LEASE SCHEDULE
1. Date of Lease September 2, 1999
2. Landlord: Florcor I Limited Partnership, an Illinois limited partnership
3. Tenant: ImproveNet, Inc., a California corporation
4. Guarantor: Not Applicable
5. Property Address: 0000 X.X. 00xx Xxxxxx, Xxxxx 000
6. Premises: As described on Appendix "A" attached hereto
7. Purpose: General Office
8. Lease Term:. Sixty (60) months beginning on the Commencement Date determined
pursuant to item 19 below
9. Area of Premises in rentable square 8,057
feet ("r.s.f.")
10. Jurisdiction in which the Property is City of Fort Lauderdale, County
located: of Broward, State of Florida
11. Tenant's Share: 18%
12. Annual Base Rent: $104,741.00, escalating by 3% per annum every twelve (12) months
during the Lease Term
13. Monthly Base Rent: $8,728.42, escalating by 3% per annum every twelve (12)
months during the Lease Term; the first month's rent
and operating expenses plus Florida sales tax thereon in
the total amount of $11,565.25 has been paid upon the execution
of this Lease.
14. Initial Year Tax and Operating Cost $3.25 per r.s.f. ($26,185.25) or $2,182.10 per month
Estimate:
15. [Intentionally Omitted]
16. Addresses for Purpose of Notice:
Landlord: Florcor I Limited Partnership, c/o The Alter Group, Ltd., 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, Fax No.: (847)
676-4303, Attn: Xxxxxx Xxxxxx
With a copy to: Xxxxxxxx X. Xxxxxxxx, Xxx, Anos, Xxxxxxxx & Xxxxx, L.L.C., 00 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Fax No: (312)
346-7847; and Xxxxxx X. Xxxxx, Alter Asset Management, 0000
Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000, Fax No: (000) 000-0000
Tenant: ImproveNet, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx
00000, Attn: Xxxxxx Xxxxxx; Fax No. 000-000-0000
17. Security Deposit: $10,910.52 (one month's rent plus one month's operating expenses)
18. Brokers: FOR LANDLORD:
The Alter Group, Ltd. and CB Xxxxxxx Xxxxx, Inc., Xxx Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attn: Xxxx Xxxxxx and Xxx Xxxxx
FOR TENANT:
Xxxx X. Xxxxx & Company, 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxx, Xxxxxxx 00000, Attn: Xxxxx Xxxxx
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LEASE SCHEDULE
19. Special Provisions: Subject to Section 28 of the attached Lease and the Workletter
attached as Appendix D thereto, Landlord shall construct the
tenant improvements in the Premises and shall pay for the cost
thereof, up to an amount which shall not exceed $25.00 times the
number of square feet in the Premises for a total of $201,425.00
(the "TI Allowance"). All additional costs, if any, for such
tenant improvements that are in excess of the TI Allowance shall
be the sole responsibility of Tenant and shall be payable by
Tenant as directed by Landlord. In the event that such tenant
improvements can be constructed for less than the TI Allowance,
any unused portion of the TI Allowance, but in no event more than
$40,285.00 ($5 per square foot), shall be applied in reduction of
Tenant's rental obligation under this Lease.
Notwithstanding anything contained in this Lease Schedule or the
attached Lease to the contrary, the Lease Term shall commence
after completion of said improvements on the date that a
Certificate of Occupancy (whether temporary or permanent) has been
issued allowing the Tenant to legally occupy the Premises (the
"Commencement Date"). Subject to Section 28 of the attached
Lease, the intended Commencement Date is one hundred twelve (112)
days after the later of (i) the date of this Lease, and (ii) the
date Tenant provides Landlord with Xxxxxx's written approval of
the space plan for the tenant improvements to be constructed by
Landlord pursuant to the Workletter attached thereto as Appendix
"D".
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LEASE
THIS LEASE MADE and entered into as of the date set forth on the Lease
Schedule as Date of Lease, which Lease Schedule is appended to this Lease and is
specifically incorporated by reference herein, by and between the Landlord and
Xxxxxx as set forth in the Lease Schedule.
WITNESSETH:
DEMISE
X. Xxxxxxxx does hereby lease to Tenant and Tenant hereby lets from
Landlord, the Premises set forth in the Lease Schedule, which are situated in
that certain building (the "Building") located as denoted as the Property
Address in the Lease Schedule. The Building and the real estate on which it is
located are hereinafter referred to as the "Property". Tenant acknowledges that
the sole purpose of the attached Appendix "A" is to identify the location of the
Premises in the Building. Landlord makes no representations or warranties in
said Appendix "A" as to the useable or rentable square footage of the Premises.
B. Such letting and hiring is upon and subject to the terms, covenants
and conditions herein set forth and Tenant and Landlord covenant as a material
part of the consideration for this Lease to keep and perform each and all of
said terms, covenants and conditions by them to be kept and performed and that
this Lease is made upon the condition of such performance.
1. PURPOSE
The Premises are to be used for the Purpose set forth in the Lease
Schedule and for no other purpose without the prior written consent of the
Landlord.
2. TERM
The Lease Term shall be as set forth in the Lease Schedule except as
otherwise expressly provided in this Lease.
3. POSSESSION
A. If Landlord, for any reason whatsoever, cannot deliver possession of
the Premises to the Tenant on the intended Commencement Date set forth in the
Lease Schedule, this Lease shall not be void or voidable, nor shall the Landlord
be liable to Tenant for any loss or damage resulting thereform. Under such
circumstances, the rent provided for herein shall not commence until possession
of the Premises is made available to Tenant and no such failure to give
possession on the date of commencement of the Term shall affect the validity of
this Lease or the obligations of the Tenant hereunder, and the Term shall be
extended accordingly; provided, however, if possession of the Premises is not
delivered to Tenant within sixty (60) days after the intended Commencement Date
set forth in the Lease Schedule, then Tenant may, as its sole and exclusive
remedy, terminate this Lease by delivering written notice of such termination to
Landlord, so long as such notice is delivered to Landlord prior to the
Commencement Date and, in that event, Landlord shall refund to Tenant any
security deposit or advance rent due to Tenant and neither party shall have any
further obligation to the other, except for any indemnity or other
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obligations under this Lease which are intended to survive terminate, and
provided further that if possession of the Premises is not delivered to
Tenant on the intended Commencement Date set forth in the Lease Schedule and
the delay in delivering possession does not result from any matter covered by
Section 28 of this Lease or the default or any act or omission of Tenant,
then Landlord shall apply as a credit against the rental obligations first
due under this Lease a sum equal to the equivalent of two (2) days of Base
Rent and operating expenses for every day of such delay.
B. The Premises shall be deemed to be ready for Tenant's occupancy if
only minor or insubstantial details of construction, decoration or mechanical
adjustments remain to be done in the Premises or any part thereof, or if the
delay in the availability of the Premises or any part thereof for occupancy
shall be due to special work, changes, alterations, or additions required or
made by Tenant in the layout or finishing of the Premises. Whether or not the
Premises are ready for occupancy shall be determined by the Jurisdiction in
which the Property is located as set forth in the Lease Schedule, which shall
evidence same by authorizing Tenant's occupancy thereof, which authorization may
be in the form of oral or written permission to occupy which if in the form of
written permission, may be in the form of a temporary or permanent certificate
of occupancy. It is further understood that within 72 hours of initial
occupancy, the parties shall jointly inspect the Premises and prepare and sign a
"punch list" of incomplete items to be completed by Landlord. Tenant and
Landlord shall jointly inspect the Premises and prepare another "punch list"
within thirty (30) days after occupancy encompassing all items not then
completed except for latent defects. Landlord shall have thirty (30) days to
correct any "punch list" items or such longer period of time as may be
reasonably required so long as Landlord is exercising reasonable diligence to
accomplish the correction.
4. DEFINITIONS AS USED IN THIS LEASE
A. The term "Commencement Date" is the date of the beginning of the
Lease as set forth in the Lease Schedule.
B. The term "Tenant's Share" shall mean that amount set forth as such
in the Lease Schedule being the ratio which the rentable area of the Premises
bears to the entire rentable area in the Building. The Tenant's Share allocated
to the Premises as it relates to the Building as a whole, is not meant, nor
shall it be construed, as a representation by Landlord as to the rentable or
useable square footage of the Premises. The parties recognize that this ratio as
well as the area measurements are reasonable approximations that may not be
exactly precise, but both Landlord and Tenant accept such ratio and measurements
as final and binding for ail purposes of this Lease.
C. The term "Taxes" means any and all taxes of every kind and nature
whatsoever which Landlord shall pay or become obligated to pay during a calendar
year (regardless of whether such taxes were assessed or became a lien during,
prior or subsequent to the calendar year of payment) because of or in connection
with the ownership, leasing and operation of the Property including without
limitation, real estate taxes, personal property taxes, sewer rents, water
rents, special assessments, transit taxes, legal fees and court costs charged
for the protest or reduction of property taxes and/or assessments or an increase
therein in connection with the Premises including the Building, any tax or
excise on rent or any other tax (however described)
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on account of rental received for use and occupancy of any or all of the
Building and/or the Premises, whether any such taxes are imposed by the
United States, the state or other local governmental municipality, authority
or agency or any political subdivision of any thereof in the Jurisdiction in
which the Property is located. Taxes shall not include any net income,
capital stock, estate or inheritance taxes.
D. (i) The term "Operating Costs" means any and all expenses, costs and
disbursements (other than Taxes as defined in Section 4C.) of every kind and
nature whatsoever incurred by Landlord in connection with the ownership,
management, maintenance, operation and repair of the Property including, without
limitation, interior and/or exterior energy costs (including but not limited to
the cost of electricity, steam, water, gas, fuel, heating, lighting and air
conditioning), easement maintenance expenses, including assessments applicable
to the Property established by any Declaration as hereinafter defined, any and
all common area expenses in the development in which the Property is located,
including but not limited to landscaping and other maintenance of properties
which benefit the Property, usual and customary property management fees and
on-site management costs (including but not limited to on-site management office
rent, equipment costs, and other typical related office expenses), insurance
costs (including but not limited to fire, extended coverage, liability, workers'
compensation [and elevator] insurance, as well as all deductibles paid by
Landlord for damages and injuries covered by policies of insurance maintenance
for the Property, and all sums paid to satisfy judgments rendered or affecting
the Landlord or the Property to the extent not covered by Landlord's insurance)
and routine repairs, maintenance and interior and/or exterior decorating, wages,
salaries, and benefits of employees working at the Property on a full or
part-time basis (excluding those above the level of property or building
manager), uniforms, supplies, sundries, sales or use taxes on supplies or
services, landscape replacement, snow removal, parking lot repairs, legal and
accounting costs and expenses, janitorial expenses, roof repairs, exterminating,
elevator maintenance, HVAC system maintenance, which Landlord shall be or become
obligated to pay in respect of any calendar year regardless of when such
operating Costs were incurred or any other expense or charge whether or not
hereinbefore mentioned which in accordance with generally accepted accounting or
management principles respecting first class buildings in the Jurisdiction in
which the Property is located would be considered as an expense of owning,
managing, operating, maintaining or repairing the Property. For purposes of this
subparagraph "the development in which the Property is located" shall be deemed
to refer to any subdivision or group of subdivisions containing common areas
and/or utilities and/or services benefiting the Property, including any and all
Property encompassed by any declaration of easements, and/or protective
covenants ("Declaration") effecting the Property.
(ii) Operating Costs shall not include:
(a) The cost of alterations, capital improvements, equipment
replacements, and other items which under generally accepted accounting
principles are properly classified as capital expenditures;
(b) Expenses incurred for business interruption or rental
value insurance;
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(c) Leasing commissions and/or expenses and advertising and
promotional expenses;
(d) Legal fees or other professional or consulting fees in
connection with the negotiation of tenant leases;
(e) Repairs required to cure violations of laws enacted prior
to the date of the Lease;
(f) The cost of repairs or replacements incurred by reason of
fire or other casualty or condemnation to the extent that either (1) Landlord is
compensated therefor through proceeds of insurance or condemnation awards; (2)
Landlord failed to obtain insurance against such fire or casualty, if insurance
was available at a commercially reasonable rate, against a risk of such nature
at the time of same; or (3) Landlord is not fully compensated therefor due to
the coinsurance provisions of its insurance policies on account of Landlord's
failure to obtain a sufficient amount of coverage against such risk.
Notwithstanding the foregoing, Landlord's reasonable insurance deductibles shall
be deemed as Operating Costs;
(g) Damage and repairs necessitated by the negligence or
willful misconduct of Landlord, Landlord's employees, or agents;
(h) Compensation paid to officers or executives of the
Landlord above the level of building or property manager;
(i) That portion of salaries of service personnel to the
extent such salaries are applicable and relate to performance of services by
such personnel other than in connection with the management, operation, repair,
or maintenance of the Building;
(j) The cost of incremental expense to Landlord incurred by
Landlord in curing its defaults;
(k) Legal fees, accounting fees, and other expenses incurred
specifically in connection with disputes with tenants or occupants oft-he
Building or associated with the enforcement of the terms of any leases with
tenants or the defense of Landlord's title or interest in the Building or any
part thereof;
(l) Costs (including permits, licensing, and inspection fees)
incurred in renovations or otherwise improving, decorating, painting, or
altering space for tenants or other occupants of vacant space (excluding common
areas) in the Building;
(m) Any cash or other consideration paid by Landlord on
account of, with respect to, or in lieu of the tenant work or alterations
described in subsection (1) above;
(n) Cost of any service provided to tenants or other occupants
of the Building for which Landlord is entitled to be reimbursed;
(o) Interest and principal payments on mortgages; or
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(p) Depreciation.
Landlord shall not collect in excess of one hundred (100%) percent of
Operating Costs and shall not recover any items of cost more than once.
(iii) Provided however:
(a) The cost of any capital improvements to the Building made
after the date of this Lease which are (1) intended to reduce Operating Costs or
(2) required to cause the Building to comply with the Americans with
Disabilities Act or (3) required under any governmental laws, regulations, or
ordinances which were not applicable to the Building as of the date hereof,
amortized on a level pay debt service basis over fifteen (15) years, with
interest at ten (10%) percent per annum shall be included in Operating Costs.
(b) If the Building is not at least ninety-five (95%) percent
occupied by tenants during all or a portion of any calendar year, then Landlord
may elect to make an appropriate adjustment for such year of components of
Operating Costs and the amounts thereof which may vary depending upon the
occupancy level of the Building or with the number of tenants using the service,
such that tenants then occupying space in the Building will pay their respective
proportionate shares of the amount of such variable components of Operating
Costs which would have been incurred if the Building had been ninety-five (95%)
percent occupied during the entire calendar year and Landlord had paid or
incurred such costs and expenses for the calendar year. Any such adjustments
shall be deemed costs and expenses paid or incurred by Landlord and included in
Operating Costs for such calendar year.
5. BASE RENT
A. Except as otherwise provided herein, Tenant shall pay as initial
Base Rent to Landlord the Annual Base Rent as set forth in the Lease Schedule in
equal monthly installments as set forth as the Monthly Base Rent in the Lease
Schedule in advance on the first day of the first full calendar month and on the
first day of each calendar month thereafter during the Term, and at the same
rate for fractions of a month if the Term shall begin on any day except the
first day or shall end on any day except the last day of a calendar month.
B. Any rent (whether Base Rent or additional rent) or other amount due
from Tenant to Landlord under this Lease not paid when due shall incur a late
fee equal to the greater of: (a) Twenty-Five ($25.00) Dollars; or (b) interest
from the date due until the date paid at the annual rate of Four (4%) Percent
above the prime rate as set forth as the Base Rate on Corporate Loans published
by the Wall Street Journal from time to time, but the payment of such interest
shall not excuse or cure any default by Tenant under this Lease. The covenants
of the Tenant to pay rent (both Base Rent and additional rent) shall be
independent of any covenants of Landlord herein.
C. Base Rent and all of the rent provided herein shall be paid without
deduction or off-set in lawful money of the United States of America to Alter
Asset Management, Inc., 1980 Springer Drive, Lombard, IL 60148 ("the Management
Agent") or as designated from time to time by written notice from Landlord. The
Management Agent has full with Tenant, provided however, that the Management
Agent shall not have the power to amend or modify the terms of this Lease.
