSE, DEMONSTRABLE AND
SUBSTANTIAL FAILURE MATERIALLY, ADVERSELY, DEMONSTRABLY AND SUBSTANTIALLY
INTERFERES WITH THE USE OF THE PREMISES BY TENANT.
14. ALTERATIONS AND IMPROVEMENTS. Tenant absolutely shall not make
any alterations, additions or improvements to or in the Building outside the
Premises. Furthermore, Tenant shall make no alterations, additions or
improvements to or in the Premises without the prior written approval of
Landlord, unless in each instance and for each such alteration, addition or
improvement Landlord or a contractor approved by Landlord is hired to do such
alterations, additions or improvements. Such approval shall not be unreasonably
withheld in the case of alterations, additions or improvements to the interior
of the Premises if such alterations, additions, or improvements are normal for
the use described in Item 1 (d) of this Lease, do not violate any applicable
laws, codes, ordinances, etc., do not adversely affect utility of the Premises
for future tenants, do not alter the exterior of the Building, do not affect
portions of the Building outside the Premises, and are accompanied by insurance
satisfactory to Landlord and by prepayment or bond provisions or waivers by the
contractor in form satisfactory to Landlord sufficient to protect the Building
from claims of lien of any sort; otherwise, such approval may be withheld for
any reason whatsoever. Furthermore, such alterations, additions or improvements
absolutely shall not affect the mechanical, plumbing, electrical and HVAC
systems in the Premises or the Building and shall not be of a structural nature.
Tenant shall conduct its work in such a manner as to maintain harmonious labor
relations and as not to interfere with the operation of the Building and shall,
prior to the commencement of the work, submit to Landlord copies of all
necessary permits.
17
Landlord reserves the right to have final approval of the contractors hired by
Tenant. All such contractors hired by Tenant shall be, at levels and coverages
prescribed by Landlord, bonded and insured, and Landlord may require evidence of
same, which Tenant agrees to secure and provide Landlord prior to the
commencement of any work by such contractors. All alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Premises, either by Landlord or Tenant, shall be Landlord's property and at the
end of the term hereof shall remain in or upon the Premises without compensation
to Tenant. If, however, Landlord shall request in writing, Tenant will, prior to
the expiration or earlier termination of this Lease, remove any and all
alterations, additions and improvements placed or installed by Tenant in the
Premises, and will repair any damage caused by such removal. All of Tenant's
furniture, movable trade fixtures and equipment not attached to the Building may
be removed by Tenant at the expiration of this Lease, if Tenant so elects, and
shall be so removed, if required by Landlord, and, if not so removed, shall, at
the option of Landlord, become the property of Landlord. To the extent Tenant
makes any alterations, additions or improvements and/or to the extent Landlord
on behalf of Tenant under an "Extra Work Agreement" makes such alterations,
additions or improvements, and as a result thereof it can be determined that
thereupon was caused an increase in real estate taxes or insurance premiums,
then Tenant shall be responsible for reimbursing Landlord for such increases as
Landlord may pay.
Landlord expressly reserves the right (but shall not have the
obligation) to further develop, add to, improve, repair and alter the Building
and its common areas, appurtenances, roadways, parking areas, etc., as Landlord
may see fit, free from any and all liability of any nature whatsoever to Tenant
for loss of business or damages of any nature whatsoever to Tenant occasioned
during the making of such improvements, developments, additions, repairs and
alterations.
15. INDEMNITY. Landlord shall not be liable for, and Tenant will
indemnify and save Landlord (and Landlord's officers. principals, agents,
employees and insurers) harmless of and from, each, every, any and all fines,
suits, damages, claims, demands, losses and actions (including attorney's fees)
for any injury to person or damage to or loss of property on or about the
Premises and Building caused by the negligence or misconduct or breach of (or
non-compliance with) this Lease by Tenant, its employees, agents, principals,
contractors, consultants, assigns, subtenants, invitees or by any other person
entering the Premises or the Building under express or implied invitation of
Tenant, or arising out of Tenant's use of the Premises. Landlord absolutely
shall not be liable or responsible for any loss or damage to any property or the
death or injury to any person occasioned by theft, crime (of any nature
whatsoever), fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition of governmental body or authority,
by other tenants of the Building or by any other matter beyond the absolute
control of Landlord, or for any injury or damage or inconvenience which may
arise through repair or alteration of any part of the Building, or failure to
make repairs, or from any cause whatsoever except Landlord's negligence or
intentional act. It is specifically understood and agreed that there shall be no
personal liability on Landlord (nor on Landlord's officers, principals, agents
and employees) with respect to any of the covenants, conditions or provisions of
this Lease; in the event of a breach or default by Landlord of any of its
obligations under this Lease, Tenant shall look solely to the equity of Landlord
in the Building for the satisfaction of Tenant's remedies.
16. DAMAGE BY FIRE OR THE ELEMENTS. In the event that the Building
is totally destroyed by fire, tornado or other casualty, or in the event the
Premises or Building is so damaged that rebuilding or repairs cannot be
completed within one hundred eighty (180) days after the date of such damage,
either Landlord or Tenant may, at its option, by written notice to the other
given not more than thirty (30) days after the date of such fire or other
casualty, terminate this Lease. In such event, the Rent and Additional Rent
shall be abated during the unexpired portion of this Lease effective with the
date of such fire or other casualty.
In the event the Building or the Premises are damaged by fire, tornado,
or other casualty covered by Landlord's insurance but only to such extent that
rebuilding or repairs can
18
be completed within one hundred eighty (180) days after the date of such damage,
or if the damage should be more serious but neither Landlord nor Tenant elects
to terminate this Lease, then Landlord shall, within thirty (30) days after the
date of such damage or such election, commence to rebuild or repair the Building
and/or the Premises and shall proceed with reasonable diligence to restore the
Building and/or the Premises to substantially the same condition in which
it/they was/were immediately prior to the happening of the casualty, except that
Landlord shall not be required to rebuild, repair or replace any part of the
furniture, equipment, fixtures and other improvements which may have been placed
by Tenant or other tenants or occupants within the Building or Premises.
Landlord shall, unless such damage is deemed by Landlord to be the result of the
negligence or willful misconduct of Tenant or Tenant's employees, agents,
principals, contractors, consultants, assigns, subtenants or invitees, allow
Tenant a fair diminution of Rent and Additional Rent during the time of such
rebuilding or repairs. In the event any mortgagee, or the holder of any deed of
trust, security agreement or mortgage on the Building, requires that the
insurance proceeds be used to retire the mortgage debt, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice to Tenant. Any
insurance which may be carried by Landlord or by Tenant against loss or damage
to the Premises or its contents shall be for the sole benefit of the party
carrying such insurance and under its sole control.
17. BUILDING RULES AND REGULATIONS. Tenant shall faithfully
observe and comply with the Rules and Regulations printed on or annexed to (and
expressly made a part of) this Lease and all reasonable modifications of and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the nonperformance of any of said Rules and
Regulations by any other tenant, occupant, invitee or visitor of the Building.
Tenant shall and does hereby have an affirmative obligation (to include
indemnification of Landlord, per Item 15 hereof) to notify its agents,
employees, principals, assigns, subtenants and invitees of the contents of such
Rules and Regulations and of this Lease and to assure their compliance
therewith.
18. EMINENT DOMAIN. If the whole or a portion of the Building is
taken for any public or quasi-public use under any statute or by right of
Eminent Domain or private purchase in lieu thereof, then at Landlord's option,
but not otherwise, this Lease, the Term hereby demised and each, every, any and
all rights of Tenant hereunder shall immediately cease and terminate and the
Rent and Additional Rent shall be adjusted as of the date of such termination.
Tenant shall be entitled to no part of the award made for such condemnation (or
other taking) or the purchase price thereof. Nevertheless, anything to the
contrary notwithstanding, likewise at Landlord's option, but not otherwise, if
the Premises are unaffected by such condemnation (or other taking), then this
Lease and each and every one of its provisions shall continue in full force and
effect.
NOTHING IN THIS ITEM 18 SHALL PREVENT TENANT FROM FILING WITH THE
CONDEMNING AUTHORITY A SEPARATE CLAIM FOR (I) TENANT'S RELOCATION EXPENSES AND,
(II) TENANT'S LOSS OF BUSINESS.
19. SIGNS AND ADVERTISING. Without the prior written approval of
Landlord, which may be withheld at Landlord's discretion, Tenant shall not
permit the painting or display of any signs, placard, lettering, or advertising
material of any kind on or near the exterior of the Premises or the Building.
Notwithstanding the foregoing, Tenant may, with Landlord's prior approval,
display Tenant's name on or near the entrance to the Premises, in a
Building-standard manner prescribed by Landlord.
THE SIGNAGE THE SUBJECT OF THE FINAL SENTENCE OF THE IMMEDIATELY
PRECEDING PARAGRAPH SHALL BE A 12" X 12" BRONZE AND GLASS PLAQUE LISTING
TENANT'S NAME AND SUITE NUMBER IN THE BUILDING. IN ADDITION, TENANT SHALL BE
ENTITLED TO THIRTEEN (13) LINES ON THE DIRECTORY IN THE BUILDING'S LOBBY, SAID
LINES TO BE UTILIZED TO LIST TENANT'S NAME, SUITE NUMBERS AND KEY OFFICERS.
19
20. TENANT'S DEFAULT. Landlord, at its election, may exercise any
one or more of the options referred to below upon the happening, or at any time
after the happening, of any one or more of the following events, to wit:
(a) Tenant's failure to cause Landlord to receive the
Rent, Additional Rent, or any other monies (no matter
how characterized) payable under this Lease within
TEN (10) days after written notice to Tenant by
Landlord;
(b) Tenant's failure to observe, keep or perform any of
the other terms, covenants, agreements or conditions
of this Lease or in the Building Rules and
Regulations for a period of FIFTEEN (15) days after
written notice by Landlord; PROVIDED, HOWEVER, THAT
IF ANY SUCH FAILURE IS NOT REASONABLY SUSCEPTIBLE TO
CURE WITHIN SUCH FIFTEEN (15) DAY PERIOD, NO DEFAULT
SHALL BE DEEMED TO OCCUR UNDER THIS SUBSECTION (B) IF
TENANT REASONABLY IMMEDIATELY COMMENCES THE
APPROPRIATE CURE AND THEN DILIGENTLY AND
EXPEDITIOUSLY THEREAFTER PURSUES SUCH CURE TO
COMPLETION;
(c) The bankruptcy of Tenant;
(d) Tenant's making an assignment for the benefit of
creditors;
(e) A receiver or trustee being appointed for Tenant or a
substantial portion of Tenant's assets;
(f) Tenant's voluntarily petitioning for relief under, or
otherwise seeking the benefit of, any bankruptcy,
reorganization, arrangement or insolvency law;
(g) Tenant's (or Tenant's trustee's) rejection of this
Lease after the filing of a petition in bankruptcy or
insolvency or for reorganization or arrangement under
any federal or state bankruptcy laws or insolvency
acts.
