EXHIBIT 10.33
LEASE
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
23rd day of June, 1999 by and between ACP OFFICE I, L.L.C. ("Landlord"), whose
address for purposes hereof is 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx #000, Xxxxxxxxx,
Xxxxxxx 00000 and XXXXXXXX.XXX, a Florida corporation ("Tenant"), whose
addresses for purposes hereof is 0000 Xxxxxxx Xxxx., Xxxxxxxxxx, Xxxxxxx 00000.
PREMISES
1. Subject to and upon the terms, provisions, covenants and conditions
set forth in this Lease, and each in consideration of the duties, covenants and
obligations of the other hereunder, Landlord leases, demises and lets to Tenant
and Tenant leases, demises and lets from Landlord the "Premises" (as hereinafter
defined) withih the office buildings designated as Buildings H and J on EXHIBIT
A attached hereto and made a part hereof having an address of 0000 Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000 ("collectively Building"). "Premises"
shall mean the 34,825 square feet of Rentable Area of office space on the second
floor of Building H ("Office Area") and the seventy-six thousand nine hundred
eighty-nine (76,989) square feet of Rentable Area of ground floor spaced located
on the ground floor of Building H and the portion of the ground floor of
Building J as shown on the floor plan attached hereto and made a part hereof as
EXHIBIT A ("Ground Floor Area"). The parties hereby agree that the "Rentable
Area" of the Premises is stipulated to be one hundred eleven thousand eight
hundred fourteen (111,814) square feet.
Notwithstanding anything contained in this Lease to the
contrary, even though the Premises are located on the property located in
Sunrise, Florida, described on EXHIBIT B ("Land"), the Tenant's use of portions
of the Land located outside of the Premises shall be the non-exclusive right to
use the "Common Areas" (as hereinafter defined) to the extent such Common Areas
are made available for use by tenants of the Project generally. Tenant
specifically acknowledges Landlord shall have the right and reserves for itself
the right to grant third parties, easements to use all exterior portions of the
Building and/or the Land, including, but not limited to, the drives, parking
area, landscape, covered walkways, exterior elevators, overhangs, green areas,
roof areas and such other areas as may be developed and/or redeveloped from time
to time upon the Land with any improvements thereon (the Land with all
improvements thereon is the "Project").
TERM
2.1 This Lease shall be for the term of one hundred twenty (120)
calendar months (the "Initial Term" or "Term"), commencing upon a date
("Commencement Date") which is the earlier of (i) Tenant's occupancy of the
Premises; or (ii) one-hundred twenty (120) days after issuance of a building
permit for leasehold improvements to the Premises; or (iii) one-hundred eighty
(180) days after June 23, 1999 unless sooner terminated or extended as provided
herein. Upon substantial completion of tenant improvements, defined as
completion of items required of Landlord on EXHIBIT "D" (exclusive of punch list
items), occupancy by Tenant of any part of the Premises for the
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conduct of its business therein or Landlord's receipt of a temporary or final
certificate of occupancy or such earlier date as the Commencement Date shall
occur, as above provided Tenant agrees to execute a Tenant Acceptance Letter
(attached as "EXHIBIT C") acknowledging acceptance of the Premises and the
Commencement Date of the Lease.
If Tenant, with Landlord's consent, shall occupy the Premises
prior to the beginning of the Term as specified above, all provisions of this
Lease shall be in full force and effect commencing upon such occupancy, and
"Rent" (as hereafter defined) for such period shall be paid by Tenant at the
same rate herein specified.
The first "Lease Year" shall begin on the Commencement Date
and shall extend through the last day of the twelfth (12th) full calendar month
thereafter. Thereafter, each "Lease Year" shall commence on the date following
the expiration of the preceding Lease Year and shall end on the expiration of
twelve (12) calendar months thereafter; provided, however, that the last "Lease
Year" shall end on the expiration date of this Lease.
2.2 The Tenant shall have the right to extend the Term of this Lease
for two (2) additional periods of five (5) years each (each period being an
"Extension Term"). The first period commencing on the day following the
expiration of the Initial Term ("Commencement of First Extension Term") and
ending on the last day of the calendar month in which the day preceding the
fifth anniversary of the Commencement of the First Extension Term occurs, unless
sooner terminated ("First Extension Term") and the second period commencing on
the day following the expiration of the First Extension Term ("Commencement of
the Second Extension") and ending on the last day of the calendar month on the
day preceding the fifth anniversary of the Commencement of the Second Extension
Term occurs, unless sooner terminated ("Second Extension Term"), provided that
(i) the Tenant shall give Landlord notice ("Extension Notice") at least twelve
(12) months prior to the expiration of the Term then in effect, and (ii) there
shall be no "Event of Default" (as hereinafter defined) of Tenant which remains
uncured as of the time of giving such Extension Notice.
Within thirty (30 ) days after receipt of each Extension
Notice, the Landlord will deliver a lease addendum specifying the "Market Rate"
for such extension ("Extension Addendum"). The Tenant will have fifteen (15)
days from receipt of Landlord's proposed Extension Addendum to execute such
Extension Addendum and deliver same to Landlord, which would constitute an
extension of this Lease. The Base Rent payable by Tenant to Landlord during each
Lease Year of the (a) first Extension Term shall be the Market Rate as set forth
in the Extension Addendum (as determined by Landlord within thirty (30) days
after Landlord's receipt of such Extension Notice as to the First Extension
Term) and (b) the second Extension Term shall be the Market Rate as set forth in
the Extension Addendum (as determined by Landlord within thirty (30) days after
Landlord's receipt of the Extension Notice with regard to the Second Extension
Term).
In addition to the Base Rent set forth above, the Tenant shall
pay throughout the Term all other monetary obligations attributable to the
Premises, including all Additional Rent, and shall
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be required to pay and perform all other obligations required to be paid and
performed pursuant to this Lease, except that the Base Rent shall be adjusted as
set forth above. Notwithstanding anything contained herein to the contrary, in
no event shall Tenant have the right to extend the Term unless Tenant timely and
properly exercises the Extension Notice with respect to such applicable
extension. The termination of this Lease during the Term hereof shall also
terminate and render void any remaining options or right on the part of Tenant
to extend the Term of this Lease.
2.3 The Initial Term as extended pursuant to Section 2.2 is referred to
as "Term" or "Lease Term."
BASE RENT
3.1 "Base Rent" shall mean the amount payable each Lease Year set forth
below, together with sales tax thereon.
(XXXXXX XXXXX XXXX)
LEASE SQUARE RENT RENT/ RENT/
YEAR FOOT SQ/FT MONTH YEAR
----- ------ --------- ------------- --------------
1 76,989 $ 10.25 $ 65,761.44 $ 789,137.25
2 76,989 $ 10.45 67,044.59 804,535.05
3 76,989 $ 10.65 68,327.74 819,932.85
4 76,989 $ 10.86 69,675.05 836,100.54
5 76,989 $ 11.07 71,022.35 852,268.23
6 76,989 $ 11.29 72,433.82 869,205.81
7 76,989 $ 11.52 73,909.44 886,913.28
8 76,989 $ 11.75 75,385,06 904,620.75
9 76,989 $ 11.99 76,924.84 923,098.11
10 76,989 $ 12.24 78,528.78 942,345.36
(SECOND FLOOR AREA)
1 34,825 $ 13.00 37,727.08 452,725.00
2 34,825 13.28 38,539.67 462,476.00
3 34,825 13.57 39,381.27 472,575.25
4 34,825 13.86 40,222.88 482,674.50
5 34,825 14.16 41,093.50 493,122.00
6 34,825 14.47 41,993.15 503,917.75
7 34,825 14.79 42,921.81 515,061.75
8 34,825 15.12 43,879.50 526,554.00
9 34,825 15.46 44,866.21 538,394.50
10 34,825 15.81 45,881.94 550,583.25
Lease Aggregate Base Rent $13,626,241.23
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During any extension of the Term, the Base Rent would be based
on the Market Rate as provided in Section 2.2. Tenant shall pay Landlord,
without previous demand therefore, and without any off-sets or deductions
whatsoever, the Rent for each Lease Year during the Term, which Base Rent shall
be payable in equal monthly installments payable on the first day of each month
in advance.
3.2 Each payment of Base Rent and/or Additional Rent (collectively
referred to as "Rent") shall be without any offset or deduction whatever, on or
before the first day of the month, in lawful (legal tender for public or private
debts) money of the United States of America, at the ACP OFFICE I, L.L.C., 000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 or elsewhere as designated
from time to time by Landlord's written notice to Tenant.
In addition to Base Rent, Tenant shall pay to Landlord each
month a sum equal to any sales tax, tax on rentals, and any other charges, taxes
and/or impositions now in existence or hereafter imposed based upon the
privilege of renting the space leased hereunder or upon the amount of rentals
collected therefor. Nothing herein shall, however, be taken to require Tenant to
pay any part of any Federal and State Taxes on income imposed upon Landlord.
If a Rent payment is not received within five (5) business
days after its due date, Landlord shall be entitled, in addition to any other
remedy that may be available, to an administrative fee and late charge of five
percent (5%) of the rent payment or Two Hundred Dollars ($200.00), whichever
amount is greater.
3.3 In addition to the Base Rent, Tenant shall pay to Landlord without
demand on the first day of each month during the Term as Additional Rent,
"Tenant's Proportionate Share of Operating Expenses" and "Tenant's Proportionate
Share of Taxes" (as those terms are hereinafter defined).
"Tenant's Proportionate Share of Operating Expenses" shall
mean 17.39%.
"Tenant's Proportionate Share of Taxes" shall mean 17.39%.
In the event that additional rentable square footage is
constructed upon the Project, above and beyond that which exists as of the date
of the execution of this Lease by Landlord and Tenant, then the Tenant's
Proportionate Share of Operating Expenses and the Tenant's Proportionate Share
of Taxes shall be equitably adjusted based on the same formula that such
percentages were calculated by Landlord based on the existing square footage of
rentable area within the Project. Promptly following the Commencement Date and
each year thereafter with respect to each calender year ("Fiscal Year")
occurring during the Term of this Lease or any renewals thereof, Landlord shall
deliver to Tenant a documented statement setting forth Landlord's reasonable
estimate of the Operating Expenses and Taxes for the then current Fiscal Year
(and pro rata for any portion of the
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month) and Tenant shall pay, as Additional Rent, an amount equal to one-twelfth
(1/12) of the estimated Tenant's Proportionate Share of Operating Expenses and
Tenant's Proportionate Share of Taxes in advance on the first day of each month,
together with each payment of Base Rent. Landlord's failure to render or delay
in rendering Landlord's estimate of Operating Expenses and Taxes or any
component of Operating Expenses and Taxes shall not prejudice Landlord's right
to thereafter render an estimate of Operating Expenses and Taxes for such Fiscal
Year or any component nor shall the rendering of Landlord's estimate of
Operating Expenses and Taxes prejudice Landlord's right to thereafter render
corrected estimates) of Operating Expenses and Taxes. If, however, Landlord
shall not furnish any such estimates) or if Landlord shall delay in furnishing
any such estimate(s), then: (i) until the first day of the month following the
month which is thirty (30) days after the date such estimate is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord in respect to the last
month of the preceding Fiscal Year; and (ii) if after such estimate is furnished
to Tenant, Landlord shall give notice to Tenant, stating whether the installment
of Operating Expenses and Taxes previously made for such Fiscal Year were
greater or less than the installment of Operating Expenses and Taxes which
should have been due for such Fiscal Year in accordance with such estimates and
(a) if there shall be a deficiency, the Tenant shall pay the amount thereof
within thirty (30) days after demand therefor or (b) if there shall have been an
overpayment, Landlord shall refund to Tenant the amount thereof within thirty
(30) days or apply same to the next installments of Operating Expenses and Taxes
payable by Tenant.
After the end of each Fiscal Year (and Landlord shall endeavor
to do so within one hundred eighty (180) days after the end of each Fiscal
Year), Landlord shall determine the actual Operating Expenses incurred during
the preceding Fiscal Year and shall furnish Tenant with a statement of such
actual Operating Expenses for such Fiscal Year ("Landlord's Statement") and
there shall be an adjustment between Landlord and Tenant, with payment to
Landlord or to Tenant, as the case may be, which shall be made within thirty
(30) days of the date of such Landlord's Statement. In any case provided in this
Section in which Tenant is entitled to receive a refund, the Landlord may, in
lieu of allowing such refund, credit against such future installments of Rent,
any amounts to which Tenant shall be entitled. Nothing in this Article shall be
construed so as to result in a decrease of the Rent hereunder. If this Lease
shall expire before any such credit shall have been fully applied, then
(provided Tenant is not in Default) Landlord shall refund to Tenant the
unapplied balance of such credit. Tenant (or its authorized representatives)
shall have the right, (at Tenant's sole cost and expense) at anytime after
delivery of Landlord's Statement for the prior Fiscal Year and prior to a date
ending ninety (90) days after delivery of such Landlord's Statement to inspect
Landlord's records which are directly relevant to the Operating Expenses for the
prior Fiscal Year ("Records"). In the event Tenant shall not object to
Landlord's Statement within such ninety (90) day period, then Landlord's
Statement shall be binding on the Tenant. In connection with any examination by
Tenant of Landlord's records, Tenant agrees to treat and to require its
employees, accountants and agents to treat all information as confidential and
not to disclose it to any other person; Tenant will confirm or cause its agents
or otherwise authorized representatives to confirm such agreement in a separate
written agreement, if requested by Landlord. In the event Tenant's
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inspection determines that Landlord has overstated Operating Expenses by more
than five percent (5%) of such Operating Expenses, then Landlord shall reimburse
Tenant for its reasonable expenses in auditing such Operating Expenses. In the
event Tenant's audit of Landlord's records discovers an overpayment or an
underpayment, Landlord and Tenant shall within thirty (30) days of such
determination, pay or credit to the other, as applicable, the amount of the
discrepancy.