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6. ADDITIONAL RENT
TAXES
A. It is further agreed between the parties hereto that in addition to
the rental provided for herein that Tenant will also directly pay or reimburse
Landlord during the term of this Lease, as additional rent, an amount equal to
Xxxxxx's Share of the Taxes. In addition, Tenant shall be responsible for the
payment of the Florida sales tax applicable to the Base Rent, additional rent or
other amounts paid by Tenant hereunder as well as all costs incurred by Landlord
in conjunction with any such sales tax returns.
OPERATING COSTS
B. It is further agreed between the parties hereto that in addition to
the rental provided for herein that Tenant shall also directly pay or reimburse
Landlord during the term of this Lease, as additional rent, an amount equal to
Xxxxxx's Share of the Operating Costs.
7. RENT ADJUSTMENT PAYMENT
A. Sixty (60) days prior to the commencement of the Term, Landlord
shall deliver to Tenant a written statement setting forth Landlord's good faith
estimate of Xxxxxx's Share of Taxes and Operating Costs (a "Taxes and Operating
Cost Statement") for the remainder of the calendar year in which the Term
commences. Thereafter, prior to January 1 of each subsequent calendar year, or
from time to time during each subsequent calendar year, Landlord shall deliver
an estimated Taxes and Operating Cost Statement pertaining to each such
forthcoming calendar year. Commencing on the first full calendar month of the
Term and on the first day of each calendar month thereafter during the Term,
Tenant shall pay one-twelvth (1/12th) of Tenant's Share of Taxes and Operating
Costs as estimated by Landlord. Not less than on or before the first day of June
of each calendar year after the initial year of the Term, Landlord shall furnish
to Tenant a written statement showing in reasonable detail actual Operating
Costs and Taxes for the preceding year for which such statement is furnished and
showing the amount, if any, of rental adjustment due for such year.
B. On the monthly rental payment date (the "adjustment date") next
following Tenant's receipt of each such annual statement, Tenant shall pay to
Landlord as additional rent an amount equal to the sum of the net aggregate
rental adjustment shown on each such annual statement less the amount, if any,
of the total estimated additional rent paid by Tenant during the preceding
calendar year.
C. In the event that any such settlement required above indicates that
the total additional rent paid by Tenant during the preceding calendar year
exceeds the aggregate rental payable by Tenant for such calendar year, Landlord
shall apply such excess on any amounts of additional rent next falling due under
this Lease as long as Tenant is not then in default of any of the terms and
provisions of this Lease.
D. The annual determination of Taxes and Operating Cost Statement shall
be prepared in accordance with generally acceptable cash basis accounting
principles. Tenant using either its own employee(s) or its certified public
accountant shall have the right to inspect at
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reasonable times and in a reasonable manner, at the Landlord's office, such
of the Landlord's books of account and records as pertain to or contain
information concerning the items included in Operating Costs and Taxes for
that year in order to verify the amounts thereof. Any and all information
obtained through the Tenant's inspection with respect to financial matters
(including, without limitation, costs, expenses, income) and any and all
other matters pertaining to the Landlord and/or the Property as well as any
compromise, settlement, or adjustment reached between Landlord and Tenant
relative to the results of any such inspection shall be held in strict
confidence by the Tenant and its officers, agents, and employees; and Tenant
shall cause its certified public accountant and any of its officers, agents,
and employees to be similarly bound. If Tenant shall dispute any item or
items included in the Operating Costs or Taxes for such year, and such
dispute is not resolved by the parties within ninety (90) days after such
statement is delivered to Tenant, then either party may at its sole expense,
within thirty (30) days thereafter, request that a firm of independent
certified public accountants mutually selected by Landlord and Tenant
("Independent Review") render to the parties an opinion as to whether or not
the disputed item or items should have been included in the Operating Costs
and/or Taxes for such year; and the opinion of such firm on such matter shall
be conclusive and binding upon both parties, provided however, it shall be a
further condition of Tenant's right to conduct an Independent Review that the
firm conducting the Independent Review shall not be retained upon the basis
of all or a portion of its fees being contingent based upon the results of
the Independent Review. Landlord and Xxxxxx agree that the firm's opinion
shall be confidential and shall not be disclosed to any other party
whatsoever. In the event such Independent Review discloses that the amount
due from Tenant was overstated in excess of five (5%) percent on an
annualized basis, Landlord shall bear the reasonable cost of such Independent
Review. In all other cases, Tenant shall bear the cost of such Independent
Review. Tenant employee(s) or certified public accountants may examine the
records of Landlord supporting the Taxes and Operating Cost Statement at
Landlord's or the Management Agent's office during normal business hours
within forty-five (45) days after the Taxes and Operating Statement is
furnished. Unless Tenant takes written exception to any item within ninety
(90) days after the furnishing of the Taxes and Operating Statement (which
shall be noted on the item as "paid under protest"), such Statement shall be
considered as final and accepted by Xxxxxx. Tenant shall promptly tender
payment for any undisputed items and shall tender payment for any disputed
items within ten (I0) days after the resolution of any such dispute.
E. In no event shall any rent adjustment result in a decrease of the
Base Rent as set forth in the Lease Schedule.
F. In the event of the termination of this Lease by expiration of the
stated term or for any other cause or reason whatsoever prior to the
determination of rental adjustment as hereinabove set forth, Tenant's agreement
to pay additional rental accrued up to the time of termination shall survive the
expiration or termination of the Lease.
8. HOLDING OVER
Should Tenant hold over after the termination of this Lease, by lapse
of time or otherwise, Tenant shall become a tenant from month to month only upon
each and all of the terms herein provided as may be applicable to such month to
month tenancy and any such holding over shall not constitute an extension of
this Lease; provided, however, during such
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holding over, Tenant shall pay Base Rent and additional rent (as heretofore
adjusted, or as estimated by Landlord) at One Hundred Fifty (150%) Percent of
the rate payable for the month immediately preceding said holding over and
all Additional Rent due for each subsequent month during such holdover
period, and in addition, Tenant shall pay Landlord all damages, consequential
as well as direct, sustained by reason of Tenant's holding over.
Alternatively, at the election of Landlord expressed in a written notice to
the Tenant and not otherwise, such retention of possession shall constitute a
renewal of this Lease for one (1) year at one hundred fifty percent (150%) of
the rent paid in the last year hereof. The provisions of this paragraph do
not exclude the Landlord's rights of re-entry or any other right hereunder.
9. BUILDING SERVICES
X. Xxxxxxxx agrees to furnish to the Premises and the common areas
during reasonable hours (8:00 A.M. to 6:00 P.M. Mondays through Fridays and 8:00
A.M. to 1:00 P.M. on Saturdays) except for the following legal holidays:
Memorial Day, July 4% Labor Day, Thanksgiving, Christmas and New Years Day, and
subject to the rules and regulations of the Building, passenger and freight
elevator service to the extent applicable, heat and air conditioning in
accordance with the design for such systems and as required in Landlord's
reasonable judgment for the comfortable use and occupancy of the Premises and
common areas, subject to scheduling by Landlord. Tenant shall furnish its own
janitorial and cleaning services in and about the Premises, comparable to the
standard janitor services furnished by other first class office buildings in the
Jurisdiction which the property is located.
B. Landlord shall maintain and operate the common areas and any other
portions of the Building within its control (to the extent not the
responsibility of Tenant in accordance with this Lease) in a manner and to the
standard substantially similar to other first-class single story service center
buildings in the jurisdiction where the Property is located, the expenses of
which shall be included in Operating Costs. Neither Landlord nor Landlord's
beneficiaries, nor any company, firm or individual, operating, maintaining,
managing or supervising the plant or facilities furnishing the services included
in Landlord's energy costs nor any of their respective agents, beneficiaries, or
employees, shall be liable to Tenant, or any of Tenant's employees, agents,
customers or invitees or anyone claiming through or under Tenant, for any
damages, injuries, losses, expenses, claims or causes of action, because of any
interruption or discontinuance at any time for any reason in the furnishing of
any of such services, or any other service to be furnished by Landlord as set
forth herein; nor shall any such interruption or discontinuance relieve Tenant
from full performance of Tenant's obligations under this lease.
C. Electricity shall not be furnished by Landlord, but except as
otherwise hereinafter provided, shall be furnished by the approved electric
utility company serving the area ("Electric Service Provider"). Landlord shall
permit the Tenant to receive such service direct from such public utility
company at Tenant's cost, and shall permit Landlord's wire and conduits, to the
extent available, suitable and safely capable, to be used for such purposes.
Tenant shall make all necessary arrangements with the local utility company for
metering and paying for electric current furnished by it to Tenant and Tenant
shall pay for all charges for electric current consumed on the Premises during
Tenant's occupancy thereof. The electricity used during the performance of
janitorial service, the making of alterations or repairs in the Premises, and
for the operation of the Premises' air conditioning system at times other than
as provided herein; or the
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operation of any special air conditioning systems which may be required for
data processing equipment or for other special equipment or machinery
installed by Tenant, shall be paid for by Tenant. Tenant shall make no
alterations or additions to the electric equipment and/or appliances without
the prior written consent of the Landlord in each instance, which consent
shall not be unreasonably withheld. Xxxxxx also agrees to purchase from the
Landlord or its agent all lamps, bulbs after the initial installation
thereof, ballasts and starters used in the Premises, provided however that
the availability, quality, and cost of any such items shall be comparable to
that available to Tenant from other suppliers. Tenant covenants and agrees
that at all times its use of electric current shall never exceed the capacity
of the feeders to the Building or the risers or wiring installed thereon.
Tenant will not, without the written consent of Landlord, use any apparatus
or device in the Premises to connect to electric current (except through
existing electrical outlets in the Premises) or water pipes, any apparatus or
device for the purpose of using electric current or water. If Tenant shall
require water or electric current in excess of that which is respectively
obtainable from existing water pipes or electrical outlets and normal for use
of the Premises as general office space, Tenant shall first procure the
consent of Landlord, which Landlord may not unreasonably refuse. If Landlord
consents to such excess water or electric requirements, Tenant shall pay all
costs including but not limited to meter service and installation of
facilities necessary to furnishing such excess capacity.
X. Xxxxxxxx has advised Tenant that presently Electric Service Provider
is the utility company selected by Landlord to provide electricity service for
the Building. Notwithstanding the foregoing, to the extent permitted by law,
Landlord shall have the right at any time and from time to time during the Term
to either contract for service from a different company or companies providing
electricity service (each such company hereinafter described as an "Alternate
Service Provider") or continue to contract for service from the Electric Service
Provider. Tenant shall cooperate with Landlord, the Electric Service Provider,
and any Alternate Service Provider at all times, and as reasonably necessary,
shall allow Landlord, Electric Service Provider and any alternate Service
Provider reasonable access to the Building's electric lines, feeders, risers,
wiring, and any other machinery within the Premises.
10. CONDITION OF THE PREMISES.
A. Subject to "punch lists" heretofore referred to by taking possession
of the Premises, Tenant shall be deemed to have agreed that the Premises were as
of the date of taking possession, in good order, repair and condition. No
promises of the Landlord to alter, remodel, decorate, clean or improve the
Premises or the Building and no representation or warranty expressed or implied,
respecting the condition of the Premises or the Building has been made by the
Landlord to Tenant, unless the same is contained herein or made a part hereof.
B. Tenant shall, at its own expense, keep the Premises in good repair
and tenantable condition, and shall promptly and adequately repair all damages
to the Premises under the supervision and with the approval of Landlord and
within a reasonable period of time as specified by Landlord, loss by ordinary
wear and tear, fire and other casualty excepted. If Tenant does not do so
promptly and adequately, Landlord may, but need not, make such repairs and
Tenant shall reimburse Landlord therefor on demand.
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C. The parties acknowledge that Landlord has furnished hurricane
shutters and related installation equipment, including mounting screws
(collectively, the "Shutters") for attachment to the building, as required by
law, but that it is undesirable for such Shutters to be installed to cover the
outer doors and windows at the Premises, unless and until a hurricane or similar
natural condition threatens for which the use of such Shutters would be desired,
advised, or required. Landlord shall use reasonable efforts to install and
remove the Shutters at such time or times when such installation may be required
by law or deemed advisable by Landlord, but Landlord cannot and does not grant
any assurance to Tenant that the Shutters will be installed or removed when
needed (due to, among other things, the limited mount of time and general chaos
preceding the need) so Tenant shall remain free to install and remove the
Shutters when such installation or removal may be required by law or desired by
Tenant. Accordingly, Tenant hereby releases Landlord from any duty to make such
installations or removals at any time or times and for any loss or damage
(including, but not limited to, the Premises) as may arise from any failure to
make such installations or removals. If Tenant installs or removes the Shutters,
then Tenant assumes responsibility for any loss or damage to the Shutters as a
consequence of Tenant's installation or removal thereof from time to time.
D. The parties acknowledge that the Americans With Disabilities Act of
1990 (42 U.S.C. 12101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish requirements under
Title III of the ADA ("Title III") pertaining to business operations,
accessibility and barrier removal, and that such requirements may be unclear and
may or may not apply to the Premises and the Building depending on, among other
things: (1) whether Tenant's business operations are deemed a "place of public
accommodation" or a "commercial facility," (2) whether compliance with such
requirements is "readily achievable" or "technically infeasible," and (3)
whether a given alteration affects a "primary function area" or triggers
so-called "path of travel" requirements. Landlord represents that the Building,
and any tenant improvements installed by Landlord at the Premises in accordance
with this Lease, comply with Title III as of the date of the Commencement Date.
Tenant shall be responsible for all Title III compliance and costs in connection
with the Premises (including structural work, if any, and including leasehold
improvements or other work to be performed in the Premises under or in
connection with this Lease) to the extent arising out of (i) compliance with new
requirements under Title III required after the Commencement Date, (ii) matters
specific to Tenant's activities or operations, or (iii) alterations to the
Premises made by Tenant.
11. USES PROHIBITED
Tenant shall not use, or permit the Premises or any part thereof to be
used, for any purpose or purposes other than as specified the Lease Schedule. No
use shall be made or permitted to be made of the Premises, nor acts done, which
will increase the existing rate of insurance upon the Building, or cause a
cancellation of any insurance policy covering the Building, or any part thereof,
nor shall Tenant sell, or permit to be kept, used or sold, in or about the
Premises, any article which may be prohibited by Landlord's insurance policies.
Tenant shall not commit or suffer to be committed, any waste upon the Premises,
or any public or private nuisance or other act or thing which may disturb the
quiet enjoyment of any other Tenant in the Building, nor, without limiting the
generality of the foregoing, shall Tenant allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose. Xxxxxx agrees at all
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times to cause the Premises to be operated in compliance with all federal,
state, local or municipal laws, statutes, ordinances, and roles and
regulations, including but not limited to those relating to zoning,
environmental protection, health, and safety. Tenant further agrees to
promptly cure any such violation at its own expense, and shall furthermore
defend and indemnify Landlord, beneficiaries, mortgagees, and officers,
agents, and employees thereof respectively, for any and all liability, loss,
costs (including attorneys' fees and expenses), damages, responsibilities or
obligations incurred as a result of any violation of any of the foregoing.
Tenant shall upon request of Landlord certify in writing that it is in
compliance with applicable local, state and federal environmental roles,
regulations, statutes and laws for the preceding year. At the request of the
Landlord, Tenant shall submit to the Landlord, or shall make available for
inspection and copying upon reasonable notice and at reasonable times, any or
all of the documents and materials prepared by or for Tenant pursuant to any
environmental law or regulation or submitted to any governmental regulatory
agency in conjunction therewith. Landlord shall have reasonable access to the
Premises to inspect the same to confirm that the Tenant is using the Premises
in accordance with local, state and federal environmental roles, regulations,
statutes and laws. Tenant shall, at the request of the Landlord and at the
Tenant's expense, conduct such testing and analysis as is necessary to
ascertain whether the Tenant is using the Premises in compliance with all
local, state and federal environmental rules, regulations, statutes and laws,
provided however, Landlord shall not request that Tenant conduct such tests
unless Landlord has a reasonable suspicion that Tenant may be in violation of
the foregoing rules, regulations, statutes, or laws. Said tests shall be
conducted by qualified independent experts chosen by the Tenant and subject
to Landlord's reasonable approval. Copies of reports of any such tests shall
be provided to the Landlord. Landlord shall give Tenant at least twenty (24)
hours notice prior to any inspection or entry on the Premises, except in an
emergency, when no notice shall be required. The provisions within this
paragraph shall survive termination of this Lease and shall be binding upon
and shall inure to the benefit of the parties hereto, their respective
successors and assigns, and mortgagees thereof.