(h) Tenant's attempting to mortgage, pledge or otherwise
encumber in any way its interest hereunder;
(i) Tenant's interest under this Lease being sold under
execution or other legal process;
(j) Tenant's interest under this Lease being affected,
modified or altered by any unauthorized assignment or
subletting or by operation of law;
(k) Any of the goods or chattels of Tenant used in, or
incident to, the operation of Tenant's business at,
from or in the Premises being seized, sequestered, or
impounded by virtue of, or under authority of, any
legal proceeding;
(l) Tenant's failure to pay fully, duly and timely the
Rent, Additional Rent, or any other sums payable
hereunder when due for two (2) consecutive months or
for a total of four (4) months in any calendar year,
no notice whatsoever to be due Tenant from Landlord;
(M) THE USE OF THE PREMISES FOR OTHER THAN GENERAL OFFICE
PURPOSES;
20
(n) If Tenant is other than individual person(s), the
dissolution (voluntary or otherwise) at any time of
the business entity that is Tenant.
(o) Tenant's failure or refusal to comply duly, fully and
timely with any of Tenant's duties, obligations or
responsibilities under Exhibit "B" to this Lease.
In the event of any of the foregoing happenings, Landlord, at its
election, may exercise any one or more of the following options, the exercise of
any of which shall not be deemed to preclude the exercise of any others herein
listed or otherwise provided or permitted by statute or general law at the same
time or in subsequent times or actions:
(1) Terminate Tenant's right to possession under this Lease and
re-enter and retake possession of the Premises and relet or
attempt to relet the Premises on behalf of Tenant at such rent
and under such terms and conditions as Landlord may deem best
under the circumstances for the purpose of reducing Tenant's
liability. Landlord shall not be deemed to have thereby
accepted a surrender of the Premises, and Tenant shall remain
fully liable for any and all Rent, Additional Rent, or other
sums (no matter how characterized) due under this Lease and
for all damages suffered by Landlord because of Tenant's
breach of any of the covenants of this Lease.
(2) Declare this Lease to be terminated and ended, and re-enter
upon and take possession of the Premises whereupon all right,
title and interest of Tenant in the Premises shall end.
No re-entry or retaking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a specific
written notice of such intention is given to Tenant, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any Rent, Additional
Rent or other monies due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violations of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of Rent or Additional Rent or
other monies following any event of default hereunder shall not be construed as
Landlord's waiver of such event of default. No forbearance by Landlord of action
upon any violation or breach of any of the terms, provisions, and covenants
herein contained shall be deemed or construed to constitute a waiver 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
shall not be deemed or construed to constitute a waiver of any other violation
or default. Legal actions to recover for loss or damage that Landlord may suffer
by reason of termination of this Lease or the deficiency from any reletting as
provided for above shall include the expense of repossession or reletting and
any repairs or remodeling undertaken by Landlord following repossession.
If Tenant does not perform any covenant, agreement, term, provision or
condition within this Lease (as may be hereafter amended or modified in writing)
contained on Tenant's part to be performed, Landlord, in addition to any other
rights and remedies it has under this
21
Lease (as may be hereafter amended or modified in writing) or otherwise and
without thereby waiving any such non-performance (or resulting default), may
(but shall not be obligated to do so) perform the same on behalf of, for the
account of and at the expense of Tenant without notice in a case of emergency
(as not unreasonably determined by Landlord) and in any other case if such
non-performance continues after FIFTEEN (15) days from the date that Landlord
gives written notice to Tenant of Landlord's intention to do so. Invoices for
all amounts paid by Landlord and all losses, costs and expenses incurred or paid
by Landlord in connection with any such performance by Landlord pursuant to this
particular paragraph, including, without limitation, all amounts paid and costs
and expenses incurred by Landlord for any goods, property, material, labor or
services provided, supplied, furnished or rendered, or caused to be provided,
supplied, furnished or rendered, by Landlord to Tenant (together with interest
at the then current Florida statutory rate from the date Landlord pays the
amount(s) or incurs the loss, cost or expense until the date of full repayment
by Tenant) may be sent by Landlord to Tenant monthly or immediately, at
Landlord's option, and shall be due and payable by Tenant to Landlord as
Additional Rent [plus any applicable tax(es)] within five (5) business days
after the same are sent to Tenant by Landlord. In the proof of any losses that
Landlord may claim against Tenant arising out of Tenant's failure to maintain
insurance, Landlord shall not be limited to the amount of the unpaid insurance
premiums(s), but rather Landlord shall also be entitled to recover the amount of
any uninsured loss(es) (to the extent of any deficiency in the insurance
required of Tenant by the provisions of this Lease, as may be hereafter amended
or modified in writing), damages, costs, and expenses of lawsuit (including
attorney's fees) arising out of any damage, loss, casualty, injury or
destruction occurring during any period(s) for which Tenant has failed to
adequately provide such required and to make or perform any repairs,
alterations, replacements or other work in, to, on or about the Premises which,
in the first instance, is Tenant's obligation pursuant to this Lease (as may be
hereafter amended or modified in writing) shall not be deemed to: (i) impose any
obligation on Landlord to do so, (ii) render Landlord liable to Tenant or any
third party(ies) for the failure or refusal to do so, and (iii) relieve Tenant
of or from any obligation(s) to indemnify and hold harmless Landlord as
otherwise provided elsewhere in this Lease (as may be hereafter amended or
modified in writing).
The parties hereto shall, and they hereby do, waive trial by jury (to
include an advisory jury) in any action, proceeding, or counterclaim brought by
either of the parties hereto against the other, and with respect to any issue or
defense raised therein, on account of any matters 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 and/or Building, and/or claim of loss,
injury or damage. The rejection of this Lease (as may be hereafter amended or
otherwise modified) by Tenant (to include its assigns, successors, etc.) under
the state and/or federal bankruptcy laws (as may be hereafter amended or
otherwise modified) shall constitute a material default and substantial breach
of this Lease (as may be hereafter amended or otherwise modified) by Tenant (to
include its assigns, successors, etc.). Upon the occurrence of any such material
default and substantial breach, Landlord (to include its assigns, successors,
etc.) may (and is hereby contractually permitted to do so) immediately terminate
this Lease via written notice to Tenant (to include its assigns, successors,
etc.) so stating.
22
The parties hereto agree that any and all suits for any and every
breach of this Lease shall be instituted and maintained only in those courts of
competent jurisdiction in the county or municipality in which the Building is
located. In the event of litigation by and between the parties [or their
respective successor(s)] to enforce the terms and provisions of this Lease, the
prevailing party shall be entitled to recover from the non-prevailing party the
prevailing party's reasonable attorney's fees and court costs, all through final
appeal. However, the contents of the immediately preceding sentence shall
expressly not be applicable to any lawsuits seeking declaratory relief or a
declaratory judgment. Furthermore, and notwithstanding the contents of the
sentence before last, if Landlord does not in such litigation seek an award of
attorney's fees against Tenant, then neither party (whether plaintiff or
defendant or otherwise) shall be entitled in such litigation to an award of
attorney's fees, regardless of which party prevails in such litigation.
Time is of the essence of this Lease.
21. INTENTIONALLY OMITTED.
23
22. SUBORDINATION AND ATTORNMENT. In consideration of the
execution of this Lease by Landlord, Tenant accepts this Lease subject to any
deeds of conveyance and any deeds of trust, master leases, security interests or
mortgages and all renewals, modifications, extensions, spreads, consolidations
and replacements of the foregoing which might now or hereafter constitute a lien
upon the Building (or the land upon which it is situated) or improvements
therein or thereon or upon the Premises and to zoning ordinances and other
building and fire ordinances and governmental regulations relating to the use of
the property. Although no instrument or act on the part of Tenant shall be
necessary to effectuate such subordination, Tenant shall, nevertheless, for the
purpose of confirmation, at any time hereafter, on demand in the forms(s) NOT
UNREASONABLY prescribed by Landlord, execute any instruments, estoppel
certificates, releases or other documents that may be requested or required by
any purchaser or any holder of any superior interest for the purposes of
subjecting and subordinating this Lease to such deed of conveyance or to the
lien of any such deed of trust, master lease, security interest, mortgage, or
superior interest. Tenant hereby appoints Landlord attorney-in-fact,
irrevocably, to execute and deliver any such instrument or document for Tenant
should Tenant fail or refuse to do so WITHIN TEN (10) DAYS AFTER LANDLORD'S
WRITTEN REQUEST TO TENANT THAT TENANT SO EXECUTE AND DELIVER SUCH DOCUMENT OR
INSTRUMENT. AS REGARD THE CONTENTS OF THE IMMEDIATELY PRECEDING SENTENCE, IT
SHALL NOT BE DEEMED A FAILURE OR REFUSAL BY TENANT UNDER SAID IMMEDIATELY
PRECEDING SENTENCE TO SIGN AN INSTRUMENT OR DOCUMENT IF TENANT MODIFIES (BASED
UPON THEN EXISTING FACTS AND IN A COMMERCIALLY REASONABLE MANNER, TENANT TO HAVE
A STRICT OBLIGATION OF GOOD FAITH IN THIS REGARD) THE FORM OF SAID INSTRUMENT OR
DOCUMENT AND THEN DULY, FULLY AND TIMELY SUBMITS SAME.
In the event of the enforcement by any of the holders (individually and
collectively, hereinafter "the Holders") of any deed of trust, master lease,
security interest, mortgage or superior interest (the documents entitling the
Holders to same being hereinafter individually and collectively referred to as
"the Superior Instruments") of any of the Holders' rights and remedies provided
for, or allowed, in, or as a result of, the Superior Instruments, or at law or
in equity, Tenant shall, upon the written request of any person, party or entity
succeeding to the right, title or interest of Landlord as a result of such
enforcement, automatically become the lessee of such successor in interest,
without charge to the Holders or such successor in interest and without change
in the terms, provisions, conditions or contents of this Lease (or any hereafter
executed documents between Landlord and Tenant affecting this Lease); provided,
however, that such successor in interest shall not be bound by (i) any payment
of Rent or Additional Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease or (ii) any amendment or modification of this Lease
made without the prior written consent of the Holders or such successor in
interest, such consent to be granted or denied as the Holders and/or such
successor elects at its/their sole and unrestricted discretion. Without in any
way whatsoever affecting the effect of the immediately preceding sentence, upon
the written request to Tenant/lessee by such successor in interest and in the
form(s) prescribed by such successor in interest, Tenant/lessee shall execute
and deliver to such successor in interest [or its designate(s)] an instrument or
instruments confirming such attornment, Tenant/lessee's failure or refusal to do
so to be, at the election (but not otherwise) of the Holders and/or such
successor in interest, an automatic default of this Lease.
23. QUIET ENJOYMENT. Provided Tenant has fully, duly and timely
performed all of the terms, covenants, agreements and conditions of this Lease
on its part to be performed, including the payment of Rent, Additional Rent and
all other sums due hereunder, Tenant shall peaceably and quietly hold and enjoy
the Premises, except as described in Item 22 above, against Landlord and all
persons claiming by, through or under Landlord, for the Term (as may be
extended) herein described, subject to the other provisions and conditions of
this Lease, which other provisions and conditions shall in all instances take
precedence over the contents of this Item 23.
