-------------------------------
MassMutual
Office Lease
by and between
MassMutual and
A.D.S. Advertising Corporation, a Florida Corporation
For: Trafalgar Plaza
0000 X.X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
A "MassMutual" Property
MassMutual
Equity File
No. ______
OFFICE LEASE
THIS LEASE, made as of this 9th day of January, 1996 by and between
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation having
its principal office at 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
("Landlord") and A. D. S. Advertising Corporation a Florida Corporation having
its principal office at 0000 X. X. 00xx Xxxxxx, Xx. Xxxxxxxxxx. XX 00000
("Tenant").
INDEX
Article Title Page
1 Basic Provisions 2
2 Premises, Term and Commencement Date 3
3 Rent 3
4 Operating Expenses 4
5 Landlord's Work, Tenant's Work, Alterations and Additions 5
6 Use 6
7 Services 7
8 Insurance 8
9 Indemnification 9
10 Casualty Damage 10
11 Condemnation 10
12 Repair and Maintenance 11
13 Inspection of Premises and Repairs by Landlord 11
14 Surrender of Premises 12
15 Holding Over 12
16 Subletting and Assignment 13
17 Subordination, Attornment and Mortgagee Protection 13
18 Estoppel Certificate 14
19 Defaults 14
20 Remedies of Landlord 15
21 Quiet Enjoyment 16
22 Accord and Satisfaction 16
23 Security Deposit 16
24 Brokerage Commission 17
25 Force Majeure 17
26 Parking 18
27 Hazardous Materials 18
28 Additional Rights Reserved by Landlord 20
29 Defined Terms 20
30 Miscellaneous Provisions 23
EXHIBITS
Exhibit A Plan Showing Property and Premises
Exhibit B Landlord's Work Letter
Exhibit C Tenant's Work
Exhibit D Building's Rules and Regulations
Exhibit E Commencement Date Confirmation
ARTICLE 1.
BASIC PROVISIONS
A. Tenant's Tradename: A. D.S. Advertising Corporation, a Florida
Corporation
B. Tenant's Address: 0000 X. X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
C. Office Building Name: Trafalgar Plaza
Address 0000 X. X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
D. Premises: Suite/Unit No.: Suite 212
Square feet (Gross/Net): 2,476
E. Landlord: Massachusetts Mutual Life Insurance Company
F. Landlord's Address: 0000 - X Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
G. Building Manager/Address: Florida Real Estate Advisors, Inc.
0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
H. Commencement Date: February 1, 1996
I. Expiration Date: March 31, 2001
J. Options to Extend: See Exhibit "F"
K. Security Deposit: $ 2,733.92
L. Monthly Rent: $ 1,702.25 plus applicable sales tax
M. Operating Expenses Base: $ 1,031.67 plus applicable sales tax
N. Tenant's Pro Rata Share: 2.56%. Tenant's Pro Rata Share shall be determined
by and adjusted by Landlord from time to time (but shall not be readjusted
sooner than the commencement of the second Lease year), by dividing the Tenant's
Gross Square Feet of the Premises (as identified in Article ID.) by the rentable
area of the Building and multiplying the resulting quotient, to the second
decimal place, by one hundred.
0. Normal Business Hours of Building:
Monday through Friday: N/A a.m. to N/A p.m.
Saturday: N/A a.m. to N/A p.m.
Sunday: N/A a.m. to N/A p.m.
P. Prepaid Rent: $2,733.92 as Security Deposit and $2,897.95
as first months rental payment.
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Q. Parking Spaces: l0 unassigned, uncovered parking spaces
Fee (parking spaces x rate/per month): no charge
R. Brokers:
Florida Real Estate Advisors and D & C
Property Investments, Inc.
The foregoing provisions shall be interpreted and applied in accordance with the
other provisions of this Lease set forth below. The capitalized terms, and the
terms defined in Article 29, shall have the meanings set forth herein or therein
(unless otherwise modified in the Lease) when used as capitalized terms in other
provisions of the Lease.
ARTICLE 2.
PREMISES, TERM AND COMMENCEMENT DATE
Landlord hereby leases and demises to the Tenant and Tenant hereby takes and
leases from Landlord that certain space identified in Article 1 and shown on a
plan attached hereto as Exhibit A ("Premises") for a term ("Term") commencing on
the Commencement Date and ending on the Expiration Date set forth in Article 1,
unless sooner terminated as provided herein, subject to the provisions herein
contained. The Commencement Date set forth in Article 1 shall be advanced to
such earlier date as Tenant commences occupancy of the Premises for the conduct
of its business. Such date shall be confirmed by execution of the Commencement
Date Confirmation in the form as set forth in Exhibit E. If Landlord delays
delivering possession of the Premises or substantial completion of any
Landlord's Work under Exhibit B, this Lease shall not be void or voidable,
except as provided in Article 5, and Landlord shall have no liability for loss
or damage resulting therefrom.
ARTICLE 3.
RENT
A. Monthly Rent. Tenant shall pay Monthly Rent in advance on or before the first
day of each month of the Term. If the Term shall commence and end on a day other
than the first day of a month, the Monthly Rent for the first and last partial
month shall be prorated on a per diem basis. Upon the execution of this Lease,
Tenant shall pay one installment of Monthly Rent for the first full month of the
Term and a prorated Monthly Rent for any partial month which may precede it.
B. Additional Rent. All costs and expenses which Tenant assumes or agrees to pay
and any other sum payable by Tenant pursuant to this Lease, including, without
limitation, its share of Operating Expenses, shall be deemed Additional Rent.
C. Rent. Monthly Rent, Additional Rent and Operating Expenses and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease
are herein referred to collectively as "Rent", and all remedies applicable to
the nonpayment of Rent shall be applicable thereto. Landlord may apply payments
received from Tenant to any obligations of Tenant then accrued, without regard
to such obligations as may be designated by Tenant.
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D. Place of Payment, Late Charge. Rent and other charges required to be paid
under this Lease, no matter how described, shall be paid by Tenant to Landlord
at the Building Manager's address listed in Article 1, or to such other person
and/or address as Landlord may designate in writing, without any prior notice or
demand therefor and without deduction or set-off or counterclaim and without
relief from any valuation or appraisement laws. In the event Tenant fails to pay
Rent due under this Lease within ten (10) days of due date of said Rent, Tenant
shall pay to Landlord a late charge of ten percent (10%) on the amount overdue.
ARTICLE 4.
OPERATING EXPENSES
A. Payment of Operating Expenses. It is agreed that during each Lease Year
beginning with the first month of the second Lease Year and each month
thereafter during the original Lease Term, or any extension thereof, Tenant
shall pay to Landlord as Additional Rent, at the same time as the Monthly Rent
is paid, an amount equal to one-twelfth (1/12) of Landlord's estimate (as
determined by Landlord in its sole discretion) of Tenant's Pro Rata Share of any
projected increase in the Operating Expenses for the particular Lease Year in
excess of the Operating Expenses Base (the "Estimated Escalation Increase"). A
final adjustment (the "Escalation Reconciliation") to be made between the
parties as soon as practicable following the end of each Lease Year, but in no
event later than ninety (90) days after the end of each Lease Year. In computing
the Estimated Escalation Increase for any particular Lease Year, Landlord shall
take into account any prior increases in Tenant's Pro Rata Share of Operating
Expenses. If during any Lease Year the Estimated Escalation Increase is less
than the Estimated Escalation Increase for the previous Lease Year on which
Tenant's share of Operating Expenses were based for said year, such Additional
Rent payments, attributable to Estimated Escalation Increase, to be paid by
Tenant for the new Lease Year shall be decreased accordingly; provided, however,
in no event will the Rent paid by Tenant hereunder ever be less than the Monthly
Rent, its Pro Rata Share of the Operating Expenses Base, plus all other amounts
of Additional Rent.
As soon as practicable following the end of each Lease Year during the initial
Lease Term, or any extension thereof, including the first Lease Year, Landlord
shall submit to Tenant a statement prepared by Landlord, in the first year
setting forth the Estimated Escalation Increase, if any. Beginning with said
statement for the second Lease Year, it shall also set forth the Escalation
Reconciliation for the Lease Year just completed. To the extent that the
Operating Expense Escalation is different from the Estimated Escalation Increase
upon which Tenant paid Rent during the Lease Year just completed, Tenant shall
pay Landlord the difference in cash within thirty (30) days following receipt by
Tenant of such statement from Landlord, or receive a credit on future Rent owing
hereunder as the case may be. Until Tenant receives such statement, Tenant's
Rent for the new Lease Year shall continue to be paid at the rate being paid for
the particular Lease Year just completed, but Tenant shall commence payment to
Landlord of the monthly installment of Additional Rent on the basis of said
statement beginning on the first day of the month following the month in which
Tenant receives such statement. In addition to the above, if, during any
particular Lease Year, there is a change in the information on which Landlord
based the estimate upon which Tenant is then making its estimated payment of
Operating Expenses so that such Estimated Escalation Increase furnished to
Tenant is no longer accurate, Landlord shall be permitted to revise such
Estimated Escalation Increase by notifying Tenant, and there shall be such
adjustments made in the Additional Rent on the first day of the month following
the serving of such statement on Tenant as shall be necessary by either
increasing or decreasing, as the case may be, the amount of Additional Rent then
being paid by Tenant for the balance of the Lease Year (but in no event shall
any such decrease result in a reduction of the rent below the Monthly Rent,
Tenant's Pro Rata Share of the Operating Expenses Base, plus all other amounts
of Additional Rent), as well as a payment by Tenant or credit to the Tenant as
appropriate based upon the amount theretofore paid by Tenant during such
particular Lease Year pursuant to the prior estimate.
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Landlord's and Tenant's responsibilities with respect to the Operating Expense
adjustment described herein shall survive the expiration or early termination of
this Lease.
If the Building is not fully occupied during any particular Lease Year, Landlord
shall adjust those Operating Expenses which are affected by Building occupancy
for the particular Lease Year, or portion thereof, as the case may be, to
reflect an occupancy of not less than ninety-five percent (95%) of all such
rentable area of the Building.
B. Disputes Over Operating Expenses. If Tenant disputes the amount of an
adjustment or the proposed estimated increase or decrease in Operating Expenses,
Tenant shall give Landlord written notice of such dispute within thirty (30)
days after Landlord advises Tenant of such adjustment or proposed increase or
decrease. Tenant's failure, to give such notice shall waive its right to dispute
the amounts so determined. If Tenant timely objects, Tenant shall have the right
to engage its own accountants ("Tenant's Accountants") for the purpose of
verifying the accuracy of the statement in dispute, or the reasonableness of the
adjustment or estimated increase or decrease. If Tenant's Accountants determine
that an error has been made, Landlord and Tenant's Accountants shall endeavor to
agree upon the matter, failing which Landlord and Tenant's Accountants shall
jointly select an independent certified public accounting firm (the "Independent
Accountant") which firm shall conclusively determine whether the adjustment or
estimated increase or decrease is reasonable, and if not, what amount is
reasonable. Both parties shall be bound by such determination. If Tenant's
Accountants do not participate in choosing the Independent Accountant within 20
days notice by Landlord, then Landlord's determination of the adjustment or
estimated increase or decrease shall be conclusively determined to be reasonable
and Tenant shall be bound thereby. All costs incurred by Tenant in obtaining
Tenant's Accountants and the cost of the Independent Accountant shall be paid by
Tenant unless Tenant's Accountants disclose an error, acknowledged by Landlord
(or found to have conclusively occurred by the Independent Accountant), of more
than ten percent (10%) in the computation of the total amount of Operating
Expenses as set forth in the statement submitted by Landlord with respect to the
matter in dispute; in which event Landlord shall pay the reasonable costs
incurred by Tenant in obtaining such audits. Tenant shall continue to timely pay
Landlord the amount of the prior year's adjustment and adjusted Additional Rent
determined to be incorrect as aforesaid until the parties have concurred as to
the appropriate adjustment or have deemed to be bound by the determination of
the Independent Accountant in accordance with the preceding terms. Landlord's
delay in submitting any statement contemplated herein for any Lease Year shall
not affect the provisions of this Paragraph, nor constitute a waiver of
Landlord's rights as set forth herein for said Lease Year or any subsequent
Lease Years during the Lease Term or any extensions thereof.