12. COMPLIANCE WITH LAW
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which in any way conflict with any law, statute, ordinance or
governmental role or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises, excluding structural changes not related to or affected by
Tenant's improvements or acts. The judgment of any court of competent
Jurisdiction or the admission of Tenant in an action against Tenant whether
Landlord be a party thereto or not, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement shall be conclusive of
that fact as between Landlord and Tenant.
13. ALTERATIONS AND REPAIRS
A. Tenant shall keep the Premises in good condition and repair ordinary
wear and tear and loss by fire and other casualty excepted, and shall not do any
painting or make any alterations in or additions, changes or repairs to the
Premises without the Landlord's prior
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written approval in each and every instance, such consent not to be
unreasonably withheld. It shall not be unreasonable for Landlord to withhold
approval of any alteration or addition which impacts structure or any
Building system, or which would otherwise result in requiring additional
improvements to the Premises and/or the Property. In the event Landlord
grants the requested approval, Tenant shall be responsible for the cost of
any such alteration or additions, as well as the cost of any improvements to
the Premises and/or Property required as the result thereof. Any such
approval shall further be subject to the terms and conditions of Appendix "B"
attached hereto and specifically incorporated by reference herein. Unless
otherwise agreed by Xxxxxxxx and Xxxxxx in writing, all such work shall be
performed either by or under the direction of Landlord, but at the cost of
Tenant. During the term of this Lease, no work shall be performed by or under
the direction of Tenant without the express written consent of Landlord.
Unless otherwise provided by written agreement, all alterations,
improvements, and changes shall remain upon and be surrendered with the
Premises, excepting however that at Landlord's option, Tenant shall, at its
expense, when surrendering the Premises, remove from the Premises and the
Building all such alterations, improvements, and changes, if installed or
made without Landlord's approval or Landlord reserved the right to require
such removal when approving the same, and Tenant shall, on the election of
Landlord, remove any trade fixtures, and in any such case restore the
Premises to a condition reasonably satisfactory to Landlord. If Tenant does
not remove said additions, decorations, fixtures, hardware, non-trade
fixtures and improvements after request to do so by Landlord, Landlord may
remove the same and Tenant shall pay the cost of such removal to Landlord
upon demand. Except to the extent of Xxxxxxxx's negligent or willful act or
omission, Tenant hereby agrees to hold Landlord and Landlord's beneficiaries,
their agents and employees harmless from any and all liabilities of every
kind and description which may arise out of or be connected in any way with
said alterations or additions. Any mechanic's lien filed against Premises, or
the Building or the Property, for work claimed to have been furnished to
Tenant shall be discharged of record by Tenant within ten (10) days
thereafter, at Tenant's expense, provided however Tenant shall have the right
to contest any such lien on the posting of reasonably sufficient security.
Notwithstanding anything contained in this Lease to the contrary, the
interest of the Landlord shall not be subject to liens for improvements made by
the Tenant and the fee title to the Property shall not be encumbered by any
liens arising out of work performed on the Property, by, at the request of,
under contracts entered into with, or by persons or parties claiming under or
through, Tenant, regardless of whether such work is performed pursuant to this
Lease or pursuant to any other agreement now existing or hereafter arising
between Landlord and Tenant. Further, pursuant to Chapter 713.10, Florida
Statutes, Tenant shall (a) notify each and every contractor who performs such
work in connection with such improvements of this provision, (b) provide a copy
of this provision to each of such contractors, (c) require and cause each of
such contractors to notify and provide a copy of this provision to each person
or party with whom they may deal in connection with the construction of such
improvements and require each such person or party to do likewise with persons
or parties with whom they may deal, to the end that all contractors, persons, or
parties, who provide supplies, furnish labor, or otherwise act to bring about
improvements and betterments to the Property will be placed on actual notice of
this provision.
B. Tenant shall, at the termination of this Lease, surrender the
Premises to Landlord in as good condition and repair as reasonable and proper
use thereof will permit, loss by ordinary wear and tear, fire or other casualty
excepted.
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14. ABANDONMENT
During the term, if Tenant shall abandon, vacate or surrender (whether
at the end of the stated term or otherwise) the Premises, or be dispossessed by
process of law, or otherwise, any personal property belonging to Xxxxxx and left
on the Premises shall be deemed abandoned, at the option of the Landlord.
15. ASSIGNMENT AND SUBLETTING
A. Tenant shall not assign this Lease, or any interest therein and
shall not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person to occupy or use the Premises,
or any portion thereof, without the written consent of Landlord first had and
obtained, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Xxxxxxxx's consent shall not be required for (a)
assignments or subleases to affiliates or subsidiaries of Tenant, so long as:
(i) the use of the Premises does not change; (ii) Landlord is given prior notice
thereof; and (iii) Tenant is not relieved of any of its liabilities or
responsibilities or any liabilities hereunder and, in the case of any
assignment, an assignment and assumption document executed by the Tenant and the
assignee, reasonably acceptable to Landlord, is delivered to Landlord, whereby
the Tenant reaffirms such responsibilities and liabilities and the assignee
assumes all of such responsibilities and liabilities jointly and severally with
Tenant or Co) assignments or subleases to any purchaser of all or substantially
all of the assets of Tenant or any successor to tenant by merger, so long as all
of the conditions in clauses (a)(i) - (iii) of this sentence are satisfied and
the purchaser or successor, after the purchase or merger, respectively, has a
net worth in accordance with consistently applied generally accepted accounting
principles equal to or greater than Tenant's net worth as shown in its financial
statements delivered to Landlord dated as of June 30, 1999, and proof thereof is
furnished to Landlord with the prior notice required by clause (a)(iii) above.
Tenant agrees all advertising by Xxxxxx or on Xxxxxx's behalf in any general
circulation newspaper with respect to the leasing or subletting of the Premises
or any part thereof or assignment of this Lease, must offer the space for lease
at a rental not less than that for which comparable space in the Building is
then being offered by Landlord for rent or not advertise the rental rate for
such space.
B. Except for assignments and subleases to affiliates or subsidiaries
as provided in the immediately preceding paragraph, Tenant shall, by notice in
writing, advise Landlord of its intention from on and after a stated date (which
shall not be less than sixty (60) days after the date of Tenant's notice) to
assign or to sublet any such part of all of the Premises for the balance or any
part of the Term, and, in the event of any assignment of this Lease or the
subletting of all of the Premises, Landlord shall have the right, to be
exercised by giving written notice to Tenant thirty (30) days after receipt of
Tenant's notice, to recapture the Premises and such recapture notice shall, if
given, cancel and terminate this Lease as of the date stated in Xxxxxx's notice.
Xxxxxx's said notice shall state the name and address of the proposed subtenant
or assignee, the proposed subtenant's or assignee's intended use of the
Premises, and shall include the potential subtenant's or assignee's most current
certified financial statement, and a true and complete copy of the proposed
assignment or sublease or form of assignment shall be delivered to Landlord with
said notice. If Xxxxxx's notice shall cover all of the space hereby demised and
if Landlord shall give the aforesaid recapture notice with respect thereto, the
Term of this Lease shall expire
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and end on the date stated in Xxxxxx's notice as fully and completely as if
that date had been herein definitely fixed for the expiration of the Term. If
Landlord, upon receiving Xxxxxx's said notice with respect to any such space,
shall not exercise its right to cancel as aforesaid, Landlord will not
unreasonably withhold its consent to Tenant's assigning or subletting the
space covered by its notice, provided; (i) at the time thereof Tenant is not
in default under this Lease, (ii) Landlord, in its sole discretion reasonably
exercised, determines that the reputation, business, proposed use of the
Premises and financial responsibility of the proposed sublessee or occupant,
as the case may be, of the Premises are satisfactory to Landlord, (iii) any
assignee or subtenant shall expressly assume all the obligations of this
Lease on Tenant's part to be performed; (iv) such consent if given shall not
release Tenant of any of its obligations (including, without limitation, its
obligation to pay rent) under this Lease, (v) Tenant agrees specifically to
pay over to Landlord, as additional rent, fifty percent (50%) of ail sums
received by Tenant under the terms and conditions to such assignment or
sublease, which are in excess of Tenant's actual and reasonable subletting
costs and the amounts otherwise required to be paid pursuant to the Lease;
(vi) a consent to one assignment, subletting occupation or use shall be
limited to such particular assignment, sublease or occupation and shall not
be deemed to constitute Landlord's consent to an assignment or sublease to or
occupation by another person. Any such assignment or subletting without such
consent shall be void and shall, at the option of Landlord, constitute a
default under this Lease. Tenant will pay all of Landlord's costs associated
with any such assignment or subletting including but not limited to
reasonable legal fees; and (vii) the person or entity to whom Tenant wishes
to assign or sublet is not (nor, immediately prior to such assignment or
sublease, was) a tenant or occupant in the Buildings; or any other building
owned or operated by Landlord or any affiliate thereof, in the same complex
as the Building.
16. SIGNS
Tenant shall not place or affix any exterior or interior signs visible
from the outside of the Premises.
17. DAMAGE TO PROPERTY - INJURY TO PERSONS
X. Xxxxxx, as a material part of the consideration to be rendered to
Landlord under this Lease, to the extent permitted by law, hereby waives all
claims, except claims caused by or resulting from the non-performance of the
Landlord, or the willful or negligent act or omission of Landlord, its agents,
servants or employees which Tenant or Tenant's successor or assigns may have
against Landlord, its agents, servants, or employees, for loss, theft or damage
to the property and for injuries to persons in, upon or about the Premises or
the Building from any cause whatsoever. Tenant will hold Landlord, its agents,
servants, and employees exempt and harmless from and on account of any damage or
injury to any person, or to the goods, wares, and merchandise of any person,
arising from the uses of the Premises by Tenant or arising from the failure of
Tenant to keep the Premises in good condition as herein provided if
non-performance by the Landlord or the negligence of the Landlord, its agents,
servants or employees does not contribute thereto. Neither Landlord nor its
agents, servants, or employees shall be liable to Tenant for any damage by or
from any act or negligence of any co-tenant or other occupant of the same
Building, or by any owner or occupant of adjoining or contiguous property;
provided, however, that the provisions of this paragraph shall not apply to
negligent or willful acts or omissions of Landlord or the misconduct of any such
individuals or entities. Xxxxxx agrees to
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pay for all damage to the Building or the Premises, as well as all damage to
Tenants or occupants thereof caused by Xxxxxx's misuse or neglect of the
Premises, its apparatus or appurtenances or caused by an licensee,
contractor, agent to employees of Tenant.
B. Particularly, but not in limitation of the foregoing paragraph, ail
property belonging to Tenant or any occupant of the Premises that is in the
Building or the Premises shall be there at the risk of Tenant or other person
only, and Landlord or its agent, servants, or employees (except in case of
non-performance by the Landlord or the negligent or willful acts or omissions of
Landlord or its agents, servants, or employees) shall not be liable for damage
to or theft of or misappropriation of such property; nor for any damage to
property entrusted to Landlord, its agents, servants, or employees, if any; nor
for the loss of or damage to any property by theft or otherwise, by any means
whatsoever, nor for any injury or damage to per. sons or property resulting from
fire, explosion, failing plaster, steam, gas, electricity, snow, water or rain
which may leak from any part of the Building or from the pipes, appliances or
plumbing works therein or from the roof, street or subsurface or from any other
place or resulting from dampness or any other cause whatsoever; nor for
interference with the light or other incorporeal hereditaments, nor for any
latent defect in the Premises or in the Building. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Premises or in the
Building or of defects therein or in the fixtures or equipment.
C. In case any action or proceeding be brought against Landlord by
reason of any obligation on Tenant's part to be performed under the term of this
Lease, or arising from any act or negligence of the Tenant, or of its agents or
employees, Tenant, upon notice from Landlord shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord.
X. Xxxxxx shall maintain in full force and effect during the term of
this Lease (including any period prior to the beginning of the term during which
Tenant has taken possession and including also any period of extension of the
Term in which Tenant obtains possession), in responsible companies licensed to
do business in the Jurisdiction in which the Property is located and approved by
Landlord (i) fire and extended coverage insurance (including an endorsement for
vandalism and malicious mischief) covering all Tenant's property in, on or about
the Premises, with full waiver of subrogation rights against Landlord in an
amount equal to the full replacement cost of such Property, and (ii) public
liability insurance insuring Tenant against all claims, demands or action for
injury to or death of any one person in an amount of not less than TWO MILLION
($2,000,000.00) DOLLARS and for injury to or death of more than one person in
any one accident in an amount not less than THREE MILLION ($3,000,000.00)
DOLLARS and for damage to property in an amount of not less than ONE HUNDRED
THOUSAND ($100,000.00) DOLLARS or such other amounts as Landlord may reasonably
require from time to time and (iii) rental insurance equal to one year's rent
insurance. All liability policies shall cover the entire demised premises.
Landlord shall maintain in full force and effect during the term of this Lease
fire and extended coverage insurance for the full replacement cost of the
Building (including, windstorm insurance to the extent available to Landlord at
commercially reasonable rates and on a commercially reasonable basis, as
determined by Landlord in its reasonable discretion) and public liability
insurance covering common areas of the Building, in at least the amount required
to be maintained by Tenant, the premiums for which shall be included in the
Operating Costs.
15
E. All such policies shall name Xxxxxxxx, any mortgagees of
Landlord, and all other parties designated by Landlord as additional parties
insured. All insurance policies shall indicate that at least thirty (30) days
prior written notice shall be delivered to all additional parties insured by
the insurer prior to modification, termination, or cancellation of such
insurance and Tenant shall provide Certificates of Insurance, not less than
ten (10) days prior to the Commencement Date, evidencing the aforesaid
coverage to all insured parties. Failure of Tenant to provide the insurance
coverage set forth in subparagraphs (ii) and (iii) in the immediately
preceding paragraph shall entitle Landlord to either (a) treat said failure
as a default and/or Co) obtain such insurance and charge Tenant the premiums
therefor plus interest thereon as additional rent. Tenant shall not violate
or permit a violation of any of the conditions or terms of any such insurance
policies and shall perform and satisfy all reasonable requirements of the
insurance company issuing such policies. With respect to any insurance policy
procured to comply with any financial assurance requirement imposed by any
state or federal law or regulation, or to any other casualty, property, or
environmental impairment insurance purchased by Tenant, such policy or
policies shall name Landlord and any mortgagees of Landlord as additional
parties insured.
18. DAMAGE OR DESTRUCTION
In the event the Premises or the Building are damaged by fire or
other insured casualty and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deeds of trust coveting
the Building, the damage shall be repaired by and at the expense of Landlord
to the extent of such insurance proceeds available therefor, provided such
repairs can, in Landlord's reasonable opinion, be made within two hundred
seventy (270) days after the occurrence of such damage without the payment of
overtime or other premiums. Until such repairs are completed, the rent shall
continue to be paid by Tenant's rental insurance and shall otherwise be
abated to the extent the Premises are rendered untenantable. If repairs
cannot, in Landlord's reasonable opinion be made within two hundred seventy
(270) days, Landlord shall notify Tenant within thirty (30) days following
the occurrence of such damage of its determination, in which event, or in the
event such repairs are commenced but are not substantially completed within
two hundred seventy (270) days of the date of such occurrence, either party
may, by written notice to the other, cancel this Lease as of the date of the
occurrence of such damage. Except as provided in this Section, there shall be
no abatement of rent and no liability of Landlord by reason of any injury to
or interference with Xxxxxx's business or property arising from any such fire
or other casualty or from the making or not making of any repairs,
alterations or improvements in or to any portion of the Building or the
Premises or in or to fixtures, appurtenances and equipment therein. Tenant
understands that Landlord will not carry insurance of any kind on Tenant's
furniture or furnishings or on any fixtures or equipment removable by Tenant
under the provisions of this Lease and that Landlord shall not be obliged to
repair any damage thereto or replace the same. Landlord shall not be required
to repair any injury or damage caused by fire or other cause, or to make any
repairs or replacements to or of improvements installed in the Premises by or
for Tenant.