24
24. DEPOSIT. AS SECURITY FOR THE PERFORMANCE OF ITS OBLIGATIONS
UNDER THIS LEASE, TENANT SHALL, CONCURRENTLY WITH TENANT'S EXECUTION OF THIS
LEASE, PROVIDE LANDLORD WITH A DEPOSIT OF ONE HUNDRED THOUSAND DOLLARS
($100,000.00). LANDLORD SHALL HOLD SAID DEPOSIT UNTIL THE DAY AFTER TENANT
CLOSES (IN ALL ASPECTS) ITS INITIAL PUBLIC OFFERING ("IPO") OF STOCK; FOLLOWING
SAID CLOSING, LANDLORD SHALL RETURN TO TENANT SAID DEPOSIT, BUT LANDLORD SHALL
NOT BE OBLIGATED TO PAY TENANT ANY INTEREST THEREON.
25. MECHANIC'S LIENS. Tenant is prohibited from making, and agrees
not to make, alterations in the Premises, except as permitted by Item 14, and
Tenant shall not permit any mechanic's lien or liens to be placed upon the
Premises or the Building or improvements thereon during the Term (as may be
extended) hereof caused by or resulting from any work performed, materials
furnished or obligation incurred by or at the request of Tenant, and in the case
of the filing of any such lien, Tenant will promptly pay or statutorily bond
same. If default in payment or statutory bonding thereof shall continue for ten
(10) days after written notice thereof from Landlord to Tenant, Landlord shall
have the right and privilege, at Landlord's option, of paying the same or any
portion thereof without inquiry as to the validity thereof, and any amounts so
paid, including expenses, interest, and attorney's fees, shall be so much
additional indebtedness hereunder due from Tenant to Landlord and shall be
repaid to Landlord immediately on rendition of a xxxx therefor, together with
interest per annum at the maximum rate permitted by law until repaid, and if not
so paid within ten (10) days of the rendition of such xxxx shall constitute
default under Item 20 hereof.
The interest of Landlord shall not be subject to liens for improvements
made by Tenant in or to the Premises or the Building. Tenant shall notify every
contractor making such improvements of the provision set forth in the
immediately preceding sentence of this paragraph. The parties agree, should
Landlord so request, to execute, acknowledge and deliver without charge to the
other a Memorandum of Lease in recordable form containing a confirmation that
the interest of Landlord (as well as those parties holding interests superior
to, or inferior to, Landlord) shall not be subject to liens for improvements
made by Tenant to the Premises or the Building.
26. FORCE MAJEURE. Whenever a period of time is herein prescribed
for action to be taken by EITHER PARTY, THAT PARTY, shall not be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, theft, crime, fire, public enemy, injunction, insurrection,
court order, requisition of governmental body or authority, war, governmental
laws, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the absolute control of THAT PARTY.
NOTWITHSTANDING THE FOREGOING, EXCEPT AS STRICTLY AND EXPRESSLY
DESCRIBED ELSEWHERE IN THIS LEASE, TENANT SHALL ALWAYS AND UNDER ALL
CIRCUMSTANCES DULY, FULLY AND TIMELY PAY LANDLORD THE RENT AND ADDITIONAL RENT
CALLED FOR BY THIS LEASE TO BE PAID BY TENANT TO LANDLORD.
27. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws effective during
the Term (as may be extended) of this Lease, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease shall not be
affected thereby.
28. HOLDING OVER. The failure of Tenant to surrender the Premises on
the date provided herein for the expiration of the Term (as may have been
theretofore extended) of this Lease, and the subsequent holding over by Tenant,
with or without the consent of Landlord, shall result in the creation of a
tenancy at will FOR A PERIOD NOT IN EXCESS OF SIX (6) MONTHS AND AT ONE AND
ONE-HALF (1-1/2) TIMES the Rent payable at the time of the date
provided herein for the expiration of this Lease. This provision
25
does not give Tenant any right to hold over FOR MORE THAN SIX (6) MONTHS PAST at
the expiration of the Term (as may have been theretofore extended) of this
Lease, and shall not be deemed, the parties agree, to be a renewal OR EXTENSION
of the Lease Term (as may have been theretofore extended), either by operation
of law or otherwise.
29. INTENTIONALLY OMITTED.
30. RENT A SEPARATE COVENANT. Tenant shall not for any reason
withhold or reduce Tenant's required payments of Rent, Additional Rent and other
charges provided in this Lease, it being expressly understood and agreed
contractually by the parties that the payment of Rent and Additional Rent is a
contractual covenant by Tenant that is independent of the other covenants of the
parties under this Lease.
31. INTENTIONALLY OMITTED.
32. ABSENCE OF OPTION. The submission of this Lease for
examination does not constitute a reservation of or option for the Premises, and
this Lease becomes effective only upon execution and delivery thereof by
Landlord.
33. CORPORATE TENANCY. If Tenant is a corporation, the undersigned
officer of Tenant hereby warrants and certifies to Landlord that Tenant is a
corporation in good standing and is authorized to do business in the State of
Florida. The undersigned officer of Tenant hereby further warrants and certifies
to Landlord that he or she, as such officer, is authorized and empowered to bind
the corporation to the terms of this Lease by his or her signature thereto.
Landlord, before it accepts and delivers this Lease, may require Tenant to
supply it with a certified copy of the corporate resolution authorizing the
execution of this Lease by Tenant.
26
34. BROKERAGE COMMISSION. Tenant warrants that there are no claims
for broker's commissions or finder's fees in connection with its execution of
this Lease OTHER THAN XXXXXXXX XXXX REALTY SERVICES, INC. WHICH SHALL BE
ENTITLED TO A COMMISSION TO BE PAID BY LANDLORD IN ACCORDANCE WITH A SEPARATE
AGREEMENT, and agrees to indemnify and save Landlord completely harmless from
any liability or lien that may arise from such claim, including reasonable
attorney's fees.
35. LANDLORD'S DEFAULT. Landlord shall in no event be charged with
default in the performance of any of its obligations under this Lease unless and
until Landlord shall have failed to perform such obligations within ten (10)
days (or within such additional time as is reasonably required to remedy any
such default) after written notice to Landlord by Tenant properly specifying and
detailing the particulars of wherein and whereby Tenant claims Landlord has
failed to perform any such obligations. If the holder of record of the first
mortgage covering the Premises shall have given prior written notice to Tenant
that it is the holder of such first mortgage and such notice includes the
address at which notices to such mortgagee are to be sent, then Tenant shall
give such mortgagee notice simultaneously with any notice given to Landlord to
correct any default of Landlord as hereinabove provided. Such mortgagee shall
have the right within thirty (30) days (or within such additional time as is
reasonably required to correct any such default) after receipt of such notice to
correct or remedy such default before Tenant may take any action under this
Lease by reason of such default. Any notice of default given Landlord by Tenant
shall be null and void unless simultaneous notice has been given by Tenant to
said first mortgagee. It is specifically understood and agreed, anything in this
Lease to the contrary notwithstanding, that there shall be no personal liability
on Landlord (nor on Landlord's officers, principals, agents and employees) with
respect to any of the covenants, conditions or provisions of this Lease; in the
event of a breach or default by Landlord of any of its obligations under this
Lease, Tenant shall look solely to the equity of Landlord in the Building for
the satisfaction of Tenant's remedies, and in absolutely no event shall Landlord
be liable for prospective profits or special, indirect, or consequential
damages. Likewise, anything in this Lease to the contrary notwithstanding, in no
event shall Tenant have the right to terminate this Lease as a result of any
default by Landlord, but rather Tenant's remedies against Landlord shall be
solely limited to a claim for damages and/or a claim for injunction.
36. NOTICES. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered or given when (a) actually
received or (b) signed for or "refused" as indicated on the postal service
return receipt. Delivery shall and must be by personal delivery or by United
States mail, postage prepaid, certified or registered mail, addressed to the
parties hereto at the respective addresses set out opposite their names below,
or at such other address as they may hereafter specify by written notice
delivered in accordance herewith:
LANDLORD: PLAZA IV ASSOCIATES, LTD., A Florida
Limited Partnership
Suite 3160
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
TENANT: LIQUIDMETAL TECHNOLOGIES, INC.
Xxxxx 0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
ATTN: XXXXX XXXXXXXXX, CHIEF FINANCIAL OFFICER
WITH A COPY TO:
00
XXXXX & XXXXXXX
XXXXX 0000
000 XXXXX XXXXX XXXXXX
XXXXX, XX 00000-0000
ATTN: XXXX XXXXXX
Within ten (10) days after receipt, Tenant shall notify
Landlord in writing and provide Landlord with complete and legible copies of (if
applicable):
(a) any notices alleging violation of any applicable laws,
codes, rules, regulations, etc., and/or
(b) any notices of actions, inquiries, inspections or claims
made or threatened regarding any alleged violation of any applicable laws,
codes, rules, regulations, etc. as same relate to all or any portion of the
Premises and/or the Building and/or Tenant's use, occupancy or possession
thereof.
37. INSURANCE. Tenant shall not conduct or permit to be conducted
any activity, or place any equipment, materials or other items in, on or about
the Premises or the Building, which will in any way increase the rate of fire or
liability or casualty insurance on the Building. Should Tenant fail to comply
with the foregoing covenant on its part to be performed, Tenant shall reimburse
Landlord for such increased amount upon written demand therefor from Landlord,
the same to be considered Additional Rent payable hereunder.
Tenant shall, at Tenant's sole expense, obtain and keep in force at all
times during the Term (as may be extended) of this Lease Commercial General
Liability insurance, to include fire and extended coverage including property
damage, on an occurrence basis, with limits of not less than One Million Dollars
($1,000,000.00) combined single limit, insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Said Commercial General Liability
insurance will be on Insurance Services Office, Inc. (ISO), form CG 0001 0196
or, if Landlord elects, an equivalent occurrence basis Commercial General
Liability insurance policy form that is acceptable to Landlord (at Landlord's
sole and unrestricted discretion). The limit of said insurance shall not,
however, limit the liability of Tenant hereunder. Tenant may carry said
insurance under a blanket policy, provided an endorsement naming Landlord as an
additional insured is attached thereto.