ARTICLE 5.
LANDLORD'S WORK, TENANT'S WORK,
ALTERATIONS AND ADDITIONS
A. Landlord's Work. Landlord shall construct the Premises in accordance with
Landlord's obligations as set forth in the work letter attached hereto as
Exhibit B, and hereinafter referred to as "Landlord's Work." Landlord will
deliver the Premises to Tenant with all of Landlord's Work completed (except for
minor and non-material punch list items which in Landlord's reasonable judgment
will not delay completion of Tenant's Work, as defined in subparagraph B of this
Article) on or before the number of days specified in Exhibit B and Tenant
agrees thereupon to commence and complete Tenant's Work on or before the
Commencement Date. If Landlord is delayed in completing Landlord's Work by
strike, shortages of labor or materials, delivery delays or other matters beyond
the reasonable control of Landlord, then Landlord shall give notice thereof to
Tenant and the date on which Landlord is to turn the Premises over to Tenant for
Tenant's Work and the Commencement Date shall be postponed for an equal number
of days as the delay as set forth in the notice. Providing, however, if such
delays exceed ninety (90) days, then either
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Landlord or Tenant upon notice to the other shall have the right to terminate
this Lease without liability to either party. If the Commencement Date is
postponed as aforesaid, Tenant agrees upon request of Landlord to execute a
writing confirming the Commencement Date on such form as set forth in Exhibit E
attached hereto.
B. Tenant's Work. On and after the date specified in the immediately preceding
subparagraph A for delivery of the Premises to Tenant for Tenant's Work, Tenant,
at its sole cost and expense, shall perform and complete all other improvements
to the Premises (herein called "Tenant's Work") including, but not limited to,
all improvements, work and requirements required of Tenant under the foregoing
work letter. Tenant shall complete all of Tenant's Work in good and workmanlike
manner, fully paid for and free from liens, in accordance with the plans and
specifications approved by Landlord and Tenant as provided in Exhibit C, on or
prior to the scheduled Commencement Date. Tenant shall also have the right
during this period to come onto the Premises to install its fixtures and prepare
the Premises for the operation of Tenant's business. Notwithstanding the fact
that foregoing activities by Tenant will occur prior to the scheduled
Commencement Date, Tenant agrees that all of Tenant's obligations provided for
in this Lease shall apply during such period with the exception of any
obligation to pay Rent.
C. Alterations. Except as provided in the immediately preceding subparagraph,
Tenant shall make no alterations or additions to the Premises without the prior
written consent of the Landlord, which consent Landlord may grant or withhold in
its sole discretion.
D. Liens. Tenant shall give Landlord at least ten (10) days prior written notice
(or such additional time as may be necessary under applicable laws) of the
commencement of any Tenant's Work, to afford Landlord the opportunity of posting
and recording notices of nonresponsibility. Tenant will not cause or permit any
mechanic's, materialman's or similar liens or encumbrances to be filed or exist
against the Premises or the Building or Tenant's interest in this Lease in
connection with work done under this Article or in connection with any other
work. Tenant shall remove any such lien or encumbrance by bond or otherwise
within twenty (20) days from the date of their existence. If Tenant fails to do
so, Landlord may pay the amount or take such other action as Landlord deems
necessary to remove any such lien or encumbrance, without being responsible to
investigate the validity thereof. The amounts so paid and costs incurred by
Landlord shall be deemed Additional Rent under this Lease and payable in full
upon demand.
ARTICLE 6.
USE
A. Use. Tenant shall use the Premises for general office purposes, and for no
other purpose whatsoever, subject to and in compliance with all other provisions
of this Lease, including without limitation the Building's Rules and Regulations
attached as Exhibit D hereto. Tenant and its invitees shall also have the
non-exclusive right along with other tenants of the Building and others entitled
to use the same and subject to such rules and regulations as Landlord in its
discretion may impose from time to time to use the Common Areas.
B. Restrictions. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises or do or permit anything to be done in the
Premises which: (a) causes or is liable to cause injury to persons, to the
Building or its equipment, facilities or systems; (b) impairs or tends to impair
the character, reputation or appearance of the Building as a first class office
building; (c) impairs or tends to impair the proper and economic maintenance,
operation and repair of the Building or its equipment, facilities or systems;
or, (d) annoys or inconveniences or tends to annoy or inconvenience other
tenants or occupants of the Building.
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C. Compliance with Laws. Tenant shall keep and maintain the Premises, its use
thereof and its business in compliance with all governmental laws, ordinances,
rules and regulations. Tenant shall comply with all Laws relating to the
Premises and Tenant's use thereof, including without limitation, Laws requiring
the Premises to be closed on Sundays or any other days or hours and Laws in
connection with the health, safety and building codes, and any permit or license
requirements. Landlord makes no representation that the Premises are suitable
for Tenant's purposes.
ARTICLE 7.
SERVICES
A. Climate Control. Landlord shall provide climate control to the Premises
during Normal Business Hours of Building as set forth in Article 1 as required
in Landlord's reasonable judgment for the comfortable use and occupation of the
Premises. If Tenant requires climate control at any other time, Landlord shall
use reasonable efforts to furnish such service upon reasonable notice from
Tenant, and Tenant shall pay all of Landlord's charges therefor on demand.
The performance by Landlord of its obligations under this Article is subject to
Tenant's compliance with the conditions of occupancy and connected electrical
load established by Landlord. Use of the Premises or any part thereof in a
manner exceeding the heating, ventilating or air-conditioning ("HVAC") design
conditions (including occupancy and connected electrical load), including
rearrangement of partitioning which interferes with normal operation of the HVAC
in the Premises, or the use of computer or data processing machines or other
machines or equipment, may require changes in the HVAC or plumbing systems or
controls servicing the Premises or portions thereof, in order to provide
comfortable occupancy. Any such required change shall be made by Landlord at
Tenant's expense as alterations in accordance with the provisions of Article 5,
but only to the extent permitted and upon the conditions set forth in that
Article.
B. Elevator Service. If the Building is equipped with elevators, Landlord,
during Normal Business Hours of Building, shall furnish elevator service to
Tenant to be used in common with others. At least one elevator shall remain in
service during all other hours. Landlord may designate a specific elevator for
use as a service elevator.
C. Janitorial Services. Landlord shall make janitorial and cleaning services
available to the Premises. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (i) extra cleaning in the Premises required because of
(A) misuse or neglect on the part of Tenant or Tenant's agents, contractors,
invitees, employees and customers, (B) the use of portion of the Premises for
special purposes requiring greater or more difficult cleaning work than office
areas, (C) interior glass partitions or unusual quantities of interior glass
surfaces, and (D) non-building standard materials or finishes installed by
Tenant or at its request; and (ii) removal from the Premises of any refuse and
rubbish of Tenant in excess of that ordinarily accumulated in general office
occupancy or at times other than Landlord's standard cleaning times.
D. Water and Electricity. Landlord shall make available domestic water in
reasonable quantities to the common areas (and to the Premises if so designated
in Exhibit B) and cause electric service equivalent to the watt load to be
supplied for lighting the Premises and for the operation of Ordinary Office
Equipment. "Ordinary Office Equipment" shall mean office equipment wired for 120
volt electric service and rated and using less than 6 amperes or 750 xxxxx of
electric current. Landlord shall have the exclusive right to make any
replacement of lamps, fluorescent tubes and lamp ballasts in the Premises.
Landlord may adopt a system of relamping and ballast replacement periodically on
a group basis in accordance with good management practice. Tenant's use of
electric energy in the Premises shall not at any time exceed the capacity of any
of the risers, piping, electrical conductors and other equipment in or serving
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the Premises. In order to insure that such capacity is not exceeded and to avert
any possible adverse effect upon the Building's electric system, Tenant shall
not, without Landlord's prior written consent in each instance, connect
appliances or heavy duty equipment, other than ordinary office equipment, to the
Building's electric system or make any alteration or addition to the Building's
electric system. Should Landlord grant its consent in writing, all additional
risers, piping and electrical conductors or other equipment therefor shall be
provided by Landlord and the cost thereof shall be paid by Tenant within 10 days
of Landlord's demand therefor. As a condition to granting such consent, Landlord
may require Tenant to agree to an increase in Monthly Rent by the expected cost
to Landlord of such additional service, that is, the cost of the additional
electric energy to be made available to Tenant based upon the estimated
additional capacity of such additional risers, piping and electrical conductors
or other equipment. If Landlord and Tenant cannot agree thereon, such cost shall
be determined by an independent electrical engineer, to be selected by Landlord
and paid equally by both parties.
E. Separate Meters. Landlord may install separate meters for the Premises to
register the usage of all or any one of the utilities and in such event Tenant
shall pay for the cost of electricity usage as metered which is in excess of the
watt load (as established by the Landlord), or in the case of other utilities,
the metered usage in excess of that usage reasonably anticipated by Landlord.
Tenant shall reimburse Landlord for the cost of installation of meters if such
usage exceeds the watt load (or such anticipated usage, as the case may be) by
more than 10 percent. In any event, Landlord may require Tenant to reduce its
consumption to the watt load or such anticipated usage.
F. Interruptions. Landlord does not warrant that any of the services referred to
above, or any other services which Landlord may supply, will be free from
interruption and Tenant acknowledges that any one or more of such services may
be suspended by reason of accident, repairs, inspections, alterations or
improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or causes beyond the reasonable control of Landlord. Any
interruption or discontinuance of service shall not be deemed an eviction or
disturbance of Tenant's use and possession of the Premises, or any part thereof,
nor render Landlord liable to Tenant for damages by abatement of the Rent or
otherwise, nor relieve Tenant from performance of Tenant's obligations under
this Lease. Landlord shall however, exercise reasonable diligence to restore any
service so interrupted.
G. Utilities Provided by Tenant. Tenant shall make application in Tenant's own
name for all utilities not provided by Landlord and shall: (i) comply with all
utility company regulations for such utilities, including requirements for the
installation of meters, and (ii) obtain such utilities directly from, and pay
for the same when due directly to, the applicable utility company. The term
"utilities" for purposes hereof shall include but not be limited to electricity,
gas, water, sewer, steam, fire protection, telephone and other communication and
alarm services, as well as HVAC, and all taxes or other charges thereon. Tenant
shall install and connect all equipment and lines required to supply such
utilities to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items. Tenant
shall maintain, repair and replace all such items, operate the same, and keep
the same in good working order and condition. Tenant shall not install any
equipment or fixtures, or use the same, so as to exceed the safe and lawful
capacity of any utility equipment or lines serving the same. The installation,
alteration, replacement or connection of any utility equipment and lines shall
be subject to the requirements for alterations of the Premises set forth in
Article 5. Tenant shall ensure that all HVAC equipment is installed and operated
at all times in a manner to prevent roof leaks, damage, or noise due to
vibrations or improper installation, maintenance or operation.
ARTICLE 8.
INSURANCE
A. Required Insurance. Tenant shall maintain insurance policies, with
responsible companies licensed to do business in the state where the Building
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is located and satisfactory to Landlord, naming Landlord, Landlord's Building
Manager or agent, Tenant and any Mortgagee of Landlord, as their respective
interests may appear, at its own cost and expense including (i) "all risk"
property insurance which shall be primary on the lease improvements referenced
in Article 5 and Tenant's property, including its goods, equipment and
inventory, in an amount adequate to cover their replacement cost; (ii) income
loss coverage, (iii) comprehensive general liability insurance on an occurrence
basis with limits of liability in an amount not less than S1,000,000 (One
Million Dollars) combined single limit for each occurrence. The comprehensive
general liability policy shall include contractual liability which includes the
provisions of Article 9 herein.