19. ENTRY BY LANDLORD
Landlord and its agents shall have the right to enter the Premises at
all reasonable times (upon reasonable notice except in cases of emergency) for
the purpose of examining or
16
inspecting the same, to supply janitorial services and any other service to
be provided by Landlord to Tenant hereunder or any other tenants, to show the
same to prospective purchasers of the Property or tenants for the Building,
and make such alterations, repairs, improvements, or additions, whether
structural or otherwise, to the Premises or to the Building as Landlord may
deem necessary or desirable. Landlord may enter by means of a master key
without liability to Tenant except for any failure to exercise due care for
Tenant's property and without affecting this Lease. Landlord shall use
reasonable efforts on any such entry not to unreasonably interrupt or
interfere with Xxxxxx's use and occupancy of the Premises.
20. INSOLVENCY OR BANKRUPTCY
A. In the event that Tenant shall become a debtor under Chapter 7,
11 or 13 of the Bankruptcy Code ("Debtor") and the trustee ("Trustee") or
Tenant shall elect to assume this Lease for the purpose of assigning the same
or otherwise, such election and assignment may only be made if all of the
terms and conditions of Sections 20.B and 20.D hereof are satisfied. The
Tenant acknowledges that it is essential to the ability of Landlord to
continue servicing the mortgage on the Building that a decision on whether to
assume or reject this Lease be made promptly. Under these circumstances,
Xxxxxx agrees that should Tenant, as debtor-in-possession
("Debtor-in-Possession") or any Trustee appointed for Tenant, fail to elect
to assume this Lease within sixty (60) days after the filing of the petition
under the Bankruptcy Code ("Tenant's Petition"), this Lease shall be deemed
to have been rejected. Tenant further knowingly and voluntarily waives any
right to seek additional time to affirm or reject the Lease and acknowledges
that there is no cause to seek such extension. If Tenant, as
Debtor-in-Possession, or the Trustee abandons the Premises, the same shall be
deemed a rejection of the Lease. Landlord shall be entitled to at least
thirty (30) days prior written notice from Tenant, as Debtor-in-Possession,
or its Trustee of any intention to abandon the Premises. Landlord shall
thereupon be immediately entitled to possession of the Premises without
further obligation to Tenant or the Trustee, and this Lease shall be
cancelled, but Xxxxxxxx's right to be compensated for damages in such
liquidation proceeding shall survive.
B. No election by the Trustee or Debtor-in-Possession to assume this
Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of
the following conditions, which Landlord and Tenant acknowledge are
commercially reasonable in the context of a bankruptcy proceeding of Tenant,
have been satisfied, and Xxxxxxxx has so acknowledged in writing:
(i) The Trustee or the Debtor-in-Possession has cured, or has
provided Landlord adequate assurance (as defined below) that:
(a) Within ten (10) days from the date of such assumption
the Trustee will cure all monetary defaults under this Lease; and
(b) Within thirty (30) days from the date of such
assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii) The Trustee or the Debtor-in-Possession has compensated,
or has provided to Landlord adequate assurance that within ten (10) days from
the date of assumption Landlord will be compensated, for any pecuniary loss
incurred by Landlord arising from the default of
17
Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's
written statement of pecuniary loss sent to the Trustee or Debtor-in-
Possession.
(iii) The Trustee or the Debtor-in-Possession has provided
Landlord with adequate assurance of the future performance (as defined below)
of each of Tenant's the Trustee's or Debtor-in-Possession's obligations under
this Lease, provided, however, that:
(a) The Trustee or Debtor-in-Possession shall also deposit
with Landlord, as security for the timely payment of rent, an amount equal to
three (3) months Base Rent (as adjusted pursuant to Section 20.B.(3)(c)
below) and other monetary charges accruing under this Lease; and
(b) If not otherwise required by the terms of this Lease,
the Trustee or Debtor-in- Possession shall also pay in advance one-twelfth
(1/12') of Tenant's annual obligations under this Lease for Operating Costs,
Taxes, insurance and similar charges.
(c) From and alter the date of the assumption of this
Lease, the Trustee or Debtor-in-Possession shall pay as minimum rent an
amount equal to the sum of the minimum rent otherwise payable hereunder,
within the five (5) year period prior to the date of Tenant's Petition, which
amount shall be payable in advance in equal monthly installments.
(d) The obligations imposed upon the Trustee or
Debtor-in-Possession shall continue with respect to Tenant or any assignee of
this Lease after the completion of bankruptcy proceedings.
(iv) The assumption of the Lease will not breach any provision
in any other lease, mortgage, financing agreement or other agreement by which
Landlord is bound relating to the Property.
(v) The Tenant as Debtor-in-Possession or its Trustee shall
provide the Landlord at least forty-five (45) days' prior written notice of
any proceeding concerning the assumption of this Lease.
(vi) For purposes of this Section 20.B, Landlord and Tenant
acknowledges that, in the context of a bankruptcy proceeding of Tenant, at a
minimum "adequate assurance" shall mean:
(a) The Trustee or the Debtor-in-Possession has and will
continue to have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord that the
Trustee or Debtor-in-Possession will have sufficient funds to fulfill the
obligations of Tenant under this Lease.
(b) The Bankruptcy Court shall have entered an order
segregating sufficient cash payable to Landlord, and/or the Trustee or
Debtor-in-Possession shall have granted a valid and perfected first lien and
security interest and/or mortgage in property of Tenant, the Trustee or
Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure
to Landlord the obligation of the Trustee or Debtor-in-Possession, to cure
the monetary and/or non-monetary defaults under this Lease within the time
periods set forth above.
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C. In the event that this Lease is assumed by a Trustee appointed
for Tenant or by Tenant as Debtor-in-Possession, under the provisions of
Section 20.B hereof, and thereafter Tenant is liquidated or files a
subsequent Tenant's Petition for reorganization or adjustment of debts under
Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events,
Landlord may, at its option, terminate this Lease and all rights of Tenant
hereunder, by giving Tenant written notice of its election to so terminate,
within thirty (30) days after the occurrence of either of such events.
D. If the Trustee or Debtor-in-Possession has assumed this Lease
pursuant to the terms and provisions of 20.A and 20.B hereof, for the purpose
of assigning (or elects to assign) Tenant's interest under this Lease or the
estate created thereby, to any other person, such interest or estate may be
so assigned only if Landlord shall acknowledge in writing that the intended
assignee has provided adequate assurance as defined in this Section 20.D of
future performance of all of the terms, covenants and conditions of this
Lease to be performed by Xxxxxx.
For purposes of this Section 20.D, Landlord and Tenant
acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a
minimum "adequate assurance of future performance" shall mean that each of
the following conditions have been satisfied, and Xxxxxxxx has so
acknowledged in writing:
(a) The assignee has submitted a current financial statement
audited by a certified public accountant which shows a net worth and working
capital in amounts determined to be sufficient by Landlord to assure the
future performance by such assignee of Tenant's obligations under this Lease;
(b) The assignee, if requested by Landlord, shall have
obtained guarantees in form and substance satisfactory to Landlord from one
or more persons who satisfy Landlord's standards of creditworthiness; and
(c) The Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage, financing arrangement or
other agreement by which Landlord is bound to permit Landlord to consent to
such assignment.
E. When, pursuant to the Bankruptcy Code, the Trustee or
Debtor-in-Possession shall be obligated to pay reasonable use and occupancy
charges for the use of the Premises or any portion thereof, such charges
shall not be less than the minimum rent as defined in this Lease and other
monetary obligations of Tenant for the payment of Operating Costs, Taxes,
insurance and similar charges.
X. Xxxxxxx Xxxxxx's interest in this Lease, nor any lesser interest
of Tenant herein, nor any estate of Tenant hereby created, shall pass to any
trustee, receiver, assignee for the benefit of creditors, or any other person
or entity, or otherwise by operation of law, unless Landlord shall consent to
such transfer in writing. No acceptance by Landlord of rent or any other
payments from any such trustee, receiver, assignee, person or other entity
shall be deemed to have waived, nor shall it waive the need to obtain
Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without such consent.
19
G. In the event the estate of Tenant created hereby shall be taken
in execution or by the process of law, or if Tenant or any guarantor of
Tenant's obligations shall be adjudicated insolvent pursuant to the
provisions of any present or future insolvency law under state law, or if any
proceedings are filed by or against such guarantor under the Bankruptcy Code,
or any similar provisions of any future federal bankruptcy law, or if a
custodian receiver or Trustee of the property of Tenant or such guarantor
shall he appointed under state law by reason of Tenant's or such guarantor's
insolvency or inability to pay its debts as they become due or otherwise, or
if any assignment shall be made of Tenant's or such guarantor's property for
the benefit of creditors under state law; then and in any such event Landlord
may, at its option, terminate this Lease and all rights of Tenant hereunder
by giving Tenant written notice of the election to so terminate within thirty
(30) days after the occurrence of such event.
21. DEFAULT
A. If any of the following events of default shall occur, to wit;
(i) Tenant defaults for more than five (5) days after notice
of default after the due date therefor in the payment of rent (whether Base
Rent or additional rent) or any other sum required to be paid hereunder, or
any part thereof, or
(ii) Tenant defaults in the prompt and full performance of any
other (i.e. other than payment of rent or any other sum) covenant, agreement
or condition of this Lease and such other default shall continue for a period
of twenty (20) days after written notice thereof from Landlord to Tenant
(unless such other default involves a h~Tardous condition, in which event it
shall be cured forthwith); provided, however, that in the event such default
cannot be cured within a period of twenty (20) days and Tenant is diligently
attempting to cure such default, the time period to cure same shall be
reasonably extended but in no event for a period of more than ninety (90)
days, or
(iii) The leasehold interest of Tenant be levied upon under
execution or be attached by process of law, or if Tenant abandons the Premises,
or
(iv) Bankruptcy or insolvency of Tenant,
then in any such event, Landlord, besides any other rights or remedies that
it may have, shall have the immediate right of re-entry and may remove all
persons and property from the Premises; such Property may be removed and
stored in any other place in the Building in which the Premises are situated,
or in any other place, for the account of and at the expense and at the risk
of Tenant.
B. Tenant hereby waives all claims for damages which may be caused by
the re-entry of Landlord and taking possession of the Premises or removing or
storing the furniture and property as herein provided, and will save Landlord
harmless fi'om any loss, costs, or damages occasioned Landlord thereby, and no
such re-entry shall be considered or construed to be a forcible entry.
C. Should Landlord elect to re-enter, as herein provided, or should it
take possession pursuant to legal proceedings or pursuant to any notice provided
for by law; it may either
20
terminate this Lease or it may from time to time, without terminating this
Lease, re-let the Premises or any part thereof for such terms and at such
rental or rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises; provided, however, that unless and until Landlord
notifies Tenant of Landlord's election to terminate this Lease, no such
termination shall occur, notwithstanding the vacation of the Premises or the
purported or attempted abandonment or surrender of the leasehold by Xxxxxx or
the changing of any locks to the Premises by Landlord.
D. Landlord may elect to apply any and all rentals and other monies
received by it from re-letting the Premises (i) to the payment of any
indebtedness, other than rent, due hereunder from Tenant to Landlord; (ii) to
the payment of any cost of such re-letting including but not limited to any
broker's commissions or fees in connection therewith; (iii) to the payment of
the cost of any alterations and repairs to the Premises; (iv) to the payment
of rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rent as the same may become due and
payable hereunder. Should such rentals received from such re-letting after
application by Landlord to the payments described in foregoing clauses (i)
through (iv) during any month be less than that agreed to be paid during that
month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly on demand by Landlord.
E. In lieu of electing to receive and apply rentals as provided in
the immediately preceding paragraph, Landlord may elect to receive xx.xx
Tenant as and for Landlord's liquidated damages for Tenant's default, an
amount equal to the present value of the entire amount of Base Rent provided
for in this Lease for the remainder of the Term, which amount shall be
forthwith due and payable by Tenant upon its being advised of such election
by Landlord.
F. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease unless
a written notice of same is given to Tenant or unless the termination thereof
be decreed by a court of competent jurisdiction. Notwithstanding any such
re-letting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach.
G. Nothing herein contained shall limit or prejudice the right of
Landlord to provide for and obtain as damages by reason of any such
termination of this Lease or of possession an amount equal to the maximum
allowed by any statute or role of law in effect at the time when such
termination takes place, whether or not such amount be greater, equal to or
less than the amounts of damages which Landlord may elect to receive as set
forth above. Notwithstanding anything to the contrary herein contained or any
other rights exercised by Landlord hereunder, upon the occurrence of an event
of a monetary or material default by Tenant under the terms of this Lease,
rent which otherwise would be due or would have been due except for any
abatement provided for in this Lease shall be immediately due and payable.
H. Notwithstanding anything to the contrary herein contained, if
Landlord shall fail to perform any covenant contained in this Lease upon
Landlord's part to be performed, and if as a consequence, Tenant shall
recover a money judgment against Landlord, such judgment shall be satisfied
solely out of the proceeds of the sale of Landlord's interest in the Property
as may be
21
undertaken by Xxxxxx in execution upon such judgment (which sale shall in all
events be subject to any mortgages then encumbering the Property). In no
event shall Tenant be entitled to collect or recoup the amount of such
judgment (i) by setting off its rental obligation hereunder against the
amount of such judgment, (ii) by executing on any bank accounts or assets of
Landlord other than the Property, or (iii) by seeking or obtaining any
deficiency judgment against Landlord or any of Landlord's constituent
partners.
22. RULES AND REGULATIONS
The roles and regulations attached hereto and marked Appendix "C",
as well as such reasonable rules and regulations as may be hereafter adopted
by Landlord for the safety, care and cleanliness of the Premises and the
preservation of good order thereon, are hereby expressly made a part hereof,
and Xxxxxx agrees to obey all such roles and regulations. The violation of
any such rules and regulations by Tenant shall be deemed a default under this
Lease by Tenant, affording Landlord all those remedies set out in the Lease.
Landlord shall not be responsible to Tenant for the non-performance by any
other tenant or occupant of the Building or any of said rules and
regulations. Xxxxxxxx agrees all rules and regulations shall be uniformly
enforced.
23. NON REAL ESTATE TAXES
During the term hereof, Tenant shall pay prior to delinquency all
taxes assessed against and levied upon fixtures, furnishings, equipment and
all other personal property of Tenant contained in the Premises, and Tenant
shall cause said fixtures, furnishing, equipment and other personal property
to be assessed and billed separately from the real property of Landlord. In
the event any or all of the Tenant's fixtures, furnishings, equipment and
other personal property shall be assessed and taxed with the Landlord's real
property, the Tenant shall pay to Landlord its share of such taxes within ten
(10) days after delivery to Tenant by Landlord of a statement in writing
setting forth the amount of such taxes applicable to the Tenant's property.
24. PERSONAL PROPERTY
Tenant hereby conveys to the Landlord all the personal property
situated on the Premises as security for the payment of ail rentals due or to
become due hereunder. Said property shall not be removed therefrom without
the consent of the Landlord, until all rent due or to become due hereunder
shall have first been paid and discharged. It is intended by the parties
hereto that this Lease constitutes a security agreement creating a security
interest in and to such property, and Landlord, upon default of Tenant in the
payment of rent, shall have all the rights of a secured party as provided in
the Uniform Commercial Code, as from time to time in effect. Xxxxxx further
agrees to execute any financing statements required to perfect Landlord's
interest in such property.
25. EMINENT DOMAIN
If the Building, or a substantial part thereof or a substantial part
of the Premises, shall be lawfully taken or condemned or conveyed in lieu
thereof, (or conveyed under threat of such taking or condemnation), for any
public or quasi-public use or purpose, the term of this Lease shall end upon
and not before the date of the taking of possession by the condemning
authority and without apportionment of the award. Tenant hereby assigns to
Landlord Xxxxxx's interest, if
22
any, in such award and specifically agrees that any such award shall be the
entire property of Landlord in which Tenant shall not be entitled to share.
Tenant further waives any right to challenge the right of the condemning
authority to proceed with such taking. Current rent shall be apportioned as
of the date of such termination. If any part of the Building other than the
Premises or not constituting a substantial part of the Premises, shall be so
taken or condemned (or conveyed under threat of such taking or condemnation),
or if the grade of any street adjacent to the Building is changed by any
competent authority and such taking or change of grade makes it necessary or
desirable to substantially remodel or restore the Building, Landlord shall
have the right to cancel this Lease upon not less than ninety (90) days
notice prior to the date of cancellation designated in the notice. No money
or other consideration shall be payable by Landlord to Tenant for the right
of cancellation, and Tenant shall have no right to share in any condemnation
award or in any judgment for damages or in any proceeds of any sale made
under any threat of condemnation or taking. Tenant shall have the right to
separately pursue its own award for relocation expenses in the event of such
condemnation proceedings.