Tenant shall, at Tenant's sole expense, obtain, maintain and keep in
force at all times during the Term (as may be extended) of this Lease insurance
with a contractual liability endorsement and upon all property in the Premises
owned by Tenant or for which Tenant is legally liable, such insurance to be in
an amount not less than such property's actual cash value or actual replacement
value, whichever is greater. Tenant shall maintain insurance against such other
perils and in such amounts as Landlord may in writing from time to time not
unreasonably require. The insurance required to be obtained and maintained under
this Lease shall be with a company or companies licensed to issue the relevant
insurance and licensed to do business in the State of Florida. Such insurance
company or companies shall each have a policyholder's rating of no less than "A"
in the most recent edition of Best's Insurance Reports. No policy shall be
cancelable or subject to reduction of coverage except after thirty (30) days'
prior written notice to Landlord. All policies of insurance maintained by Tenant
shall be in a form, and shall have a substance, acceptable to Landlord with
satisfactory evidence that all premiums have been paid. Tenant agrees not to
violate or permit to be violated any of the conditions or provisions of the
insurance policies required to be furnished hereunder, and agrees to promptly
notify Landlord of any fire, loss or other casualty. If Tenant fails to procure
and maintain insurance as required hereunder, Landlord may do so, and Tenant
shall, on written demand, as Additional Rent, reimburse Landlord for all monies
expended by Landlord to procure and maintain such insurance.
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Tenant hereby waives and releases any and all rights of recovery
against Landlord (and Landlord's officers, principals, agents, employees,
representatives, successors and assigns) for loss or damage to Tenant (and/or
any person, party or entity claiming by, through or under Tenant) or its (and/or
their) property arising from any cause insured against or required to be insured
against by Tenant under this Lease. Tenant shall obtain and furnish evidence to
Landlord of the waiver by Tenant's insurer(s) of its (their) rights of
subrogation against Landlord.
Upon Landlord's written request for same, Tenant will provide Landlord
with written evidence of Tenant's compliance with its obligations under this
Item 37.
38. RECORDING. This Lease shall not be recorded without Landlord's
prior written discretionary consent.
39. STATUTORILY MANDATED NOTIFICATION. As required by F.S.
404.056(8), Landlord hereby notifies Tenant as follows: "RADON GAS": 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 gas 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."
40. NON-DISCLOSURE. Tenant agrees that it will not divulge or
disclose to third parties (OTHER THAN ITS OWN ATTORNEYS, ACCOUNTANTS, AUDITORS
AND LIKE PROFESSIONALS IN EACH INSTANCE HAVING A BONA-FIDE "NEED TO KNOW") the
terms, provisions and conditions of this Lease. Tenant's breach of this Item 40
shall constitute a Default under Item 20 of this Lease, no curative notice to
Tenant from Landlord being required.
41. HAZARDOUS MATERIALS. LANDLORD REPRESENTS AND WARRANTS THAT IT
HAS NO KNOWLEDGE OF, AND HAS NO REASON TO KNOW OF, THE PRESENCE OF ANY HAZARDOUS
MATERIALS IN, ON OR ABOUT THE BUILDING. Tenant shall not cause or permit any
Hazardous Material (as hereinafter defined) to be brought upon, kept or used in
or about the Premises or the Building by Tenant, its agents, principals,
employees, assigns, sublessees, contractors, consultants or invitees without the
prior written consent of Landlord, which consent may be withheld for any reason
whatsoever or for no reason at all. If Tenant breaches the obligations stated in
the immediately preceding sentence, or if the presence of Hazardous Material on
the Premises or around the Building caused or permitted by Tenant (or the
aforesaid others) results in contamination of the Premises or the Building or
the surrounding area(s), or if contamination of the Premises or the Building or
the surrounding area(s) by Hazardous Material otherwise occurs for which Tenant
is legally, actually or factually liable or responsible to Landlord (or any
party claiming by, through or under Landlord) for damages, losses, costs or
expenses resulting therefrom, then Tenant shall fully and completely indemnify,
defend and hold harmless Landlord (or any party claiming by, through or under
Landlord) from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses [including, without limitation: (i) diminution in the
value of the Premises and/or the Building and/or the land on which the Building
is located and/or any adjoining area(s) which Landlord owns or in which it holds
a property interest; (ii) damages for the loss or restriction on use of rentable
or usable space of any amenity of the Premises, the Building or the land on
which the Building is located; (iii) damages arising from any adverse impact on
marketing of space; and (iv) any sums paid in settlement of claims, attorneys'
fees, consultants' fees and expert fees] which arise during or after the Term of
this Lease, as may be extended, as a consequence of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises or the
Building. Without limiting the foregoing, if
29
the presence of any Hazardous Material on, under or about the Premises, the
Building or the surrounding area(s) caused or permitted by Tenant (or the
aforesaid others) results in any contamination of the Premises, the Building or
the surrounding area(s), Tenant shall immediately take all actions at its sole
expense as are necessary or appropriate to return the Premises, the Building and
the surrounding area(s) to the condition existing prior to the introduction of
any such Hazardous Material thereto; provided that Landlord's prior written
discretionary approval of such actions by Tenant shall be first obtained. The
foregoing obligations and responsibilities of Tenant shall survive the
expiration or earlier termination of this Lease.
As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes that are or become
regulated under any applicable local, state or federal law. "Hazardous Material"
includes any and all material or substances which are defined as "hazardous
waste", "extremely hazardous waste" or a "hazardous substance" pursuant to
state, federal or local governmental law. "Hazardous Substance" includes but is
not restricted to asbestos, polychlorobiphenyls ("PCB's") and petroleum.
Landlord and its agents shall have the right, but not the duty, to
inspect the Premises at any time and from time to time to determine whether
Tenant is complying with the terms of this Item 41. If Tenant is not in
compliance with this Item 41, Landlord shall have the right to immediately enter
upon the Premises to remedy any contamination caused by Tenant's failure so to
comply, notwithstanding any other provision of this Lease. Landlord shall use
its best efforts to minimize interference with Tenant's business, but shall not
be liable for any interference caused thereby.
Any non-compliance by Tenant with its duties, responsibilities and
obligations under this Item 41 shall be an "automatic" (no notice of any nature
from Landlord to Tenant being required) default of this Lease (see Item 20).
42. UTILITY DEREGULATION. The parties each and both acknowledge
that Tampa Electric Company ("Utility") is presently the utility company
selected by Landlord to provide electricity service to the Premises, the
Building and the Building's common areas and appurtenances. Notwithstanding the
contents of the immediately preceding sentence, Landlord, unless prohibited by
law, shall, the parties each and both hereby agree, have the exclusive right at
any time, and from time to time, during the Lease Term (as may be extended) to
either contract for service from a different company or companies providing
electricity service [each such different company shall hereinafter be referred
to as an "Electric Service Provider" ("ESP")] or continue to contract for
service from the Utility, for the Premises, the Building and the Building's
common areas and appurtenances. Tenant shall at all times cooperate fully, duly
and timely with Landlord, the Utility and ESP and, as reasonably necessary or
requested, shall allow Landlord, the Utility and ESP reasonable access to the
Premises' and/or Building's electric lines, feeders, risers, wiring, cabling and
any other machinery or apparatus within the Premises. Neither Landlord nor any
person, party or entity acting (or purporting to act) on behalf of Landlord
shall in any way whatsoever be liable or responsible to Tenant or third parties
for any loss, damage, expense or claim that Tenant (or such third parties) may
sustain, incur or make by reason of any change, failure, interference,
disruption or defect in the supply, lack of supply, quality, lack of quality,
character or nature of the electric energy supplied to the Premises, the
Building and the Building's common areas and appurtenances.
30
To the extent, if any, that Landlord is prohibited by law from selecting the
utility company of its choice and Tenant is specifically and expressly allowed
by law (otherwise, Tenant shall not be allowed to make such selection) to select
an ESP other than the utility company selected by Landlord, Tenant shall: (a)
reimburse Landlord for the cost(s) of repairing any and all damage to the
Premises, the Building and the Building's common areas and appurtenances caused
directly or indirectly by Tenant's selected ESP or its personnel or equipment,
Landlord's reserving the right to charge Tenant as Additional Rent for such
cost(s) if such reimbursement for same is not promptly made, (b) indemnify and
hold Landlord harmless from and against any and all claims, demands, costs,
expenses (including attorney's fees), liens and causes of action in any way
whatsoever arising out of, or in any manner whatsoever relating to, actions or
inactions by Tenant's selected ESP, including, but not limited to, expenses
and/or fines incurred by Landlord in the extent that Tenant's selected ESP fails
to provide power or insufficient power and (c) place with Landlord a (or an
additional) security deposit in an amount prescribed by Landlord at its sole and
unrestricted discretion, and (d) anything anywhere (whether within this Lease or
not) to the contrary notwithstanding, enter into a tri-party agreement (among
Landlord, Tenant and Tenant's selected ESP) having a substance and form
prescribed by Landlord (as Landlord solely elects) whereby the three parties'
rights and responsibilities will be set forth. If for any (or no) reason
whatsoever said tri-party agreement is not entered into by Tenant and/or
Tenant's selected ESP, and until it is, Tenant shall have absolutely no right(s)
of any nature whatsoever to select an ESP.
43. LEASE INTERPRETATION. This Lease has been thoroughly
negotiated by the parties and each has been instrumental in its preparation.
Therefore its terms, provisions and contents shall be construed neither in favor
of, nor against, either party under the rule of construction against the
draftsperson. The laws of the State of Florida shall govern the interpretation
and enforcement of this Lease.
44. IMPROVEMENT ALLOWANCE. IN ORDER THAT THE PREMISES MAY BE
BUILT-OUT, CONSTRUCTED AND IMPROVED ("THE WORK") FOR TENANT'S USE AND OCCUPANCY
THEREOF AS CONTEMPLATED BY THIS LEASE, LANDLORD SHALL PROVIDE TENANT WITH AN
ALLOWANCE ("THE ALLOWANCE") OF ONE HUNDRED THIRTY-EIGHT THOUSAND TWO HUNDRED
EIGHTY DOLLARS ($138,280.00). THE WORK MAY (AND SHALL) ONLY BE DONE BY A GENERAL
CONTRACTOR SELECTED BY LANDLORD ("LANDLORD'S CONTRACTOR") AND SHALL BE DONE IN
GENERAL ACCORDANCE WITH PLANS, DRAWINGS, SPECIFICATIONS, ETC., TO BE HEREAFTER
DILIGENTLY, EXPEDITIOUSLY AND IN GOOD FAITH DEVELOPED AND PRE - APPROVED IN
WRITING BY LANDLORD, TENANT AND LANDLORD'S CONTRACTOR (SEE ALSO EXHIBIT "B").
ANY AND ALL EXPENSES, COSTS, ETC., TO DO THE WORK IN EXCESS OF THE ALLOWANCE
SHALL BE SOLELY BORNE BY TENANT AND SHALL BE PAID BY TENANT WITHIN THIRTY (30)
DAYS OF RECEIPT OF AN INVOICE THEREFOR FROM LANDLORD OR LANDLORD'S CONTRACTOR.
IF THE COSTS, EXPENSES, ETC., OF THE WORK ARE LESS THAN THE ALLOWANCE, TENANT
SHALL BE ENTITLED TO A CREDIT THEREFOR, AND SAID CREDIT MAY BE UTILIZED BY
TENANT LATER DURING THE ORIGINAL TERM OF THIS LEASE TO HAVE LANDLORD'S
CONTRACTOR MAKE ADDITIONAL IMPROVEMENTS, REFURBISHMENTS, ETC., TO THE PREMISES
AND/OR TO HAVE LANDLORD'S CONTRACTOR MAKE ALTERATIONS, IMPROVEMENTS, ETC., TO
THE EXPANSION SPACE. LANDLORD MAY PAY DIRECTLY TO LANDLORD'S CONTRACTOR THE
APPLICABLE (AND EARNED) PORTION(S) OF THE ALLOWANCE.