On or before the Commencement Date of the Lease, Tenant shall furnish to
Landlord and its Building Manager, certificates of insurance evidencing the
aforesaid insurance coverage, including naming Landlord and Landlord s Building
Manager or agent as additional insureds. Renewal certificates shall be furnished
at least thirty (30) days prior to the expiration date of such insurance
policies showing the above coverage to be in full force and effect.
All such insurance shall provide that it cannot be canceled except upon thirty
(30) days prior written notice to Landlord or designated property manager or
agent. Tenant shall comply with all rules and directives of any insurance board,
company or agency determining rates of hazard coverage for the Premises,
including but not limited to the installation of any equipment and/or the
correction of any condition necessary to prevent any increase in such rates.
B. Subrogation. The parties mutually waive all rights and claims against each
other for all losses covered by their respective insurance policies, and waive
all rights of subrogation of their respective insurers.
C. Waiver of Claims. Except for claims arising from Landlord's intentional or
grossly negligent acts that are not covered by Tenant's insurance hereunder,
Tenant waives all claims against Landlord for injury or death to persons, damage
to property or to any other interest of Tenant sustained by Tenant or any party
claiming, through Tenant resulting from: (i) any occurrence in or upon the
Premises, (ii) leaking of roofs, bursting, stoppage or leaking of water, gas,
sewer or steam pipes or equipment, including sprinklers, (iii) wind, rain, snow,
ice, flooding, freezing, fire, explosion, earthquake, excessive heat or cold, or
other casualty, (iv) the Building, Premises, or the operating and mechanical
systems or equipment of the Building, being defective, out of repair, or
failing, and (v) vandalism, malicious mischief, theft or other acts or omissions
of any other parties including without limitation, other tenants, contractors
and invitees at the Building. Tenant agrees that Tenant's property loss risks
shall be borne by its insurance, and Tenant agrees to look solely to and seek
recovery only from its insurance carriers in the event of such losses. For
purposes hereof, any deductible amount shall be treated as though it were
recoverable under such policies.
ARTICLE 9.
INDEMNIFICATION
Tenant shall indemnify and hold harmless Landlord and its agents, successors and
assigns, including its Building Manager, from and against all injury, loss,
costs, expenses, claims or damage (including attorney's fees and disbursements)
to any person or property arising from, related to, or in connection with any
use or occupancy of the Premises by or any act or omission (including, without
limitation, construction and repair of the Premises arising out of Tenant's Work
or subsequent work) of Tenant, its agents, contractors, employees, customers,
and invitees, which indemnity extends to any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease. This indemnification shall survive the
expiration or termination of the Lease Term.
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Landlord shall not be liable to Tenant for any damage by or from any act or
negligence of any co-tenant or other occupant of the Building, or by any owner
or occupants of adjoining or contiguous property. Landlord shall not be liable
for any injury or damage to persons or property resulting in whole or in part
from the criminal activities of others. To the extent not covered by all risk
property insurance, Tenant agrees to pay for all damage to the Building, as well
as all damage to persons or property of other tenants or occupants thereof,
caused by the negligence, fraud or willful misconduct of Tenant or any of its
agents, contractors, employees, customers and invitees. Nothing contained herein
shall be construed to relieve Landlord from liability for any personal injury
resulting from its gross negligence, fraud or willful misconduct.
ARTICLE 10.
CASUALTY DAMAGE
Tenant shall promptly notify Landlord or the Building Manager of any fire or
other casualty to the Premises or to the extent it knows of damage, to the
Building. In the event the Premises or any substantial part of the Building is
wholly or partially damaged or destroyed by fire or other casualty, the Landlord
will proceed to restore the same to substantially the same condition existing
immediately prior to such damage or destruction unless such damage or
destruction is incapable of repair or restoration within one hundred twenty
(120) days, in which event Landlord may, at Landlord's option and by written
notice given to Tenant within thirty (30) days of such damage or destruction,
declare this Lease terminated as of the happening of such damage or destruction.
To the extent after fire or other casualty that Tenant shall be deprived of the
use and occupancy of the Premises or any portion thereof as a result of any such
damage, destruction or the repair thereof, providing Tenant did not cause the
fire or other casualty, Tenant shall be relieved of the same ratable portion of
the fixed rental hereunder as the amount of damaged or useless space in the
Premises bears to the gross square footage of the Premises. Landlord, in its
sole discretion, shall reasonably determine the amount of damaged or useless
space and the gross square footage of the Premises referenced in the prior
sentence.
ARTICLE 11.
CONDEMNATION
In the event of a condemnation or taking of the entire Premises by a public or
quasi-public authority, this Lease shall terminate as of the date title vests in
the public or quasi-public authority. In the event of a taking or condemnation
of fifteen percent (15%) or more (but less than the whole) of the Building and
without regard to whether the Premises are part of such taking or condemnation,
Landlord may elect to terminate this Lease by giving notice to Tenant within
sixty (60) days of Landlord receiving notice of such condemnation. All
compensation awarded for any condemnation shall be the property of Landlord,
whether such damages shall be awarded as a compensation for diminution in the
value of the leasehold or to the fee of the Premises, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
compensation. Providing, however that in the event this Lease is terminated,
Tenant shall be entitled to a separate claim available to Tenant for loss of
leasehold improvements (including fixtures paid for by Tenant), the taking of
Tenant's personal property and for costs of moving. Notwithstanding the
foregoing to the contrary, any condemnation award to Tenant shall be available
only to the extent such award is payable separately to Tenant and does not
diminish the award available to Landlord or any Lender of Landlord and such
award shall be limited to the amount of Rent actually paid by Tenant to Landlord
for the period of time for which the award is given. Any additional portion of
such award shall belong to Landlord.
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ARTICLE 12.
REPAIR AND MAINTENANCE
A. Tenants Obligations. Tenant shall keep the Premises in good working order,
repair (which repair shall include necessary replacements and capital
expenditures and in compliance with all Laws now or hereafter adopted) and
condition (which condition shall be clean, sanitary, sightly and free of pest
and rodents). Tenant's obligations hereunder shall include but not be limited to
Tenant's trade fixtures and equipment, security gates, ceilings, walls,
entrances, signs, interior decorations, floor-coverings, wall-coverings, entry
and interior doors, exterior and interior glass, plumbing fixtures, light
fixtures and bulbs, keys and locks, fire extinguishers and fire protection
systems, and equipment and lines for water, sewer (including free flow up to
common sewer line), HVAC, electrical, gas, steam, sprinkler and mechanical
facilities and alterations to the Premises whether installed by Tenant or
Landlord. Tenant shall further engage competent contractors approved by Landlord
to perform periodic scheduled maintenance (including inspecting, testing,
cleaning and repairs) for any HVAC units, hot water heaters and any fire
protection systems, including any sprinkler system, or any other mechanical
systems in or exclusively serving the Premises. Such periodic scheduled
maintenance work shall further include all other work required by a
manufacturer's warranty, service manual or technical bulletins or by Landlord's
or Tenant's insurance carrier. If one or more HVAC units or hot water heaters
also serve one or more other tenants, Tenant shall make arrangements directly
with such other tenant or tenants to reasonably and equitably share
responsibility and expenses for the obligations required to be performed
hereunder.
B. Signs and Obstructions. Tenant shall not obstruct or permit the obstruction
of light, halls, Common Areas, roofs, parapets, stairways or entrances to the
Building or the Premises and will not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any part of the
Building or the Premises, including the inside or outside of the windows or
doors, without the written consent of Landlord. Landlord shall have the right to
withdraw such consent at any time and to require Tenant to remove any sign,
projection, awning, signal or advertisement to be affixed to the Building or the
Premises. If such work is done by Tenant through any person, firm or corporation
not designated by Landlord, or without the express written consent of Landlord,
Landlord shall have the right to remove such signs, projections, awnings,
signals or advertisements without being liable to the Tenant by reason thereof
and to charge the cost of such removal to Tenant as Additional Rent, payable
within ten (10) days of Landlord's demand therefor.
C. Outside Services. Tenant shall not permit, except by a person or company
reasonably satisfactory to and approved by Landlord: (i) the extermination of
vermin in, on or about the Premises; (ii) the servicing of heating, ventilating
and air conditioning equipment; (iii) the collection of rubbish and trash other
than in compliance with local government health requirements and in accordance
with the rules and regulations established by Landlord, which shall minimally
provide that Tenant's rubbish and trash shall be kept in containers located so
as not to be visible to members of the public and in a sanitary and neat
condition; or (iv) the window cleaning, janitorial services or similar work in
the Premises.
ARTICLE 13.
INSPECTION OF PREMISES AND REPAIRS BY LANDLORD
Landlord shall not be required to make any repairs or improvements to the
Building's Common Areas or the Premises except to keep the roof above,
foundation, exterior walls, other than common utility lines to the point of
connection for Tenant, and structural portions of the Premises in good working
order and repair (the cost of which shall be included in Operating Expenses
under Article 4); provided, however, that any damage
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to such areas shall not have been caused by any act or omission of, or violation
of this Lease by Tenant or any of Tenant's agents, contractors, employees,
invitees or customers, in which event Landlord may perform or require the Tenant
to perform such repairs as provided above (without limiting Landlord's other
remedies herein).
Tenant shall permit the Landlord, the Building Manager and its authorized
representatives to enter the Premises to show the Premises during Normal
Business Hours of Building and at other reasonable times to inspect the Premises
and to make such repairs, improvements or additions in the Premises or in the
Building of which they are a part as may be necessary or appropriate. Landlord
shall make every effort to perform all such repairs, improvements and additions
in such a manner (in its judgment) so as to cause minimum interference with
Tenant and the Premises but Landlord shall not be liable to Tenant for any
interruption or loss of business pertaining to such activities.
ARTICLE 14.
SURRENDER OF PREMISES
Upon the expiration of the Term, or sooner termination of the Lease, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, normal wear and tear and damage by fire and other casualty
excepted. All leasehold improvements and other fixtures, such as light fixtures
and HVAC equipment, wall coverings, carpeting and drapes, in or serving the
Premises, whether installed by Tenant or Landlord, shall be Landlord's property
and shall remain, all without compensation, allowance or credit to Tenant. Any
property not removed shall be deemed to have been abandoned by Tenant and may be
retained or disposed of by Landlord at Tenant's expense free of any and all
claims of Tenant, as Landlord shall desire. All property not removed from the
Premises by Tenant may be handled or stored by Landlord at Tenant's expense and
Landlord shall not be liable for the value, preservation or safekeeping thereof.
At Landlord's option all or part of such property may be conclusively deemed to
have been conveyed by Tenant to Landlord as if by xxxx of sale without payment
by Landlord. The Tenant hereby waives to the maximum extent allowable the
benefit of all laws now or hereafter in force in this state or elsewhere
exempting property from liability for rent or for debt.
ARTICLE 15.
HOLDING OVER
Tenant shall pay Landlord 200% of the amount of Rent then applicable prorated on
a per diem basis for each day Tenant shall retain possession of the Premises or
any part thereof after expiration or earlier termination of this Lease, together
with all damages sustained by Landlord on account thereof. The foregoing
provisions shall not serve as permission for Tenant to hold-over, nor serve to
extend the Term (although Tenant shall remain bound to comply with all
provisions of this Lease until Tenant vacates the Premises) and Landlord shall
have the right at any time thereafter to enter and possess the Premises and
remove all property and persons therefrom.
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ARTICLE 16.
SUBLETTING AND ASSIGNMENT
Tenant shall not, without the prior written consent of Landlord endorsed
thereon, list the Premises or any part thereof as available for assignment or
sublease with any broker or agent or otherwise advertise, post, communicate or
solicit prospective assignees or subtenants through any direct or indirect
means, nor assign this Lease or any interest thereunder, or sublet Premises or
any part thereof, or permit the use of Premises by any party other than Tenant.