26. SUBORDINATION
X. Xxxxxxxx has heretofore and may hereafter from time to time
execute and deliver mortgages or trust deeds in the nature of a mortgage,
both referred to herein as "Mortgages" against the Land and Building, or any
interest therein. If requested by the mortgagee or trustee under any
Mortgage, Tenant hereby irrevocably authorizes Landlord to subordinate
Tenant's interest in this Lease to said Mortgages, and to any and ail
advances made thereunder and to the interest thereon, and to all renewals,
replacements, modifications and extensions thereof, and to thereby make
Tenant's interest in this lease inferior thereto; provided that so long as
Tenant is not in default hereunder, its tenancy shall not be disturbed.
Tenant shall execute any and all documents required by the holder of any of
the Mortgages consistent with this Section 26, including, without limitation,
a Subordination, Non-Disturbance and Attornment Agreement in substantially
the form attached hereto as APPENDIX "E".
B. It is further agreed that (i) if any Mortgage shall be foreclosed
(a) the liability of the mortgagee or trustee thereunder or purchaser at such
foreclosure sale or the liability of a subsequent owner designated as
Landlord under this Lease shall exist only so long as such trustee,
mortgagee, purchaser or owner is the owner of the Building and such liability
shall not continue or survive after further transfer of ownership; and Co)
upon request of the mortgagee or trustee, Tenant will attorn as Tenant under
this Lease, to the purchaser at any foreclosure sale under any Mortgage, and
Tenant will execute such instruments as may be necessary or appropriate to
evidence such attornment; and (ii) this Lease may not be modified or amended
so as to reduce the rent or shorten the term provided hereunder, or so as to
adversely affect in any other respect to any material extent the rights of
the Landlord, nor shall this Lease be canceled or surrendered without the
prior written consent, in each instance of the mortgagee or trustee under any
Mortgage. It is understood that Xxxxxx's tenancy shall not be disturbed so
long as Tenant is not in default under this Lease.
C. No mortgagee and no person acquiring title to the premises by
reason of foreclosure of any Mortgage or by conveyance in lieu of foreclosure
shall have any obligation or liability to Tenant on account of any security
deposit unless such mortgagee or tifie holder shall receive such security
deposit in cash.
23
27. WAIVER
The waiver of Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The acceptance of rent hereunder
shall not be consumed to be a waiver of any breach by Tenant of any term,
covenant or condition of this Lease. It is understood and agreed that the
remedies herein given to Landlord shall be cumulative, and the exercise of
any one remedy by Landlord shall not be to the exclusion of any other remedy.
It is also agreed that after the service of notice or the commencement of a
suit or judgment for possession of the Premises, Landlord may collect and
receive any monies due, and the payment of said monies shall not waive or
affect said notice, suit or judgment.
28. INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant
to be performed shall not be affected, impaired or excused, nor shall
Landlord at any time be deemed to be in default hereunder because Landlord is
unable to fulfill any of its obligations under this Lease or to supply or is
delayed in supplying any service expressly or by implication to be supplied
or is unable to make, or is delayed in making any Tenant improvement, repair,
additions, alterations, or decorations or is unable to supply or is delayed
in supplying any equipment or fixtures if Landlord is prevented or delayed
from so doing by reason of strike or labor troubles or any outside cause
whatsoever beyond the reasonable control of Landlord, including but not
limited to riots and civil disturbances or energy shortages or governmental
preemption in connection with a national emergency or by reason of any rule,
order, or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which
have been or are affected by war or other emergency.
29. SUBROGATION
The parties hereto agree to use good faith efforts to have any and
all fire, extended coverage or any and all material damage insurance which
may be carded endorsed with a subrogation clause substantially as follows:
"This insurance shall not be invalidated should the insured waive in writing
prior to a loss any or ail right of recovery against any party for loss
occurring to the property described herein"; and each party hereto waives all
claims for recovery from the other party for any loss or damage (whether or
not such loss or damage is caused by negligence of the other party and
notwithstanding any provision or provisions contained in this Lease to the
contrary) to any of its property insured under valid and collectible
insurance policies to the extent of any recovery collectible under such
insurance, subject to the limitation that this waiver shall apply only when
it is permitted by the applicable policy of insurance.
30. SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building
containing the Premises, the same shall operate to release Landlord from any
future liability upon any of the covenants or conditions, expressed or
implied, herein contained in favor of Tenant, and in such event Tenant
24
agrees to look solely to the responsibility of the successor in interest of
Xxxxxxxx in and to this Lease. If any security deposit has been made by
Tenant hereunder, Landlord shall transfer such security deposit to such
successor in interest of Landlord and thereupon Landlord shall be released
from any further obligations hereunder. This Lease shall not be affected by
any such sale, and the Tenant agrees to attorn to the purchaser or assignee.
31. RIGHTS OF LANDLORD TO PERFORM
All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any abatement of rent. If Tenant shall fail to pay
any stun of money, other than rent, required to be paid it hereunder, or
shall fall to perform any other act on its part to be performed hereunder,
and such failure shall continue for ten (10) days after notice thereof by
Landlord, Landlord may, but shall not be obligated so to do, and without
waiving or release Tenant from any obligations of Tenant, make any such
payment or perform any such other act on Tenant's part to be made or
performed as in this Lease provided. All sums so paid by Xxxxxxxx and all
necessary incidental costs together with interest thereon at the rate
heretofore set forth with respect to late payments of rent, computed from the
date of such payment by Landlord shall be payable to Landlord on demand and
the Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of the non-payment
thereof by Tenant as in the case of default by Tenant in the payment of rent.
32. ATTORNEYS' FEES
In the event of any litigation between Tenant and Landlord to
enforce any provision of this Lease, or any right of either party hereto, the
unsuccessful party of such litigation, shall pay to the prevailing party all
costs and expenses, including reasonable attorneys' fees, incurred therein.
Moreover, if either party, without fault is made a party to any litigation
instituted by or against the other party, the other party shall indemnify
such party without fault against and save it harmless from all costs and
expenses, including reasonable attorneys' fees incurred by it in connection
therewith.
33. ESTOPPEL CERTIFICATE
Each party shall, at any time and from time to time upon not less
than ten (10) days' prior written notice from the other, execute, acknowledge
and deliver to the requesting party a statement in writing certifying that
this Lease is unmodified and in full force and effect (or if modified,
stating the nature of the modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rental and
other charges are paid and acknowledging that there are not, to such
certifying party's knowledge, any uncured defaults on the part of the other
party hereunder or specifying such defaults if any are claimed, as well as
any other reasonable information requested by Landlord. In the case of a
statement made by Xxxxxx, it is expressly understood and agreed that any such
statement may be relied upon by any prospective purchaser or encumbrancer of
all or any portion of the real property of which the Premises are a part.
Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant that this Lease is in full force and effect, without
modification except as
25
may be represented by Landlord, that there are no uncured defaults in
Landlord's performance and that not more than two (2) months' rental has been
paid in advance.
34. PREPARATION
Xxxxxxxx agrees to cause the Premises to be completed in accordance
with the plans, specification and agreements approved by both parties on the
terms, conditions, and provision as provided in the plans attached hereto in
APPENDIX "D" which is attached hereto and made a part of this Lease. Upon
completion and delivery thereof, Seller makes no promise to alter, remodel,
decorate, clean, or improve the Premises or the Building and to
representation or warranty expressed or implied, the condition of the
Premises or the Building having been made. It is further understood that to
the extent that any repairs, replacements or corrections are required to be
made to the Premises and/or Building of any kind whatsoever, to cause same to
comply with any applicable law, rule or regulation, whether federal, state or
local, that the cost thereof shall be fully the responsibility of Tenant.
35. NOTICE
Any notice from Landlord to Tenant or from Tenant to Landlord may be
served personally, by mail, by overnight delivery, by affixing a copy on any
door leading into the Premises or by facsimile transmission. If served by
mail, notice shall be deemed served on the second day after mailing by
registered or certified mail, addressed to Tenant at the Premises or to
Landlord at the place from time to time established for the payment of rent
and a copy thereof shall until further notice, be served personally or by
registered or certified mail to Landlord at the address shown for service of
notice in the Lease Schedule. In the event of a release or threatened release
of pollutants or contaminants to the environment resulting from Xxxxxx's
activities at the site or in the event any claim, demand, action or notice is
made against the Tenant regarding Xxxxxx's failure or alleged failure to
comply with any local, state and federal environmental rules, regulations,
statutes and laws, the Tenant shall immediately notify the Landlord in
writing and shall give to Landlord copies of any written claims, demands or
actions, or notices so made.
36. DEPOSIT
Tenant will deposit with Landlord the amount set forth as the
Security Deposit in the Lease Schedule as security for the full and faithful
performance of every provision of this Lease to be performed by Xxxxxx. If
Tenant defaults with respect to any provision of this Lease, including but
not limited to the provisions relating to the payment of rent, Landlord may
use, apply or retain all or any part of this Security Deposit for the payment
of any rent and any other sum in default, or for the payment of any other
amount which Landlord may spend or become obligated to spend by reason of
Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
deposit is to be used or applied, Tenant shall within ten (10) days after
written demand therefor deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount and Tenant's failure to
do so shall be a material breach of this Lease. Landlord shall not be
required to keep this Security Deposit separate from its general funds and
Tenant shall not be entitled to interest on such deposit. If Tenant shall
fully and faithfully perform every provision of this Lease to be performed by
it, the Security Deposit or any balance thereof shall be returned
26
to Tenant (or at Xxxxxxxx's option to the last assignee of Xxxxxx's interest
hereunder) at the expiration of the lease term and upon Xxxxxx's vacation of
the Premises.
37. RIGHTS RESERVED
Landlord reserves the following rights, exercisable without notice
and 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 for
set-off or abatement of rent:
A. To change the Building's name or street address;
B. To install, affix and maintain any and all signs on the interior
or exterior of the Building or on the Property;
C. To designate and approve, prior to installation, all types of
window shades, blinds, drapes, awnings, window ventilators and other similar
equipment, and to control all interior or exterior lighting of the Building;
D. To designate, restrict and control all sources from which Tenant
may obtain sign painting and lettering, food and beverages or other services
on the Premises, and in general to designate, limit, restrict and control any
service in or to the Building and its tenants, provided such services as are
designated by Landlord are reasonably competitive as to the rates charged
thereby, and further provided that such designation, restrictions, or
controls do not prohibit Tenant's operations in accordance with the terms of
this Lease. No vending or dispensing machines of any kind shall be placed in
or about the Premises without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, it
is understood that Tenant shall have the right to operate beverage machines,
microwave ovens, and refrigerators for the convenience of its employees and
invitees;
E. To retain at all times, and to use in appropriate instances, keys
and/or keycards, to all doors within and into the Premises. No locks or bolts
shall be altered, changed or added without the prior written consent of
Landlord;
F. To decorate or to make repairs, alterations, additions or
improvements, whether structural or otherwise, in and about the Building, or
any part thereof, and for such purpose to enter upon the Premises, and during
the continuance of said work to temporarily close doors, entryways, and
public spaces in the Building and to interrupt or temporarily suspend
Building services and facilities, provided that Tenant is not prevented from
access to the Premises;
G. To prescribe the location and style of the suite number and
identification sign or lettering for the Premises occupied by Xxxxxx;
H. To enter the Premises at reasonable hours for reasonable purposes
upon reasonable notice except in cases of emergency, including inspection and
supplying janitorial or any other service to be provided to Tenant hereunder;
27
I. To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to identify
themselves to watchmen by designation or otherwise, and to establish their
right to enter or leave in accordance with the provisions of the Lease.
Landlord shall not be liable except for the willful or negligent act or
omission of Landlord in damages for any error with respect to admission to or
eviction or exclusion from the Building of any person. In case of fire,
invasion, insurrection, mob, riot, civil disorder, public excitement or other
commotion, or threat thereof, Landlord reserves the right to limit or prevent
access to the Building during the continuance of the same or otherwise take
such action or preventive measures deemed necessary by Landlord for the
safety of the Tenants or other occupants of the Building or the protection of
the Building and the property in the Building. Xxxxxx agrees to cooperate in
any reasonable safety program developed by Landlord;
J. To control and prevent access to common areas and other
non-general public areas including any loading docks, service elevators, or
roof;
K. To have and retain a paramount title to the Premises flee and
clear of any act of Tenant;
L. To grant to anyone the exclusive right to conduct any business or
render any services in the Building, which do not interfere with Xxxxxx's use
of the Premises;
M. To approve the weight, size and location of safes and other heavy
equipment and articles in and about the Premises and the Building, and to
require all such items and furniture to be moved into and out of the Building
and the Premises only at such times and in such manner as Landlord shall
direct in writing. Movements of Tenant's property into or out of the Building
and within the Building are entirely at the risk and responsibility of Tenant
and Landlord reserves the right to require permits before allowing any such
property to be moved into or out of the building.
38. OPTION TO EXTEND TERM
A. OPTION. Provided (i) Tenant is then occupying at least seventy
percent (70%) of the rentable area of the Premises, and (ii) Tenant's
financial condition, as reasonably determined by Landlord, has not materially
and adversely changed from that existing on the Commencement Date such that
Landlord reasonably determines that Tenant cannot satisfy its duties,
obligations and liabilities under this Lease for the Option Term (as
hereinafter defined), Tenant is given the option to extend the Term hereof
(the "Extension Option"), on all the provisions contained in this Lease as
the same may be amended from time to time (together with such changes as
Landlord may reasonably require in order to conform the terms and provisions
of this Lease to then prevailing industry standards, provided that in no
event shall the duties, obligations or liabilities of Tenant be materially
increased thereby), for one (1) additional five (5) year period (the "Option
Term") following expiration of the initial Term stated in Article 2 of this
Lease (the "Initial Term"), by giving written notice of exercise of the
option (the "Option Notice') to Landlord at least nine (9) months before the
expiration of the Initial Term; provided that in no event shall the Annual
Base Rent for the Option Term be determined prior to the commencement of the
seventh (7th) calendar month preceding the expiration of the Initial Term.
28
Notwithstanding the foregoing, if Tenant is in default on the date
of giving the Option Notice, Tenant shall have no right to extend the Term
and this Lease shall expire at the end of the Initial Term; or if Tenant is
in default on the date the Option Term is to commence, the Option Term shall
not commence and this Lease shall expire at the end of the Initial Term.
The Annual Base Rent for the Option Term shall, during the first
year of the Option Term, be in an amount equal to the fair market rental
("Fair Market Rental" as hereinafter defined) of the Premises at the
commencement of the Option Term, but in no event less than 3% greater than
the Base Rent for the last year of the original lease term (the "Adjustment
Date"), and shall escalate by 3% per annum every twelve months during the
balance of the Option Term.
B. FAIR MARKET RENTAL
(i) "Fair Market Rental" shall mean the rate being charged for
comparable space in similar office buildings in the City of Fort Lauderdale,
Florida, with similar amenities, taking into consideration: size, location,
floor level, leasehold improvements or allowances provided (there being no
obligation of Landlord to furnish or pay for any leasehold improvements or
allowances during or in connection with the Option Term), term of the lease,
extent of services to be provided, the time that the particular rate under
consideration became or is to become effective, and any other relevant terms
or conditions. Fair Market Rental as of the Adjustment Date shall be
determined by Landlord with written notice (the "Rent Notice") given to
Tenant on or before the later to occur of (1) the first day of the seventh
(7th) calendar month preceding the expiration of the Initial Term, as the
case may be; and (2) thirty (30) days after receipt of the Option Notices,
subject to Tenant's right to arbitration as hereafter provided. Within
fifteen (15) business days after receipt of the Rent Notice, Tenant shall
either (1) accept Landlord's determination of Fair Market Rental, (2) rescind
its exercise of the Extension Option, or (3) demand arbitration. Failure on
the part of Tenant to either demand arbitration or to rescind its exercise of
the Extension Option within fifteen (15) business days after receipt of the
Rent Notice from Landlord shall bind Tenant to the Fair Market Rental as
determined by Landlord. Should Tenant elect to rescind its exercise of the
Extension Option, the Term of this Lease shall expire on the Expiration Date
of the original Lease Term. Failure on the part of Tenant to demand
arbitration fifteen (15) business days after receipt of the Rent Notice from
Landlord shall bind Tenant to the Fair Market Rental as determined by
Landlord. Should Tenant elect to arbitrate and should the arbitration not
have been concluded prior to the Adjustment Date, Tenant shall pay the Annual
Base Rent to Landlord after the Adjustment Date, adjusted to reflect the Fair
Market Rental as Landlord has so determined. If the amount of the Fair Market
Rental as determined by arbitration is greater than or less than Landlord's
determination, then any adjustment required to adjust the amount previously
paid shall be made by payment by the appropriate party within ten (10) days
after such determination of Fair Market Rental.