FEES FOR PRELIMINARY "TEST FIT" PLANS AND STANDARD ENGINEERING
DRAWINGS, AND STANDARD ARCHITECTURAL DRAWINGS (AS DEFINED IN EXHIBIT "B" ITEM
5.) SHALL NOT BE A PART OF THE ALLOWANCE AND SHALL BE SOLELY BORNE BY LANDLORD.
THE VARIOUS COMPONENTS OF THE WORK WILL BE COMPETITIVELY BID
WITH LANDLORD'S CONTRACTOR BY NOT FEWER THAN THREE (3) SUBCONTRACTORS AND THE
LOWEST SUBCONTRACTOR BID SHALL BE (UNLESS OTHERWISE APPROVED IN WRITING BY
TENANT) AWARDED THE APPLICABLE COMPONENT OF THE WORK. ANY STATEMENT OR
IMPLICATION TO THE CONTRARY WITHIN THE IMMEDIATELY PRECEDING PARAGRAPH OF THIS
ITEM 44, LANDLORD'S CONTRACTOR SHALL BE
31
ENTITLED TO BE PAID FROM THE ALLOWANCE TEN PERCENT (10%) AS "OVERHEAD" AND A FEE
OF FIVE PERCENT (5%), BOTH FOR SERVING AS THE GENERAL CONTRACTOR REGARDING THE
WORK.
NO "CREDIT(S)" THE SUBJECT OF THIS ITEM 44 AND/OR ITEM 45
BELOW MAY (OR SHALL) BE UTILIZED OTHER THAN TO DO THE WORK AND/OR THE EXPANSION
SPACE WORK AND/OR SUBSEQUENT IMPROVEMENTS, REFURBISHMENT(S), ETC., TO THE
PREMISES AND/OR THE EXPANSION SPACE.
45. OPTION TO EXPAND. PROVIDED (BUT NOT OTHERWISE): (A) TENANT IS
NOT THEN [I.E., EITHER ON THE DAY TENANT GIVES LANDLORD THE WRITTEN NOTICE THE
SUBJECT OF (B) OF THIS FIRST PARAGRAPH OF THIS ITEM 45 OR ON THE DAY THE
EXPANSION SPACE IS MADE AVAILABLE FOR TENANT'S OCCUPANCY THEREOF OR AT ANY TIME
BETWEEN THOSE TWO TIMES] IN UNCURED (I.E., BEYOND ANY APPLICABLE CURATIVE PERIOD
FOLLOWING DUE NOTICE) DEFAULT OF THIS LEASE AND (B) TENANT GIVES LANDLORD
WRITTEN NOTICE NOT LATER THAN APRIL 30, 2002 (TIME BEING ABSOLUTELY OF THE
ESSENCE) OF TENANT'S ELECTION TO LEASE THE ENTIRE EXPANSION SPACE, TENANT MAY,
AS IS MORE PARTICULARLY DESCRIBED IN, AND EXPRESSLY SUBJECT TO THE OTHER
CONTENTS OF, THIS ITEM 45, LEASE FROM LANDLORD THAT AREA ("THE EXPANSION SPACE")
CONSISTING OF APPROXIMATELY 6,040 SQUARE FEET OF NET RENTABLE AREA (WHICH THE
PARTIES EXPRESSLY AND IRREVOCABLY AGREE ARE CONTAINED IN THE EXPANSION SPACE),
AS OUTLINED IN GREEN ON THE ATTACHED EXHIBIT "A" EXPRESSLY MADE A PART HEREOF.
THE EXPANSION SPACE IS LIKEWISE LOCATED ON THE 31ST FLOOR OF THE BUILDING AND IS
CONTIGUOUS TO THE PREMISES. ONLY LANDLORD'S CONTRACTOR SHALL BE PERMITTED TO DO
THE BUILD-OUT, CONSTRUCTION, IMPROVEMENT, ETC. ("THE EXPANSION SPACE WORK") OF
THE EXPANSION SPACE. SAID EXPANSION SPACE WORK SHALL BE EFFECTED IN GENERAL
ACCORDANCE WITH ITEM 44 OF THIS LEASE AND EXHIBIT "B" OF THIS LEASE. LANDLORD'S
CONTRACTOR SHALL BE ENTITLED TO BE PAID FROM THE EXPANSION SPACE ALLOWANCE TEN
PERCENT (10%) AS "OVERHEAD" AND A FEE OF FIVE PERCENT (5%), BOTH FOR SERVING AS
THE GENERAL CONTRACTOR REGARDING THE EXPANSION SPACE WORK. IN ORDER THAT
LANDLORD'S CONTRACTOR MAY DO THE EXPANSION SPACE WORK, TENANT, NOT LATER THAN
JUNE 28, 2002 (TIME BEING ABSOLUTELY OF THE ESSENCE) SHALL DELIVER TO LANDLORD
APPROVED (BY TENANT, LANDLORD AND LANDLORD'S CONTRACTOR) ARCHITECTURAL PLANS,
DRAWINGS, SPECIFICATIONS, ETC. TENANT'S IMPROVEMENT ALLOWANCE ("THE EXPANSION
SPACE ALLOWANCE") SHALL BE DETERMINED BY MULTIPLYING THE FIGURE SIXTY THOUSAND
FOUR HUNDRED DOLLARS ($60,400.00) BY A FRACTION THE NUMERATOR OF WHICH IS THE
NUMBER OF CALENDAR DAYS REMAINING IN THE TERM ONCE TENANT TAKES OCCUPANCY OF THE
EXPANSION SPACE, FULLY - STAFFED AND FULLY - OPERATIONAL, AND THE DENOMINATOR OF
WHICH IS 1,885 (THE NUMBER OF DAYS IN 62 MONTHS). IF THE FINAL COST OF THE
EXPANSION SPACE WORK EXCEEDS THE EXPANSION SPACE ALLOWANCE, TENANT SHALL BE
SOLELY RESPONSIBLE FOR ALL EXCESS COSTS. IF THE FINAL COST OF THE EXPANSION
SPACE WORK DOES NOT EXCEED THE EXPANSION SPACE ALLOWANCE, THEN TENANT SHALL BE
ENTITLED TO A CREDIT THEREFOR, AND SAID CREDIT MAY BE UTILIZED BY TENANT LATER
DURING THE ORIGINAL TERM OF THIS LEASE TO HAVE LANDLORD'S CONTRACTOR MAKE
ADDITIONAL IMPROVEMENTS, REFURBISHMENTS, ETC., TO THE EXPANSION SPACE AND/OR TO
THE PREMISES. LANDLORD MAY PAY DIRECTLY TO LANDLORD'S CONTRACTOR THE APPLICABLE
(AND EARNED) PORTION(S) OF THE EXPANSION SPACE ALLOWANCE. THE TERM OF TENANT'S
LEASE OF THE EXPANSION SPACE SHALL BEGIN THE EARLIEST OF (A) THE DATE TENANT
TAKES OCCUPANCY OF THE EXPANSION SPACE FOR THE CONDUCT OF ITS BUSINESS
THEREFROM, (B) FIVE DAYS AFTER THE DATE THE EXPANSION SPACE WORK IS COMPLETED
AND (C) THE DATE THE EXPANSION SPACE WORK WOULD HAVE BEEN COMPLETED EXCEPT FOR
THE FAULT OF, AND/OR DELAYS CAUSED BY, TENANT AND/OR TENANT'S OTHERS, AND SHALL
BE COTERMINOUS WITH THE TERM (AS POSSIBLY EXTENDED). TENANT'S LEASE OF THE
EXPANSION SPACE SHALL BE, WITH APPROPRIATE MATHEMATICAL ADJUSTMENTS [SEE, E.G.,
ITEM 1 (J), "PROPORTIONATE SHARE"], AND SUBJECT TO THE OTHER CONTENTS OF THIS
ITEM 45, UPON ALL THE OTHER TERMS AND CONDITIONS SET FORTH IN THIS LEASE, THE
NET EFFECT (SUBJECT TO THE OTHER CONTENTS OF THIS ITEM 45) TO BE TO TREAT, ON A
PER SQUARE FOOT PER ANNUM BASIS, THE EXPANSION SPACE DURING THE TERM (AS MAY BE
EXTENDED) OF THIS LEASE THE SAME WAY THE ORIGINAL PREMISES ARE TREATED, ON A PER
SQUARE FOOT PER ANNUM BASIS, DURING THE TERM (AS MAY BE EXTENDED) OF THIS LEASE.
[E.G., IF THE TERM OF TENANT'S LEASE OF THE EXPANSION SPACE BEGINS THE DAY THAT
IS EXACTLY FIFTEEN MONTHS AFTER THE SUITE 3150 COMMENCEMENT DATE, THEN THE BASE
RENT PAYABLE BY TENANT TO LANDLORD AS REGARDS THE
32
EXPANSION SPACE WOULD BE, FOR THAT PARTICULAR MONTH, $11,073.33 (COMPUTED AT
$22.00 PER NET RENTABLE SQUARE FOOT PER ANNUM), THE SCHEDULE OF BASE RENT THE
SUBJECT OF ITEM 1 (G) OF THIS LEASE TO BE APPLICABLE, ON A PER SQUARE FOOT PER
ANNUM BASIS, FOR THE REMAINDER OF THE TERM OF TENANT'S LEASE OF THE EXPANSION
SPACE.] TENANT SHALL BE ENTITLED TO NO "FREE" BASE RENT AS REGARDS ITS LEASE OF
THE EXPANSION SPACE. TENANT'S RIGHTS UNDER THIS ITEM 45 ARE ABSOLUTELY NOT
ASSIGNABLE OR OTHERWISE TRANSFERABLE SEPARATE AND APART FROM THIS ENTIRE LEASE,
BUT MAY BE ASSIGNED BY TENANT WITH THIS ENTIRE LEASE IN ACCORDANCE WITH, AND
EXPRESSLY SUBJECT TO, THE CONTENTS OF ITEM 7 OF THIS LEASE.
THE REQUIREMENTS IN THE FIRST PARAGRAPH OF THIS ITEM 45 THAT
TENANT NOT BE IN UNCURED DEFAULT OF THIS LEASE EITHER ON THE DAY TENANT GIVES
LANDLORD THE WRITTEN NOTICE THE SUBJECT OF (B) OF SUCH FIRST PARAGRAPH OR ON THE
DAY THE EXPANSION SPACE IS MADE AVAILABLE FOR TENANT'S OCCUPANCY THEREOF OR AT
ANY TIME BETWEEN THOSE TWO TIMES MAY BE WAIVED BY LANDLORD AT ITS SOLE
DISCRETION AND MAY NOT BE USED BY TENANT AS A MEANS TO NEGATE THE EFFECTIVENESS
OF TENANT'S EXERCISE, ONCE EXERCISED, OF THE OPTION TO EXPAND THE SUBJECT OF
THIS ITEM 45.