Landlord's failure to render or delay in rendering a
Landlord's Statement with respect to any Fiscal Year or any component of the
Operating Expenses shall not prejudice Landlord's rights to thereafter render a
Landlord's Statement with respect to such Fiscal Year or any such component nor
shall the rendering of a Landlord's Statement for any Fiscal Year prejudice
Landlord's right to thereafter render a corrected Landlord's Statement for such
Fiscal Year. Landlord's failure to render or delay in rendering a xxxx with
respect to any installment of Taxes shall not prejudice Landlord's right to
thereafter render such a xxxx for such installment, nor shall the rendering of a
xxxx for any installment prejudice Landlord's right to thereafter render a
corrected xxxx for any such installment.
After the expiration of the Term, Landlord shall deliver to
Tenant a statement setting forth: (i) Tenant's Proportionate Share of Operating
Expenses prorated during the final Lease Year, up to and including the date of
expiration of the Term; and (ii) any underpayment or overpayment of same based
on Tenant's payment of Tenant's Proportionate Share of the projected Operating
Expenses made during the final Lease Year. In the event of any such
underpayment, Tenant shall pay the full amount of same to Landlord within
fifteen (15) days of demand. If Tenant has overpaid, Landlord shall reimburse
Tenant the full amount of such overpayment within fifteen (15) days of demand;
provided, however, in the event that the Tenant shall owe Landlord any monies,
then the Landlord shall have the right to apply the amount which would otherwise
be reimbursed to Tenant toward any monies owed by Tenant to Landlord. The
respective obligations of the parties hereto. pursuant to this Section shall
survive the termination of this Lease.
For purposes hereof, Operating Expenses shall be based upon
the Fiscal Year, and with respect to the share thereof to be paid by Tenant,
prorated for any partial Fiscal Year during the Term thereof.
Landlord agrees that the maximum amount that Tenant shall be
required to pay for Tenant's Proportionate Share of Operating Expenses and
Tenant's Proportionate Share of Taxes during the calendar year 1999 shall be an
aggregate of (i) Four Dollars ($4.00) per square foot of the Rentable Area of
the Office Area portion of the Premises (exclusive of electric and j anitorial
charges and exclusive of sales taxes); and (ii) Three and 50/100 Dollars ($3.50)
per square foot of the Rentable Area of the Ground Floor Area portion of the
Premises (exclusive of electric and janitorial charges and exclusive of sales
taxes).
Additionally, during the third Lease Year through the tenth
Lease Year, inclusive, the Landlord agrees that increases in Landlord's
controllable Operating Expenses (excluding taxes, insurance and utilities) will
not exceed five percent (5%) of the amount of such controllable
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Operating Expenses existing during the previous Lease Year. The parties
recognize and agree that the amount of the Operating Expenses which are not
controllable Operating Expenses, include, but are not limited to, taxes,
insurance and utility expenses.
"Operating Expenses" shall mean all expenses, costs and
disbursements, of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, maintenance
and/or operation of the Project, (which shall not include cost of individual
tenant improvements or management cost associated with leasing activities). By
way of explanation and clarification, but not by way of limitation, these
Operating Expenses will include the following:
(a) Wages and salaries of all employees engaged in operation
and maintenance of the Project, employer's social security taxes, unemployment
taxes or insurance, and any other taxes which may be levied on such wages and
salaries, the cost of disability and hospitalization insurance, pension or
retirement benefits, and any other fringe benefits for such employees.
(b) All supplies and materials used in operation and
maintenance of the Project.
(c) Cost of all utilities, including water, sewer,
electricity, gas and fuel oil used by the Project and not charged directly to
another tenant.
(d) Cost of Project management, janitorial services,
accounting and legal services, trash and garbage removal, servicing and
maintenance of all systems and equipment including, but not limited to,
elevators, plumbing, heating, air conditioning, ventilating, lighting,
electrical, security and fire alarms, fire pumps, fire extinguishers and hose
cabinets, mail chutes, guard service, alarm system, painting, window cleaning,
landscaping and gardening.
(e) Cost of casualty and liability insurance applicable to the
Project and Landlord's personal property used in connection therewith.
(f) Cost of capital improvements, provided said capital
improvements are intended to reduce other Operating Expenses or are a result of
government requirements, excluding any such capital improvements required to
cure existing violations of law as of the date hereof. Said capital improvements
shall be amortized over their deemed useful life.
(g) Costs arising from implementation of Legal Requirements of
Legal Authorities (defined below).
Landlord agrees to maintain accounting books and records
reflecting Operating Expenses of the Project in accordance with generally
accepted accounting principles.
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(i) Notwithstanding the above, Operating Expenses shall
exclude marketing or advertising costs for the Project, leasing and brokerage
commissions and fees, executive or managerial salaries above the level of
management, consulting fees, fees paid to architects, engineering, attorneys or
other professionals, penalties incurred by the Landlord as a result of its
failure to pay taxes or any other obligation on time, points, fees and interest
charges, principal payments or other payments of any kind related to Landlord's
financing of the Project or any part thereof, any cost resulting from Landlord's
default under a lease or other agreement, the cost of containing, removing or
otherwise remediating any contamination or other environmental liability, any
cost resulting from the sale or transfer of the Project or any portion thereof,
expenses resulting from defective construction or other work, costs arising for
the negligent or other improper performance or non-performance of Landlord,
coifs which are reimbursed by any tenant or occupant of the Project or by
insurance, or any cost of work which is performed at the expense of Landlord
under any other provision of this Lease.
"Taxes" shall mean all impositions, taxes, assessments
(special or otherwise), water and sewer charges and rents, and other
governmental liens or charges of any and every kind, nature and sort whatsoever,
ordinary and extraordinary, foreseen and unforeseen, and substitutes therefor,
including all taxes whatsoever (except only those taxes of the following
categories: any inheritance, estate succession, transfer or gift taxes imposed
upon Landlord or any income taxes specifically payable by Landlord as a separate
tax paying entity without regard to Landlord's income source as arising from or
out of the Project and/or the land on which it is located) attributable in any
manner to the Project, the land on which the Building is located, the ground
leasehold interest of Landlord, or the rents (however the term may be defined)
receivable therefrom or any part thereof, or any use thereof, or any facility
located therein or thereon or used in conjunction therewith or any charge or
other payment required to be paid to any governmental authority, whether or not
any of the foregoing shall be designated "real estate tax", "sales tax", "rental
tax", "excise tax", "business tax", or designated in any other manner.
Landlord's calculation of Taxes shall be made using the maximum discount allowed
by Law.
Additional Rent due by reason of the provisions of this
subsection 3.3 for the final months of this Lease is due and payable even though
it may not be calculated until subsequent to the termination date of the Lease;
the Operating Expenses and Taxes for the calendar year during which the Lease
terminates shall be prorated according to that portion of said calendar year
that this Lease was actually in effect. Tenant expressly agrees that Landlord,
at Landlord's sole discretion, may apply the security deposit specified in
section 5 hereof, if any, in full or partial satisfaction of any Additional Rent
due under this Lease and not paid when required to be paid. If said security
deposit is greater than the amount of any` such Additional Rent and there are no
other sums or amounts owed Landlord by Tenant by reason of any other terms,
provisions, covenants or conditions of this Lease, then within thirty (30) days
after the end of the Term Landlord shall refund the balance of said security
deposit to Tenant as provided in section 5. Nothing herein contained shall be
construed to relieve Tenant, or imply that Tenant is relieved, of the liability
for or the obligation to pay any Additional Rent due for the final month of this
Lease by reason of the provisions of this Lease if said
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security deposit is less than such Additional Rent, nor shall Landlord be
required to first apply said security deposit to such Additional Rent if there
are any other sums or amounts owed Landlord by Tenant by reason of any other
terms, provisions, covenants or conditions of this Lease.
3.4 It shall be the responsibility of Tenant to pay for all
utilities with respect to the Premises when due to Landlord or to utility
companies, as applicable. Tenant shall take all necessary actions to assure that
no liens arise against the Premises or other portion of the Project as a result
of Tenant's failure to pay for water, sewer, electricity, telephone or other
charges, which expenses shall in no event exceed that which Tenant would pay if
the Premises had been separately metered. To the extent that the utilities are
separately metered the Tenant shall pay all such utilities directly to the
applicable utility authority. To the extent the utilities are submetered then
the Tenant shall pay to Landlord the amount reasonably determined and allocated
by Landlord as being the utilities incurred in connection with Tenant's use of
the Premises. To the extent the utilities serving the Premises are not
separately metered or submetered, then the Landlord shall have the right to
cause such utilities for the Premises to be included as a portion of the
Operating Expenses. In no event shall Landlord be responsible for the quality,
quantity, failure or interruption of any of such utility services to the
Premises and/or any other portion of the Project unless the failure to provide
such utilities shall be caused by the willful act or omission of the Landlord.
Tenant shall not, without Landlord's prior written consent,
connect any additional electrical equipment of any type to the Project's
electrical distribution system, beyond that on Tenant's approved plans and
specifications for initial occupancy other than office machines which consume
comparable amounts of electricity. Tenant's use of electrical current shall
never exceed the capacity of the then existing electrical conductors and
equipment in or otherwise serving the Premises. In order to insure that such
capacity is not exceeded and to avert possible adverse effect on the Project's
distribution of electricity via the Project's electrical system, Tenant shall
not, without Landlord's prior written consent in each instance (which shall not
be unreasonably withheld, based on availability of electric energy in the
Project as allocated by Landlord to various areas of the Project), connect any
fixture, appliance or equipment (other than normal business machines which do
not materially increase Tenant's electrical consumption) to the Project's
electrical system or make any alterations or additions to the electrical system
of the Premises existing on the Commencement Date. Should Landlord grant such
consent, all additional risers or other equipment reasonably required therefor
shall be provided by Landlord, and the cost thereof shall be paid by Tenant to
Landlord within thirty (30) days of demand. Landlord shall have the right to
require Tenant to pay sums on account of such costs prior to the installation of
any such risers or equipment. Tenant will at all times comply with the
reasonable rules and regulations applicable to service, equipment, wiring, and
requirements of public utilities supplying electricity to the Building and such
reasonable rules and regulations enacted by Landlord with respect to minimizing
the unnecessary use of electrical service.
3.5 In addition to the foregoing Rent, all other payments to be made by
Tenant hereunder shall be deemed, for the purpose of securing the collection
thereof, to be Additional Rent
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hereunder, whether or not the same be designated as such, and shall be due and
payable on the earlier to occur of the date specified in this Lease or within
thirty (30) days of demand, and Landlord shall have the same rights and remedies
upon Tenant's failure to pay the same as for the nonpayment of the Rent.
Landlord, at its election, shall have the right (but not the obligation) to pay
for or perform any act which requires the expenditure of any sums of money by
reason of the failure or neglect of Tenant to perform any of the provisions of
this Lease beyond any applicable notice and/or cure period, and, in the event
Landlord shall, at its election, pay such sums or perform such acts requiring
the expenditure of monies, Tenant agrees to reimburse and pay Landlord, within
thirty (30) days of demand, or together with the next installment of Base Rent,
whichever shall first occur, all such sums which shall be deemed to be
Additional Rent hereunder and be payable by Tenant as such. If Landlord effects
such cure of any default by Tenant by bonding any lien which Tenant is required
to bond to satisfy any other obligation required to be performed by Tenant,
Tenant shall obtain and substitute a bond for Landlord's bond, at its sole cost
and expense, and reimburse Landlord for the cost of Landlord's bond.
3.6 Any reference in this Lease to "Rent" or "rent" includes
Base Rent and Additional Rent.
TIME OF PAYMENT
4. Tenant shall promptly pay Base Rent, as the same may be adjusted
from time to time, and Additional Rent and charges for work performed on order
of Tenant, and any other charges that accrue under this Lease, at the times and
place stated in this Lease.