In the event that during the term of this Lease, Tenant desires to sublease and
introduces Landlord to a proposed replacement tenant for Tenant, which
replacement tenant is of financial strength at least equal to that of Tenant (as
determined by Landlord in its sole discretion) and has a use for Premises and a
number of employees reasonably consistent with that of Tenant's operation, the
Landlord may consider such replacement tenant and notify Tenant with reasonable
promptness as to Landlord's choice, at Landlord's sole discretion, of the
following:
(1) That Landlord consents to a subleasing of Premises to such replacement
tenant provided that Tenant shall remain fully liable for all of its
obligations and liabilities under this Lease and provided further that
Landlord shall be entitled to any profit obtained by Tenant from such
subletting or assignment; or;
(2) That upon such replacement tenant's entering into a mutually
satisfactory new Lease for the Premises with Landlord, then Tenant
shall be released from all further obligations and liabilities under
this Lease (excepting only any unpaid rentals or any unperformed
covenants then past due under this Lease or any guarantee by Tenant of
replacement tenant's obligations); or
(3) That Landlord declines to consent to such sublease due to insufficient
or unsatisfactory documentation furnished to Landlord to establish
Tenant's financial strength and proposed use of and operations upon
Premises.
In no case may Tenant assign any options to sublessee(s) or assignee(s)
hereunder, all such options being deemed personal to Tenant only. Consent by
Landlord hereunder shall in no way operate as a waiver by Landlord of, or to
release or discharge Tenant from, any liability under this Lease or be construed
to relieve Tenant from obtaining Landlord's consent to any subsequent
assignment, subletting, transfer use or occupancy.
ARTICLE 17.
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
This Lease is subject and subordinate to all Mortgages now or hereafter placed
upon the Building, and all other encumbrances and matters of public record
applicable to the Building, including without limitation, any reciprocal
easement or operating agreements, covenants, conditions and restrictions and
Tenant shall not act or permit the Premises to be operated in violation thereof.
If any foreclosure or power of sale proceedings are initiated by any Lender or a
deed in lieu is granted (or if any ground lease is terminated), Tenant agrees,
upon written request of any such Lender or any purchaser at such foreclosure
sale, to attorn and pay Rent to such party and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such attornment.
In the event of attornment, no Lender shall be: (i) liable for any act or
omission of Landlord, or subject to any offsets or defenses which Tenant might
have against Landlord (prior to such Lender becoming Landlord under such
attornment), (ii) liable for any security deposit or bound by any prepaid Rent
not actually received by such Lender, or (iii) bound by any future modification
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of this Lease not consented to by such Lender. Any Lender may elect to make this
Lease prior to the lien of its Mortgage, and if the Lender under any prior
Mortgage shall require, this Lease shall be prior to any subordinate Mortgage;
such elections shall be effective upon written notice to Tenant. Tenant agrees
to give any Lender by certified mail, return receipt requested, a copy of any
notice of default served by Tenant upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of service on Tenant of a
copy of an assignment of leases, or otherwise) of the name and address of such
Lender. Tenant further agrees that if Landlord shall have failed to cure such
default within the time permitted Landlord for cure under this Lease, any such
Lender whose address has been so provided to Tenant shall have an additional
period of thirty (30) days in which to cure (or such additional time as may be
required due to causes beyond such Lender's control, including time to obtain
possession of the Building by power of sale or judicial action or deed in lieu
of foreclosure). The provisions of this Article shall be self-operative;
however, Tenant shall execute such documentation as Landlord or any Lender may
request from time to time in order to confirm the matters set forth in this
Article in recordable form. To the extent not expressly prohibited by Law,
Tenant waives the provisions of any Law now or hereafter adopted which may give
or purport to give Tenant any right or election to terminate or otherwise
adversely affect this Lease or Tenant's obligations hereunder if such
foreclosure or power of sale proceedings are initiated, prosecuted or completed.
ARTICLE 18.
ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon written request by Landlord or Lender,
deliver to Landlord or Lender, within ten (10) days after from receipt of such
request, a statement in writing certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, identifying
such modifications and certifying that the Lease, as modified, is in full force
and effect); (ii) the dates to which the Rent has been paid; (iii) that Landlord
is not in default under any provision of this Lease (or if Landlord is in
default, specifying each such default); and, (iv) the address to which notices
to Tenant shall be sent; it being understood that any such statement so
delivered may be relied upon in connection with any lease, mortgage or transfer.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect and not modified
except as Landlord may represent; (ii) not more than one month's Rent has been
paid in advance; (iii) there are no defaults by Landlord; and, (iv) notices to
Tenant shall be sent to Tenant's Address as set forth in Article 1 of this
Lease. Notwithstanding the presumptions of this Article, Tenant shall not be
relieved of its obligation to deliver said statement.
ARTICLE 19.
DEFAULTS
If Tenant: (i) fails to pay when due any installment or other payment of Rent,
or to keep in effect any insurance required to be maintained; or (ii) vacates or
abandons the Premises, or (iii) becomes insolvent, makes an assignment for the
benefit of creditors, files a voluntary bankruptcy or an involuntary petition in
bankruptcy is filed against Tenant which petition is not dismissed within sixty
(60) days of its filing, or (iv) fails to perform or observe any of the other
covenants, conditions or agreements contained herein on Tenant's part to be kept
or performed and such failure shall continue for thirty (30) days after notice
thereof given by or on behalf of Landlord, or (v) if the interest of Tenant
shall be offered for sale or sold under execution or other legal process if
Tenant makes any transfer, assignment, conveyance, sale, pledge, disposition of
all or a substantial portion of Tenant's property, then any such event or
conduct shall constitute a "default" hereunder.
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If Tenant shall file a voluntary petition pursuant to the United States
Bankruptcy Reform Act of 1978, as the same may be from time to time be amended
(the "Bankruptcy Code"), or take the benefit of any insolvency act or be
dissolved, or if an involuntary petition be filed against Tenant pursuant to the
Bankruptcy Code and said petition is not dismissed within thirty (30) days after
such filing, or if a receiver shall be appointed for its business or its assets
and the appointment of such receiver is not vacated within thirty (30) days
after such appointment, or if it shall make an assignment for the benefit of its
creditors, then Landlord shall have all of the rights provided for in the event
of nonpayment of the Rent.
ARTICLE 20.
REMEDIES OF LANDLORD
The remedies provided Landlord under this Lease are cumulative.
(a) Upon the occurrence of any default, Landlord may serve notice on Tenant that
the Term and the estate hereby vested in Tenant and any and all other rights of
Tenant hereunder shall cease on the date specified in such notice and on the
specified date this Lease shall cease and expire as fully and with the effect as
if the Term had expired for passage of time.
(b) Without terminating this Lease in case of a default or if this Lease shall
be terminated for default as provided herein, Landlord may re-enter the
Premises, remove Tenant, or cause Tenant to be removed from the Premises in such
manner as Landlord may deem advisable, with or without legal process, and using
such reasonable force as may be necessary. In the event of re-entry without
terminating this Lease, Tenant shall continue to be liable for all Rents and
other charges accruing or coming due under this Lease.
(c) If Landlord, without terminating this Lease, shall re-enter the Premises or
if this Lease shall be terminated as provided in paragraph (a) above:
(i) All Rent due from Tenant to Landlord shall thereupon become due and
shall be paid up to the time of re-entry, dispossession or expiration,
together with reasonable costs and expenses (including, without limitation,
attorney's fees) of Landlord;
(ii) Landlord, without any obligation to do so, may relet the Premises or
any part thereof for a term or terms which may at Landlord's option be less
than or exceed the period which would otherwise have constituted the balance
of the Term and may grant such concessions in reletting as Landlord, in the
exercise of its reasonable business judgment, deems desirable. In connection
with such reletting, Tenant shall be liable for all costs of the reletting
including, without limitation, free rent, leasing commissions, legal fees
and alteration and remodeling costs;
(iii) If Landlord shall have terminated this Lease, Tenant shall also be
liable to Landlord for all damages provided for in law and under this Lease
resulting from Tenant's breach including, without limitation, the difference
between the aggregate rentals reserved under the terms of this Lease for the
balance of the Term together with all other sums payable hereunder as Rent
for the balance of the Term, less the fair rental value of the Premises for
that period determined as of the date of such termination. For purposes of
this paragraph, Tenant shall be deemed to include any guarantor or surety of
the Lease.
(d) Tenant hereby waives all right to trial by jury in any claim, action
proceeding or counterclaim by either Landlord or Tenant against each other or
any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and/or Tenant's use or occupancy or the
Premises.
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(e) In addition to the above, Landlord shall have any and all other rights
provided a Landlord under law or equity for breach of a lease or tenancy by a
Tenant.
ARTICLE 21.
QUIET ENJOYMENT
Landlord covenants that subject to the conditions and limitations set forth in
this Lease, Tenant, upon paying the Rent and performing all of Its other
obligations under this Lease, shall peacefully and quietly have, hold and enjoy
the Premises throughout the Term or until this Lease is otherwise terminated as
herein provided.
ARTICLE 22.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of an amount less than full payment
of Rent then due and payable shall be deemed to be other than on account of the
Rent then due and payable, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided for in this Lease or available at law or in equity.
ARTICLE 23.
SECURITY DEPOSIT
To secure the faithful performance by Tenant of all of the covenants, conditions
and agreements set forth in this Lease to be performed by it, including, without
limitation, foregoing such covenants, conditions and agreements in this Lease
which become applicable upon its termination by re-entry or otherwise, Tenant
has deposited with Landlord the sum shown in Article 1 as a "Security Deposit"
on the understanding:
(a) that the Security Deposit or any portion thereof may be applied to
the curing of any default that may exist, without prejudice to any other remedy
or remedies which the Landlord may have on account thereof, and upon such
application Tenant shall pay Landlord on demand the amount so applied which
shall be added to the Security Deposit so the same will be restored to its
original amount;
(b) that should the Premises be conveyed by Landlord, the Security
Deposit or any balance thereof may be turned over to the Landlord's grantee, and
if the same be turned over as aforesaid, Tenant hereby releases Landlord from
any and all liability with respect to the Security Deposit and its application
or return, and Tenant agrees to look solely to such grantee for such application
or return; and,
(c) that Landlord may commingle the Security Deposit with other funds
and not be obligated to pay Tenant any interest;
(d) that the Security Deposit shall not be considered as advance
payment of Rent or a measure of damages for any default by Tenant, nor shall it
be a bar or defense to any actions by Landlord against Tenant;
16
(d) that if Tenant shall faithfully perform all of the covenants and
agreements contained in this Lease on the part of the Tenant to be performed,
the Security Deposit or any then remaining balance thereof, shall be returned to
Tenant, without interest, within thirty (30) days after the expiration of the
Term. Tenant further covenants that it will not assign or encumber the money
deposited herein as a Security Deposit and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
ARTICLE 24.
BROKERAGE COMMISSION
Landlord and Tenant represent and warrant to each other that neither has dealt
with any broker, finder or agent except for the Broker(s) identified in Article
1. Tenant represents and warrants to Landlord that (except with respect to the
Broker identified in Article 1 and with whom Landlord has entered into a
separate brokerage agreement) no broker, agent, commission salesperson, or other
person has represented Tenant in the negotiations for and procurement of this
Lease and of the Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent commission
salesperson, or other person. Tenant agrees to indemnify Landlord and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments, or in connection with the
enforcement. of this indemnity) for any fees, commissions, or compensation of
any kind which arise out of or are in any way connected with any claimed agency
relationship not referenced in Article 1.
ARTICLE 25.
FORCE MAJEURE
Landlord shall be excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by a cause or causes beyond
its control, including all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing, or through acts of God.