IF TENANT LEASES THE EXPANSION SPACE IT WILL THEREBY OCCUPY
THE ENTIRETY (EXCEPT FOR A STORAGE AREA) OF THE 31ST FLOOR OF THE BUILDING.
ACCORDINGLY, TENANT SHALL HAVE THE FOLLOWING RIGHTS:
(1) THE RIGHT, SUBJECT TO APPLICABLE LAWS, CODES,
ORDINANCES, REGULATIONS, ETC., TO LEAVE OPEN THE ENTRY DOORS TO THE TOTAL
PREMISES, ANY FEES, COSTS, EXPENSES, ETC., ASSOCIATED IN ANY WHATSOEVER
THEREWITH TO BE SOLELY BORNE BY TENANT.
(2) THE RIGHT, PROVIDED (BUT NOT OTHERWISE) LANDLORD
ELECTS (AT ITS SOLE DISCRETION) TO ALLOW OTHER FULL - FLOOR TENANTS IN THE
BUILDING TO HAVE A LIKE RIGHT, TO CUSTOMIZE (WITH TENANT'S NAME) THE CALL
BUTTONS IN THE ELEVATOR CABS SERVING THE 31ST FLOOR OF THE BUILDING, SUCH
CUSTOMIZATION TO BE AS LANDLORD GENERALLY UNIFORMLY PRESCRIBES FOR ALL FULL -
FLOOR TENANTS OF THE BUILDING.
(3) NEVERTHELESS SUBJECT TO (A) THE AVAILABILITY OF
SUBSTANTIALLY SIMILAR (CORE OF THE BUILDING) STORAGE SPACE ELSEWHERE WITHIN THE
BUILDING ITSELF AND (B) THE RIGHTS OF OTHER TENANTS IN THE BUILDING CURRENTLY
USING SAID 31ST FLOOR STORAGE SPACE, LANDLORD WILL UTILIZE ITS BEST EFFORTS TO
MAKE AVAILABLE TO TENANT THE RIGHT TO LEASE THE STORAGE SPACE IN THE MIDDLE OF
THE 31ST FLOOR OF THE BUILDING, SAID STORAGE SPACE BEING DEPICTED ON THE
ATTACHED EXHIBIT "A," THE FOLLOWING TERMS TO BE APPLICABLE TO SAID LEASE: (I) A
RENTAL RATE (BASE RENT AND ADDITIONAL RENT) EQUAL TO THAT TO BE PAID BY TENANT
TO LANDLORD, ON A PER NET RENTABLE SQUARE FOOT PER ANNUM BASIS, AS REGARD THE
PREMISES DURING THE ORIGINAL TERM OF THIS LEASE PLUS APPLICABLE TAX, (II)
LANDLORD, AS REGARDS SAID STORAGE SPACE, TO PROVIDE TENANT (GENERALLY SUBJECT TO
THE OTHER CONTENTS OF THIS LEASE) WITH AN IMPROVEMENT ALLOWANCE EQUAL TO TWO
DOLLARS ($2.00) PER NET RENTABLE SQUARE FOOT WITHIN SAID STORAGE SPACE FOR EACH
YEAR THEN REMAINING (MEASURED FROM THE DATE TENANT TAKES OCCUPANCY OF SAID
STORAGE SPACE) IN THE ORIGINAL TERM OF THIS LEASE, ANY PARTIAL YEARS TO BE
PRO-RATED, AND (III) TENANT TO PAY ALL COSTS ASSOCIATED WITH RELOCATING THE
OTHER TENANTS/USERS THEN UTILIZING SAID STORAGE SPACE.
(4) THE RIGHT TO ALTER THE COMMON AREA CORRIDOR TO ITS
CONDITION ON THE 31ST FLOOR OF THE BUILDING AS TENANT DEEMS NECESSARY, BUT
NEVERTHELESS IN FULL AND STRICT COMPLIANCE WITH ALL APPLICABLE LAWS, RULES,
CODES, REGULATIONS, ETC. [HOWEVER, IF TENANT DOES NOT EXERCISE THE (FIRST)
OPTION TO EXTEND THE SUBJECT OF THE SECOND PARAGRAPH OF ITEM 47 BELOW, THEN
TENANT SHALL BE OBLIGATED TO PAY LANDLORD THE EXPENSE(S) OF RESTORING THE
SUBJECT CORRIDOR TO ITS CONDITION AS OF THE DATE OF THIS LEASE, SAID OBLIGATION
TO SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.]
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FOR THE PURPOSES OF THIS ITEM 45 AND ITEM 47 BELOW, THE TERM
"LEASE" INCLUDES ANY SUBSEQUENT WRITTEN AMENDMENTS, MODIFICATIONS, ADDENDA,
ETC., PERTAINING THERETO.
46. TELECOMMUNICATIONS SERVICE PROVIDER. TENANT, SUBJECT TO THE
OTHER CONTENTS OF THIS ITEM 46, SHALL HAVE THE RIGHT TO UTILIZE ANY
TELECOMMUNICATIONS PROVIDER ("PROVIDER") IT ELECTS TO SERVE THE PREMISES.
LANDLORD WILL ALLOW SUCH PROVIDER ACCESS TO (A) THE BUILDING'S TELEPHONE ROOM(S)
ON THE 31ST FLOOR OF THE BUILDING AND (B) THE BUILDING'S RISERS, IN ORDER THAT
THE PROVIDER MAY PROVIDE TENANT WITH TELECOMMUNICATIONS SERVICE TO THE PREMISES
(AND, IF APPLICABLE, THE EXPANSION SPACE; COLLECTIVELY "THE TOTAL PREMISES").
HOWEVER, ABSOLUTELY NONE OF PROVIDER'S OR TENANT'S EQUIPMENT MAY (OR SHALL) BE
STORED IN, ON OR ABOUT SAID TELEPHONE ROOM(S) OR ELSEWHERE WITHIN, ON OR ABOUT
THE BUILDING.
47. OPTION(S) TO EXTEND. TENANT, AS IS MORE PARTICULARLY DESCRIBED
HEREINAFTER IN THIS ITEM 47., SHALL HAVE TWO (2) SEPARATE AND CONSECUTIVE
OPTIONS TO EXTEND THE INITIAL TERM OF THIS LEASE. THE SECOND OPTION MAY NOT BE
EXERCISED IF THE FIRST OPTION IS NOT DULY AND TIMELY EXERCISED.
PROVIDED (BUT NOT OTHERWISE) TENANT IS NOT THEN (I.E., EITHER ON THE
DAY TENANT GIVES LANDLORD THE WRITTEN NOTICE THE SUBJECT OF THIS SECOND
PARAGRAPH OF THIS ITEM 47. OR ON THE DAY THE FIRST EXTENSION TERM IS TO BEGIN,
OR AT ANY TIME BETWEEN THOSE TWO TIMES) IN UNCURED (I.E., BEYOND ANY APPLICABLE
CURATIVE PERIOD FOLLOWING DUE NOTICE) DEFAULT OF THIS LEASE, AND FURTHER
PROVIDED (BUT NOT OTHERWISE) TENANT NOT FEWER THAN SIX (6) MONTHS, AND NOT MORE
THAN NINE (9) MONTHS, TIME BEING ABSOLUTELY OF THE ESSENCE, PRIOR TO THE
EXPIRATION OF THE LEASE TERM GIVES LANDLORD WRITTEN NOTICE OF TENANT'S ELECTION
TO EXERCISE SUCH FIRST EXTENSION OPTION, TENANT SHALL BE ENTITLED TO EXTEND THE
TERM OF THIS LEASE FOR A PERIOD OF THREE (3) YEARS ("THE FIRST EXTENSION TERM"),
SUCH FIRST EXTENSION TERM TO BEGIN THE DAY IMMEDIATELY FOLLOWING THE EXPIRATION
OF THE LEASE TERM AND END EXACTLY THREE (3) YEARS LATER. IF TENANT EXERCISES
SUCH FIRST OPTION TO EXTEND, ALL OF THE NON-MONETARY TERMS AND CONDITIONS SET
FORTH IN THIS LEASE SHALL BE APPLICABLE DURING SUCH FIRST EXTENSION TERM,
EXCEPT, SUBJECT TO THE CONTENTS OF THE IMMEDIATELY FOLLOWING PARAGRAPH, TENANT
SHALL HAVE NO FURTHER RIGHTS OR OPTIONS TO EXTEND. THE RENT AND ADDITIONAL RENT
TO BE PAID BY TENANT TO LANDLORD DURING SUCH FIRST EXTENSION TERM SHALL BE
ADJUSTED TO 95% OF THE "FAIR MARKET RENTAL RATE" (AS HEREUNDER IN THIS ITEM 47.
DEFINED).
PROVIDED (BUT NOT OTHERWISE) TENANT IS NOT THEN (I.E., EITHER ON THE
DAY TENANT GIVES LANDLORD THE WRITTEN NOTICE THE SUBJECT OF THIS THIRD PARAGRAPH
OF THIS ITEM 47. OR ON THE DAY THE SECOND EXTENSION TERM IS TO BEGIN, OR AT ANY
TIME BETWEEN THOSE TWO TIMES) IN UNCURED (I.E., BEYOND ANY APPLICABLE CURATIVE
PERIOD FOLLOWING DUE NOTICE) DEFAULT OF THIS LEASE, AND FURTHER PROVIDED (BUT
NOT OTHERWISE) TENANT NOT FEWER THAN SIX (6) MONTHS, AND NOT MORE THAN NINE (9)
MONTHS, TIME BEING ABSOLUTELY OF THE ESSENCE, PRIOR TO THE EXPIRATION OF THE
FIRST EXTENSION TERM GIVES LANDLORD WRITTEN NOTICE OF TENANT'S ELECTION TO
EXERCISE SUCH SECOND EXTENSION OPTION, TENANT SHALL BE ENTITLED TO FURTHER
EXTEND THE TERM OF THIS LEASE FOR A PERIOD OF THREE (3) YEARS ("THE SECOND
EXTENSION TERM"), SUCH SECOND EXTENSION TERM TO BEGIN THE DAY IMMEDIATELY
FOLLOWING THE EXPIRATION OF THE FIRST EXTENSION TERM AND END EXACTLY THREE (3)
YEARS LATER. IF TENANT EXERCISES SUCH SECOND OPTION TO EXTEND, ALL OF THE
NON-MONETARY TERMS AND CONDITIONS SET FORTH IN THIS LEASE SHALL BE APPLICABLE
DURING THE SECOND EXTENSION TERM, EXCEPT TENANT SHALL HAVE NO FURTHER RIGHTS OR
OPTIONS TO EXTEND. THE RENT AND ADDITIONAL RENT TO BE PAID BY TENANT TO LANDLORD
DURING SUCH SECOND EXTENSION TERM SHALL BE ADJUSTED TO 95% OF THE "FAIR MARKET
RENTAL RATE" (AS HEREINAFTER THIS ITEM 47. DEFINED).