SECURITY DEPOSIT
5. Tenant, concurrently with the execution of this Lease, will deliver
to Landlord a security deposit in the amount of Two Million Nine Hundred
Thirty-Nine Thousand Fifty and No/100 Dollars ($2,939,050.00) ("Security
Deposit"). In the event that Tenant shall incur hard costs in connection with
the installation of its "Tenant Work" (as hereinafter defined on EXHIBIT D),
which exceed the amount of the "Allowance Amount" (as those terms are
hereinafter defined) and provided Tenant shall notify Landlord of such fact
together with providing reasonable supporting documentation to Landlord in a
form reasonably acceptable to Landlord within thirty (30) days after the
Commencement Date then in such event the Security Deposit shall be reduced to an
amount equal to the greater of (i) Two Hundred Fifty Thousand and No/100 Dollars
($250,000) or (ii) Two Million Nine Hundred Thirty-Nine Thousand Fifty and
No/100 Dollars ($2,939,050.00) less the amount of hard costs incurred by Tenant
in connection with the Tenant Work for the Premises which exceed the Allowance
Amount as approved by Landlord, which approval shall not be unreasonably
withheld or delayed (such Two Million Nine Hundred Thirty-Nine Thousand Fifty
and No/100 Dollars [$2,939,050.00] as reduced, as provided above, if applicable,
is referred to as the "Specified Amount"). In the event that the Tenant is
current and in good standing of its obligations under this Lease as of each of
the following dates, then (i) on the first day of the Second (2nd) Lease Year
the
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Security Deposit will be reduced by an amount equal to one-fifth (1/5) of the
Specified Amount; (ii) on the first day of the third (3rd) Lease Year the
Security Deposit will reduce by an additional amount equal to one-fifth (1/5) of
the Specified Amount; (iii) on the first day of the fourth (4th) Lease Year the
Security Deposit shall be reduced by an additional amount equal to one-fifth
(1/5) of the Specified Amount; (iv) on the first day of the fifth (5th) Lease
Year the Security Deposit will be reduced by an additional amount equal to
one-fifth (1 /5) of the Specified Amount; and (v) on the first day of the sixth
(6th) Lease Year the Security Deposit will be reduced to Two Hundred Fifty
Thousand Dollars ($250,000). Notwithstanding anything contained herein to the
contrary with regard to the reduction of the amount of the Letter of Credit, at
no time shall the Letter of Credit be reduced to an amount less than Two Hundred
Fifty Thousand Dollars ($250,000). The form of the Security Deposit shall, at
Tenant's option, be either (i) cash or cashier's check, or (ii) a clean,
irrevocable letter of credit issued by a bank reasonably acceptable to the
Landlord and in the form EXHIBIT "E" ("Letter of Credit"). The Security Deposit
shall be retained by Landlord as security for the payment by Tenant of the Rent
and all-other payments herein agreed to be paid by Tenant, and for the faithful
performance by Tenant of the terms, provisions, covenants and conditions of this
Lease. It is agreed that Landlord, at Landlord's option, may at the time of any
Default by Tenant under any of the terms, provisions, covenants or conditions of
the Lease, draw on the Security Deposit in whole or in part, toward the payment
of the Rent and all other sums payable by Tenant under this Lease, and towards
the performance of each and every one of Tenant's covenants under this Lease,
but such covenants and Tenant's liability under this Lease shall thereby be
discharged only pro tanto; that Tenant shall remain liable for any amounts that
such sum shall be insufficient to pay; and in the event that Landlord does
utilize any of the Security Deposit during the Term, Tenant shall immediately
pay to Landlord such amount so that the Security Deposit shall remain in the
total amount of the Security Deposit described above; that Landlord may exhaust
any and all rights and remedies against Tenant before resorting to said sum, but
nothing herein contained shall require or be deemed to require Landlord to do
so; that, in the event the Security Deposit shall not be utilized for any such
purposes, then such Security Deposit shall be returned by Landlord to Tenant
within thirty (30) days after the end of the Term. In the event that the
Security Deposit is in the form of a Letter of Credit, then if the expiration
date under such Letter of Credit is less than thirty (30) days, the Tenant shall
extend such expiration date, and if at any time the expiration of the Letter of
Credit (as extended) is less than thirty (30) days, then Landlord shall be
entitled to draw on such Letter of Credit and hold the proceeds as the Security
Deposit hereunder.
USE
6. Tenant will use and occupy the Premises for the following use or
purpose and for no other use or purpose: General Office.
QUIET ENJOYMENT
7. Upon payment by Tenant of the Rents herein provided, and upon the
observance and performance of all terms, provisions, covenants and conditions on
Tenant's part to be observed and
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performed, Tenant shall, subject to all of the terms, provisions, covenants and
conditions of this Lease, peaceably and quietly hold and enjoy the Premises for
the Term.
INSURANCE PREMIUMS
8. If Landlord's insurance premiums exceed the standard premium rates
because the nature of Tenant's operation results in extra hazardous exposure,
then Tenant shall, upon receipt of appropriate invoices from Landlord, reimburse
Landlord for such increase in premiums. It is understood and agreed between the
parties hereto that any such increase in premiums shall be considered as rent
due and shall be included in any lien for rent.
RULES AND REGULATIONS
9. Except as may otherwise- conflict with the terms of this Lease,
Tenant agrees to comply with all reasonable rules and regulations Landlord may
adopt from time to time for operation of the Building and parking facilities and
protection and welfare of Building and parking facilities, its tenants, visitors
and occupants. The present rules and regulations, which Tenant hereby agrees to
comply with, entitled "Rules and Regulations" are attached to this Lease as
EXHIBIT "F". Any future reasonable rules and regulations shall become a part of
this Lease, and Tenant hereby agrees to comply with the same upon delivery of a
copy thereof to Tenant providing the same do not materially deprive Tenant of
its rights established under this Lease. Landlord shall not discriminate against
Tenant in the enforcement of such Rules and Regulations.
GOVERNMENTAL REQUIREMENTS
10. Tenant shall faithfully observe in the use of the Premises all
Legal Requirements of all Legal Authorities. Landlord agrees, at its sole cost
and expense, to comply with all Legal Requirements relating to the Building,
access to the Premises and the Common Areas (as such term is hereafter defined),
except to the extent such compliance relates solely to Tenant's specific use and
occupancy of the Premises. For purposes of Section 10, Tenant's specific use
shall mean general office use which includes, but is not limited to, call center
and other mortgage lending operations such as loan underwriting and funding as
currently conducted by Tenant in Broward County, Florida. For the purposes of
this Lease, "Legal Requirements" means any law, statute, code, rule, regulation,
ordinance, order, judgment, decree, writ, injunction, franchise, permit,
certificate, license (including any beer, wine, or liquor license),
authorization, registration, or other direction or requirement of any Legal
Authority, which is now or in the future applicable to the Premises, including
those not within the present contemplation of-the parties and "Legal Authority"
means any domestic or foreign federal, state, county, municipal, or other
government or governmental or quasi-governmental department, commission, board,
bureau, court, agency, or instrumentality having jurisdiction or authority over
Landlord, Tenant and/or all or any part of the Premises. Notwithstanding the
foregoing, Tenant shall only be responsible for compliance with the requirements
of the Americans With Disabilities Act (the "ADA") to the extent such compliance
relates to improvements to the
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interior non-structural portions of the Premises mandated by applicable
governmental authority as a result of Tenant's specific use and occupancy of the
Premises. All other improvements mandated by applicable governmental authority
as a condition for Tenant's use and occupancy of the Premises shall be the
responsibility of the Landlord.
Tenant shall:
A. neither cause nor permit the Premises to be used to
generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, or process Hazardous Materials, except in compliance with all
Legal Requirements;
B. neither cause nor permit a release or threatened release of
Hazardous Materials onto the Premises or any other property as a result of any
intentional or unintentional act or omission on the part of Tenant;
C. comply with all applicable Legal Requirements related to
Hazardous Materials;
D. conduct and complete all investigations, studies, sampling,
and testing, and all remedial, removal, and other actions on, from, or affecting
the Premises in accordance with such applicable Legal Requirements and to the
satisfaction of Landlord when and to the extent required by applicable legal
authority;
E. upon the expiration or termination of this Lease, deliver
the Premises to Landlord free of all Hazardous Materials; and
F. defend, indemnify, and hold harmless Landlord and
Landlord's employees and other agents from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs, or expenses of any
kind or nature, known or unknown, contingent or otherwise (including, without
limitation, reasonable accountants' and attorneys' fees, including fees for the
services of paralegals and similar persons, consultant fees, investigation and
laboratory fees, court costs, and litigation expenses at the trial and all
appellate levels), arising out of, or in any way related to the Project and/or
otherwise affecting Landlord with respect to (a) the presence, disposal,
release, or threatened release, by or caused by Tenant or its agents, employees,
contractors or invitees ("Specified Parties"), of any Hazardous Materials which
are on, from, or affecting the soil, water, vegetation, buildings, personal
property, persons, animals or otherwise; (b) any personal injury, including
wrongful death, or damage to property, real or personal, arising out of or
related to such Hazardous Materials caused by Tenant or it's Specified Parties
or resulting from the use of the Premises; (c) any lawsuit brought, threatened,
or settled by Legal Authorities or other parties, or order by Legal Authorities,
related to such Hazardous Materials; and/or (d) any violation of Legal
Requirements related in any way to such Hazardous Materials caused by Tenant or
it's Specified Parties or resulting from the use of the Premises. The provisions
of this Section shall survive the
13
expiration or termination of this Lease. Hazardous materials are any oil and
petroleum products and their byproducts, asbestos, polychlorobiphenols,
flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials as defined under any
Legal Requirements, including, without limitation, the following statutes and
the regulations promulgated under their authority: (a) the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C.ss.ss.9601 et seq.); (b) the Hazardous Materials Transportation Act, as
amended (49 U.S.C.ss.ss.1801 et seq.); (c) the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.ss.ss.6901 et seq.); and (d) the
Water Pollution and Control Act, as amended (33 U.S.C. 1317 et seq.).
G. Landlord represents and warrants to Tenant that, to the
best of Landlord's knowledge, no leak, spill, discharge, emission or disposal of
Hazardous Materials has occurred on or about the Premises, the Building or the
Common Areas (as such term is hereinafter defined). Landlord shall defend,
indemnify, and hold harmless Tenant and Tenant's employees and other agents from
and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs, or expenses of any kind or nature, known or unknown, contingent
or otherwise (including, without limitation, reasonable accountants' and
attorneys' fees, including fees for the services of paralegals and similar
persons, consultant fees, investigation and laboratory fees, court costs, and
litigation expenses at the trial and all appellate levels), arising out of, or
in any way related to (a) the presence, disposal, release, or threatened
release, by or caused by Landlord or its agents, of any Hazardous Materials
which are on, from, or affecting the soil, water, vegetation, buildings,
personal property, persons, animals or otherwise; (b) any personal injury,
including wrongful death, or damage to property, real or personal, arising out
of or related to such Hazardous Materials; (c) any lawsuit brought, threatened,
or settled by Legal Authorities or other parties, or order by Legal Authorities,
related to such Hazardous Materials; (d) any violation of Legal Requirements
related in any way to such Hazardous Materials; and/or (e) any breach of
Landlord's representations and warranties contained herein. The provisions of
this Section shall survive the expiration or termination of this Lease.
SERVICES
11. Landlord will furnish the following services to Tenant:
A. Automatically operated elevator service, public stairs,
electrical current for lighting, incidentals and normal office use, and water at
those points of supply provided for general use of its tenants at all times and
on all days throughout the year.
B. Maintenance of the building structure, mechanical systems,
parking areas and common facilities of the Building.
C. There shall be twenty-four (24) hour roving security guard
service provided in connection with the Project.
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D. The Buildings in which the Premises are located shall be
equipped with a card key access system or other limited access system designated
by Landlord from time to time.
E. The Tenant shall have access to the Buildings in which the
Premises are located twenty-four (24) hours a day, seven (7) days a week,
fifty-two (52) weeks per year subject to casualty, condemnation and any limited
access security system provided for such Building(s).
F. The Landlord shall provide a telephone room with a main
feed to the Premises which shall be available to provide telephone access to the
Premises, the location of which shall be as designated by Landlord from time to
time and may be included in a portion of the Premises.
The services provided by Landlord shall be included as a
portion of the Operating Expenses.
Such services shall be provided as long as Tenant is not in
default beyond any applicable notice or cure period under any of the terms,
provisions, covenants and conditions of this Lease, subject to temporary
interruption caused by repairs, renewals, improvements, changes to service,
alterations, strikes, lockouts, labor controversies, inability to obtain fuel or
power, accidents, breakdowns, catastrophes, national or local emergencies,
hurricanes, natural disasters, windstorms, acts of God and conditions and cause
beyond the control of Landlord, and upon such happening, no claim for damages or
abatement of rent for failure to furnish any such services shall be made by
Tenant or allowed by Landlord. Notwithstanding the foregoing, should
interruption of services prevent Tenant from operating its business for more
than five (5) days, Tenant shall receive one (1) day of rent abatement for each
day Tenant is unable to operate its business, unless such interruption is a
result of a condition beyond the reasonable control of the Landlord.