Tenant shall similarly be excused for delay in the performance of any obligation
hereunder, provided:
(a) nothing contained in this Section or elsewhere in this Lease shall
be deemed to excuse or permit any delay in the payment of the Rent, or
any delay in the cure of any default which may be cured by the payment
of money;
(b) no reliance by Tenant upon this Section shall limit or restrict in
any way Landlord's right of self-help as provided in this Lease; and
(c) Tenant shall not be entitled to rely upon this Section unless it
shall first have given Landlord notice of the existence of any force
majeure preventing the performance of an obligation of Tenant within
five days after the commencement of the force majeure.
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ARTICLE 26.
PARKING
(a) Landlord hereby grants to Tenant the right to use the Parking
Spaces as identified in Article 1 and shown on Exhibit A. Landlord, at its sole
election, may designate the types and locations of said Parking Spaces and
Landlord shall have the right, at Landlord's sole election, to change said types
and locations from time to time; provided, however, such designation shall be
uniformly applied and shall not unfairly favor any tenant in the Building.
(b) Commencing on the Commencement Date, Tenant shall pay Landlord a
Parking Fee, if any, as Additional Rent, payable monthly in advance with the
Monthly Rent. Thereafter, and throughout the Term, the parking rate for each
type of parking space provided to Tenant hereunder shall be the prevailing
parking rate, as Landlord may designate from time to time, at Landlord's sole
election, for each such type of parking space. In addition to the right reserved
hereunder by Landlord to designate the parking rate from time to time, Landlord
shall have the right to change the parking rate at any time to include therein
any amounts levied, assessed, imposed or required to be paid to any governmental
authority on account of the parking of motor vehicles, including all sums
required to be paid pursuant to transportation controls imposed by the
Environmental Protection Agency under the Clean Air Act of 1970, as amended, or
otherwise required to be paid by any governmental authority with respect to the
parking, use, or transportation of motor vehicles, or the reduction or control
of motor vehicle traffic, or motor vehicle pollution.
(c) If requested by Landlord, Tenant shall notify Landlord of the
license plate number, year, make and model of the automobiles entitled to use
the Parking Spaces and if requested by Landlord, such automobiles shall be
identified by automobile window stickers provided by Landlord, and only such
designated automobiles shall be permitted to use the Parking Spaces. If Landlord
institutes such an identification procedure, Landlord may provide additional
parking spaces for use by customers and invitees of Tenant on a daily. basis at
prevailing parking rates, if any. At Landlord's sole election, Landlord may make
validation stickers available to Tenant for any such additional parking spaces,
provided, however, if Landlord makes validation stickers available to any other
tenant in the Building, Landlord shall make such validation stickers available
to Tenant.
(d) The Parking Spaces and additional parking spaces provided for
herein are provided solely for the accommodation of Tenant and Landlord assumes
no responsibility or liability of any kind whatsoever from whatever cause with
respect to the automobile parking areas, including adjoining streets, sidewalks,
driveways, property and passageways, or the use thereof by Tenant or tenant's
employees, customers, agents, contractors or invitees.
ARTICLE 27.
HAZARDOUS MATERIALS
A. Definition of Hazardous Materials. The term "Hazardous Materials" for
purposes hereof shall mean any chemical, substance, materials or waste or
component thereof which is now or hereafter listed, defined or regulated as a
hazardous or toxic chemical, substance, materials or waste or component thereof
by any federal, state or local governing or regulatory body having jurisdiction,
or which would trigger any employee or community "right-to- know" requirements
adopted by any such body, or for which any such body has adopted any
requirements for the preparation or distribution of a materials safety data
sheet ("MSDS").
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B. No Hazardous Materials. Tenant shall not transport, use, store, maintain,
generate, manufacture, handle, dispose, release or discharge any Hazardous
Materials. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within
the Premises of Hazardous Materials customarily used in the business or activity
expressly permitted to be undertaken in the Premises under Article 6, provided:
(a) such Hazardous Materials shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Premises
and the ordinary course of Tenant's business therein, strictly in accordance
with applicable Law, highest prevailing standards, and the manufacturers'
instructions therefor, (b) such Hazardous Materials shall not be disposed of,
released or discharged in the Building, and shall be transported to and from the
Premises in compliance with all applicable Laws, and as Landlord shall
reasonably require, (c) if any applicable Law or Landlord's trash removal
contractor requires that any such Hazardous Materials be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for such
disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approval by Landlord), and (d) any
remaining such Hazardous Materials shall be completely, properly and lawfully
removed from the Building upon expiration or earlier termination of this Lease.
C. Notices To Landlord. Tenant shall promptly notify Landlord of: (i) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any
Hazardous Materials on the Premises or the migration thereof from or to other
property, (ii) any demands or claims made or threatened by any party relating to
any loss or injury resulting from any Hazardous Materials on the Premises, (iii)
any release, discharge or nonroutine, improper or unlawful disposal or
transportation of any Hazardous Materials on or from the Premises or in
violation of this Article, and (iv) any matters where Tenant is required by Law
to give a notice to any governmental or regulatory authority respecting any
Hazardous Materials on the Premises. Landlord shall have the right (but not the
obligation) to join and participate, as a party, in any legal proceedings or
actions affecting the Premises initiated in connection with any environmental,
health or safety law. At such times as Landlord may reasonably request, Tenant
shall provide Landlord with a written list, certified to be true and complete,
identifying any Hazardous Materials then used, stored, or maintained upon the
Premises, the use and approximate quantity of each such materials, a copy of any
MSDS issued by the manufacturer therefor, and such other information as Landlord
may reasonably require or as may be required by Law.
D. Indemnification of Landlord. If any Hazardous Materials are released,
discharged or disposed of by Tenant or any other occupant of the Premises, or
their employees, agents, invitees or contractors, on or about the Building in
violation of the foregoing provisions, Tenant shall immediately, properly and in
compliance with applicable Laws clean up, remediate and remove the Hazardous
Materials from the Building and any other affected property and clean or replace
any affected personal property (whether or not owned by Landlord), at Tenant's
expense (without limiting Landlord's other remedies therefor). Tenant shall
further be required to indemnify and hold Landlord, Landlord's directors,
officers, employees and agents harmless from and against any and all claims,
demands, liabilities, losses, damages, penalties and judgments directly or
indirectly arising out of or attributable to a violation of the provisions of
this Article by Tenant, Tenant's occupants, employees, contractors or agents.
Any clean up, remediation and removal work shall be subject to Landlord's prior
written approval (except in emergencies), and shall include, without limitation,
any testing, investigation, and the preparation and implementation of any
remedial action plan required by any governmental body having jurisdiction or
reasonably required by Landlord. If Landlord or any Lender or governmental body
arranges for any tests or studies showing that this Article has been violated,
Tenant shall pay for the costs of such tests. The provisions of this Article
shall survive the expiration or earlier termination of this Lease.
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ARTICLE 28.
ADDITIONAL RIGHTS RESERVED BY LANDLORD
In addition to any other rights provided for herein, Landlord reserves the
following rights, exercisable without liability to Tenant for damage or injury
to property, person or business and without effecting an eviction, constructive
or actual, or disturbance of Tenant's use or possession or giving rise to any
claim:
(a) To name the Building and to change the name or street address of
the Building;
(b) To install and maintain all signs on the exterior and interior of
the Building;
(c) To designate all sources furnishing sign painting and lettering:
(d) During the last ninety (90) days of the Term, if Tenant has vacated
the Premises, to decorate, remodel, repair, alter or otherwise prepare the
Premises for reoccupancy, without affecting Tenant's obligation to pay Rent for
the Premises;
(e) To have pass keys to the Premises and all doors therein, excluding
Tenant's vaults and safes;
(f) On reasonable prior notice to Tenant, to exhibit the Premises to
any prospective purchaser, Lender, mortgagee, or assignee of any mortgage on the
Building or Land and to others having an interest therein at any time during the
Term, and to prospective tenants during the last six months of the Term;
(g) To take any and all measures, including entering the Premises for
the purpose of making inspections, repairs, alterations, additions and
improvements to the Premises or to the Building (including for the purpose of
checking, calibrating, adjusting and balancing controls and other parts of the
Building Systems), as may be necessary or desirable for the operation,
improvement, safety, protection or preservation of the Premises or the Building,
or in order to comply with all Laws, orders and requirements of governmental or
other authority, or as may otherwise be permitted or required by this Lease;
provided, however, that Landlord shall use its best efforts (except in an
emergency) to minimize interference with Tenant's business in the Premises;
(h) To relocate various facilities within the Building and on the land
of which the Building is a part if Landlord shall determine such relocation to
be in the best interest of the development of the Building and Property,
provided that such relocation shall not materially restrict access to the
Premises; and
(i) To install vending machines of all kinds in the Premises and the
Building and to receive all of the revenue derived therefrom, provided, however,
that no vending machines shall be installed by Landlord in the Premises unless
Tenant so requests.
ARTICLE 29.
DEFINED TERMS
A. "Building" shall refer to the Building named in Article 1 of which the leased
Premises are a part (including all modifications, additions and alterations made
20
to the Building during the term of this Lease), the real property on which the
same is located, all plazas, common areas and any other areas located on said
real property and designated by Landlord for use by all tenants in the Building.
A plan showing the Building is attached hereto as Exhibit A and made a part
hereof and the Premises is defined in Article 2 and shown on said Exhibit A by
cross- hatched lines.
B. "Common Areas" shall mean and include all areas, facilities, equipment,
directories and signs of the Building (exclusive of the Premises and areas
leased to other Tenants) made available and designated by Landlord for the
common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Building including, but not limited to, lobbies, public wash
rooms, hallways, sidewalks, parking areas, landscaped areas and service
entrances. Common Areas may further include such areas in adjoining properties
under reciprocal easement agreements, operating agreements or other such
agreements now or hereafter in effect and which are available to Landlord,
Tenant and Tenant's employees and invitees. Landlord reserves the right in its
sole discretion and from time to time, to construct, maintain, operate, repair,
close, limit, take out of service, alter, change, and modify all or any part of
the Common Areas.
C. "Default Rate" shall mean eighteen percent (18%) per annum, or the highest
rate permitted by applicable law, whichever shall be less.
D. "Hazardous Materials" shall have the meaning set forth in Article 27.
E. "Landlord" and "Tenant" shall be applicable to one or more parties as the
case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes of any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
F. "Law" or "Laws" shall mean all federal, state, county and local governmental
and municipal laws, statutes, ordinances, rules, regulations, codes, decrees,
orders and other such requirements, applicable equitable remedies and decisions
by courts in cases where such decisions are binding precedents in the state in
which the Building is located, and decisions of federal courts applying the Laws
of such state.
G. "Lease" shall mean this lease executed between Tenant and Landlord, including
any extensions, amendments or modifications and any Exhibits attached hereto.
H. "Lease Year" shall mean each calendar year or portion thereof during the
Term, and any initial or final partial calendar years shall be "Partial Lease
Years". Notwithstanding the foregoing, at Landlord's option by notice to Tenant,
the term "Lease Year' shall mean each twelve (12) month period commencing on the
Commencement Date as adjusted pursuant to Article 2 (or at Landlord's option),
the first day of the first full calendar month following the Commencement Date.
I. "Lender" shall mean the holder of a Mortgage at the time in question, and
where such Mortgage is a ground lease, such term shall refer to the ground
lessee.
J. "Mortgage" shall mean all mortgages, deeds of trust, ground leases and other
such encumbrances now or hereafter placed upon the Building or any part thereof
with the written consent of Landlord, and all renewals, modifications,
consolidations, replacements or extensions thereof, and all indebtedness now or
hereafter secured thereby and all interest thereon.
K. "Operating Expenses" shall mean all operating expenses of any kind or nature
which are necessary, ordinary or customarily incurred in connection with the
operation, maintenance or repair of the Building as determined by Landlord.