IN ABSOLUTELY NO EVENT WHATSOEVER MAY OR SHALL TENANT, UNDER EITHER
OPTION, EXTEND THE TERM OF THIS LEASE FOR LESS THAN ALL THE SPACE THEN UNDER
LEASE BY TENANT FROM LANDLORD UNDER THE TERMS AND PROVISIONS OF THIS LEASE.
34
FOR THE PURPOSE OF THIS ITEM 47., THE TERM "FAIR MARKET RENTAL RATE"
SHALL MEAN THE ANNUAL AMOUNT PER RENTABLE SQUARE FOOT THAT A WILLING, SIMILAR,
NON-EQUITY, NON-RENEWAL, NON-EXPANSION NEW TENANT WOULD PAY AND A WILLING,
SIMILAR LANDLORD OF A SUBSTANTIALLY SIMILAR FIRST CLASS OFFICE BUILDING IN
DOWNTOWN TAMPA, FLORIDA, WOULD ACCEPT AT ARM'S LENGTH, ON OR ABOUT THE DATE OF
THE COMMENCEMENT OF THE APPLICABLE EXTENSION PERIOD, GIVING APPROPRIATE
CONSIDERATION TO ANNUAL RENTAL RATES PER RENTABLE SQUARE FOOT, THE TYPE OF
ESCALATION CLAUSES AND BASE YEARS (INCLUDING, BUT WITHOUT LIMITATION, OPERATING
EXPENSE, REAL ESTATE TAXES, CPI), THE EXTENT OF LIABILITY UNDER THE ESCALATION
CLAUSES (E.G., WHETHER DETERMINED ON A "NET LEASE" BASIS OR BY INCREASE OVER A
PARTICULAR BASE YEAR OR BASE DOLLAR AMOUNT), ABATEMENT PROVISIONS REFLECTING
FREE RENT AND/OR NO RENT DURING THE PERIOD OF CONSTRUCTION OR ANY OTHER PERIOD
DURING THE LEASE TERM, BROKERAGE COMMISSIONS, IF ANY, LENGTH OF LEASE TERM, SIZE
AND LOCATION OF PREMISES BEING LEASED, BUILDING STANDARD WORK LETTER AND/OR
TENANT IMPROVEMENT ALLOWANCES, IF ANY, AND OTHER GENERALLY APPLICABLE AND
RECOGNIZED TERMS AND CONDITIONS PERTAINING THERETO.
IF TENANT AND LANDLORD ARE UNABLE, BY THE DATE THAT IS EXACTLY FOUR (4)
MONTHS PRIOR TO THE BEGINNING OF THE APPLICABLE EXTENSION TERM, TO AGREE ON WHAT
THE FAIR MARKET RENTAL RATE IS, THEN LANDLORD AND TENANT SHALL EACH, WITHIN 15
DAYS THEREAFTER, APPOINT AN INDEPENDENT REAL ESTATE APPRAISER WITH AT LEAST FIVE
YEARS' COMMERCIAL REAL ESTATE LEASING APPRAISAL EXPERIENCE IN THE XXXXXXXX
XXXXXXXX XXXXXXXX XX XXXXX, XXXXXXX. THE TWO APPRAISERS SHALL THEN, WITHIN 20
DAYS AFTER THE APPOINTMENT OF THE LATTER, ATTEMPT TO AGREE UPON WHAT THE FAIR
MARKET RENTAL RATE IS. IF THEY ARE UNABLE TO DO SO, THEY SHALL EACH MAKE AN
INDEPENDENT WRITTEN DETERMINATION OF THE FAIR MARKET RENTAL RATE AND THEN SELECT
A THIRD APPRAISER WHO MEETS THE QUALIFICATIONS STATED ABOVE. THE THIRD APPRAISER
SHALL SELECT EITHER THE DETERMINATION OF THE TENANT-APPOINTED APPRAISER OR THE
DETERMINATION OF THE LANDLORD-APPOINTED APPRAISER, BUT SUCH THIRD APPRAISER
SHALL NOT AVERAGE SUCH TWO DETERMINATIONS OR MAKE HIS OR HER OWN INDEPENDENT
DETERMINATION. THE SAID SELECTION BY SAID THIRD APPRAISER SHALL BE BINDING ON
BOTH LANDLORD AND TENANT. TENANT AND LANDLORD SHALL EACH BEAR THE ENTIRE COST OF
THE APPRAISER SELECTED BY IT AND SHALL SHARE EQUALLY THE COST OF THE THIRD
APPRAISER.
THE RESPECTIVE REQUIREMENTS IN THE SECOND AND THIRD PARAGRAPHS (AS
APPLICABLE) OF THIS ITEM 47. THAT TENANT NOT BE IN UNCURED DEFAULT OF THIS LEASE
EITHER ON THE DAY TENANT GIVES LANDLORD THE WRITTEN NOTICE THE SUBJECT OF SUCH
SECOND AND THIRD PARAGRAPHS (AS APPLICABLE) OR ON THE DAY THE APPLICABLE
EXTENSION TERM IS TO BEGIN, OR AT ANY TIME BETWEEN THOSE TWO TIMES, MAY BE
WAIVED BY LANDLORD AT ITS SOLE DISCRETION AND MAY NOT BE USED BY TENANT AS A
MEANS TO NEGATE THE EFFECTIVENESS OF TENANT'S EXERCISE (ONCE EXERCISED) OF THE
RESPECTIVE TWO (2) OPTION(S) TO EXTEND THE SUBJECT OF THIS ITEM 47.
48. AMENDMENTS. This Lease contains the entire agreement between
the parties hereto and may not be altered, changed or amended, except by written
instrument signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing signed
by Landlord and addressed to Tenant, nor shall any custom or practice which may
grow up between the parties in the administration of the provisions hereof be
construed to waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms,
provisions, covenants, and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representative, except as otherwise
herein expressly provided.
The parties each acknowledge that they have thoroughly read and
understand this Lease (to include its Exhibits and attachments) in its entirety,
that they are completely familiar with each, every, any and all of the terms,
covenants, provisions and conditions set forth therein and that there are no
other representations, promises, covenants, assurances, conditions,
35
statements, understandings, warranties or agreements (collectively,
"Representations") concerning this Lease which do not appear in writing therein.
This Lease supersedes and revokes all previous negotiations, arrangements,
letters of intent, offers to lease, lease proposals, brochures, Representations,
and information or data conveyed, whether oral or in writing, between the
parties and/or their respective representatives or any other person(s)
purporting to represent either Landlord or Tenant. Each party acknowledges that
it has not been induced to enter into this Lease by any Representations not
expressly set forth herein. The parties further acknowledge that the terms and
provisions contained within this Lease have been fully, freely and fairly
negotiated by and between them.
IN WITNESS WHEREOF, the parties, either for themselves or by and
through their undersigned, duly-authorized representatives, have executed this
Lease for the purposes therein expressed.
Signed, sealed and delivered
in the presence of: TENANT: LIQUIDMETAL TECHNOLOGIES, INC.
(Sign) By: (Seal)
------------------------------- -----------------------------
(Print) Name: Xxxx Xxxx
------------------------------ ---------------------------------
/s/ Xxxx Xxxx (Sign) Title: CEO
------------------------------- --------------------------------
(Print) Date: 11/4/01
------------------------------ ---------------------------------
LANDLORD: PLAZA IV ASSOCIATES, LTD.,
A Florida Limited Partnership
By: Tampa Plaza IV Company, Ltd.,
a Florida Limited Partnership,
Manager
(Sign) By: (Seal)
------------------------------- ----------------------------
/s/ Xxxxxxx X. Xxxxx (Print) Name: Xxxxxxx X. Xxxxx, III
------------------------------ ---------------------------------
(Sign) Title: General Partner
------------------------------- --------------------------------
(Print) Date: 11/04/01
------------------------------ ---------------------------------
36
EXHIBIT "A"
37
EXHIBIT "A-1"
38
EXHIBIT "B"
September 28, 2001
WORK LETTER
1. Landlord has installed on each occupied floor of the Building the
following Building Standard Improvements:
a. Heating, ventilation and air-conditioning (HVAC) system(s).
b. Fire sprinkler system(s) with up-right mounted brass sprinkler
heads, installed on a 10' by 12' grid.
c. Toilet rooms, such toilet rooms to include HVAC, lighting,
typical plumbing fixtures, toilet accessories and wall,
counter, floor and ceiling finishes.
d. Electrical and telephone rooms, such rooms to be available for
source connections to the Premises. (Tenant's telephone
equipment will be restricted to, and must be installed within,
the Premises.)
2. In addition to the above-described Building Standard Improvements,
Landlord shall provide TENANT THE ALLOWANCE THE SUBJECT OF ITEM 44 OF
THIS LEASE, SAID PROVISION TO BE IN ACCORDANCE WITH THE CONTENTS OF
SAID ITEM 44.
1
3. The Work shall be done using the items and materials described as
"Building Standard Tenant Finishes" (see Exhibit "B-1" for a listing
thereof) and/or Landlord-approved additions and/or Landlord-approved
substitutions for such items and materials.
4. In order that Landlord may maintain, control and monitor the quality of
the Building and the design intent of its systems and any warranties,
guarantees, etc., Tenant agrees that any and all mechanical,
structural, electrical, HVAC, plumbing, life safety, fire sprinklering,
etc., engineering required or appropriate to perform the Work (or any
other type of work in the Premises) will be done solely (no exceptions)
by Landlord's engineer(s). Landlord's Contractor and/or engineer(s)
shall not be required to perform any Work (OR OTHER TYPE OF WORK) Work
that would violate the construction and/or engineering standards from
time to time established by Landlord (or its designates) for the
Building or that would violate any applicable codes, regulations, laws,
ordinances, policies of insurance, rules, etc.
5. Landlord shall provide to Tenant at no additional cost to Tenant (AND
OUTSIDE THE PURVIEW OF THE ALLOWANCE, AND, IF APPLICABLE, THE EXPANSION
SPACE ALLOWANCE) the services of an architect selected by Landlord to
provide PRELIMINARY "TEST FIT" PLANS AND architectural working drawings
("the Working Drawings"), the same to include partition and door
location drawings, telephone and electrical location drawings,
reflected ceiling drawings and finish specifications, all as associated
with the Work. Notwithstanding the contents of the immediately
preceding sentence, the expense of all drawings not Working Drawings
("the Other Drawings") and the research cost to
2
produce drawings ("the Extra Drawings") of nonstandard items to be
installed in the Premises, including, but not limited to, elevations,
cabinet or millwork details and nonstandard installations, furnishings,
fixtures or finishes of any nature whatsoever, shall be paid by Tenant
(OR, AT LANDLORD'S OPTION, DEDUCTED FROM THE ALLOWANCE), as shall be
the reproduction expense of extra copies of the Working Drawings and
the expense of the Other Drawings and the Extra Drawings. All drawings
(of any nature or description whatsoever; "the Drawings") are subject
to Landlord's prior, written and discretionary approval. Landlord, at
its discretion, may limit the number of revisions, redraws or changes
to the Drawings, preclude further revisions, redraws or changes to the
Drawings or require that Tenant pay [in such manner and under such
circumstances as Landlord (or Landlord's Contractor) may or shall, from
time to time and at its (their) discretion, direct Tenant in writing]
for any such revisions, redraws or changes to the Drawings.