TENANT IMPROVEMENTS
12. Improvements, if any, to be made to the Premises by Landlord are
specifically set forth as Landlord Work in the Work Letter attached as EXHIBIT
"D" and thereto are no others. All leasehold improvements (as distinguished from
trade fixtures and apparatus) installed in the Premises at any time, whether by
or on behalf of Tenant or by or on behalf of Landlord, shall not be removed from
the Premises at any time, unless such removal is consented to in advance by
Landlord (which consent shall not be unreasonably withheld); and at the
expiration of this Lease (either on the Termination Date or upon such earlier
termination as provided in this Lease), all such leasehold improvements shall be
deemed to be part of the Premises, and title thereto shall vest solely in
Landlord without payment of any nature to Tenant. All trade fixtures and
apparatus (as distinguished from leasehold improvements) owned by Tenant and
installed in the Premises shall remain the property of Tenant and shall be
removable at any time, including upon the expiration of the Term; provided
Tenant shall not at such time be in default of any terms or covenants of this
Lease, and provided further, that Tenant shall repair any damage to the Premises
caused by the removal of said trade fixtures and apparatus and shall restore the
Premises to substantially the same
15
condition as existed prior to the installation of said trade fixtures and
apparatus. The taking of possession by Tenant (or any permitted assignee or
subtenant of Tenant) of all or any portion of the Premises for the conduct of
business will be deemed conclusive evidence that Tenant has found the Premises,
and all of their fixtures and equipment, acceptable, subject to any punch list
items to the extent such items are the obligation of Landlord as otherwise set
forth in this Lease.
Any charges against Tenant by Landlord for services or for
work done on the Premises by order of Tenant, or otherwise accruing under this
Lease, shall be considered as Rent due and shall be included in any lien for
Rent.
REPAIR OF LEASED PREMISES
13. Tenant shall, at Tenant's own expense, keep the interior Premises
in good repair and tenantable condition during the Term and- shall replace at
its own expense any and all broken glass caused by Tenant in and about the
Premises. Tenant shall make no alterations, additions or improvements in or to
the Premises without the written consent of Landlord (unless said improvement or
alteration does not exceed Ten Thousand Dollars ($10,000), does not require a
building permit, or does not affect the structural, mechanical or electrical
systems of the building), which shall not be unreasonably withheld, but may be
predicated upon but not limited to Tenant's use of contractors who are
acceptable to Landlord; and all additions, fixtures, carpet or improvements,
except only movable office furniture, and moveable trade fixtures shall be the
property of Landlord from date of location in the Premises and shall remain a
part of the Premises at the expiration of this Lease.
It is further agreed that this Lease is made by Landlord and
accepted by Tenant with the distinct understanding and agreement that Landlord
shall have the right and privilege to make and build additions to the Building
of which the Premises are a part, and make such alterations and repairs to said
Building as it may deem wise and advisable without any liability to the Tenant
therefor. Landlord agrees to use efforts to minimize any disruption to Tenant's
business operations.
Landlord covenants and agrees, at its expense, to keep,
maintain and replace, if necessary, the structural systems of the Building and
Common Areas, and the electrical, mechanical and plumbing systems, lines and
connections leading to the Premises in good condition and repair. In the event
the Premises become or are out of repair and not in good condition due to the
acts or omissions of Landlord, or its agents, employees, representatives or
contractors, or due to the failure of the Landlord to comply with the terms of
this Lease, or as a result of a structural condition or a latent defect, then
Landlord shall perform or cause to be performed, at its sole cost and expense,
any and all repairs necessary to restore the Premises to a state of good
condition and repair. Landlord shall promptly commence all repairs and shall
diligently and continuously pursue to complete the same within ten (10) days
after Landlord's receipt of written notice from Tenant or within a reasonable
period thereafter if such repairs cannot reasonably be completed within such ten
(10) day period.
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INDEMNIFICATION
14. Tenant further agrees that Tenant will pay all liens of
contractors, subcontractors, mechanics, laborers, materialmen, and other items
of like character, and will indemnify Landlord against all expenses, costs, and
charges, including bond premiums for release of liens and attorneys' fees and
costs reasonably incurred in and about the defense of any suit in discharging
the said Premises or any part thereof from any liens, judgments, or encumbrances
caused or suffered by Tenant. In the event any such lien shall be made or filed,
Tenant shall bond against or discharge the same within ten (10) days after the
same has been made or filed. It is understood and agreed between the parties
hereto that the expenses, costs and charges above referred to shall be
considered as rent due and shall be included in any lien for Rent.
Tenant herein shall not have any authority to create any liens
for labor or materials on Landlord's interest in the Premises and: all persons
contracting with Tenant for the destruction or removal of any facilities or
other improvements or for the erection, installation, alteration, or repair of
any facilities or other improvements on or about the Premises, and all
materialmen, contractors, subcontractors, mechanics, and laborers are hereby
charged with notice that they must look only to Tenant and to Tenant's interests
in the Premises to secure the payment of any xxxx for work done or material
furnished at the request or instruction of Tenant.
PARKING
15. Landlord shall provide Tenant the "Specified Number" (as
hereinafter defined) of unassigned parking spaces at no additional charge to
Tenant whereby Tenant shall park in up to the Specified Number of parking spaces
in the designated lots shown on EXHIBIT "G" attached hereto and made a part
hereof. In the event that Tenant expands into the portion of Building J not
presently included in the Premises, and Landlord is unable to provide Tenant
with the Specified Number of parking spaces in the lots shown on EXHIBIT "G",
then Landlord will provide additional parking spaces within the Project or
construct a surface parking lot within the Project to enable the Tenant to be
able to park in the Specified Number of unassigned parking spaces. The term
"Specified Number" of parking spaces shall mean six (6) unreserved parking
spaces for each one thousand (1,000) square feet of Rentable Area comprising the
Premises, which Specified Number of parking spaces shall be unassigned,
non-exclusive parking spaces for use by Tenant, its employees and invitees doing
business with Tenant. In the event Tenant leases other space as a portion of the
Premises in excess of the one hundred eleven thousand eight hundred fourteen
(111,814) square feet of Rentable Area, pursuant to its right of first offer set
forth in Section 52 below, then such additional portion of the Premises (if any)
will entitle Tenant to utilize an additional parking spaces on the basis of six
(6) unreserved parking spaces per one thousand (1,000) square feet of Rentable
Area comprising such Premises in excess of one hundred eleven thousand eight
hundred fourteen (111,814) square feet of the Net Rentable Area. With respect to
any additional Rentable Area Tenant may add other than pursuant to Section 52,
the amount of parking provided will be as specified as Landlord and may be less
than 6 unreserved parking spaces per one thousand square feet of Rentable
17
Area. Landlord reserves the.right to require Tenant to park any or all employee
vehicles in specific areas of the parking lot at any time. Tenant shall comply
with Landlord's reasonable procedures and policies in operating the Building
parking areas. Landlord shall not be liable for any damage of any nature
whatsoever to, or any theft of, automobiles or other vehicles or the contents of
them, while in or about Building parking areas.
ESTOPPEL STATEMENT
16. From time to time, upon not less than ten (10) days prior written
request by Landlord, Tenant shall deliver to Landlord a statement in writing
certifying (a) that this Lease is unmodified and in full force and effect (or,
if there have been modifications, that the Lease as modified is in full force
and effect and stating the modifications); (b) the dates to which the rent and
other charges have been paid; (c) that Landlord is not in default under any
provisions of this Lease or, if in default, the nature thereof in detail; and
(d) such other matters pertaining to the Lease as Landlord may reasonably
request. It is intended that any such statement delivered pursuant to this
section may be relied upon by any prospective purchaser or mortgagee and their
respective successors and assigns and Tenant shall be liable for all loss, cost
or expense resulting from the failure of any sale or funding of any loan caused
by any failure to furnish the estoppel statement or misstatement contained in
such estoppel statement. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact for Tenant with full power and authority to execute and deliver
in the name of Tenant such estoppel certificate if Tenant fails to deliver the
same within ten (10) days of Landlord's request therefor. This appointment is a
power coupled with interest and is a material inducement to Landlord to enter
into this Lease. From time to time, upon not less than ten (10) days prior
written request by Tenant, Landlord shall deliver to Tenant a statement in
writing certifying (a) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the Lease as modified is in
full force and effect and stating the modifications); (b) the dates to which the
rent and other charges have been paid; (c) that Tenant is not in default under
any provisions of this Lease or, if in default, the nature thereof in detail;
and (d) such other matters pertaining to the Lease as Tenant may reasonably
request.
SUBORDINATION
17. If the Building and/or Premises are at any time subject to a
mortgage and/or deed of trust or ground lease, and Tenant has received written
notice from Mortgagee or ground lessor of same, then in any instance in which
Tenant gives notice to Landlord alleging default by Landlord hereunder, Tenant
will also simultaneously give a copy of such notice to each Landlord's Mortgagee
and/or ground lessor and each Landlord's Mortgagee and/or ground lessor shall
have the right (but not the obligation) to cure or remedy such default during
the period that is permitted to Landlord hereunder, plus an additional period of
thirty (30) days, and Tenant will accept such curative or remedial action (if
any) taken by Landlord's Mortgagee and/or ground lessor with the same effect as
if such action had been taken by Landlord.
18
This Lease shall be subject and subordinate to any mortgage
and/or ground lease now or hereafter encumbering the Building. This provision
shall be self-operative without the execution of any further instruments.
Notwithstanding the foregoing, however, Tenant hereby agrees to execute any
instruments) which Landlord may deem desirable to evidence the subordination of
this Lease to any and all such mortgages and/or ground lease. Landlord agrees
that the subordination of this Lease as hereinabove provided is expressly
conditioned upon the mortgagees) or future mortgagees) delivery to Tenant of a
non-disturbance agreement which provides that provided the Tenant is current and
in good standing of its obligations under this Lease the Tenant's possession of
the Premises will not be disturbed by such lender upon any foreclosure of its
mortgage.
ATTORNMENT
18. If the interests of Landlord under this Lease shall be transferred
voluntarily or by reason of foreclosure or other proceedings for enforcement of
any mortgage and/or ground lease on the Premises, Tenant shall be bound to such
transferee (herein sometimes called the "Purchaser") for the remaining balance
of the Term, and any extensions or renewals thereof which may be effective in
accordance with the terms and provisions hereof with the same force and effect
as if the Purchaser were Landlord under this Lease, and Tenant does hereby agree
to attorn to the Purchaser, including the Mortgagee under any such mortgage
and/or lessor under any such ground lease if it be the Purchaser, as its
Landlord, said attornment to be effective and self-operative without the
execution of any further instruments upon the Purchaser succeeding to the
interest of Landlord under this Lease. The respective rights and obligations of
Tenant and the Purchaser upon such attornment, to the extent of the then
remaining balance of the Term of this Lease and any such extensions and
renewals, shall be and are the same as those set forth herein. In the event of
such transfer of Landlord's interests, Landlord shall be released and relieved
from all liability and responsibility thereafter accruing to Tenant under this
Lease or otherwise and Landlord's successor by acceptance of rent from Tenant
hereunder shall become liable and responsible to Tenant in respect in all
obligations of the Landlord under this Lease effective as of the date of such
transfer.
ASSIGNMENT
19. Without the written consent of Landlord first obtained in each
case, which consent shall not be unreasonably withheld or delayed, Tenant shall
not sublease, assign, transfer, mortgage, pledge, or otherwise encumber or
dispose of this Lease or underlet the Premises or any part thereof or permit the
Premises to be occupied by other persons. Transfer of controlling ownership
interests in Tenant (which for purposes of this Lease means fifty-one percent
(51%) or more of the ownership and/or voting interest in Tenant) shall be deemed
an assignment for purposes of this section. Notwithstanding the foregoing,
Landlord's consent shall not be required in the event Tenant desires to assign
or sublet all or any portion of the Premises to a subsidiary or affiliate of
Tenant (an "Affiliate") or should Tenant merge with another entity (the
"Successor") provided the Successor's net worth (measured in accordance with
generally accepted accounting principles) at the time of the transfer,
assignment or subletting is at least equal to or greater than the net worth of
Tenant
19
(measured in accordance with generally accepted accounting principles) at the
time of the transfer, assignment or subletting. In the case of a subletting,
Landlord's consent may be predicated, among other things, upon Landlord becoming
entitled to collect and retain fifty percent of all rentals payable under the
sublease, which are in excess of the rent due under the Lease. If this Lease be
assigned, or if the Premises or any part thereof be underlet or occupied by
anybody other than Tenant, Landlord may, after default by Tenant, collect or
accept rent from the assignee, undertenant, or occupant and apply the net amount
collected or accepted to the rent herein reserved, but no such collection or
acceptance shall be deemed a waiver of this covenant or the acceptance of the
assignee, undertenant, or occupant as Tenant, nor shall it be construed as or
implied to be a release of Tenant from the further observance and performance by
Tenant of the terms, provisions, covenants and conditions herein contained.