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Operating Expenses shall include, but not be limited to:
1.1 all real property taxes and assessments levied against the Building
by any governmental or quasi-governmental authority. The foregoing shall include
all federal, state, county, or local governmental, special district, improvement
district, municipal or other political subdivision taxes, fees, levies,
assessments, charges or other impositions of every kind and nature, whether
general, special, ordinary or extraordinary, respecting the Building, including
without limitation, real estate taxes, general and special assessments, interest
on any special assessments paid in installments, transit taxes, water and sewer
rents, taxes based upon the receipt of rent, personal property taxes imposed
upon the fixtures, machinery, equipment, apparatus, appurtenances, furniture and
other personal property used in connection with the Building which Landlord
shall pay during any calendar year, any portion of which occurs during the Term
(without regard to any different fiscal year used by such government or
municipal authority except as provided below). Provided, however, any taxes
which shall be levied on the rentals of the Building shall be determined as if
the Building were Landlord's only property, and provided further that in no
event shall the term "taxes or assessment," as used herein, include any net
federal or state income taxes levied or assessed on Landlord, unless such taxes
are a specific substitute for real property taxes. Such term shall, however,
include gross taxes on rentals. Expenses incurred by Landlord for tax
consultants and in contesting the amount or validity of any such taxes or
assessments shall be included in such computations. All of the preceding clause
K (1.1) is collectively referred to as the "Tax" or "Taxes".
1.2 all "assessments", including so-called special assessments, license
tax, business license fee, business license tax, levy, charge, penalty or tax
imposed by any authority having the direct power to tax, including any city,
county, state or federal government, or any school, agricultural, lighting,
water, drainage, or other improvement or special district thereof, against the
Premises of the Building or any legal or equitable interest of Landlord therein.
For the purposes of this lease, any special assessments shall be deemed payable
in such number of installments as is permitted by law, whether or not actually
so paid. If as of the Commencement Date the Building has not been fully assessed
as a completed project, for the purpose of computing the Operating Expenses for
any adjustment required herein or under Article 4, the Tax shall be adjusted by
Landlord, as of the date on which the adjustment is to be made, to reflect full
completion of the Building including all standard Tenant finish work if the
method of taxation of real estate prevailing to the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or theretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Building shall be included within the term
real estate taxes, except that the same shall not include any enhancement of
said tax attributable to other income of Landlord.
1.3 costs of supplies, including, but not limited to, the cost of
relamping all Building standard lighting as the same may be required from time
to time;
1.4 costs incurred in connection with obtaining and providing energy
for the Building, including, but not limited to, costs of propane, butane,
natural gas, steam, electricity, solar energy and fuel oils, coal or any other
energy sources;
1.5 costs of water and sanitary and storm drainage services;
1.6 costs of janitorial and security services;
1.7 costs of general maintenance and repairs, including costs under
HVAC and other mechanical maintenance contracts and maintenance, repairs and
replacement of equipment and tools used in connection with operating the
Building;
1.8 costs of maintenance and replacement of landscaping;
22
1.9 insurance premiums, including fire and all-risk coverage, together
with loss of rent endorsements, the part of any claim required to be paid under
the deductible portion of any insurance policies carried by Landlord in
connection with the Building (where Landlord is unable to obtain insurance
without such deductible from a major insurance carrier at reasonable rates),
public liability insurance and any other insurance carried by Landlord on the
Building, or any component parts thereof (all such insurance shall be in such
amounts as may be required by any holder of a Mortgage or as Landlord may
reasonably determine);
1.10 labor costs, including wages and other payments, costs to Landlord
of worker's compensation and disability insurance, payroll taxes, welfare fringe
benefits, and all legal fees and other costs or expenses incurred in resolving
any labor dispute;
1.11 professional building management fees required for management of
the Building;
1.12 legal, accounting, inspection, and other consultation fees
(including, without limitation, fees charged by consultants retained by Landlord
for services that are designed to produce a reduction in Operating Expenses or
to reasonably improve the operation, maintenance or state of repair of the
Building) incurred in the ordinary course of operating the Building or in
connection with making the computations required hereunder or in any audit of
operations of the Building;
1.13 the costs of capital improvements or structural repairs or
replacements made in or to the Building in order to conform to changes,
subsequent to the date of this Lease, in any applicable laws, ordinances, rules,
regulations or orders of any governmental or quasi-governmental authority having
jurisdiction over the Building (herein "Required Capital Improvements") or the
costs incurred by Landlord to install a new or replacement capital item for the
purpose of reducing Operating Expenses (herein "Cost Savings Improvements"), and
a reasonable reserve for all other capital improvements and structural repairs
and replacements reasonably necessary to permit Landlord to maintain the
Building in its current class. The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized over the useful
life of such capital improvement or structural repair or replacement (as
determined by Landlord). All costs so amortized shall bear interest on the
amortized balance at the rate of twelve percent (12%) per annum or such higher
rate as may have been paid by Landlord on funds borrowed for the purpose of
constructing these capital improvements.
In making any computations contemplated hereby, Landlord shall also be permitted
to make such adjustments and modifications to the provisions of this paragraph
and Article 4 as shall be reasonable and necessary to achieve the intention of
the parties hereto.
L. "Rent" shall have the meaning specified therefor in Article 3.
M. "Tax" or "Taxes" shall meaning set forth in Article 29(K)(1.1).
All other capitalized terms shall have the definition set forth in the Lease.
ARTICLE 30.
MISCELLANEOUS PROVISIONS
A. RULES AND REGULATIONS.
Tenant shall comply with all of the rules and regulations promulgated by
Landlord from time to time for the Building. A copy of the current rule and
regulations is attached hereto as Exhibit D.
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B. EXECUTION OF LEASE
If more than one person or entity executes this Lease as Tenant, each such
person or entity shall be jointly and severally liable for observing and
performing each of the terms, covenants, conditions and provisions to be
observed or performed by Tenant.
C. NOTICES.
All notices under this Lease shall be in writing and will be deemed sufficiently
given for all purposes if, to Tenant, by delivery to Tenant at the Premises
during the hours the Building is open for business or by certified mail, return
receipt requested or by overnight delivery service (with one acknowledged
receipt), to Tenant at the address set forth below, and if to Landlord, by
certified mail, return receipt requested or by overnight delivery service (with
one acknowledged receipt), at the addresses set forth below.
Landlord: at address shown in Article 1.
with copy to: Vice President, Equities Portfolio Department,
Real Estate Investment Division
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000-0000
with an additional copy to: Building Manager at address shown in
Article 1.
Tenant: at address shown in Article 1.
with copy to: 00000 Xxxxx Xxxxxxx, Xxxx Xxxxx, XX 00000
If any alleged default on the part of the Landlord hereunder occurs, Tenant
shall give written notice to Landlord in the manner herein set forth and shall
afford Landlord a reasonable opportunity to cure any such default. In addition,
Tenant shall send notice of such default by certified or registered mail,
postage prepaid, to the holder of any Mortgage whose address Tenant has been
notified in writing, and shall afford such Mortgage holder a reasonable
opportunity to cure any alleged default on Landlord's behalf. In no event will
Landlord be responsible for any damages incurred by Tenant, including but not
limited to, lost profits or interruption of business as a result of any alleged
default by Landlord hereunder.
D. TRANSFERS.
The term "Landlord" appearing herein shall mean only the owner of the Building
from time to time and, upon a sale or transfer of its interest in the Building,
the then Landlord and transferring party shall have no further obligations or
liabilities for matters accruing after the date of transfer of that interest and
Tenant, upon such sale or transfer, shall look solely to the successor owner and
transferee of the Building for performance of Landlord's obligations hereunder.
E. RELOCATION.
Landlord shall be entitled during the Lease Term to cause Tenant to relocate
from the Premises to a comparable space within the Building (a "Relocation
24
Space") at any time after reasonable notice, which notice shall give Tenant no
less than sixty (60) days advance notice. Landlord or the third party tenant
replacing Tenant shall pay the expense of moving Tenant to a space within the
Building comparable to the Premises and providing comparable leasehold
improvements. Such a relocation shall not terminate, modify or otherwise affect
the Lease, except with respect to the location of the Premises from and after
the date of such relocation. "Premises", shall, thereafter, refer to the
Relocation Space into which Tenant has been moved, rather than the original
Premises as herein defined.
F. SHORING.
If any excavation or construction is made adjacent to, upon or within the
Building, or any part thereof, Tenant shall afford to any and all persons
causing or authorized to cause such excavation or construction license to enter
upon the Premises for the purpose of doing such work as such persons shall deem
necessary to preserve the Building or any portion thereof from injury or damage
and to support the same by proper foundations, braces and supports, without any
claim for damages or indemnity or abatement of the Rent, or of a constructive or
actual eviction of Tenant.
G. RELATIONSHIP OF THE PARTIES.
Nothing contained in this Lease shall be construed by the parties hereto, or by
any third party, as constituting the parties as principal and agent, partners or
joint venturers, nor shall anything herein render either party (other than a
guarantor) liable for the debts and obligations of any other party, it being
understood and agreed that the only relationship between Landlord and Tenant is
that of Landlord and Tenant.
H. ENTIRE AGREEMENT: MERGER.
This Lease embodies the entire agreement and understanding between the parties
respecting the Lease and the Premises and supersedes all prior negotiations,
agreements and understandings between the parties, all of which are merged
herein. No provision of this Lease may be modified, waived or discharged except
by an instrument in writing signed by the party against which enforcement of
such modification, waiver or discharge is sought.
I. NO REPRESENTATION BY LANDLORD.
Neither Landlord nor any agent of Landlord has made any representations,
warranties, or promises with respect to the Premises or the Building except as
expressly set forth herein.
J. LIMITATION OF LIABILITY.
Notwithstanding any provision in this Lease to the contrary, under no
circumstances shall Landlord's liability or that of its directors, officers,
employees and agents for failure to perform any obligations arising out of or in
connection with the Lease or for any breach of the terms or conditions of this
Lease (whether written or implied) exceed Landlord's equity interest in the
Building. Any judgments rendered against Landlord shall be satisfied solely out
of proceeds of sale of Landlord's interest in the Building. No personal judgment
shall lie against Landlord upon extinguishment of its rights in the Building and
any judgments so rendered shall not give rise to any right of execution or levy
against Landlord's assets. The provisions hereof shall inure to Landlord's
successors and assigns including any Lender. The foregoing provisions are not
intended to relieve Landlord from the performance of any of Landlord's
obligations under this Lease, but only to limit the personal liability of
Landlord in case of recovery of a judgment against Landlord; nor shall the
foregoing be deemed to limit Tenant's rights to obtain injunctive relief or
specific performance or other remedy which may be accorded Tenant by law or
under this Lease. If Tenant claims or asserts that Landlord has violated or
failed to perform a covenant under the Lease, Tenant's sole remedy shall be an
25
action for specific performance, declaratory judgment or injunction and in no
event shall Tenant be entitled to any money damages in any action or by way of
set off, defense or counterclaim and Tenant hereby specifically waives the right
to any money damages or other remedies.
K. MEMORANDUM OF LEASE.
At the request of either party, the other will execute a memorandum of lease in
recordable form setting forth such provisions of this Lease as Landlord deems
desirable and as may be required by law in order to permit the recording of the
form in the appropriate public office. The party recording the memorandum of
Lease shall pay for the cost of recordation.
L. NO WAIVERS: AMENDMENTS.
Failure of Landlord to insist upon strict compliance by Tenant of any condition
or provision of this Lease shall not be deemed a waiver by Landlord of that
condition. No waiver shall be effective against Landlord unless in writing and
signed by Landlord. Similarly, this Lease cannot be amended except by a writing
signed by Landlord and Tenant.
M. SUCCESSORS AND ASSIGNS.
The conditions, covenants and agreements contained herein shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
N. GOVERNING LAW.
This Lease shall be governed by the law of the State where the Building is
located.
O. EXHIBITS.
All exhibits attached to this Lease are a part hereof and are incorporated
herein by reference and all provisions of such exhibits shall constitute
agreements, promises and covenants of this Lease.
P. CAPTIONS.
The captions and headings used in this Lease are for convenience only and in no
way define or limit the scope, interpretation or content of this Lease.