(ii) If Tenant disputes the amount claimed by Landlord as Fair
Market Rental, Tenant may require that Landlord submit the dispute to
arbitration. The arbitration shall be conducted and determined in the city
where the Building is located in accordance with the then prevailing rules of
the American Arbitration Association or its successor for arbitration of
commercial disputes, except that the procedures mandated by such rules shall
be modified as follows:
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(a) Tenant shall make demand for arbitration within fifteen
(15) business days after service of the Rent Notice, specifying therein the
name and address of the person to act as the arbitrator on Xxxxxx's behalf.
The arbitration shall be a commercial real estate broker with at least ten
(10) years full-time commercial brokerage experience who is familiar with the
Fair Market Rental of first-class commercial office space in area of Fort
Lauderdale, Florida. Failure on the part of Tenant to make the timely and
proper demand for such arbitration shall constitute a waiver of the right
thereto. Within ten (10) business days after the service of the demand for
arbitration, Landlord, at its option, may give notice to Tenant specifying
the name and address of the person designated by Landlord to act as
arbitrator on its behalf, which arbitrator shall be similarly qualified.
(b) If two arbitrators are chosen pursuant to paragraph
(B)(ii)(1) above, the arbitrators so chosen shall meet within ten (10) days
after the second arbitrator is appointed and shall appoint a third
arbitrator, who shall be a competent and impartial person with qualifications
similar to those required of the first two arbitrators pursuant to paragraph
(B)(ii)(1) above. If they are unable to agree upon such appointment within
five (5) business days after expiration of such ten (10) days period, the
third arbitrator shall be selected by the parties themselves. If the parties
do not so agree, then either party, on behalf of both, may request
appointment of such a qualified person by the then president of the Board of
Realtors for the county in which the Building is located. The single
arbitrator or three arbitrators, as the case may be, shall decide the
dispute, if it has not been previously resolved, by following the procedures
set forth in paragraph (B)(ii)(3) below.
(c) The Fair Market Rental shall be fixed by the single
arbitrator or three arbitrators, as the case may be, in accordance with the
following procedures. If there is only a single arbitrator, then his
determination of the Fair Market Rental shall be final and binding upon the
parties. If there are three (3) arbitrators, then each of the two (2)
arbitrators selected by the parties shall state, in writing, his
determination of the Fair Market Rental supported by the reasons therefor and
shall make counterpart copies for each of the other arbitrators. The
arbitrators shall arrange for a simultaneous exchange of such proposed
resolutions. The role of the third arbitrator shall be to select which of the
two proposed resolutions most closely approximates his determination of Fair
Market Rental. The third arbitrator shall have no right to propose a middle
ground or any modification of either of the two proposed resolutions. The
resolution he chooses as that most closely approximating his determination of
the Fair Market Rental shall constitute the decisions of the arbitrators and
shall be final and binding upon the parties.
(d) In the event of a failure, refusal or inability of any
arbitrator to act, his successor shall be appointed by him, but in the case of
the third arbitrator, his successor shall be appointed in the same manner as
that set forth herein with respect to the appointment of the original third
arbitrator. The arbitrators shall attempt to decide the issue within ten (10)
business days after the appointment of the third arbitrator. Any decision in
which the arbitrator appointed by Landlord and the arbitrator appointed by
Tenant concur shall be binding and conclusive upon the parties, except that such
arbitrators shall not attempt by themselves to mutually ascertain the Fair
Market Rental, and any such determination, in a manner other than that provided
for in paragraph B(ii)(3) hereof, shall not be binding on the parties. Each
party shall pay the fees and expenses of its respective arbitrator and both
shall share the fees and expenses of the single and,
30
if applicable, third arbitrator. Attorneys' fees and expenses of counsel and
of witnesses for the respective parties shall be paid by the respective party
engaging such counsel or calling such witnesses.
(e) Any arbitrator shall have the right to consult experts
and competent authorities for factual information or evidence pertaining to a
determination of Fair Market Rental, but any such consultation shall be made
in the presence of both parties with full right on their part to
cross-examine. The arbitrator(s) shall render the decision and award in
writing with counterpart copies to each party. The arbitrator(s) shall have
no power to modify the provisions of this Lease.
39. REAL ESTATE BROKER
Tenant represents that Xxxxxx has dealt directly with and only with
the brokers set forth in the Lease Schedule as brokers in connection with
this Lease and agrees to indemnify and hold Landlord harmless from all claims
or demands of any other broker or brokers for any commission alleged to be
due such broker or brokers in connection with its participating in the
negotiation with Tenant of this Lease.
40. MISCELLANEOUS PROVISIONS
A. Time is of the essence of this Lease and each and all of its
provisions.
B. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation or offer or option for lease, and it
is not effective as a lease or otherwise so as to incur the least
inconvenience to Tenant. Tenant acknowledges and agrees with Landlord that,
except as may be specifically set forth elsewhere in this Lease, neither
Landlord, nor any employee of Landlord, nor other party claiming to act on
Xxxxxxxx's behalf, has made any representations, warranties, estimations, or
promises of any kind or nature whatsoever relating to the physical condition
of the Building in which the Premises are located, or the land under the
Building, including by way of example only, the illness of the Premises for
Tenant's intended use or the actual dimensions of the Premises or Building.
C. The invalidity or unenforceability of any provision hereof shall
not affect or impair any other provisions.
D. This Lease shall be governed by and construed pursuant to the
laws of the Jurisdiction in which the property is located.
E. Should any mortgage require a modification of this Lease, which
modifications will not bring about any increased cost or expense to Tenant or
in any other way substantially change the rights and obligations of Tenant
hereunder, then and in such event, Xxxxxx agrees not to unreasonably withhold
or delay its consent to such modification.
X. Xxxxxx agrees to provide to Landlord, upon request, a current
financial statement of Tenant certified by an authorized representative of
Tenant to be tree and correct, and further agrees to provide any other
financial information reasonably requested by Landlord.
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G. All rights and remedies of Landlord under this Lease, or that may
be provided by law, may be exercised by Landlord in its own name
individually, or in its name by its Management Agent, and all legal
proceedings for the enforcement of any such rights or remedies, including
distress for rent, forcible detainer, and any other legal or equitable
proceedings, may be commenced and prosecuted to final judgment and execution
by Landlord in its own name individually or in its name or by its agent.
Tenant conclusively agrees that Xxxxxxxx has full power and authority to
execute this Lease and to make and perform the agreements herein contained
and Tenant expressly stipulates that any rights or remedies available to
Landlord either by the provision of this Lease or otherwise may be enforced
by Landlord in its own name individually or in its name by agent or principal.
H. All of the covenants and conditions of this Lease shall survive
the termination of the Lease.
I. The marginal headings and titles to the paragraphs of this Lease
are not a part of this Lease and shall have no effect upon the construction
or interpretation of any part hereof.
J. Subject to complying with all of the provisions with respect to
assignments and subleases, if Tenant is a corporation and if at any time
during the Lease Term the person or persons who owns a majority of its voting
shares at the time of the execution of this Lease cease to own a majority of
such shares (except as a result of transfers by girl, bequest or
inheritance), whether by merger, voluntary or involuntary transfer, or
otherwise, Tenant shall so notify Landlord and Landlord may terminate this
Lease by notice to Tenant given within ninety (90) days thereafter. This
Section shall not apply to assignments, subleases or mergers which do not
require Landlord's consent pursuant to Section 15 of this Lease or whenever
Tenant (and, in case of any merger, the resulting successor Tenant) is a
corporation, the outstanding voting stock of which is listed on a recognized
security exchange or if at least ninety (90%) percent of its voting stock is
owned by another corporation, the voting stock of which is so listed.
K. Any and all Exhibits or Appendices attached hereto are expressly
made a part of this Lease.
L. Upon termination of the Lease or upon Tenant's abandonment of the
leasehold, the Tenant shall, at its sole expense, remove any equipment which
may cause contamination of the property, and shall clean up any existing
contamination in compliance with all applicable local, state and federal
environmental rules, regulations, statutes and laws or in accordance with
orders of any governmental regulatory authority.
M. This is a commercial lease and has been entered into by both
parties in reliance upon the economic and legal bargains contained herein,
and both parties agree and represent each to the other that they have had the
opportunity to obtain counsel of their own choice to represent them in the
negotiation and execution of this Lease, whether or not either or both have
elected to avail themselves of such opportunity. This Lease shall be
interpreted and construed in a fair and impartial manner without regard to
such factors as the party which prepared the instrument, the relative
bargaining powers of the parties or the domicile of any party.
32
X. XXXXXX OF RIGHT TO TRIAL BY JURY: Landlord and Tenant hereby
waive any right to a trial by jury in any action or proceeding based upon, or
related to, the subject matter of this Lease. This waiver is knowingly,
intentionally, and voluntarily made by each of parties hereto and each party
acknowledges to the other that neither the other party nor any person acting
on its respective behalf has made any representations to induce this waiver
of trial by jury or in any way to modify or nullify its effect. The parties
acknowledge that they have read and understand the meaning and ramifications
of this waiver provision and have elected same of their own free will.
O. Landlord hereby covenants that so long as Tenant is not in
default under the terms and provisions of this Lease, Tenant shall be
entitled to quiet enjoyment of the Premises.
P. This Lease does not grant any rights to light or air over or
about the real property of Landlord. Except to the extent specifically
otherwise herein provided, Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Building, all
rights to and the land and improvements below the improved floor level of the
Building, to the improvements and air rights above the Building and to the
improvements and ak rights located outside the demising walls of the Building
and to such areas within the Building required for installation of utility
lines and other installations required to serve any occupants of the Building
and to maintain and repair same, and no rights with respect thereto are
conferred upon Tenant, unless otherwise specifically provided herein.
41. TENANT-CORPORATION OR PARTNERSHIP
In ease Tenant is a corporation, Tenant represents and warrants that
this Lease has been duly authorized, executed and delivered by and on behalf
of the Tenant and constitutes the valid and binding agreement of the Tenant
in accordance with the terms hereof. In case Tenant is a partnership, Tenant
represents and warrants that all of the persons who are general or managing
partners in said partnership have executed this Lease on behalf of Xxxxxx, or
that this Lease has been executed and delivered pursuant to and in conformity
with a valid and effective authorization therefor by all of the general or
managing partners of such partnership, and is and constitutes the valid and
binding agreement of the partnership and each and every partner therein in
accordance with its terms. Also, it is agreed that each and every present and
future partner in Tenant shall be and remain at all times jointly and
severally liable hereunder and that the death, resignation or withdrawal of
any partner shall not release the liability of such partner under the terms
of this Lease unless and until the Landlord shall have consented in writing
to such release. In case Tenant is a limited liability company, Tenant
represents and warrants that this Lease has been duly authorized, executed,
and delivered by and on behalf of the Tenant and constitutes a valid and
binding agreement of the Tenant in accordance with the terms hereof.
42. SUCCESSORS AND ASSIGNS
The covenants and conditions herein contained shall apply to and
bind the respective heirs, successors, Executors, administrators, and assigns
of the parties hereto. The terms "Landlord" and "Tenant" shall include the
successors and assigns of either such party, whether immediate or remote.
33
IN WITNESS WHEREOF, the Landlord and Xxxxxx have executed this Lease
the day and year first above written.
LANDLORD:
Florcor I Limited Partnership,
an Illinois limited partnership
By: Florcor, Inc., an Illinois corporation,
its general partner
/s/ Xxxxx Xxxxxx
----------------------------------------------------- By:----------------------------------------------
Witness Its: VICE PRESIDENT
----------------------------------------------
Print Name: XXXXX XXXXXX
------------------------------------------
Witness /s/ XXXXXX X. XXXXXXXX
------------------------------------------
XXXXXX X. XXXXXXXX
Print Name:------------------------------------------
TENANT:
IMPROVENET, INC., A CALIFORNIA CORPORATION
/S/ Xxxxxx Xxxxxx
Witness By:-----------------------------------------------
Name: XXXXXX XXXXXX
---------------------------------------------
Print Name: XXXXXXX X. XXXX Title: PRESIDENT AND CEO
------------------------------------------ --------------------------------------------
/s/ Xxxxxxx X. Xxxx
-----------------------------------------------------
Witness
Print Name:------------------------------------------
34
APPENDIX A
1
APPENDIX B
FACILITY ALTERATION PROCEDURE
To follow is the approved procedure which is acceptable in the event
that you, as Tenant, should desire to alter the Premises which you occupy. All
the steps below must be completed before any alterations are preferred:
1. A letter requesting approval and describing the proposed
alteration to the Premises must be sent to Landlord. This letter must be
signed by the original signatory of the lease document or another authorized
representative of Tenant and it must be received by Landlord prior to the
commencement of any work.
2. Copies of all sketches or drawings of the proposed alteration(s)
must be submitted to Alter Asset Management, Inc. ("AAM") for approval by the
landlord. Xxxxxxxx's approval of the plans, specifications and working
drawings for Tenant's alteration shall create no responsibility or liability
on the part of Landlord for their completeness, design sufficiency, or
compliance with laws, and/or roles and regulations of governmental agencies
or authorities.
3. It is the sole responsibility of the Tenant to contact local
authorities, secure any necessary permits and to comply with any and all
applicable codes and ordinances. Evidence of this shall be by copy of any
building permit(s) or a letter from local authorities indicating that same is
waived or not necessary.
4. Insurance: All contractors and all subcontractor of any tier
shall deliver to AAM prior to commencement of any work, a Certificate of
Insurance and the certificate must name, as Additional Insureds with respect
to commercial general liability insurance coverage, the current mortgage
holder with respect to the Property and such other parties having insurable
interests therein as Landlord shall specify.
5. The Tenant hereby holds the Landlord, it's agents, beneficiaries,
and AAM, each of them individually and severally harmless from any and all
liability resulting from work being performed.
6. No reasonable request for a facility alteration will be denied
providing the structure itself is not altered or endangered, the buildings
systems are not affected, the roof is not penetrated, and the procedure as
outlined herein is fully and completely followed carefully. However, the
decision to approve or deny any alteration lies solely at the discretion of
Landlord. If a roof penetration is required by Tenant, Tenant must use the
Landlord's roof contractor to complete the work at Tenant's sole cost.
7. Upon receipt of complete sets of those items numbered one (1)
through five (5) above, Tenant will be provided with a written response from
AAM as to whether Tenant may proceed with the alteration requested.
8. Proceeding with any alteration to your Premises without complete
compliance with all of the foregoing is in direct violation of your Lease,
and could result in litigation.
1
9. AAM must be notified in writing upon completion of any approved
alteration.
10. A copy of a Contractor's Sworn Statement must be submitted to
AAM prior to the start of any work. Upon completion of the work, final
waivers of lien from each subcontractor in accordance with the Contractor's
Sworn Statement, including any change orders executed during the course of
the work, must be submitted to AAM. Landlord reserves the right to require
Tenant to post a deposit in an amount determined by Landlord prior to the
start of any work hereunder.
11. It shall be at the sole option of the Landlord to require that
any alteration become a part of the Premises, or be restored to its original
condition at such time that Xxxxxx has surrendered Premises. If required,
said restoration shall be at the sole expense of the Tenant.
12. Landlord reserves the right to charge Tenant a fee for services
to review plans and specifications, to review work as it progresses, to
evaluate that work in place is consistent with plans, and to prepare a final
inspection and punchlist. The amount of the fee shall be equal to the greater
of two percent (2%) of the cost of the work and $104.00 per work hour, or
such other reasonable rate as may be established from time to time by
Landlord. Such fee shall be paid prior to commencement of the work.
13. It is Tenant's responsibility to furnish to Landlord a
Certificate of Occupancy and/or evidence of passing a final inspection by the
building department of the municipality where the Premises are located.