In lieu of consenting or not consenting, Landlord may at its
option (other than with respect to a permitted transfer to a Successor or
Affiliate) (i) in the case of the proposed assignment or subletting of Tenant's
entire leasehold interest, terminate this lease in its entirety, or (ii) in the
case of the proposed assignment or subletting of a portion of the Premises,
terminate this Lease as to that portion of the Premises which Tenant has
proposed to assign or sublet. In the event Landlord elects to terminate this
Lease pursuant to Clause (ii) of this section, Tenant's obligations as to Base
Rent and Additional Rent shall be reduced in the same proportion that the Net
Rentable Area of the portion of the Premises taken by the proposed assignee or
subtenant bears to the total Net Rentable Area of the Premises.
In the event Landlord shall consent to an assignment or
subletting of the Premises, Tenant shall pay, as Additional Rent, fifty percent
(50%) of the amount received by Tenant from its transferees (whether paid to
Tenant as consideration for Tenant's transfer of property or other assets other
than Tenant's furniture and trade equipment) any consideration from the
transferee in excess of the amount owed by Tenant to the Landlord under this
Lease after first deducting the reasonable expenses directly incurred by Tenant
in making such assignment or subletting, which Additional Rent shall be paid to
Landlord as and when received by Tenant.
SUCCESSORS AND ASSIGNS
20. All terms, provisions, covenants and conditions to be observed and
performed by Tenant and Landlord shall be applicable to and binding upon the
respective heirs, administrators, executors, successors and assigns or Landlord
and Tenant, subject, however, to the restrictions as to assignment or subletting
by Tenant as provided herein. All expressed covenants of this Lease shall be
deemed to be covenants running with the land.
It is expressly understood and agreed by and between the
parties that notwithstanding anything contained herein to the contrary, (a)
Tenant shall look solely to the interest of Landlord in the Premises, and (b) no
Landlord shall have any personal liability with regard to any obligations under
this Lease, and (c) to the extent of any monetary obligation of Landlord, such
obligation shall
20
be limited to the Landlord's equity in the Premises provided that the provisions
of this paragraph shall not preclude Tenant's right to equitable relief (other
than monetary damages) against Landlord.
HOLD HARMLESS OF LANDLORD
21. In consideration of said Premises being leased to Tenant for the
above rent, Tenant agrees that Tenant, at all times, shall indemnify and keep
Landlord harmless from all losses, damages, liabilities and expenses, which may
arise or be claimed against Landlord and be in favor of any persons, firms or
corporations, consequent upon or arising from the use of occupancy of the
Premises by Tenant, or consequent upon or arising from any acts, omissions,
neglect or fault of Tenant, his agents, servants, employees, licensees,
visitors, customers, patrons or invitees, or consequent upon or arising from
Tenant's failure to comply with any laws, statutes, ordinances, codes or
regulations as herein provided; that Landlord shall not be liable to Tenant for
any damages, losses or injuries to the persons or property of Tenant which may
be caused by the acts, neglect, omissions or faults of any persons, firms or
corporations, except when such injury, loss or damage results from negligence or
intentional acts or omissions of Landlord, its agents, employees contractors,
licensees, visitors or invitees, and that Tenant will indemnify and keep
harmless Landlord from all damages, liabilities, losses, injuries, or expenses
which may arise or be claimed against Landlord and be in favor of any persons,
firms or corporations, for any injuries or damages to the person or property of
any persons, firms or corporations, where said injuries or damages arose about
or upon said Premises as a result of the negligence of Tenant, his agents,
employees, servants, licensees, visitors, customers, patrons, and invitees. All
personal property placed or moved into the Premises or Building shall be at the
risk of Tenant or the owner thereof, and Landlord shall not be liable to Tenant
for any damage to said personal property except as a result of damage caused by
Landlord's willful act or gross neglect. Tenant shall maintain at all times
during the Term an insurance policy or policies in an amount or amounts
sufficient, in Landlord's reasonable opinion, to indemnify Landlord or pay
Landlord's damages, if any, resulting from any matters set forth in this
section.
Landlord agrees that Landlord, at all times, shall indemnify and keep
Tenant harmless from all losses, damages, liabilities and expenses, which may
arise or be claimed against Tenant and be in favor of any persons, firms or
corporations, consequent upon or arising from any acts, omissions, neglect or
fault of Landlord, its agents, servants or employees, or consequent upon or
arising from Landlord's failure to comply with any laws, statutes, ordinances,
codes or regulations as herein provided; that Tenant shall not be liable to
Landlord for any damages, losses or injuries to the persons or property of
Landlord which may be caused by the acts, neglect, omissions or faults of any
persons, firms or coiporations, except when such injury, loss or damage results
from negligence or intentional acts or omissions of Tenant, its agents,
employees contractors, licensees, visitors or invitees, and that Landlord will
indemnify and keep harmless Tenant from all damages, liabilities, losses,
injuries, or expenses which may arise or be claimed against Tenant and be in
favor of any persons, firms or corporations, for any injuries or damages to the
person or property of any
21
persons, firms or corporations, where said injuries or damages arose about or
upon said Premises as a result of the negligence of Landlord, his agents,
employees and servants.
In case Landlord shall be made a party to any litigation
commenced against Tenant, with respect to a matter for which Tenant has
indemnified Landlord in this Section 21, then Tenant shall protect and hold
Landlord harmless and shall pay all costs, expenses and reasonable attorneys'
fees incurred or paid by Landlord in connection with such litigation and any
appeal thereof. In case Tenant shall be made a party to any litigation commenced
against Landlord, with respect to a matter for Landlord has indemnified Tenant
in this Section 21, then Landlord shall protect and hold Tenant harmless and
shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Tenant in connection with such litigation and any appeal thereof.
ATTORNEYS' FEES
22. If either party defaults in the performance of any of the terms,
provisions, covenants and conditions of this Lease and by reason thereof the
other party employees the services of an attorney to enforce performance of the
covenants, or to perform any service based upon defaults, then in any of said
events the prevailing party shall be entitled to reasonable attorneys' fees and
all expenses and costs incurred by the prevailing party pertaining thereto
(including costs and fees relating to any appeal) and in enforcement of any
remedy.
DAMAGE OR DESTRUCTION
23. In the event all or part of the Premises shall be destroyed or so
damaged or injured by fire, windstorm, hurricane, natural disaster, or other
casualty, during the Term, whereby the same shall be rendered untenantable, then
Landlord shall have the right, but not the obligation, to render such Premises
tenantable by repairs within one hundred eighty (180) days therefrom; Landlord
shall have the further right, at its election, to cancel this Lease as to all or
the untenantable portion of the Premises.
Landlord agrees that, within sixty (60) days following damage
or destruction, it shall notify Tenant in writing with respect to whether or not
Landlord intends to restore the Premises; provided, however, in the event that
the Premises can reasonably be restored within sixty (60) days of such damage,
then Landlord agrees upon receipt of its insurance proceeds with respect to such
casualty that it shall restore such Premises and will not elect to terminate the
Lease. If Landlord elects not to restore the Premises, then either party shall
have the right to terminate this Lease, which termination shall be effective as
of the date of the casualty and all rent and other charges shall be paid up to
such date. Landlord's failure to notify Tenant in writing within such sixty (60)
day period shall be deemed to constitute Landlord's election to restore the
Premises. If Landlord elects to restore the Premises, it shall promptly commence
such restoration and shall diligently and continuously proceed to complete the
same within one hundred eighty (180) days after the date of the casualty. If
said Premises are not rendered tenantable within the aforesaid one hundred
eighty
22
(180) days plus an additional sixty (60) day grace period, it shall be optional
with either party hereto, no later than the date that Premises are in fact
rendered tenantable, to cancel this Lease as to the tenantable portion, and in
the event of such cancellation the rent shall be paid only to the date of such
fire or casualty. The cancellation herein mentioned shall be evidenced in
writing. During any time that all or a portion of the Premises are untenantable
due to causes set forth in this Section, the Base Rent or a just and fair
proportion thereof shall be abated.
Notwithstanding the foregoing, should damage or destruction
occur during the last twelve months of the Term (as same may be extended by any
timely extension of the Term) either Landlord or Tenant shall have the option to
terminate this Lease as to the untenantable portion of the Premises, effective
on the date of damage or destruction, provided notice to terminate is given
within thirty (30) days of the date of such damage or destruction.
The proceeds of all insurance coverage with regard to Tenant's
Premises and improvements shall be paid to the Landlord. Except as set forth
above, the Tenant shall not be entitled to terminate this Lease and Landlord
shall have no liability to Tenant for inconvenience, loss of business, annoyance
or any other reason arising from any repairs or restorations of any portion of
the Premises or building pursuant to any such casualty with respect to any such
portion of the Building and/or Premises. In the event Landlord elects to restore
the Premises, the Landlord will use reasonable efforts to make such repair,
restoration promptly and in a manner not to unreasonably interfere with Tenant's
use and occupancy of the Premises but Landlord shall not be required to do such
repair or restoration except during normal business hours of Landlord.
The Landlord is not required to carry insurance of any kind on
the Tenant's personal property and shall not be obligated to repair any damage
to or replace any of Tenant's personal property and Tenant agrees to look solely
to its insurance for recovery of any damage or loss to Tenant's personal
property.
INSURANCE
23A. The Landlord assumes no liability or responsibility whatsoever
with respect to the conduct and operation of the business to be conducted in the
Premises. The Landlord shall not be liable for any accident to or injury to any
person or persons or property in or about the Premises or the Project which are
caused by the conduct and operation of said business or by virtue of equipment
or property of the Tenant in said Premises. The Tenant agrees to hold the
Landlord harmless against all such claims.
(1) Tenant shall, at Tenant's sole expense, obtain and keep in
force during the Term and any extension or renewal hereof. (i) fire and extended
coverage insurance with vandalism and malicious mischief endorsements and a
sprinkler leakage endorsement (where applicable), on all of its personal
property, including removable trade fixtures, located in the Premises, and on
all leasehold improvements and any future additions and improvements made by
Tenant, with limits
23
of coverage in an amount not less than the greater of Three Million Dollars
($3,000,000.00) or the full replacement cost value thereof; and (ii)
comprehensive general liability insurance, including contractual liability
coverage, insuring Landlord (as an additional insured) and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto.
(2) Landlord shall, at Landlord's sole expense, obtain and
keep in force during the Term, and any extension or renewal of the Term: (i)
"all risk" hazard insurance, protecting with extended coverage and broad form
coverage against loss or damage to the Building and Common Areas (as such term
is hereafter defined) by hazards typically covered under an "all risk" type
insurance policy, in an amount not less than the full replacement value of the
Building and Common Areas, which insurance Landlord may maintain under a
"blanket" insurance policy covering not only the Building and Common Areas, but
also other properties owned by the Landlord; and (ii) comprehensive general
liability insurance, including contractual liability coverage insuring against
liability associated with the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto.
(3) All insurance required under this Section shall be with
insurance companies approved by Landlord, which approval shall not be
unreasonably withheld. Such companies shall be responsible insurance carriers
authorized to issue the relevant insurance, authorized to do business in Florida
and at least A-rated in the most current edition of BEST'S INSURANCE REPORTS.
Comprehensive general liability insurance, including contractual liability
coverage, shall have minimum limits of Three Million and No/100 Dollars
($3,000,000.00) for any loss of or damage to property from any one accident, and
Three Million and No/100 Dollars ($3,000,000.00) for death of or injury to any
one person from any one accident. Fire and extended coverage insurance with
vandalism and malicious mischief endorsements and a sprinkler leakage
endorsement shall have limits not less than the replacement cost of all property
(personal or otherwise) and capital improvements in the premises. The limits of
said insurance shall not, however, limit the liability of the Landlord or the
Tenant hereunder. The policies cannot contain provisions which deny coverage
because the loss is due to the fault of Landlord or Tenant. If Tenant shall fail
to procure and maintain said insurance, Landlord may, but shall not be required
to, after three (3) business days notice to Tenant, procure and maintain same,
but at the expense of Tenant. Tenant shall deliver to Landlord, prior to
occupancy of the Premises, copies of policies of liability insurance required
herein, or certificates evidencing the existence and amounts of such insurance,
with loss payable clauses satisfactory to Landlord. No policy shall be
cancelable or subject to reduction of coverage except after thirty (30) days
prior written notice to Landlord. Notwithstanding anything herein to the
contrary, Landlord shall have the right to review the Tenant's insurance once
every year and to reasonably require Tenant to alter its insurance coverage to
cover the effects of inflation and to include or eliminate certain provisions in
the Tenant's insurance policy which reflect the then-current industry standards
for this type of insurance coverage for similarly situated properties.