Q. COUNTERPARTS.
This Lease may be executed in one (1) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
26
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have duly executed this Lease with the Exhibits attached hereto, this
9th day of January, 1996.
Attest or Witness: LANDLORD:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE ADVISERS, INC.
ITS AUTHORIZED AGENT
Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name typed: Xxxxxxx X. Xxxxx
Title: Vice president
Date: 1/9/96
Attest or Witness: TENANT: A.D.S. Advertising Corporation,
a Florida Corporation
Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx, President
Name Typed: Xxxxxx X. Xxxxx
Title: President
Date: 12/12/95
Xxxxxxx Xxxxxxxx
Certificate of Tenant
(If A Corporation or Partnership)
I, Xxxxxx X. Xxxxx, Secretary or General Partner of A.D.S. Advertising
,Tenant, hereby certify that the officers executing the foregoing Lease on
behalf of Tenant is/are duly authorized to act on behalf of and bind the Tenant.
(Corporate Seal) ____________________ Xxxxxx X. Xxxxx
Secretary or General Partner
Date: 12/12/95
27
EXHIBIT A
Approximately 2476 RSF on the second floor at Trafalgar Plaza at 0000 X.X. 00Xx
Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx, as depicted by the floor plan below.
EXHIBIT B
Landlord's Work
Landlord shall recarpet and repaint the Premises using building standard
materials, brace upper cabinets in the work room, patch and repair holes in
wall, and provide a furniture plan for Tenant's use; all at no charge to Tenant.
Landlord shall improve the appearance of the air conditioning vent which is
located directly outside the Tenant's front entry door.
Subject to the provisions of the Lease and provided that Tenant has provided all
necessary improvement prior to the execution of the Lease and provided that
Tenant has not delayed Landlord's work; Landlord shall have the above mentioned
work completed within 30 days after the return of a fully executed Lease to
Tenant.
EXHIBIT C
Tenant's Work
Notwithstanding any language to the contrary contained herein, Tenant shall be
responsible for the maintenance of its own telephone wiring and telephone system
as well the maintenance of its own computer wiring and computer system.
EXHIBIT D
Building's Rules and Regulations
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors or halls of the Building shall not be obstructed or encumbered or used
for any purpose other than ingress and egress to and from the premises demised
to any tenant or occupant.
2. No awnings or other projection shall be attached to the outside walls or
windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Landlord. Such awnings, projections,
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in a manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be exhibited,
inscribed, painted or affixed on any part of the outside or inside of the
premises demised to any tenant or occupant of the Building without the prior
consent of Landlord. Interior signs on doors and directory tables, if any, shall
be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or admit
light and air into the halls, passageways or other public places in the Building
shall not be covered or obstructed, nor shall any bottles, parcels, or other
articles be placed on any window xxxxx.
5. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags, or other substances shall be thrown therein. No tenant shall
bring or keep, or permit to be brought or kept, any inflammable, combustible,
explosive or hazardous fluid, materials, chemical or substance in or about the
premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, drill into, or in any way deface any
part of the Building or the premises demised to such tenant or occupant. No
boring, cutting or stringing of wires shall be permitted, except with the prior
consent of Landlord, and as Landlord may direct. No tenant or occupant shall
install any resilient tile or similar floor covering in the premises demised to
such tenant or occupant except in a manner approved by Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or kept in
or about the premises demised to any tenant. No cooking shall be done or
permitted in the Building by any tenant without the approval of the Landlord. No
tenant shall cause or permit any unusual or objectionable odors to emanate from
the premises demised to such tenant.
9. No space in the Building shall be used for manufacturing, for the storage of
merchandise, or for the sale of merchandise, goods, or property of any kind at
auction, without the prior consent of Landlord.
10. No tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the Building
or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way.
Nothing shall be thrown out of any doors or window.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the Building or
the premises demised to any tenant, of any safes, freight, furniture or bulky
matter of any description must take place at such time and in such manner as
Landlord or its agents may determine, from time to time. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of the Rules and Regulations or the
provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the premises demised
to such tenant to be used or occupied, as an office for a public stenographer or
typist, or to a xxxxxx or manicure shop, or as an employment bureau. No tenant
or occupant shall engage or pay any employees in the Building, except those
actually working for such tenant or occupant in the Building, nor advertise for
laborers giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food, beverage,
lighting maintenance, cleaning towels or other like service, from any company or
person not approved by Landlord. No vending machines of any description shall be
installed, maintained or operated upon the premises demised to any tenant
without the prior consent of Landlord.
15. Landlord shall have the right to prohibit any advertising by any tenant or
occupant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon notice from
Landlord, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Landlord reserves the right to exclude from the Building, between the hours
of 6:00 P.M. and 8:00 AM. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Landlord. Landlord will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for whom
it requests such passes and shall be liable to Landlord for all acts of such
persons.
17. Each tenant, before closing and leaving the premises demised to such tenant
at any time, shall see that all entrance doors are locked and all windows
closed. Corridor doors, when not in use, shall be kept closed.
18. Each tenant shall, at its expense, provide artificial light in the premises
demised to such tenant for Landlord's agents, contractors and employees while
performing janitorial or other cleaning services and making repairs or
alterations in said premises.
19. No premises shall be used, or permitted to be used for lodging or sleeping,
or for any immoral or illegal purposes.
20. The requirements of tenants will be attended to only upon application at the
office of Landlord. Building employees shall not be required to perform, and
shall not be requested by any tenant or occupant to perform, and work outside of
their regular duties, unless under specific instructions from the office of
Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited and each
tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or occupant or
by their agents or contractors, in the delivery or receipt of merchandise,
freight, or other matter, any hand trucks or other means of conveyance except
those equipped with rubber tires, rubber side guards and such other safeguards
as Landlord may require.
23. If the Premises demised to any tenant become infested with vermin, such
tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
24. No premises shall be used, or permitted to be used, at any time, without the
prior approval of Landlord, as a store for the sale or display of goods, wares
or merchandise of any kind, or as a restaurant, shop, booth, bootblack or other
stand, or for the conduct of any business or occupation which predominantly
involves direct patronage of the general public in the premises demised to such
tenant, or for manufacturing or for other similar purposes.
25. No tenant shall clean any window in the Building from the outside.
26. No tenant shall move, or permit to be moved, into or out of the Building or
the premises demised to such tenant, any heavy or bulky matter, without the
specific approval of Landlord. If any such matter requires special handling,
only a qualified person shall be employed to perform such special handling. No
tenant shall place, or permit to be placed, on any part of the floor or floors
of the premises demised to such tenant, a load exceeding the floor load per
square foot which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of safes and
other heavy matter, which must be placed so as to distribute the weight.
27. Landlord shall provide and maintain an alphabetical directory board in the
first floor (main lobby) of the Building and no other directory shall be
permitted without the prior consent of Landlord. Each tenant shall be allowed
one line on such board unless otherwise agreed to in writing.
28. With respect to work being performed by a tenant in its premises with the
approval of Landlord, the tenant shall refer all contractors, contractors'
representatives and installation technicians to Landlord for its supervision,
approval and control prior to the performance of any work or services. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments, and installations of every nature affecting floors, walls,
woodwork, trim, ceilings, equipment and any other physical portion of the
Building.
29. Landlord shall not be responsible for lost or stolen personal property,
equipment, money, or jewelry from the premises of tenants or public rooms
whether or not such loss occurs when the Building or the premises are locked
against entry.
30. Landlord shall not permit entrance to the premises of tenants by use of pass
keys controlled by Landlord, to any person at any time without written
permission from such tenant, except employees, contractors, or service personnel
directly supervised by Landlord and employees of the United States Postal
Service.
31. Each tenant and all of tenant's employees and invitees shall observe and
comply with the driving and parking signs and markers on the Land surrounding
the Building, and Landlord shall not be responsible for any damage to any
vehicle towed because of noncompliance with parking regulations.
32. Without Landlord's prior approval, no tenant shall install any radio or
television antenna, loudspeaker, music system or other device on the roof or
exterior walls of the Building or on common walls with adjacent tenants.
33. Each tenant shall store all trash and garbage within its premises or in such
other areas specifically designated by Landlord. No materials shall be placed in
the trash boxes or receptacles in the Building unless such materials may be
disposed of In the ordinary and customary manner of removing and disposing of
trash and garbage and will not result in a violation of any law or ordinance
governing such disposal. All garbage and refuse disposal shall be only through
entryways and elevators provided for such purposes and at such times as Landlord
shall designate.
34. No tenant shall employ any persons other than the janitor or Landlord for
the purpose of cleaning its premises without the prior consent of Landlord. No
tenant shall cause any unnecessary labor by reason of Its carelessness or
indifference In the preservation of good order and cleanliness. Janitor service
shall include ordinary dusting and cleaning by the janitor assigned to such work
and shall not include beating of carpets or rugs or moving of furniture or other
special services. Janitor service shall be furnished Mondays through Fridays,
legal holidays excepted; janitor service will not be furnished to areas which
are occupied after 9:30 P.M. Window cleaning shall be done only by Landlord, and
only between 6:00 A.M. and 5:00 P.M.
EXHIBIT E
Commencement Date Confirmation
DECLARATION BY LANDLORD AND TENANT AS TO DATE OF DELIVERY AND
ACCEPTANCE OF POSSESSION OF PREMISES
Attached to and made a part of the Lease dated the ___day of
______________________ 199__, entered into and by MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY as LANDLORD, and _______________________________________ as
TENANT.
LANDLORD AND TENANT do hereby declare that possession of the Premises was
accepted by TENANT on the ____ day of _______________________ 199__. The
Premises required to be constructed and finished by LANDLORD in accordance with
the provisions of the Lease have been satisfactorily completed by LANDLORD and
accepted by TENANT, the Lease is now in full force and effect, and as of the
date hereof, LANDLORD has fulfilled all of its obligations under the Lease. The
Lease Commencement Date is hereby established as _______________________, 199__.
The Term of this Lease shall terminate on ____________________ 19__.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: _________________________________
Name Typed:
Title:
Date:
TENANT:
_____________________________________
By: __________________________________
Name Typed:
Title:
Date:
EXHIBIT F
1. Reference Article 2, Premises. Term. ....
Add to the end of the Paragraph, 'If Landlord is delayed in delivering
the Premises after the Anticipated Commencement Date and provided that
Tenant has not caused such delay, then rent shall commence upon the day
that the Premises is ready for occupancy.'
2. Reference Article 3, Rent, Paragraph A.
Monthly Rent Schedule
Year 1 $1,702.25 per month, plus applicable sales tax.
Year 2 $1,770.34 per month, plus applicable sales tax.
Year 3 $1,841.15 per month, plus applicable sales tax.
Year 4 $1,914.80 per month, plus applicable sales tax.
Year 5 $1,991.39 per month, plus applicable sales tax.
Notwithstanding any language to the contrary contained herein, Tenant
shall have the first two (2) months of the Lease free of Monthly Rent,
Additional Rent, and Operating Expenses
3. Reference Article 4, Operating Expenses, Paragraph A.
Notwithstanding any language to the contrary contained herein, the
increase in controllable Operating Expenses for the second year through
fifth year of the lease term shall not be more than four percent (4%)
greater than those of the previous years controllable operating
expenses. Controllable operating expenses are defined as Operating
Expenses excluding real estate taxes, insurance, utilities, and waste
removal.
4. Reference Article 7, Services.
Notwithstanding any language to the contrary contained herein, Tenant
is required to pay for its own electricity charges for the Premises.
5. Reference Article 7, Services. Paragraph A.
The first paragraph of Paragraph A is hereby deleted.
6. Reference Article 7, Services. Paragraph B.
On the first and second line of the paragraph, delete the words ',
during Normal Business Hours of Building,' and delete 'other' on the
third line of the paragraph.
7. Reference Article 7, Services, Paragraph C.
Add to the end of the paragraph 'Landlord recognizes that there is
interior glass in the Premises and represents that there will be no
extra charge for the janitorial services for the Premises.'
