EXHIBIT 10.1
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OFFICE BUILDING LEASE
BY AND BETWEEN
COLONNADE ASHLEY LLC,
A DELAWARE LIMITED LIABILITY COMPANY
AS LANDLORD
AND
VERTICENT, INC.,
A MASSACHUSETTS CORPORATION
AS TENANT
DATE: JUNE 1, 2003
Table of Contents
Page
1. DEFINED TERMS........................................................1
2. TERM.................................................................6
3. PURPOSE AND USE......................................................7
4. RENT.................................................................7
5. OPERATING EXPENSES...................................................7
6. TAXES...............................................................10
7. ASSIGNMENT OR SUBLETTING............................................10
8. INSURANCE...........................................................12
9. DEFAULT.............................................................14
10. ALTERATIONS.........................................................18
11. LIENS...............................................................19
12. ACCESS TO PREMISES..................................................20
13. LANDLORD LIEN.......................................................20
14. OFFICE CENTER AND COMMON AREAS......................................20
15. ENVIRONMENTAL LAWS..................................................21
16. DESTRUCTION.........................................................22
17. CONDEMNATION........................................................23
18. MAINTENANCE OF PREMISES.............................................25
19. ESTOPPEL CERTIFICATES...............................................25
20. SUBORDINATION.......................................................26
21. INDEMNIFICATION.....................................................27
22. ANTI-WAIVER.........................................................27
23. NO REPRESENTATIONS BY LANDLORD......................................27
24. SERVICES AND UTILITIES..............................................28
25. SECURITY DEPOSIT....................................................29
26. GOVERNMENTAL REGULATIONS............................................30
27. SIGNS...............................................................30
28. SURVIVAL; PRIOR LEASE...............................................31
29. BROKER..............................................................31
30. QUIET ENJOYMENT.....................................................31
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TABLE OF CONTENTS
(continued)
Page
31. END OF TERM.........................................................32
32. RECORDATION.........................................................33
33. LEASE NOT BINDING UNLESS EXECUTED...................................33
34. CONSTRUCTION OF LANGUAGE............................................33
35. INTERLINEATION......................................................33
36. ATTORNEYS' FEES.....................................................33
37. NOTICES.............................................................34
38. RADON GAS...........................................................35
39. RIGHTS OF SUCCESSORS AND ASSIGNS....................................35
40. SEVERABILITY........................................................35
41. JURY WAIVER; COUNTERCLAIMS..........................................35
42. INTEGRATION.........................................................36
43. AMENDMENT...........................................................36
44. TIME IS OF THE ESSENCE..............................................36
45. FORCE MAJEURE.......................................................36
46. GUARANTY............................................................36
47. TENANT'S REPRESENTATIONS............................................36
48. LANDLORD'S REPRESENTATION...........................................37
49. RELOCATION OF TENANT................................................37
50. HOLDOVER............................................................37
51. PARKING SPACES......................................................38
52. CONFIDENTIALITY.....................................................39
53. STORAGE SPACE.......................................................39
EXHIBIT "A" - LEGAL DESCRIPTION OF OFFICE CENTER
EXHIBIT "B" - SKETCH OF PREMISES
EXHIBIT "C" - COMMENCEMENT DATE AND SCHEDULE OF ANNUAL BASE RENT
EXHIBIT "D" - GUARANTY
EXHIBIT "E" - RULES AND REGULATIONS
EXHIBIT "F" - TENANT IMPROVEMENTS
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LEASE
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THIS LEASE is made and entered into as of the Date of this Lease, by
and between COLONNADE ASHLEY LLC, a Delaware limited liability company (the
"Landlord") and VERTICENT, INC., a Massachusetts corporation (the "Tenant").
W I T N E S S E T H :
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Subject to the terms and conditions hereinafter set forth, Landlord
leases to Tenant and Tenant hires from Landlord the Premises.
Landlord and Tenant covenant and agree:
DEFINED TERMS. The following terms, as used in this Lease, shall have
the following meanings in this Lease and all exhibits and riders to this Lease:
"ADA" shall mean the Americans with Disabilities Act of 1990
and all similar present or future laws, together with all regulations
promulgated pursuant thereto.