24
EMINENT DOMAIN
24. If there shall be taken during the Term any part of the Premises,
parking facilities or Building, other than a part not interfering with
maintenance, operations, or use of the Building, Landlord may elect to terminate
this Lease or to continue same in effect. Tenant shall have the right to
terminate the Lease if the parking area is affected by eminent domain and
Landlord is unable to provide for Tenant's use substitute parking spaces in lieu
of those taken which are within the parking lots) as provided in this Lease. If
Landlord elects to continue the Lease, the Rent shall be reduced in proportion
to the area of the Premises so taken and Landlord shall repair any damage to the
Premises, resulting from such taking. If any part of the Premises is taken by
condemnation or Eminent Domain which renders the Premises unsuitable for its
intended use, the Tenant may elect to terminate this Lease, or if any part of
the Premises is so taken which does not render the Premises unsuitable for its
intended use, this Lease shall continue in effect and the rental shall be
reduced in proportion to the area of the Premises so taken and Landlord shall
repair any damage to the Premises resulting from such taking. If all of the
Premises is taken by condemnation or Eminent Domain, this Lease shall terminate
on. the date of the taking. All sums awarded (or agreed upon between Landlord
and the condemning authority) for the taking of the interest of Landlord and/or
Tenant, whether as damages or as compensation, and whether for partial or total
condemnation, will be the property of Landlord. If this Lease should be
terminated under any provisions of this section, Rent shall be payable up to the
date that possession is taken by the authority, and Landlord will refund to
Tenant any prepaid unaccrued Rent less any sum or amount then owing by Tenant to
Landlord. Tenant shall have the right to file a separate claim for business
losses, improvements to the premises made by Tenant and Tenant's equipment and
other personal property, provided said claim does not reduce Landlord's award.
ABANDONMENT
25. Deleted.
DEFAULT
26. The occurrence of any of the following during the Term shall
constitute an "Event of Default" by Tenant:
A. Tenant shall fail to pay when due Base Rent, Additional
Rent or any other charges, fees, costs or expenses that accrue under this Lease
and such failure shall continue for a period of two (2) business days after
Landlord notifies Tenant in writing of such failure. Notwithstanding the
foregoing, Landlord shall not be obligated to deliver any written notice of
monetary default, or allow any grace period, more than once in any calendar
year.
B. Tenant shall, other than in the manner permitted under this
Lease, make or permit or suffer to occur any assignment (including any transfer
of interest in Tenant which is
25
deemed to be an assignment under this Lease), sublease or occupancy arrangement,
conveyance, transfer, conditional or collateral assignment, pledge,
hypothecation, or other encumbrance, whether by operation of law or otherwise,
of this Lease or any interest in this Lease;
D. Tenant shall fail in any other way in the performance or
observance of any of the non-monetary terms and conditions of this Lease and
such failure shall continue for a period of ten (10) days after Tenant's receipt
of written notice from Landlord; provided, however, if the nature of the default
is such that more than ten (10) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant promptly commences to cure
and diligently pursues such cure to completion;
E. There shall be filed by or against Tenant or any Guarantor
of this Lease in any court or other tribunal a petition in bankruptcy or
insolvency proceedings or for reorganization or for the appointment of a
receiver or trustee of all or substantially all of Tenant's, or any Guarantor's,
property, unless such petition shall be filed against Tenant or any Guarantor of
this Lease and Tenant or such Guarantor shall in good faith promptly thereafter
commence and diligently prosecute any and all proceedings appropriate to secure
the dismissal of such petition and shall secure such dismissal within sixty (60)
days of its filing;
F. Tenant or any Guarantor of this Lease shall be adjudicated
a bankrupt or an insolvent or take the benefit of any federal reorganization or
composition proceeding, make an assignment for the benefit of creditors, or take
the benefit of an insolvency law;
G. A trustee in bankruptcy or a receiver shall be appointed or
elected or had for Tenant or any Guarantor of this Lease, whether under federal
or state laws;
H. Tenant's interest under this Lease shall be sold under any
execution or process of law;
I. Subject to the notice and cure period provided in
subsection (D) above, Tenant shall fail to maintain current, duly issued
occupational licenses, or any other permit or license required by an applicable
legal authority for its operations at the Premises or Tenant shall fail to meet
the insurance requirements of this Lease and provide certificates of insurance
(or policies) as required by this Lease (and policies if requested) evidencing
such compliance.
J. If a default of the kind set forth in 26.A-I shall occur
and if either (i) Tenant shall cure such breach of this Lease within the
applicable cure period or (ii) Landlord shall, in its sole discretion, permit
Tenant to cure such breach after the applicable cure period has expired and if
in either such event a similar breach of this Lease shall occur more than one
additional time within the next three hundred sixty-five (365) days, then the
Tenant shall not be entitled to any notice or cure period with respect to any
such subsequent defaults and such subsequent defaults) shall constitute an Event
of Default under this Lease.
26
REMEDIES
27. A. In the event of the occurrence of an Event of Default by Tenant,
Landlord, at Landlord's option, may, in addition to any and all other rights and
remedies available at law or in equity, elect to do one or more of the
following:
(1) Accelerate all of the remaining Rent for the
Term, in which event all Rent shall become immediately due and payable;
(2) Terminate this Lease as provided by this Section
and re-enter the Premises and remove all persons and property from the Premises,
either by summary proceedings or by any other suitable action or proceeding at
law, or otherwise; or
(3) Without terminating this Lease, re-enter the
Premises and remove all persons and property from the Premises, either by
summary proceedings or by any other suitable action or proceeding at law, or
otherwise, and relet all or any part of the Premises.
B. If Landlord elects to terminate this Lease:
(1) Landlord shall give notice of such termination,
which shall take effect ten (10) days after such notice is given, or such
greater number of days as is set forth in such notice, fully and completely as
if the effective date of such termination were the date originally set forth in
this Lease for the expiration of the Term;
(2) Tenant shall quit and peacefully surrender the
Premises to Landlord, without any payment by Landlord for doing so, on or before
the effective date of termination; and
(3) All Rent, including all Base Rent and Additional
Rent (including arrearages), shall become due and shall be paid up to the
effective date of termination, together with such expenses, including attorneys'
fees, as Landlord shall incur in connection with such termination.
C. No receipts of monies by Landlord from Tenant after
termination of this Lease shall reinstate, continue, or extend the Term, affect
any Notice previously given by Landlord to Tenant, or operate as a waiver of the
right of Landlord to enforce the payment of Rent.
D. If Landlord shall terminate this Lease, Landlord shall be
entitled to retain, free of trust, all sums then held by Landlord pursuant to
any of the provisions of this Lease. In the interim following such termination
until the retention of such sums by Landlord free of trust, such sums shall be
available to Landlord, but not to Tenant, pursuant to and for the purposes
provided by the terms and conditions of this Lease.
27
E. In the event of any re-entry and/or dispossession by
summary proceedings or otherwise without termination of this Lease:
(1) All Rent shall become due and shall be paid up to
the time of such reentry and/or dispossession, together with such expenses,
including attorneys' fees, as Landlord shall incur in connection with such
re-entry and/or dispossession by summary proceedings or otherwise; and
(2) All Rent for the remainder of the Term may be
accelerated and due in full, the collection of such sums being subject to the
provisions of Subsection F, below; and
(3) Landlord may relet all or any part of the
Premises, either in the name of Landlord or otherwise, for a term or terms which
may, at Landlord's option, be equal to, less than, or greater than the period
which would otherwise have constituted the balance of the Term. In connection
with such reletting:
(a) Tenant or Tenant's representative shall pay,
as Additional Rent, to Landlord, as they are incurred by Landlord, such
reasonable expenses as Landlord may incur in connection with reletting,
including, without limitation, legal expenses, attorneys' fees, brokerage
commissions, and expenses incurred in altering, repairing, and putting the
Premises in good order and condition and in preparing the Premises for
reletting;
(b) Tenant or Tenant's representative shall pay
to Landlord, in monthly installments on the due dates for Rent payments for each
month of the balance of the Term, the amount by which any Rent payment exceeds
the net amount, if any, of the rents for such period collected on account of the
reletting of the Premises; any suit brought to collect such amount for any month
or months shall not prejudice in any way the rights of Landlord to collect the
deficiency for any subsequent month or months by a similar action or proceeding;
(c) At Landlord's option exercised at any time,
Landlord shall be entitled to recover immediately from Tenant, in addition to
any other proper claims, but in lieu of and not in addition to any amount which
would thereafter become payable under the preceding subsection, a sum equal to
the amount by which the sum of the Rent for the balance of the Term, compound
discounted at a reasonable rate selected by Landlord to its then-present worth,
exceeds the net rental value of the Premises, compound discounted at the same
annual rate to its then-present worth, for the balance of the Term. In
determining such net rental value of the Premises, the rent realized by any
reletting of the Premises, if such reletting is upon terms (other than rental
amounts) generally comparable to the terms of this Lease, shall be deemed to be
such net rental value; and
(d) At Landlord's option, Landlord may make such
alterations and/or decorations in or upon the Premises as Landlord, in
Landlord's sole judgment,
28
considers advisable and necessary for the purpose of reletting the Premises; the
making of such alterations and/or decorations shall not operate or be construed
to release Tenant from liability under this Section; the cost of all such
alterations and/or decorations shall be paid by Tenant to Landlord as Additional
Rent.
F. Landlord shall have, receive, and enjoy as Landlord's sole
and absolute property, any and all sums collected by Landlord as rent or
otherwise upon reletting the Premises after Landlord shall resume possession of
the Premises as provided by this Lease, including, without limitation, any
amounts by which the sum or sums so collected shall exceed the continuing
liability of Tenant under this Lease. If Landlord shall have accelerated Rent
payments and collected same from Tenant, and subsequently shall have relet the
Premises, then Landlord, after deducting all costs related to reletting,
including, but not limited to, those described or anticipated in this Section,
shall pay to Tenant the amount remaining which is collected as Rent for each
month, to the extent Landlord shall have previously received the Rent for such
month from Tenant.
G. Landlord and Tenant agree that after the commencement of
suit for possession of the Premises or after final order or judgment for the
possession of the Premises, Landlord may demand, receive, and collect any monies
due or coming due without in any manner affecting such suit, order, or judgment.
All such monies collected shall be deemed to be payments on account of the use
and occupation of the Premises, or, at the election of Landlord, on account of
Tenant's liability under this Lease.
H. The words "re-enter" and "re-entry", as used in this
Section, are not and shall not be restricted to their technical legal meaning,
but are used in the broadest sense.
I. Tenant waives all rights of redemption which may otherwise
be provided by any legal requirement in the event that Landlord shall, because
of the occurrence of an Event of Default by Tenant, obtain possession of the
Premises under legal proceedings, or pursuant to present or future law or to the
terms and conditions of this Lease.
Tenant expressly waives any demand for possession of the
Premises and other property of Tenant thereon or any demand for payment of Rent
hereunder or any notice of intention of Landlord to terminate this Lease or to
reenter the Premises and Tenant expressly waives any other notice or demand
prescribed by the Statutes of the State of Florida or any other applicable law,
and Tenant agrees that service of the notices provided for herein may be made as
set forth in this Lease. If Tenant is in arrears in the payment of Rent, Tenant
waives Tenant's rights, if any, to designate the items to which any payment made
by Tenant are to be credited and Tenant agrees that Landlord may apply any
payment made by Tenant to such items as Landlord sees fit, irrespective of and
notwithstanding any designation or request by Tenant as to the items which any
such payment shall be credited. Tenant shall not interpose any counterclaim of
any kind in any action or proceeding commenced by Landlord to recover possession
of the Premises (other than compulsory counterclaims).
29
J. Landlord, in addition to other rights and remedies it may
have, shall have the right to (a) keep in place and use all of the furniture,
fixtures, and equipment in the Premises, including that which is owned by or
leased to Tenant, and (b) to remove all or any part of Tenant's property from
the Premises and any property removed may be sold, disposed of, or stored in any
public warehouse or elsewhere at the cost of and for the account of Tenant.
Landlord shall not be responsible for the care or safekeeping of such property,
whether in transport, storage or otherwise. Tenant waives any and all claim
against Landlord for loss, destruction and/or damage or injury which may be
occasioned by any of the aforesaid acts; Tenant shall be liable to Landlord for
costs incurred by Landlord in connection with any storage, transport or other
acts anticipated in this Section and shall hold harmless and indemnify Landlord
from all loss, damage, cost, expense and liability in connection therewith. No
re-entry or taking possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless a written notice
of such intention is given to Tenant. Notwithstanding any such re-letting
without termination, Landlord may at all times thereafter elect to terminate
this Lease for such previous default. Any such re-entry shall be allowed by
Tenant without hindrance, and Landlord shall not be liable in damages for any
such re-entry, or guilty of trespass or forcible entry.