6. Landlord, at Landlord's sole discretion, may permit Tenant and/or
Tenant's agents, contractors or consultants ("Tenant's Others") to
enter the Premises prior to the Commencement Date in order that there
may be done other work to prepare the Premises for Tenant's use and
occupancy thereof. If Landlord permits such entry, then such permission
is: (i) revocable by Landlord at any time (for any reason or for no
reason) at Landlord's sole discretion and (ii) conditioned upon
Tenant's and Tenant's Others' working in harmony with, and not
interfering with, Landlord and Landlord's designates in doing
Landlord's work in and to the Premises or elsewhere in and to the
Building. Tenant understands and agrees that: (i) any such entry into,
and occupation of, the Premises is and shall be deemed to be under all
of the terms, conditions, provisions and contents of this Lease (except
as to the obligation to pay Rent); (ii) Landlord AND ITS DESIGNATES
shall not be liable in any way whatsoever for any injury, loss or
damage of any nature whatsoever which may (or does) occur to any of
Tenant's (or Tenant's Others') work, property or installations made in
or to the Premises or to any property placed in the Premises by Tenant,
Tenant's Others or others prior to the Commencement Date, all of the
same being at Tenant's sole and exclusive risk, which risk Tenant
hereby voluntarily assumes; (iii) Item 15 of this Lease shall be (and
hereby is) specifically and fully applicable as regards any such entry;
(iv) Landlord, prior to permitting any such entry, shall be entitled to
require Tenant and/or Tenant's Others to be bonded and insured in such
amounts and with such companies as Landlord may in its sole discretion
prescribe; and (v) Tenant shall pay Landlord in advance for any and all
extraordinary expenses incurred by Landlord associated with such entry
(e.g., extra or overtime personnel or extra utility services).
7. Tenant understands and agrees that Tenant shall, anything anywhere
notwithstanding, commence its payment of Rent and/or Additional Rent to
Landlord on the anticipated SUITE 3150 Commencement Date described in
Item 1(e) of this Lease in the event Tenant:
(a) becomes in default (see Item 20) of this Lease, or
(b) fails to meet duly, fully and timely any of its duties,
obligations or responsibilities under this Exhibit "B" and/or
under this Lease generally, or
(c) orders or requests materials, finishes, fixtures or
installations other than those described in Exhibit "B-1," or
(d) makes changes in the Drawings and/or any specifications
thereof and/or any work or improvements called for thereby
(notwithstanding that Landlord may have approved of any or all
of such changes), or
3
(e) fails to perform duly, fully and timely any work to be
performed by Tenant, or
(f) fails to ensure performance duly, fully and timely of any work
to be performed by third parties on behalf of Tenant as
regards this Lease, or
(g) directly or indirectly in any way whatsoever interferes with
or delays the performance of the Work,
(h) directly or indirectly in any way whatsoever causes any delay
in Landlord's preparation and completion of the Premises, or
(i) directly or indirectly in any way whatsoever allows or permits
third parties for which Tenant rightfully should be
responsible to interfere with or delay the performance of the
Work, or
(j) directly or indirectly in any way whatsoever allows or permits
third parties for which Tenant rightfully should be
responsible to cause any delay in Landlord's preparation and
completion of the Premises..
THOROUGHLY READ, UNDERSTOOD AND AGREED:
LANDLORD: TENANT:
--------- -------
PLAZA IV ASSOCIATES, LTD. LIQUIDMETAL TECHNOLOGIES, INC.
A Florida Limited Partnership
By: Tampa Plaza IV Company, Ltd., a
Florida Limited Partnership,
Manager
By: /s/ Xxxxxxx X. Xxxxx, III By: /s/ Xxxx Xxxx
--------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx, III Name: Xxxx Xxxx
------------------------------- ---------------------------------
Title: General Partner Title: President, CEO
------------------------------ --------------------------------
4
BUILDING RULES AND REGULATIONS
The following Building Rules and Regulations have been adopted by
Landlord for the care, protection and benefit of the Premises and the Building
and for the general comfort and welfare of all tenants.
1. The sidewalks, entrances, passages, halls, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purpose
other than for ingress and egress to and from the Building and Tenant's
Premises.
2. Restroom facilities, water fountains, and other water
apparatus shall not be used for any purposes other than those for which they
were constructed.
3. Landlord reserves the right to designate the time when
freight, furniture, goods, merchandise and other articles may be brought into,
moved or taken from Tenant's Premises or the Building.
4. Tenant shall not put additional locks or latches upon any door
without the written discretionary consent of Landlord. Any and all locks so
added on any door shall remain for the benefit of Landlord, and the keys to such
locks shall be delivered to Landlord by and from Tenant.
5. Landlord shall not be liable for injuries, damage, theft, or
other loss to persons or property that may occur upon or near any parking areas
that may be provided by Landlord. Tenant, its agents, employees, and invitees
are to use same at their own risk, Landlord to provide no security with respect
thereto. The driveways, entrances, and exits upon, into and from such parking
areas shall not be obstructed by Tenant, Tenant's employees, agents, guests, or
invitees; provided, however, Landlord shall not be responsible or liable for
failure of any person to observe this rule. Tenant, its employees, agents,
guests and/or invitees shall not park in space(s) that may be reserved or
designated for others.
6. Tenant shall not install in the Premises any heavy weight
equipment or fixtures or permit any concentration of excessive weight in any
portion thereof without first having obtained Landlord's written
consent (NOT TO BE UNREASONABLY WITHHELD).
7. Landlord reserves the right at all times to exclude newsboys,
loiterers, vendors, solicitors, and peddlers from the Building and to require
registration or satisfactory identification or credentials from all persons
seeking access to any part of the Building outside ordinary business hours.
Landlord will exercise its best judgment in the execution of such control but
will not be liable for the granting or refusal of such access.
8. Landlord reserves the right at all times to exclude the
general public from the Building upon such days and at such hours as in
Landlord's sole judgment will be in the best interest of the Building and its
tenants.
9. No wires of any kind or type (including but not limited to
T.V. and radio antennas) shall be attached to the outside of the Building and no
wires shall be run or installed in any part of the Building without Landlord's
prior written consent (NOT TO BE UNREASONABLY WITHHELD).
10. Landlord shall furnish a reasonable number of door keys to
Tenant's Premises and/or the Building which shall be surrendered on termination
or expiration of the Lease.
1
Landlord reserves the right to require a deposit for such keys to insure their
return at the termination or expiration of the Lease. Tenant shall get keys only
from Landlord and shall not obtain duplicate keys from any outside source.
Further, Tenant shall not alter the locks or effect any substitution of such
locks as are presently being used in Tenant's Premises or the Building.
all doors to Premises closed at all times except for ingress and egress to the
Premises.
12. All installations in the Common Telephone/Electrical
Equipment Rooms shall be limited to terminal boards and connections. All other
electrical equipment must be installed within Tenant's Premises.
13. It is expressly understood and agreed that any items of any
nature whatsoever placed in Common Areas (i.e., hallways, restrooms, elevators,
parking garage, storage areas and equipment rooms) are placed at Tenant's sole
risk and Landlord assumes no responsibility whatsoever for any loss or damage as
regards same.
14. Tenant will allow no maintenance or repairs to be done in,
on, to or about the Premises other than by a contractor (such term to include
all degrees of subcontractors) approved by Landlord in writing prior to any such
maintenance or repairs being undertaken. Landlord shall be entitled to require
such contractor to be bonded and insured in such amounts and with such companies
as Landlord may in its discretion prescribe.
15. Smoking within the Building (to include the Premises and the
Building's common areas and appurtenances) is strictly and absolutely
prohibited. Landlord may, however, if (but not otherwise) it so chooses,
designate certain areas outside the Building where smoking will be permitted.
Landlord reserves the right to revoke any such designation(s) the subject of the
immediately preceding sentence.
**********************
2
EXHIBIT "B-1"
BUILDING STANDARD TENANT FINISHES
A. Diffusers by Kruger (or equal) laid-in, perforated ventilation model
no. 4504F236, to be installed into ceiling grid. Thermostat controls
for each zone located throughout the Premises.
B. Acoustical ceiling tile as provided by Xxxxxxxxx, premium quality soft
textured Cirrus Travertone #BF584 reveal edge style in 24" square size.
Suspended ceiling grid system by Xxxxxxxxx, Prelude T-Bar 15/16" wide
2' x 2' grid. #7300 main runners; #7342 4' cross tees; # 7324 2' cross
tees; # 7800 wall molding. Color matched with tile.
C. Light fixtures by Metalux, 2' x 4' parabolic, fluorescent, with three
40-watt warm white bulbs with electronic solid state ballasts and
return air slots.
D. One inch window blinds by Bali, "Classic", custom color to match
mullions at all exterior windows.
E. Finish Hardware
Manufacturer: Schlage
Series Selection: "L" Series
Trim Assembly Style Selection: #17 Design
Finish Selections:
1. Locksets, Latchsets, Pulls & Plates, Hinges, Flush Bolts:
US10(612) - Satin Bronze, Clear Coated.
2. Closers (covers & arms)
Paint finish color as selected by Landlord's architect.
F. Interior partitions (measured through door openings) consisting of 25
gage, 2-1/2" metal studs, 24" on center from floor to ceiling grid with
1/2" gypsum wallboard on each side.
G. Common partitions between the Premises and common areas or other
adjoining tenant space consisting of 25 gage, 2-1/2" metal studs, 16"
on center from floor to underside of slab above, with 1/2" gypsum
wallboard and 2-1/2" mineral fiber insulation between studs.
H. Solid core entrance doors of 3'0" x 8'7" x 1-3/4", dimension, premium
grade, plain sliced Honduran Mahogany finish RA-969-O by Algoma
Hardwoods placed in metal frames of 16 gage cold rolled steel, with
frames to be primed and painted with 2 coats of oil base paint.
I. Solid core interior doors of 3'0" x 8'0" x 1-3/4", premium grade
Honduran Mahogany finish RA-969-0 by Algoma Hardwoods with frames and
hardware as above.
J. Electrical duplex outlet in ivory color, "Decora" style.
K. Wall switches in "Decora" rocker type, ivory color.
L. Telephone outlets, plug-in type, ivory color installed in wall with
conduit stubbed in wall 6" above ceiling grid. Tenant is responsible
for installation of all phone equipment.
1
M. Fire exit signs by Lithonia, 277V, red letters, brushed aluminum panel
color; installed as determined by City Fire Codes.
N. Fire enunciator speakers by Pyrotonics (or equal) installed as
determined by Codes.
O. Carpet 30 oz. from Landlord's selection.
P. Two coats of prime quality latex paint on all walls.
2