14. To the extent that the Lease provides for reimbursement to
Tenant for any portion of the cost of any work or improvements made by
Tenant, Landlord shall make such payments to Tenant in accordance with the
terms of the Lease upon Xxxxxx's full compliance with the provisions of this
Facility Alteration Procedure.
2
APPENDIX C
RULES AND REGULATIONS ATTACHED TO
AND MADE PART OF THIS LEASE
1. Tenant shall not place anything or allow anything to be placed
near the glass of any window, door, partition or wail which may in Landlord's
judgment appear unsightly from outside the premises or the Building. Landlord
shall furnish and install building standard window blinds at all exterior
windows.
2. The sidewalks, passages, exits, loading docks and entrances
shall not be obstructed by Tenant or used by Tenant for any purpose other
than for ingress to and egress from the Premises. The passages, exits,
entrances and roof are not for the use of the general public and the Landlord
shall in all cases retain the right to control and prevent access thereto by
all persons whose presence in the judgment of Landlord, reasonably exercised,
shall be prejudicial to the safety, character, reputation and interests of
the Building. Neither Tenant nor any employees or invitees of any Tenant
shall go upon the roof of the building.
3. The toilet rooms, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein and
to the extent caused by Tenant or its employees or invitees, the expense of
any breakage, stoppage or damage resulting from the violation of this role
shall be borne by Tenant.
4. Tenant shall not cause any unnecessary janitorial labor or
services by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness.
5. No cooking other than microwave warming shall be done or
permitted by Tenant on the Premises, nor shall the Premises be used for
lodging.
6. Tenant shall not bring upon, use or keep in the Premises or the
Building any kerosene gasoline or inflammable or combustible fluid or
material, or use any method of heating or air conditioning other than that
supplied by Landlord.
7. Landlord shall have sole power to direct electricians as to
where and how telephone and other wires are to be introduced. No boring or
cutting for wires will be allowed without the consent of Landlord. The
location of telephone, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord.
8. Upon the termination of the tenancy, Tenant shall deliver to the
Landlord all keys or electronic key cards and passes for offices, rooms,
parking lot and toilet rooms which shall have been furnished Tenant. In the
event of loss of any keys or electronic key cards so furnished, Tenant shall
pay the Landlord therefor. Tenant shall not make or cause to be made any such
keys or electronic key cards and shall order all such keys or electronic key
cards solely from Landlord and shall pay Landlord for any additional such
keys or electronic key cards over and above the keys furnished by Landlord at
occupancy.
1
9. Tenant shall not install linoleum, tile, carpet or other floor
coverings so that the same shall be affixed to the floor of the Premises in
any manner except as approved by the Landlord.
10. Tenant shall cause all doors to the Premises to be closed and
securely locked before leaving the Building at the end of the day.
11. Without the prior written consent of Landlord not to be
unreasonably withheld or delayed, Tenant shall not use the name of the
Building or any picture of the Building in connection with or in promoting or
advertising the business of Tenant except Tenant may use the address of the
Building as the address of its business.
12. Tenant shall refrain from attempting to adjust any heat or air
conditioning controls other than room or system thermostats installed within
the Premises for Tenant's use.
13. Tenant assumes full responsibility for protecting the Premises
from theft, robbert and pilferage, which includes keeping doors locked and
other means of entry to Premises closed and secured.
14. Peddlers, solicitors and beggars shall be reported to the office
of the Building or as Landlord otherwise requests.
15. Tenant shall not advertise the business, profession or
activities of Tenant conducted in the Building in any manner which violates
the letter or spirit of any code of ethics adopted by any recognized
association or organization pertaining to such business, profession or
activities.
16. Tenant shall allow no animals or pets other than guide dogs for
disabled persons to be brought or to remain in the Building or any part
thereof.
17. Tenant acknowledges that Building security problems may occur
which may require the employment of extreme security measures in the
day-to-day operation of the Building. Accordingly:
(a) Landlord may at any time, or from time to time, or for
regularly scheduled time periods, as deemed advisable by Landlord and/or its
agents, in their sole discretion, require that persons entering or leaving
the Building identify themselves to watchmen or other employees designated by
Landlord by registration, identification or otherwise.
(b) Landlord may at any time, or from time to time or for
regularly scheduled time periods, as deemed advisable by Landlord and/or its
agents, in their sole discretion, employ such other security measures as but
not limited to the search of all persons, parcels, packages, etc., entering
and leaving the Building, the evacuation of the Building and the den/al of
access of any person to the Building.
(c) Tenant hereby assents to the exercise of the above
discretion of Landlord and its agents, whether done acting under reasonable
belief of cause or for drills, regardless of whether or not such action shall
in fact be warranted and regardless of
2
whether any such action is applied uniformly or as aimed at specific persons
whose conduct is deemed suspicious.
(d) The exercise of such security measures and the resulting
interruption of service and cessation or loss of Tenant's business, if any,
shall never be deemed an eviction or disturbance of Tenant's use and
possession of the Premises, or any part thereof, or render Landlord liable to
Tenant for damages or relieve Tenant from Tenant's obligations under this
Lease.
(e) Xxxxxx agrees that it and its employees will cooperate
fully with Building employees in the implementation of any and all security
procedures.
18. In the event carpeting is furnished by Landlord, Tenant will be
fully responsible for and upon Xxxxxxxx's request will pay for any damage to
carpeting caused by lack of protective mats under desk chair or equipment or
any other abnormal puncture and wearing of carpet.
19. Tenant shall comply with all applicable laws, ordinances,
governmental orders or regulations and applicable orders or directions from
any public office or body having Jurisdiction, with respect to the Premises
and the use or occupancy thereof. Tenant shall not make or permit any use of
the Premises which directly or indirectly is forbidden by law, ordinances,
governmental regulations or order or direction of applicable public
authority, or which may be dangerous to person or property.
20. Tenant shall not use or permit to be brought into the Premises
or the Building any flammable oils or fluids, or any explosive or other
articles deemed hazardous to persons or property, or do or permit to be done
any act or thing which will invalidate or which if brought in would be in
conflict with any insurance policy covering the Building or its operation, or
the Premises, or any part of either, and will not do or permit to be done
anything in or upon the Premises, or bring or keep anything therein, which
shall not comply with all roles, orders, regulations or requirements of any
organization, bureau, department or body having Jurisdiction with respect
thereto (and Tenant shall at all times comply with all such rules, orders,
regulations or requirements), or which shall increase the rate of insurance
on the Building, its appurtenances, contents or operation. The foregoing
prohibitions shall include but not be limited to the discharge of any toxic
wastes, or other hazardous materials in violation of any law, ordinance,
statute, role or insurance regulation.
21. If Tenant desires signal, communication, alarm or other utility
or similar service connections installed or changed, Tenant shall not install
or change the same without the approval of Landlord and then only under
direction of Landlord and at Tenant's expense. Tenant shall not install in
the Premises any equipment which requires a substantial amount of electrical
current without the advance written consent of the Landlord and Tenant shall
ascertain from the Landlord the maximum amount of load or demand for or use
of electrical current which can safely be permitted in the Premises, taking
into account the capacity of the electric wiring in the Building and the
Premises and the needs of other Tenants of the Building, and shall not in any
event connect a greater load than such safe capacity.
3
22. Service requirements of Tenant will be attended to only upon
application to Management Agent of the Building. Employees of Landlord shall
not perform any work or do anything outside of their regular duties unless
under special instruction from Landlord.
23. Landlord reserves the right to exclude or expel from the
Building any person who, in the judgment of Landlord is intoxicated or under
the influence of liquor or drags or who shall in any manner do any act in
violation of any of the rules and regulations of the building.
24. No vending machines of any description shall be installed,
maintained or operated in the Premises without the written consent of
Landlord.
25. Tenant shall not (i) install or operate any internal combustion
engine, boiler, machinery, refrigerating, heating or air-conditioning
apparatus in or about the Premises, (ii) carry on any mechanical business in
or about the Premises without the written permission of Landlord, (iii)
exhibit, sell or offer for sale, use, rent or exchange in the Premises or
Building any article, thing or service except those ordinarily embraced
within the permitted use of the Premises specified in this Lease, (iv) use
the Premises for housing, lodging or sleeping purposes, (v) permit
preparation or warming of food in the Premises or permit food to be brought
into the Premises for consumption therein (warming of coffee and individual
lunches of employees and invitees excepted) except by express permission of
Landlord, (vi) place any radio, television antennae, or microwave dish on the
roof or on or in any part of the inside or outside of the Building other than
the inside of the Premises, (vii) operate or permit to be operated any
musical or sound producing instrument or device inside or outside the
Premises which may be heard outside the Premises, (viii) use any illumination
or power for the operation of any equipment or device other than electricity,
(ix) operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or
reception from or in the Building or elsewhere, (x) bring or permit to be in
the Building any bicycle or other vehicle, or dog (except in the company of a
disabled person) or other animal or bird, (xi) make or permit any
objectionable noise or odor to emanate from the Premises, (xii) disturb,
solicit or canvas any occupant of the Building, (xiii) do anything in or
about the Premises tending to create or maintain a nuisance or do any act
tending to injure the reputation of the Building, or (xiv) throw or permit to
be thrown or dropped any article from any window or other opening in the
Building.
26. Tenant shall be responsible for the installation of the
hurricane shutters which shall have been supplied by Landlord pursuant to
applicable law, at such time or times when such installation may be required
by law or desired by Tenant. Landlord shall not be responsible for any loss
or damage to the Premises, due to Tenant's failure to install such shutters
when advised or required. Tenant shall be responsible for loss or damage to
the shutter equipment and for any loss or damage to the building which may be
occasioned by Xxxxxx's failure to install such shutters when needed to avoid
or mitigate such loss or damage.
27. From time to time Landlord reserves the right to amend and
modify these rules and regulations.
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OFFICE LEASE
WORKLETTER
Workletter B -Single Story Building
(Landlord contracts with Shell & Core General Contractor-open book)
This is the Workletter referred to in the foregoing lease (the "Lease") by
and between FLORCOR I LIMITED PARTNERSHIP ("Landlord"), and IMPROVENET, INC.
("Tenant") wherein Xxxxxx agrees to lease certain space from Landlord in the
Building located at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx. The
words "Premises," "Building," "Term," and other capitalized or defined terms
as used herein shall have the respective meanings assigned to them in the
Lease, except as otherwise provided or defined herein.
Landlord and Tenant agree as follows:
1. SHELL AND CORE WORK. Landlord has constructed or will construct
the shell and core of the Building as generally described in the Tenant
Information Manual set forth in Attachment B, and will at its sole cost and
expense complete any minor remaining work (collectively, the "Shell and Core
Work").
2. TENANT WORK. Landlord shall perform all work, other than the
Shell and Core Work, required to prepare the Premises for occupancy by Xxxxxx
(the "Tenant Work"). The Tenant Work shall be performed pursuant to the
Tenant Information Manual, Plans and Specifications prepared by Tenant and
approved by Landlord as hereinafter provided.
3. TENANT'S PLANS AND SPECIFICATIONS. Tenant will cause Xxxxxx's
Architect and the Consulting Engineers (as such terms are hereinafter
defined), who have been retained by Tenant at Tenant's expense, which
expense, as a soft cost component of the cost of the Tenant Work, will be
allocated against the Landlord's Contribution provided by Landlord as set
forth in Paragraph 4 hereof, to prepare architectural and engineering plans
and specifications for the Tenant Work (the "Plans and Specifications") and
submit the same, as approved by Tenant, to Landlord for Landlord's approval,
which shall not be unreasonably withheld or delayed. The Plans and
Specifications are required to include: (a) reflected ceiling plans; Co)
dimensioned partition and door location plans; (c) finish plans; (d)
furniture partition layout plans; (e) telephone and electrical plans noting
any special lighting and power load requirements; (f) environmental design
criteria and all security and communications information; (g) detail plans;
(h) mechanical, plumbing and fire protection plans; and (i) structural and
engineering drawings and calculations, and to be suitable in all respects for
bidding and construction.
As used herein, the term "Tenant's Architect" shall mean Xxxxxx X.
Xxxxx & Associates and the term "Consulting Engineers" shall mean Youngross &
Associates as Mechanical/Electrical/Plumbing (MEP) engineer. If Tenant shall
designate and Landlord shall approve an architect and/or MEP
engineer(s)/contractor(s) other than the base building architect and/or base
building MEP engineer(s)/contractor(s), Tenant .understands and agrees that
the cost of Landlord's review of the plans and specifications prepared by
such other architect MEP or engineer(s)/contractor(s) will be borne by
Xxxxxx. If the Tenant Work could in Landlord's reasonable opinion affect
Building systems or the Building structure, Landlord may engage other
1
engineers to review the plans and specifications, and the reasonable
out-of-pocket cost of such additional engineers shall also be borne by Tenant.
Landlord shall advise Tenant within ten (10) business days after
receipt of the Plans and Specifications in the form required by the first
grammatical paragraph of this Paragraph 3 of its approval or disapproval
thereof, and, if Landlord does not approve any of the Plans and
Specifications, of the changes required in the same so that they will meet
Xxxxxxxx's approval. If Landlord disapproves any of the Plans and
Specifications, Tenant shall deliver, or cause Tenant's Architect and/or the
Consulting Engineers to deliver to Landlord, revised Plans and Specifications
which respond to Landlord's requests for changes and are suitable for bidding
and construction. If the revised Plans and Specifications do not respond to
Landlord's requests for changes, Tenant shall make further changes as
requested by Landlord until the Plans and Specifications have been approved
by Landlord and are suitable for bidding and construction. Landlord shall
approve or disapprove in whole or in part all revised Plans and
Specifications received from Tenant within five (5) business days following
receipt thereof from Tenant. The revised Plans and Specifications, once they
have been approved or deemed approved by Landlord, are hereinafter referred
to as the "Final Plans."
Tenant agrees that Landlord shall not have unreasonably disapproved
the Plans and Specifications if the Tenant Work: (i) would not be consistent
with the similar nature or the architectural character of the Building; (ii)
includes floor to ceiling demountable partitions and all infrastructure
associated with such installation; (iii) includes indirect lighting attached
to movable, furniture partitions; (iv) includes significant areas of raised
computer flooring and underfloor, cabling, electrical distribution and
ductwork; (v) does not include the entire Premises; (vi) in Landlord's
reasonable judgment will adversely affect the structure of the Building, the
heating, air-conditioning and ventilating system or electrical, mechanical,
plumbing or other lines or systems in the Building or the Building circuitry;
(vii) in Landlord's reasonable judgment will materially increase Landlord's
costs of operating and maintaining the Building (it being understood that
Tenant shall pay all increases in the costs of operating or maintaining the
Building which results from the Tenant Work, whether or not material), and
that Landlord may require removal of any such Tenant Work (if Landlord shall
have designated such work as being subject to removal pursuant to the Lease)
after the expiration or other termination of the Term; (viii) would modify
the appearance of the Building; (ix) would adversely affect the safety of the
Building or the life-safety systems in the Building; or (x) would, in
Landlord's reasonable judgment, violate the terms of any applicable zoning or
building laws or ordinances or other governmental orders or requirements;
provided, however, that the foregoing are merely examples of reasons for
which Landlord may request changes and modifications to the terms of the
lease, Plans and Specifications or withhold its approval thereof and shall
not be deemed exclusive of any permitted reasons for reasonably withholding
consent, whether similar or dissimilar to the foregoing examples.
The Tenant Work including, but not limited to, floor to ceiling
demountable partitions and all infrastructure associated with such
installation, indirect lighting attached to movable, furniture partitions,
areas of raised computer flooring and underfloor; cabling, electrical
distribution and ductwork, in or upon the Premises, whether placed there by
Tenant or Landlord, shall, unless Landlord otherwise approves, become the
property of Landlord and shall remain upon the Premises without compensation,
allowance or credit to Tenant. If upon the request of
2
Landlord, Xxxxxx is allowed to remove said Tenant Work, Tenant shall pay the
expense of such removal to Landlord upon demand. In addition, Xxxxxx may
request in writing at the time it submits its plans and specifications to
Landlord, that Landlord notify Tenant whether on or before it approves such
plans as to whether or not it will require removal.
4. XXXXXXXX'S CONTRIBUTION. Landlord shall contribute the sum of up
to $25.00 per square foot of rentable area of the Premises ("Landlord's
Contribution"), toward the cost of the Tenant Work. Landlord desires that the
total of the hard costs component of the cost of the Tenant Work shall be
disbursed first and then the balance of the Landlord's Contribution applied
to first the soft costs component of the cost of the Tenant Work, next to
moving expenses.