8. Reference Article 7, Services, Paragraph F.
At the end of the paragraph insert 'Landlord shall remed any
interruptions caused by Landlord's gross negligence or willful
misconduct.
9. Reference Article 7, Services, Paragraph G.
Notwithstanding any language to the contrary contained herein, Landlord
shall maintain the air conditioning equipment of the Premises and the
Building. Tenant shall reimburse Landlord for such maintenance through
the payment of its pro-rata share of Operating Expenses.
10. Reference Article 12, Repair and Maintenance, Paragraph C.
Landlord represents that the services described in this paragraph
are included in Operating Expenses.
11. Reference Article 13, Inspection of Premises.
Add to the beginning of the last paragraph, 'After providing reasonable
notice to Tenant, except in the case of an emergency,'.
12. Reference Article 16, Subletting and Assignment.
Insert 'which consent shall not be unreasonably withheld after 'thereon'
on line one of the first paragraph.
Change '(as determined by Landlord in its sole discretion)' on the
seventh line of the paragraph to '(as determined by Landlord's
reasonable discretion)'
13. Reference Article 19, Defaults.
After the word 'Landlord' on line seven of paragraph one, insert
'unless the nature of such default is such that it cannot be cured
within thirty days and Tenant has begun to take action to cure such
default and is using best efforts to cure such default'.
14. Reference Article 20, Remedies of Landlord.
Delete 'or without' on the third line of paragraph (b).
15. Reference Article 23, Security Deposit.
Change the word 'may' to 'shall' on the first line of paragraph (b).
16. Reference Article 26, Parking.
Delete 'and shown on Exhibit A' on the first and second line of paragraph
(a).
Delete paragraph (b) in its entirety.
Delete 'prevailing parking rates, if any' on the sixth line of paragraph
(c).
17. Reference Article 29, Defined Terms.
Change the word 'Building' to 'Premises' on line four of
Paragraph A and delete 'by cross hatched lines' on line six.
Insert 'reasonably' before 'required' in Paragraph K, subparagraph 1.11.
Insert 'excluding legal fees for the collection of rent and the
procurement of leases.' at the end of the paragraph.
18. Reference Article 30, Miscellaneous Provisions.
Insert at the end of Paragraph E 'In the event of relocation, Landlord
shall pay for Tenant's reasonable relocation expenses including but
not limited to stationary, telephone and computer relocation, and
furniture relocation.
19. Reference EXHIBIT D, Building Rules and Regulations.
Add to the beginning of number 7 'Except for normal wear & tear'.
Add ',except microwaves,' after 'No cooking' on the second line of the
paragraph number 8.
Delete the first sentence of number 14.
20. Option to Extend.
Tenant shall have one (1) option to extend this Lease in accordance
with the provisions of this paragraph, as long as Tenant has not been
and is not then in default under the terms of the lease, for an
additional term of five (5) years upon the same terms and conditions
with the exception of Base Rental payable under Section 4 of the Lease
which shall be Landlord's then prevailing Base Rental being charged by
Landlord for space in the Building reasonably comparable to the
Premises. If Tenant elects to exercise the foregoing option to extend,
it shall give Landlord written notice of its election to do so on or
before August 1, 2000 but not prior to May 1, 2000, time being of the
essence, which notice shall also request that Landlord furnish Tenant
with the Base Rental for the extended term which shall be derived using
Landlord's then prevailing rate for space actually leased in the
Building comparable to the Premises. Landlord shall furnish Tenant, in
writing, within fifteen (15) days of receipt of Tenant's notice of
exercise with the Base Rental figure for the term extension.
In the event that Landlord's Base Rental figure is unacceptable to
Tenant, for any reason whatsoever, then Tenant shall have the right to
void its previous notice to extend its Lease by providing written
notice to Landlord, such notice to be given within fifteen (15) days,
time being of the essence, of receipt of Landlord's written notice
stipulating the Base Rental figure. Upon Tenant giving such notice, the
extension of the Lease shall be deemed null and void and this Lease
shall expire on its initial expiration date as if the above extension
option had not been exercised. If Tenant fails to notify Landlord
within the stipulated time that the Base Rental figure is unacceptable
then Tenant shall be deemed to have accepted the Base Rental figure.
Tenant has no option(s) to extend this Lease except as set forth in
this paragraph.
PROPERTY NAME: Trafalgar Plaza
AGENCY DISCLOSURE
Florida real estate licensees are required by law to disclose which
party they represent in a transaction and to allow a party the right to choose
or refuse among the various agency relationships.
The purpose of the AGENCY DISCLOSURE is to acknowledge that the
disclosure occurred and that the consumer has been informed of the various
agency relationships which are available in a real estate transaction. The
following descriptions of terms, agency relationships and the respective duties
and obligations are based upon Florida Law (Chapter 475, Florida Statutes).
Lessor's Agent
A licensee who Is engaged by and acts as the agent of the Lessor only is known
as a Lessor's agent. A Lessor's agent has the following duties and obligations:
To the Lessor:
(a) The fiduciary duties of loyalty, confidentiality, obedience,
full disclosure, accounting and the duly to use skill, care
and diligence.
To the Lessee and Lessor:
(a) A duty of honesty and fair dealing.
(b) A duty to disclose all facts known to the Lessor's agent
materially affecting the value of the property which are not
known to, or readily observable by the parties in a
residential transaction.
Lessee's Agent
A licensee who is engaged by and act as the agent of the Lessee only is
known as the Lessee's agent. A Lessee's agent has the following duties and
obligations:
To the Lessee:
(a) The fiduciary duties or loyalty, confidentiality, obedience, full
disclosure, accounting and the duty to use skill, care and
diligence.
To the Lessor and Lessee:
(a) A duty of honesty and fair dealing.
Disclosed Dual Agent
A disclosed dual agent is a licensee who, with the informed written
consent of Lessor and Lessee, is engaged as an agent for both Lessor and Lessee.
As a disclosed dual agent, the licensee shall not represent the
interests of one party to the exclusion or detriment of the interests of the
other party. A disclosed dual agent has all the fiduciary duties to the Lessor
and Lessee that a Lessor's or Lessee's agent has except the duties of full
disclosure and undivided loyalty.
A disclosed dual agent may not disclose:
(a) To the Lessee that the Lessor will accept less than the asking or
listed price, unless otherwise instructed in writing by the
Lessor,
(b) To the Lessor that the Lessee will pay a price greater than the
price submitted in a written offer to the Lessor, unless otherwise
instructed in writing by the Lessee:
(c) The motivation of any party for selling, buying, or leasing a
property, unless otherwise instructed in writing by the respective
party; or
(d) That a Lessor or Lessee will agree to financing terms other than
those offered, unless otherwise instructed in writing by the
respective party.
AGENCY DISCLOSURE
A.D.S. Advertising is a x Lessee ________ Lessor and is hereby informed that
Name
Florida Real Estate Advisors and Xxxxxx X. X'Xxxx
Name of Brokerage Name(s) of Licensee(s)
are acting as x Lessor's Agent ______ Lessee's Agent
You have the explicit right to choose or refuse among these relationships. Other
brokerage firms may offer you other brokerage relationships. You are free to
seek any brokerage firm offering the type of relationship you desire.
1/ /96 Xxxxxxx X. Xxxxx - Vice President
--------------- ----------------------------------
Date Lessor
CORNERSTONE REAL ESTATE ADVISERS, INC.
ITS AUTHORIZED AGENT
By: Xxxxxxx X. Xxxxx
-----------------------
Lessor (print name)
12/12/95 Xxxxxx X. Xxxxx President
--------------- ----------------------------
Date Lessee
Xxxxxx X. Xxxxx President
SCHEDULE "F"
HOLD HARMLESS AGREEMENT for A. D. S. Advertising
This HOLD HARMLESS AGREEMENT made as of this ______ day of __________________,19
____ by and between Florida Real Estate Advisors, Inc. (hereinafter called
'FREA") and A. D. S. Advertising (hereinafter call'Tenant') and
________________________ (OMITTED)
WITNESSETH:
WHEREAS, FREA is the property manager and leasing agent for (1) Trafalgar Plaza
(hereinafter called 'Property') pursuant to a Management and Leasing Agreement
(hereinafter called "Management Agreement") dated (2) _____________________by
and between FREA and (3) Massachusetts Mutual Life Insurance (hereinafter called
"Owner" or "Landlord"); and
WHEREAS, Landlord and Tenant, have executed or are about to execute a lease
agreement (hereinafter called 'Lease'), whereby Tenant will lease space In the
Property from Landlord; and
(Omitted)
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants herein contained, FREA, Tenant and Guarantor hereby agree as follows:
1. Tenant (omitted) acknowledge (a) that FREA is an agent for Owner acting
solely within the scope of and pursuant to the terms of the Management
Agreement, and (b) that FREA is not affiliated with the Owner nor does
FREA have any ownership rights with respect to the Property.
2. FREA, Tenant (omitted) acknowledge that no representations by FREA,
understandings or agreements have been made or relied upon in the
making of the Lease other than those set forth in the Lease, and the
Lease contains all representations, understandings and agreements made
with Tenant by FREA on behalf of Owner. No course of prior dealings
between Tenant and FREA or their officers, employees, agents or
affiliates shall be relevant or admissible to supplement, explain or
vary any of the terms of the Lease.
3. Tenant (Omitted) agree to look solely to Landlord for the satisfaction
of any Judgment obtained by Tenant or (Omitted) against Landlord or the
Property and shall hold and save FREA free and harmless from all
expenses, claims, liabilities, losses, judgements or damages, including
reasonable attorneys' fees, arising therefrom or directly or indirectly
related thereto.
4. Tenant acknowledges that Owner is not a signatory to this agreement,
but agrees that Owner can rely on the provisions of Section 2
hereinabove.
IN WITNESS WHEREOF, this Agreement has been executed as of the first day and
year first above written.
FREA
Florida Real Estate Advisors, inc.
(hereinafter called 'Property') pursuant to a Management and Leasing Agreement
(hereinafter called 'Management Agreement') dated (2) _____________________by
and between FREA and (3) Massachusetts Mutual Life Insurance (hereinafter called
'Owner' or 'Landlord'); and
WHEREAS, Landlord and Tenant, have executed or are about to execute a lease
agreement (hereinafter called 'Lease'), whereby Tenant will lease space in the
Property from Landlord; and
(Omitted)
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants herein contained, FREA, Tenant and Guarantor hereby agree as follows:
1. Tenant and-Guarantor acknowledge (a) that FREA is an
agent for Owner acting solely within the scope of
and pursuant to the terms of the Management Agreement, and (b) that FREA
is not affiliated with the Owner nor does FREA have any ownership rights
with respect to the Property.
2. FREA, Tenant (Omitted) acknowledge that no representations by FREA,
understandings or agreements have been made or relied upon in the making
of the Lease other than those set forth in the Lease, and the Lease
contains all representations, understandings and agreements made with
Tenant by FREA on behalf of Owner. No course of prior dealings between
Tenant and FREA or their officers, employees, agents or affiliates
shall be relevant or admissible to supplement, explain or vary any of
the terms of the Lease.
3. Tenant (Omitted) agree to look solely to Landlord for the
satisfaction of any judgment obtained by Tenant (Omitted) against
Landlord or the Property and shall hold and save FREA free and harmless
from all expenses, claims, liabilities, losses, judgements or damages,
including reasonable attorneys' fees, arising therefrom or directly or
indirectly related thereto.
4. Tenant acknowledges that Owner is not a signatory to this agreement, but
agrees that Owner can rely on the provisions of Section 2 hereinabove.
IN WITNESS WHEREOF, this Agreement has been executed as of the first day and
year first above written.
Florida Real Estate Advisors, Inc.
By: ________________________
(Title)
TENANT
(Name) A. D. S. Advertising
By: Xxxxxx X. Xxxxx President
----------------------------------
(Title)
GUARANTOR:
------------------------------