K. Landlord shall be entitled, without notice or bond, to the
issuance of prejudgment writs of replevin, pre judgment distress writs,
attachment writs, break open orders, orders authorizing the locking of the
Premises to protect Landlord's lien on personal property, fixtures and
equipment, and such other orders as may be issued by a court of law or equity.
Landlord shall have the right to take possession as allowed under Chapter 78,
Florida Statutes. The remedies described in this Section are cumulative and in
addition to and without waiver of all remedies allowed Landlord by this Lease or
by case law, common law and statute now or hereinafter in effect. Tenant agrees
that the rights and remedies granted Landlord in this Section are commercially
reasonable.
ADMINISTRATIVE CHARGES
28. In the event a Rent payment is not received within five (5)
business days after its due date, interest shall be due thereon at the rate of
eighteen percent (18%) per annum, on the then total Rent due and unpaid. This
interest shall accrue on the amount unpaid, including prior interest and
administrative fees and late charges, and shall become immediately due and
payable from Tenant to Landlord, without notice or demand, at the place of
payment. In the event any check, bank draft or negotiable instrument given for
any payment under this Lease shall be dishonored at any time for any reason
whatsoever not attributable to Landlord, Landlord shall be entitled, in addition
to any other remedy that may be available, to an administrative charge of Two
Hundred Dollars ($200.00). These provisions for administrative fees and late
charges are not, and shall not be deemed, grace periods. Such administrative
fees and late charges are not penalties, but liquidated damages to defray
administrative, collection, and related expenses due to Tenant's failure to make
such Rent payment when due or failure to process the dishonored instrument. An
additional administrative fee and late charge shall become immediately due and
payable on the first day of each month for which
30
all or a portion of a Rent payment (together with any administrative fee and
late charge) remains unpaid, and for each dishonored instrument.
WAIVER OF LANDLORD'S LIEN
29. Landlord hereby waives any contractual, statutory or other
Landlord's lien in any of Tenant's furnishings, equipment, fixtures, inventory
and other property of any kind belonging to Tenant, or the equity of Tenant in
such items, on the Premises or elsewhere, which are being financed.
WAIVER OF DEFAULT
30. Failure of either Landlord or Tenant to declare any default
immediately upon occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such default, but each party shall have the right to
declare any such default at any time and take such action as might be lawful or
authorized hereunder, in law and/or in equity. No waiver by Landlord or Tenant
of a default by the other shall be implied, and no express waiver by Landlord or
Tenant shall affect any default other than the default specified in such waiver
and that only for the time and extension therein stated.
No waiver of any term, provision, condition or covenant of
this Lease by Landlord or Tenant shall be deemed to imply or constitute a
further waiver by Landlord or Tenant of any other term, provision, condition or
covenant of this Lease. In addition to any rights and remedies specifically
granted Landlord arid Tenant herein, Landlord and Tenant shall be entitled to
all rights and remedies available at law and in equity, whether existing at time
of execution or of enforcement of this Lease, in the event that either party
shall fail to perform any of the terms, provisions, covenants or conditions of
this Lease to be performed or if Tenant fails to pay Base Rent, Additional Rent
or any other sums due Landlord when due. All rights and remedies specifically
granted to Landlord and Tenant herein, by law and in equity shall be cumulative
and not mutually exclusive.
Notwithstanding anything to the contrary in this Lease, both parties'
claims for damages in connection with this Lease shall be limited to actual
damages and shall exclude consequential, incidental and punitive damages, and
Tenant's rights and remedies hereunder or at law and in equity are expressly
subject to the limitations and exclusions set forth elsewhere in this Lease.
RIGHT OF ENTRY
31. Landlord, or any of its agents, shall have the right to enter the
Premises during all reasonable hours and with reasonable notice to examine the
same or to make such repairs, additions or alterations as may be deemed
necessary for the safety, comfort, or preservation thereof, or to said Building,
or to exhibit said Premises at any time within one hundred fifty (150) days
before the expiration of this Lease. Said right of entry shall likewise exist
for the purpose of removing
31
placards, signs, fixtures, alterations, or additions which do not conform to
this Lease. Landlord shall use its reasonable efforts to minimize disruption of
Tenant's business when entering the Premises.
NOTICE
32. Any notice given Landlord as provided for in this Lease shall be
sent to Landlord by registered mail, personal delivery or by nationally
recognized overnight delivery service addressed to Landlord at the office of
Landlord at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000 or such other
address as may be designated from time to time by Landlord. Any notice to be
given Tenant under the terms of this Lease, unless otherwise stated herein,
shall be in writing and shall be personally delivered or sent by registered mail
or by nationally (U.S.) recognized overnight delivery service to the office of
Tenant in the Building. Notices shall be deemed to have been given and delivered
upon receipt or refusal of receipt. Either party, from time to time, by such
notice, may specify another address in the continental United States to which
subsequent notice shall be sent. Landlord shall send a copy of any notices of
default to Tenant to Bilzin, Sumberg, Dunn, Price & Xxxxxxx LLP, 0000 Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx, XX 00000 Attn: Xxxx X. Xxxxxxx.
LANDLORD CONTROLLED AREAS
33. Landlord hereby grants to Tenant, and Tenant's officers, employees,
agents, contractors, invitees, licensees, visitors, patrons and customers, the
non-exclusive right to use, in common with Landlord and all other tenants of the
Building, all automobile parking areas, driveways, entrances and exits thereto,
common areas, and other facilities furnished by Landlord, including all parking
areas, truck way or ways, loading areas, pedestrian walkways and ramps,
landscaped areas, stairways, corridors, lobbies, elevators, restrooms and other
areas and improvements provided by Landlord for the general use, in common, of
tenants, their officers, agents, employees, servants, invitees, licensees,
visitors, patrons and customers (collectively, the "Common Areas"). The Common
Areas shall be at all times subject to the exclusive control and management of
Landlord, and Landlord shall have the right from time to time to establish,
modify and enforce reasonable rules and regulations with respect to all
facilities and areas and improvements; to police same; from time to time to
change the area, level and location and arrangement of parking areas and other
facilities hereinabove referred to; to close all or any portion of said areas or
facilities to such extent as may in the opinion of Landlord's counsel be legally
sufficient to prevent a dedication thereof or the accrual of any rights to any
person or the public therein, so long as Tenant's access to and use and
enjoyment of the Premises and Tenant's rights under this Lease are not adversely
affected; to close temporarily all or any portion of the public areas, Common
Areas or facilities, so long as Tenant's access to and use and enjoyment of the
Premises and Tenant's rights under this Lease are not adversely affected; to
discourage non-tenant parking; and to do and perform such other acts in and to
said areas and improvements as, in the sole judgment of Landlord, Landlord shall
reasonably determine to be advisable with a view to the improvement of the
convenience and use thereof by tenants, their officers, agents, employees,
servants, invitees, visitors, patrons, licensees and customers. Landlord will
operate and maintain the
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Common Areas and other facilities referred to in such reasonable manner as
Landlord shall determine from time to time. Without limiting the scope of such
discretion, Landlord shall have the full right and authority to designate a
manager of the parking facilities and/or Common Areas and other facilities who
shall have full authority to make and reasonably enforce rules and regulations
regarding the use of the same or to employ all personnel and to make and enforce
all rules and regulations pertaining to and necessary for the proper operation
and maintenance of the parking areas and/or Common Areas and other facilities.
CONDITION OF PREMISES ON
TERMINATION OF LEASE AND HOLDING OVER
34. Tenant agrees to surrender to Landlord, at the end of the Term
and/or upon any cancellation of this Lease, said Premises in as good condition
as said Premises were at the beginning of the Term of this Lease, ordinary wear
and tear, damage by fire or other casualty and minor alterations or any
alterations approved by Landlord excepted. Tenant agrees that if Tenant does not
surrender said Premises to Landlord at the end of the Term then Tenant will pay
to Landlord double the amount of the current Rent for each month or portion
thereof that Tenant holds over plus all damages that Landlord may suffer on
account of Tenant's failure to so surrender to Landlord possession of said
Premises, and will indemnify and hold Landlord harmless from and against all
claims made by any succeeding Tenant of said Premises against Landlord on
account of delay of Landlord in delivering possession of said Premises to said
succeeding tenant so far as such delay is caused by failure of Tenant to so
surrender the Premises.
No receipt of money by Landlord from Tenant after termination of this
Lease or the service of any notice of commencement of any suit or final judgment
for possession shall reinstate, continue or extend the Term or affect any such
notice, demand, suit or judgment.
No act or thing done by Landlord or its agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless it be made in writing and
subscribed by a duly authorized officer or agent of Landlord.
OCCUPANCY TAX
35. Tenant shall be responsible for and shall pay before delinquency
all municipal, county or state taxes assessed during the Term of this Lease
against any occupancy interest or personal property of any kind, owned by or
placed in, upon or about the Premises by Tenant.
SIGNS
36. Landlord shall have the right to install signs on the interior or
exterior of the Building and Premises and/or change the Building's name or
street address. The Tenant shall have the right
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to display its name and logo on Building H at a location selected by Landlord
provided that prior to Tenant installing such signage, all such signage shall be
subject to Landlord's prior written approval and approval of applicable
governmental authority. All such signage shall be in compliance with applicable
statutes, regulations, ordinances. Tenant shall, at its sole cost and expense,
install and maintain such signage in good condition. Upon any termination of
this Lease, Tenant shall remove all of its signage. Tenant agrees to repair at
its sole cost and expense, any damage caused to the Building and/or other
portions of the Project arising out the installation, maintenance and/or removal
of such signage. Except as set forth above, the Tenant shall not, without the
prior written consent of Landlord, install any other exterior signage on the
Premises or elsewhere in the Project.
TRIAL BY JURY
37. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ANY MATTERS
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, AND TENANT'S USE OR OCCUPANCY OF THE PREMISES. Tenant
further agrees that it shall not interpose any counterclaim or counterclaims,
except compulsory counterclaims, in a summary proceeding or in any action based
upon nonpayment of rent or any other payment required of Tenant hereunder. Upon
Landlord's request, Tenant shall participate in mediation of a dispute between
Landlord and Tenant; the cost of a mediator shall be borne equally by Landlord
and Tenant.
RELOCATION OF TENANT
38. Omitted Intentionally.
RESERVED RIGHTS
39. The Landlord reserves the right to change the name or address of
the Building and/or Project at any time and from time to time; provided,
however, in the event Landlord elects to change the name or address of the
Building and/or the Project, then Landlord shall have the right to do so.
Neither this Lease nor any use by Landlord shall give Tenant an easement or any
right in or to the use of any door, passage, concourse or plaza in connection
with the Building, with any other portion of the Project or to any public
conveniences and the use of such portions of the Project may, without notice to
Tenant, be regulated or discontinued at any time, provided Tenant shall be
permitted to utilize the Common Areas as provided in this Lease. The Landlord
may make such changes, alterations, additions and improvements in and to the
Project and the Common Areas, as well as in and to the streets, parking areas,
landscape areas and other areas of the Project, as Landlord shall deem necessary
or desirable, so long as Tenant's access to and use and enjoyment of the
Premises and Tenant's rights under this Lease are not adversely affected in any
material respect. Tenant acknowledges that the Landlord is leasing to Tenant a
portion of the interior of the Building and reserves all rights to permit other
third parties to utilize any other portions of the Building or any
34
portion of the Project and/or exterior of the Building, including, but not
limited to, the roof of the Building. Tenant acknowledges that it has no right
to any development rights, air rights, easement for light or view or comparable
rights appurtenant to the Project and consents, without further consideration,
to any utilization of such rights by Landlord and Tenant agrees to promptly
execute and deliver any instruments which may reasonably be requested by
Landlord, including documents evidencing such acknowledgment and consent.
Landlord reserves the right, at any time during the term of
this Lease, to make changes, alterations, additions and improvements in and to
any portion of the Project (including, but not limited to, the right to
construct additional buildings and/or improvements within the Project without
incurring any liability to Tenant therefore; provided, however, changes may not
be made to the interior of the Premises without Tenant's consent unless such
changes will not adversely affect in any material manner Tenant's use of the
Premises as contemplated by this Lease; and provided further that Tenant's
access to and use and enjoyment of the Premises and Tenant's rights under this
Lease are not adversely affected in any material respect.
The Tenant shall permit Landlord to install, use, maintain,
replace and add additional pipes, lines, utilities, ducts and conduits within
walls, load bearing columns and ceilings located in or upon the Premises.