Notwithstanding the foregoing, Tenant shall contribute an amount
equal to the cost of the Tenant Work in excess of the Landlord's Contribution
toward the cost of the Tenant Work ("Tenant's Contribution"). Tenant's
Contribution shall be paid to Landlord, or at Landlord's option to a title
insurance company or other escrowee selected by Landlord prior to the
commencement of the Tenant Work. As draws are made toward the cost of the
Tenant Work, the Landlord's Contribution and Xxxxxx's Contribution shall be
disbursed pro rata.
Tenant shall advise Landlord of the cost of that portion of the
Tenant Work that Tenant will contract directly. Landlord shall make payments
of Xxxxxxxx's Contribution on account of the cost of Tenant Work upon
compliance with the requirements of this Workletter, but not more often than
monthly. At such time as Landlord's Contribution (or such reduced amount
thereof as may be applicable based upon the provisions of the first whole
grammatical paragraph of this Paragraph 4) is exhausted, Tenant shall pay the
remaining costs of the Tenant Work.
The cost of the Tenant Work shall, if required by Xxxxxxxx's Lender,
be paid pursuant to the terms of an escrow agreement reasonably satisfactory
to Landlord, and satisfactory to Landlord's Lender and the Title Insurance
Company insuring the Building for the purpose of insuring over any and all
mechanic's lien claims, or rights thereto, in connection with the Tenant
Work. Landlord, Tenant and the Title Insurance Company and, if required,
Xxxxxx's Contractor(s) shall be parties to such escrow, the cost of which
escrow shall be divided evenly between Landlord and Tenant. Tenant shall
provide such contractors' affidavits, sworn statements, partial and final
waivers of lien, architect's certificates and any other documentation or
Tenant or contractor undertakings which may be reasonably requested by such
Title Insurance Company for the purpose of insuring over such mechanics' lien
claims or rights thereto.
As a condition to the payment by Landlord of any portion of
Landlord's Contribution toward the cost of the Tenant Work, Landlord shall
receive approval of its lender, a certification from the General Contractor
for the Tenant Work and Tenant's Architect that the portion of the Tenant
Work for which payment is being sought has in fact been completed in
accordance with the Final Plans and Specifications and Tenant shall join
therein as accepting such work, but such j6inder shall only bind and stop
Tenant from making any claim with respect to the work covered against
Landlord and is not intended and may not be construed as binding Tenant with
respect to any claim by or against any other party as a third party
beneficiary or otherwise. The escrow agreement, if required, shall provide
that no portion of Landlord's Contribution shall be paid unless and until the
title insurer, pursuant to the terms of the escrow, shall insure over any and
all mechanics' lien claims, or rights to assert same, as a result of the
construction of the Tenant
3
Work in the Premises pursuant to customary pending disbursement endorsements
and interim mechanics' lien certifications.
For purposes of the Workletter, the soft costs of the Tenant Work
shall include, and Landlord's Contribution may be utilized to pay for: (a)
fees and expenses of Tenant's Architect and the Consulting Engineers; Co)the
cost of permits; and (c) Tenant's portion of the cost of the construction
escrow established pursuant to this Workletter.
In addition, Xxxxxxxx's Contribution shall be applied as part of the
hard costs component of the Tenant Work to reimburse Landlord for the cost of
materials and labor for building standard venetian blinds at a cost of $0.35
per rentable square foot, which are Tenant's obligation. It is understood and
agreed that neither Landlord nor its designated agent shall have any
responsibility for the accuracy or completeness of the Plans and
Specifications or any design error therein or failure to comply with any laws
or codes or any costs attributable to any lack of adequacy of or any design
error in the Plans and Specifications.
5. CONSTRUCTION OF TENANT WORK. As used herein, the term "General
Contractor" shall mean MiDale construction, Inc.. In addition to the approved
subcontractors set forth in the Tenant Improvement Manual, Tenant may also
submit to Landlord a list of subcontractors which Tenant proposes for certain
other portions of the Tenant Work and Landlord shall have the right to
approve such subcontractors, which approval shall not be unreasonably
withheld or delayed. Without exception, the Landlord requires the Shell and
Core roofing Subcontractors to complete the Tenant Work. Landlord shall
notify Tenant within five (5) business days following submission of the name
or a proposed subcontractor of the approval or disapproval of such
subcontractor. All subcontractors for the Tenant Work shall be licensed
subcontractors of good reputation, have a demonstrated capability to perform
quality workmanship, have financial capacity to complete the work, be
experienced in performing work of the type contemplated in similar class
office buildings, be familiar with single story office building construction
of tenant improvements to the extent relevant, be capable of working in
harmony with other contractors in the Building, have good labor and minority
relations, utilize union labor where required by Landlord and be bondable
(even though bonds may not be required). Landlord shall not unreasonably
withhold its approval of subcontractors who meet the foregoing standards;
provided, however, that failure to meet the foregoing standards are merely
examples of reasons for which Landlord might reasonably withholding approval,
whether similar or dissimilar to the foregoing examples.
Following approval of the Final Plans, General Contractor shall
obtain three (3) bids from subcontractors to perform the Tenant Work, except
for those trades with a value of less than $5,000. Tenant acknowledges and
agrees that any review of the financial records for the Tenant Work must be
performed within thirty (30) days after the final payment of the hard cost
component of the Cost of the Tenant Work is made, after which the costs
reported shall be final and binding. Xxxxxxxx agrees upon completion of
obtaining such bids to submit to Tenant for approval a proposed project
budget. Tenant shall approve the proposed project budget within 5 business
days of submission of same to Tenant by Landlord.
Tenant shall deliver to Landlord, copies of all contracts proposed
to be executed by Tenant for certain portions of the Tenant Work, which shall
require the contractor to comply
4
with the requirements of this Paragraph 5 and the Tenant hnprovement Manual,
and to execute the escrow required pursuant to Paragraph 4 hereof. The
General Contractor shall obtain, all required building and other permits and
otherwise comply with all laws and governmental rules and regulations with
respect to or in any manner applicable to the Tenant Work and other
construction in the Premises at all times prior to, during and following said
work, the cost of which shall be a cost of the Tenant Work payable from the
Landlord's Contribution to the extent thereof.
Subject to all of the terms and conditions of this Workletter,
General Contractor shall commence the Tenant Work promptly upon tender of
possession of the Premises to Tenant and approval of the Final Plans by
Landlord and diligently proceed with the Tenant Work. Possession of the
Premises shall be deemed to have been tendered to Tenant upon Xxxxxxxx's
execution and delivery of the Lease and this Workletter to Tenant pursuant to
the date set forth in Paragraph 1 hereof for the completion of the shell and
core work.
Notwithstanding Tenant's right to separately contract for certain
portions of the Tenant Work, Tenant shall coordinate, and cause its
contractors to coordinate with Landlord and its designated agents in relation
to the scheduling of construction, the use of Building loading docks, the
delivery of materials and labor for the Premises and the elimination of
rubbish and construction debris. Tenant shall cause Xxxxxx's Architect to
furnish to Landlord from time to time such other information as Landlord
shall reasonably request in connection with the construction of the Tenant
Work. Landlord and Tenant shall in good faith coordinate their work in
accordance with good construction practices. Tenant acknowledges that Shell
and Core Work and work for other tenants of the Building may take place
concurrently with the construction and completion of the Tenant Work. Tenant
shall require all contractors and subcontractors performing work on behalf of
Tenant to provide protection against damage to the Building and work of other
tenants to an extent that is satisfactory to Landlord in the reasonable
exercise of its discretion. In any event, however, if such damage shall
occur, and shall have been caused by Tenant or its contractors or any of
their respective subcontractors, agents, employees or invitees, Tenant shall
promptly restore and repair, or cause its contractor to promptly restore and
repair, or cause its contractor to promptly restore and repair, such damage,
or Landlord or its contractor may, at Landlord's option, restore and repair
any such damage or permit any other tenant or its contractor to restore work
for such tenant which has been damaged, in each case at Xxxxxx's sole cost.
6. CHANGES IN THE TENANT WORK. Tenant shall deliver to Landlord for
approval, which shall not be unreasonably withheld, all changes in the Final
Plans as are made by Xxxxxx, Xxxxxx's Architect or the Consulting Engineers
from time to time and shall advise Landlord of any changes in the cost of the
Tenant Work or any amendments which increase the cost of the Tenant Work in
any respect. Tenant shall pay any amount required to cover the additional
cost of the Tenant Work resulting from such changes which exceeds the
available portion of Landlord's Contribution as provided in Paragraph 4 of
this Workletter. The reasonableness of disapproval of any such change shall
be judged according to the criteria set forth in Paragraph 3 hereof for the
Tenant Work initially provided for the Plans and Specifications, and Landlord
shall review and approve or disapprove any changes as soon as possible so as
to avoid any delay in construction of the Tenant Work but in any event within
the time periods with respect to its
5
approval or disapproval of any revision of the initial Plans and
Specifications as provided in Paragraph 3 hereof.
7. ACCESS BY TENANT. Landlord shall permit Tenant and Xxxxxx's
agents, supplier, contractors and workmen to take possession of and enter the
Premises, pursuant to the date set forth in Paragraph 1 hereof, upon
execution and delivery of the Lease by both Landlord and Tenant and
compliance with the requirements of this Workletter by Tenant, including,
without limitation, the insurance requirements. The permission herein granted
for the entry of Tenant and Xxxxxx's contractors into the Building is
conditioned upon Tenant and Tenant's agents, contractors, workmen, suppliers
and invitees working in harmony with and not interfering with Landlord's
contractors or their subcontractors or with contractors performing work in
the Building for other tenants, not interfering with any occupants of the
Building, complying with reasonable rules and regulations instituted by
Landlord for the protection and completion of the Shell and Core Work and of
such work for other tenants, and complying with the provisions of Paragraph 5
hereof. Landlord will use reasonable efforts to cause contractors performing
work for other tenants in the Building not to unreasonably interfere with
Xxxxxx's contractors, but shall in no event have any liability with respect
to any interference. If at any time such entry shall cause disharmony or
unreasonable interference with any of Landlord's employees, agents,
contractors, their subcontractors or others or if such disharmony or
interference shall, in Landlord's reasonable judgment, be imminently
threatened, Landlord shall have the right to withdraw such permission upon
not less than forty-eight (48) hours written notice; provided, however, that
such permission shall remain in effect if Tenant has cured the same (or such
interference or disharmony has ceased and Tenant has agreed and provided
assurances to Landlord as it shall have reasonably requested, that such
problem will not occur again) prior to the time of termination set forth in
such notice. Tenant agrees that any such entry into and occupation of the
Premises shall be deemed to be under all of the terms, covenants, conditions
and provisions of the Lease, except as to covenant to pay Base Rent and
Additional Rent, and further agrees that in connection therewith Landlord
shall not be liable in any way for any injury, loss or damage which may occur
to any property placed in the Premises, the same being strictly .at Tenant's
sole risk. Tenant shall allow Landlord access to the Premises, for inspection
purposes, at all reasonable times. Tenant shall cause its contractors, for
which it has contracted separately, prior to the commencement of any
construction work in the Building, to indemnify, defend and hold Landlord,
its designated agents, any of its beneficiaries, the partners thereof, its
management agent, mortgagees, and all of their respective partners,
shareholders, directors, officers, agents and employees harmless from all
damages, claims, liability, and costs (including, without limitation,
reasonable attorney's fees) and expenses arising out of or connected with the
activities of such contractor or any of its subcontractors or any of their
respective agents or employees, suppliers or workmen in or about the Premises
or the Building. Tenant shall (except to the extent of any indemnity
recovered pursuant to the preceding sentence) indemnify, defend and hold
Landlord, its designated agents, or any of its beneficiaries, the partners
thereof, its management agent, mortgagees, and all of their respective
partners, shareholders, directors, officers, agents and employees harmless
from all damages, claims, liability, and costs (including, without
limitation, reasonable attorney' fees) and expenses arising out of or
connected with the activities of Tenant or its agents, contractors, suppliers
or workmen in or about the Premises or the Building. In addition, prior to
the initial entry to the Building or the Premises by Tenant and by each
contractor or subcontractor for Tenant, Tenant shall furnish Landlord with
certificates of insurance covering Landlord, its designated agents, or any of
its beneficiaries and the partners
6
thereof, its management agent, mortgagees and such additional parties as
Landlord may reasonably designate as additional insured parties, with such
coverage's and in such amounts as Landlord may reasonably require in order to
insure Landlord, its designated agents, or any of its beneficiaries and the
partners thereof, its management agent, mortgagees and such additional
parties, and all of their respective agents and employees, against liability
for injury or death or damage to property of Landlord or its tenants or
others, by reason of such entry or any activity or work carried on, in, on or
about the Land, the Building or the Premises by or on behalf of Tenant.
8. SERVICES. The cost of the Tenant Work shall include (and Landlord
is hereby authorized to pay the same from the Landlord's Contribution to the
extent thereof), all materials or utilities which are supplied by Landlord or
its contractors in connection with the construction of the Tenant Work and at
Tenant's request; provided, however, that Landlord shall make available to
Tenant during the construction period electric power, use of loading dock and
dumpster space, all as described in the Tenant Information Manual. Charges
for any services will be determined on the basis of usage, whether metered or
estimated, and will not include any mark-up to Landlord or its agents as
described in the Tenant Information Manual.
9. INSURANCE. The provisions of the Lease shall apply to the
Builder's Risk coverage respecting the Tenant Work during the period of its
construction, prior to the commencement of the Term. Tenant shall furnish
Landlord from time to time such information as is necessary in order to
effectuate such coverage. Landlord may apply Landlord's Contribution, to the'
extent thereof, to the portion of the insurance premium allocable to the
Tenant Work, or, if Landlord's Contribution has been exhausted, may bill
Tenant for the amount thereof, in which case Tenant shall pay the amount
thereof to Landlord within thirty (30) days after Landlord's submission of an
invoice for the same.
10. MISCELLANEOUS. After completion of the Tenant Work any work or
alterations to the Premises desired by Tenant other than the Tenant Work
shall be subject to the provisions of the Lease.
Time is of the essence under this Workletter.
Any person signing this Workletter on behalf of Landlord or Tenant
warrants and represents he has authority to do so.
This Workletter shall not be deemed applicable to any additional
space added to the Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the Premises or in
the event of a renewal or extension of the original Term of the Lease,
whether by any options under the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement thereto. Landlord has no
agreement with Tenant and has no obligation to do any work with respect to
the Premises, except as expressly set forth in this Workletter.
With respect to any amounts owed by Tenant hereunder and not paid
when due (which shall bear interest as provided in the Lease in the case of
delinquent rents) or Tenant's failure to perform its obligations hereunder,
Landlord shall have all of the rights and remedies granted to
7
Landlord under the Lease for nonpayment of any amounts owed by Tenant
thereunder or failure by Tenant to perform its obligations thereunder, and
such nonpayment or other failure hereunder shall constitute a default by
Tenant under the Lease. Any amount owed hereunder to Tenant by Landlord and
not paid when due shall bear interest as provided in the Lease.
Xxxxxxxx is responsible for removal of all construction debris and
general clean-up. After Xxxxxx has moved into the Premises, Landlord will
clean the same in accordance with the Lease.
Attached hereto as Attachment A is the Floor Plan -Demising Plan for
the Premises as attached to the Lease.
The parties hereto hereby designate a representative who shall have
the power and authority to make any and all decisions on behalf of the
respective parties and designate another representative(s) on their behalf.
Unless a party is otherwise advised in writing by the other, their respective
representatives shall be as follows:
Landlord: Florcor I Limited Partnership
c/o The Alter Group, Ltd.
Five Concourse Parkway, Suite 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx XX
Tenant: ImproveNet, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
This instrument is executed by all the covenants and conditions to
be performed hereunder by, as aforesaid, and not individually, and no
personal liability shall be asserted or be enforceable against, the
beneficiaries thereof nor any of their respective partners, shareholders,
directors, officers, agents or employees by reason of any of the covenants,
statements, representations or warranties contained in this instrument. All
of the further exculpatory provisions of the Lease are incorporated here in
as if fully set forth herein and are fully applicable to this Workletter as
if fully set forth.
8