Landlord reserves the right, at its option, to install and maintain, use, repair
and replace pipes, ducts, conduits, utility lines and wires within the walls,
hung in ceiling space, column space and partitions and/or beneath the floor
slabs or above or below the Premises or other portions of the Building except
the Landlord shall not unreasonably interfere with and/or interrupt business
operation of Tenant within the Premises and the Landlord shall repair and
restore any damage to the Premises caused by Landlord in performing such work.
In the event Landlord desires to submit the Premises to a
Declaration of Protective Covenants in connection with the Project, then
Landlord shall have the right do so, so long as Tenant's access to and use of
the Premises for the uses permitted hereunder are not adversely affected in any
material respect. Tenant hereby acknowledges that Landlord and/or others, in its
sole and absolute discretion, shall have the right to develop and/or redevelop
the Project in such manner as the Landlord, its successors and assigns, desires
or shall have the right not to further develop. The Tenant understands that the
Project may now or in the future be developed and/or redeveloped and the Tenant
hereby agrees that it shall not and is hereby estopped from objecting to the
method or manner in which the Project is developed; provided, however, that the
development and/or redevelopment of the Project shall not materially affect
Tenant's ability to access and utilize the Premises for the uses permitted
pursuant to this Lease, affect the interior of the Premises nor preclude
Tenant's right to parking as provided in this Lease.
Tenant hereby agrees to join and to execute any and all
documents pertaining to all or any portion of the Project which are reasonably
requested by Landlord, including, but not limited to, land use amendments,
zoning applications, development of regional impact applications and/or other
permits, authorizations or documents which are to be filed with any governmental
or quasi-
35
governmental authority with regard to the development of all or any part of the
Project which may now or in the future be owned by Landlord, its successors and
assigns ("Joinders"), provided that such Joinders shall be without additional
expense to Tenant and shall not unreasonably affect Tenant's ability to access
and utilize the Premises for the uses permitted under this Lease, affect the
interior of the Premises nor preclude Tenant's right to parking as provided in
this Lease.
INVALIDITY OF PROVISION
40. If any term, provision, covenant or condition of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term, provision, covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby and each term, provision, covenant or condition of this Lease shall be
valid and be enforceable to the fullest extent permitted by law. This Lease
shall be construed in accordance with the laws of the State of Florida.
TIME OF ESSENCE
41. Time is of the essence of all the terms, provisions, covenants and
conditions of this Lease.
MISCELLANEOUS
42. The terms Landlord and Tenant as herein contained shall include
singular and/or plural, masculine, feminine and/or neuter, heirs, successors,
executors, administrators, personal representatives and/or assigns wherever the
context so requires or admits. The terms, provisions, covenants and conditions
of this Lease are expressed in the total language of this Lease Agreement and
the section headings are solely for the convenience of the reader and are not
intended to be all inclusive. Any exhibit or attachment or formally executed
addendum to or modification of this Lease shall be expressly deemed incorporated
by reference herein unless a contrary intention is clearly stated therein.
EFFECTIVE DATE
43. Submission of this instrument for examination does not constitute
an offer, right of first refusal, reservation of or option for the Premises or
any other space or premises in, on or about the Building. This
instrument-becomes effective as a lease only upon the date ("Effective Date")
that this Lease has been executed by and a copy of such executed Lease delivered
to both Landlord and Tenant.
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ENTIRE AGREEMENT
44. This Lease contains the sole and entire agreement between the
parties hereto and supersedes all previous written or oral negotiations or
agreements between the parties with respect to the subject matter of this Lease,
and it may be modified only by an agreement in writing signed by Landlord and
Tenant. No surrender of the Premises, or of the remainder of the term of this
Lease, shall be valid unless accepted by Landlord in writing. Tenant
acknowledges and agrees that Tenant has not relied upon any statement,
representation, prior written or contemporaneous oral promises, agreements or
warranties except such as are expressed herein. All of the parties to this Lease
have participated in its negotiations and preparation; accordingly, this Lease
shall not be more strictly construed against any one of the parties.
BROKERAGE
45. Tenant represents and warrants that it has dealt with no broker,
agent or other person other than Landlord and Landlord's broker ACP Realty
Services, L.L.C. (which entity is related to Landlord) and Harbour Real Estate
Corporation (which entity represents the Tenant in this transaction) (the
aforementioned brokers are collectively referred to as "Authorized Brokers") in
connection with this transaction and that no broker, agent or other person,
other than Tenant, Landlord or Authorized Brokers brought about this
transaction. Tenant and Landlord each agree to indemnify and hold harmless the
other from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue or having dealt
with such indemnifying party with regard to this leasing transaction other than
the Authorized Brokers. The Landlord agrees to pay the Authorized Brokers a
brokerage commission in accordance with the , terms of a separate brokerage
agreement between the Landlord and the Authorized Brokers. The provisions of
this section shall survive the termination of this Lease.
FORCE MAJEURE
46. Neither Landlord nor Tenant shall be required to perform any term,
condition, or covenant in this Lease (other than the payment of Rent and other
charges and monies due and owing under this Lease) so long as such performance
is delayed or prevented by force majeure, which shall mean acts of God, labor
disputes (whether lawful or not), material or labor shortages, restrictions by
any governmental authority, civil riots, floods, and any other cause not
reasonably within the control of Landlord and which by the exercise of due
diligence Landlord is unable, wholly or in part, to prevent or overcome. Lack of
money shall not be deemed force majeure.
STATUTORY RADON GAS NOTICE
47. Radon Gas: Radon is a naturally occurring radioactive gas that when
it has accumulated in a building in sufficient quantity, may present health
risks to persons who are exposed to it over time. Levels of Radon that exceed
Federal and State guidelines have been found in
37
buildings in Florida. Additional information regarding Radon and Radon testing
may be obtained from your County Public Health Unit.
NO WAIVER
48. No waiver by Landlord or Tenant of any breach by the other of any
term or condition of this Lease, and no failure by Landlord or Tenant to
exercise any right or remedy in respect of any such breach, shall constitute a
waiver or relinquishment for the future, or bar any right or remedy of Landlord
and Tenant, in respect of any other breach of such term or condition or any
breach of any other term or condition of this Lease. No payment by Tenant or
receipt of payment by Landlord of an amount less than the full amount then due
Landlord under this Lease shall be construed as anything other than a partial
payment of such sum then due and owing. No endorsement or statement on any check
or letter or any form of payment of accompanying document shall be deemed to be
an accord or satisfaction or other form of settlement; Landlord may accept any
such payment without prejudice to its rights to recover the balance of sums due
and owing under this Lease or to pursue any other remedy permitted under this
Lease.
SURVIVAL
49. All obligations of Tenant and Landlord which are or may be intended
by their nature to be performed and/or complied with after the expiration or
earlier termination of this Lease shall survive such expiration or termination.
Express provisions in this Lease which require or permit survival in specific
instances, or as to specific obligations, shall not be deemed a limitation upon
the generality of this survival clause.
PROVISIONS SEVERABLE
50. Every provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law. If any provision of this Lease, or the
application of such provision to any person or circumstance, shall be determined
by appropriate judicial authority to be illegal, invalid, or unenforceable to
any extent, such provision shall, only to such extent, be deemed stricken from
this Lease as if never included. The remainder of this Lease, and the
application of such provision to persons or circumstances other than those as to
which such provision is held illegal, invalid, or unenforceable, shall not be
affected.
BINDING EFFECT
51. The terms and conditions of this Lease shall bind the parties and
their respective successors and assigns, and shall inure to the benefit of the
parties and their respective permitted successors and assigns. Any waiver of
rights by either party shall be deemed not only to be a waiver of such rights by
such party but also a waiver of such rights for and on behalf of such party's
successors and assigns. This Lease may be changed, amended, or modified only by
an agreement
38
in writing signed by the party against whom such change, amendment, or
modification is sought to be enforced. If Tenant, with Landlord's consent, shall
occupy the Premises prior to the beginning of the Term as specified above, all
provisions of this Lease shall be in full force and effect commencing upon such
occupancy, and rent for such period shall be paid by Tenant at the same rate
herein specified. Tenant recognizes and acknowledges that the provisions of this
paragraph are material inducements to Landlord to enter into this Lease.
RIGHT OF FIRST OFFER
52. Provided Tenant is not in default at the time of exercise of the
right of first offer, and subject to the existing rights of existing tenants
under leases which predate this Lease, Tenant shall have a right of first offer
to expand the Premises into any available space in Building J for the initial
Term of this Lease (but not any renewal term), beginning at the Commencement
Date. In the event Tenant exercises its rights to expand the Premises into any
available space in Building J, the Tenant and Landlord shall enter into a lease
modification agreement which shall evidence, confirm and acknowledge such
expansion. All terms and conditions for such expansion space shall be the same
as provided in this Lease for the original Premises, except that Base Rent and
other concessions in respect of such expansion space shall be at prevailing fair
market rates, as reasonably determined by Landlord. Landlord shall notify
Tenant, in writing, no more than one hundred twenty (120) days prior to the
Availability Date (as such term is hereafter defined), of the location and size
of the space and the date in which such space will become available for
occupancy (the "Availability Date"). Tenant shall notify Landlord in writing no
more than five (5) days from the date of Tenant's receipt of Landlord's notice,
that it intends to exercise the right of first offer. Failure to notify Landlord
within such five (5) day period shall be deemed a rejection of the space, and
Landlord shall have the right to lease the space for a period of one year
thereafter without notice to Tenant. Should Tenant lease additional space
pursuant to this provision, the lease expiration date for the expansion Premises
shall be coterminous with the lease expiration date for the original Premises,
unless the expiration date of this Lease for the original Premises is within
five years of the lease commencement date of the expansion Premises, in which
event the Tenant shall exercise its option to extend the Term if the expiration
date of this Lease is within five (5) years of the date Landlord notifies Tenant
of the availability of such space.
The right of first offer set forth in this Paragraph 52 shall
expire upon any termination of this Lease. The provisions of this Paragraph 52
shall not be applicable during any period in which an Event of Default exists
and is continuing.
NO RECORDATION
53. Neither this Lease nor any memorandum of its terms shall be
recorded in the Public Records of Broward County, Florida.
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AS IS
54. Except for the items of Landlord Work set forth on Exhibit "D,"
Tenant accepts the condition of the Premises in its "as is" condition as of the
date hereof and Tenant, having fully inspected the condition of the Premises,
waives all claims as to the existing condition of the Premises whether patent,
latent or otherwise.
BINDING EFFECT
55. The terms and conditions of this Lease shall bind the parties and
their respective successors and assigns, and shall inure to the benefit of the
parties and their respective permitted successors and assigns (to extent
assignment is permitted as to Tenant). Any waiver of rights by either party
shall be deemed not only to be a waiver of such rights by such party but also a
waiver of such rights for and on behalf of such party's successors and assigns.
This Lease may be changed, amended, or modified only by an agreement in writing
signed by Landlord and Tenant. If Tenant, with Landlord's consent, shall occupy
the Premises prior to the beginning of the Term as specified above, all
provisions of this Lease shall be in full force and effect connecting upon such
occupancy, and Rent for such period shall be paid by Tenant at the same rate
herein specified. Tenant recognizes and acknowledges that the provisions of this
paragraph are material inducements to Landlord to enter into this Lease.
LANDLORD'S REPRESENTATIONS AND WARRANTIES.
56. Landlord represents and warrants to Tenant that: (i) Landlord is
the fee simple owner of the Premises, the Building and the Common Areas; (ii)
Landlord has the full right and authority to make this Lease; (iii) the
undersigned agent has full power, right and authority to execute this Lease for
and on behalf of the Landlord and to fully bind Landlord; and (iv) no
restrictive covenant, easement, lease or other written agreement restricts,
prohibits or otherwise affects Tenant's rights set forth in this Lease.
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IN WITNESS WHEREOF, the parties hereto, have signed, sealed and
delivered this Lease in quadruplicate, on the date and year first above written.
WITNESSES: LANDLORD:
ACP OFFICE 1 LLC, .
a Delaware limited liability company
BY: ACP SOUTH FLORIDA LLC,
--------------------------------------
a Florida limited liability company,
its operating member
/s/ XXXXXX X. XXXXXX
------------------------------------- BY: ACP SOUTH FLORIDA CORP.
Name: Xxxxxx X. Xxxxxx ----------------------------------
-------------------------------- a Florida corporation.
its managing member
/s/ XXXXXX XXXXXXXX
------------------------------------- By: /s/ XXXXXXX PRIO TOUZET
Name: Xxxxxx Xxxxxxxx -----------------------------
-------------------------------- Name: Xxxxxxx Prio Touzet
Title: Treasurer/Secretary
WITNESSES: TENANT:
XXXXXXXX.XXX, a Florida corporation
By: /s/ XXXX X. XXXXXX
--------------------------------------
/s/ XXXX X. SCAMBY Xxxx X. Xxxxxx, its President
-------------------------------------
Name: Xxxx X. Scamby
--------------------------------
/s/ XXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
41