"Allocated Share" shall mean 2.39 percent, which is the sum
obtained by multiplying by 100 the quotient obtained by dividing (i) the
Rentable Area of the Premises by (ii) the total rentable area of the Office
Center. The parties acknowledge and agree that the total Rentable Area of the
Premises is as specified in the definition of Rentable Area of the Premises and
that the total rentable area of the Office Center is 512,851 square feet. If the
area of the Premises or the area of the Office Center are changed after the Date
of this Lease, the Allocated Share shall be adjusted by Landlord to reflect such
change.
"Alterations" shall mean any alteration, addition, or
improvement in or on or to the Premises of any kind or nature, including, but
not limited to, Tenant Improvements.
"Annual Base Rent" shall mean the amounts set forth in the
schedule attached as Exhibit "C" to this Lease and made a part of this Lease.
"Bankruptcy Code" shall mean the Bankruptcy Code of 1978, 11
U.S.C. Section 101 et seq., as amended from time to time.
"Base Year" shall mean calendar year 2003.
"Office Center" shall mean all of the land together with the
improvements thereon known as the 000 Xxxxx Xxxxxx Xxxxx and located at 000
Xxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, and more particularly described in the
legal description attached as Exhibit "A" to this Lease and made a part of this
Lease.
"Business Days" shall mean all days other than Saturdays,
Sundays, or Legal Holidays.
"Commencement Date" shall have the definition set forth in
Exhibit "C".
"Common Areas" shall have the definition set forth in Section
14.
"Communication" shall mean any notice, demand, request,
election, or other communication required or permitted to be given or made to or
by any party to this Lease or otherwise given or made under or pursuant to this
Lease (See Section 37).
"Date of Taking" shall have the definition set forth in
Subsection 17B.
"Date of this Lease" shall mean the date when the last one of
the Landlord and Tenant has signed this Lease.
"Effective Date" - Intentionally omitted.
"Environmental Laws" shall mean all applicable environmental
ordinances, rules, regulations, statutes, orders, and laws of all local, state,
or federal agencies or bodies with jurisdiction over the Premises or the
activities conducted on the Premises (See Section 15).
"Expenses" shall mean the total of all of the costs and
expenses incurred or borne by Landlord with respect to the operation and
maintenance of the Office Center and the services provided tenants in the Office
Center, including, but not limited to, the costs and expenses incurred for and
with respect to: Water and sewer; heating; air conditioning; ventilation;
cleaning, window washing (interior and exterior); elevators (if any); escalators
(if any); pest control; trash and garbage removal; protection and security, (if
any); Common Areas decorations; repairs, maintenance, and alteration of Common
Areas; association assessments, fees or dues, painting of non-tenant areas;
repairs, maintenance, replacements, and improvements which are appropriate for
the continued operation of the Office Center as a first class building; exterior
landscaping; fertilization and irrigation supply; parking area maintenance and
supply; property management fees (the property management fee existing as of the
Date of this Lease is 4% of gross rents and receipts for the Office Center, and
for the remainder of the Lease Term the management fee shall be comparable to
those customarily charged by owners and operators of comparable first-class
office buildings in the Tampa, Florida metropolitan area); a management office;
all utilities serving the Office Center and not separately billed to or
reimbursed by any tenant of the Office Center; music systems; depreciation on
machinery and equipment used in the maintenance of the Office Center; janitorial
services; painting of interior, exterior, and Common Areas; fire, extended
coverage, all risks, change in condition, sprinkler apparatus, plate glass,
rental guaranty or interruption, public liability and property damage, flood,
and any other additional insurance customarily carried by owners of comparable
buildings or required by any mortgagee of the Office Center; supplies;
reasonable operating reserves; service and maintenance contracts for the Office
Center; wages, salaries, disability benefits, pensions, profit sharing,
hospitalization, retirement plans, group insurance, and other benefits
respecting employees of the Landlord up to and including the building manager
(including a pro rata share only of such wages and benefits of employees who are
employed at more than one building; such pro rata share shall be determined by
Landlord and shall be based upon Landlord's estimate of the percentage of time
spent by such employees at the Office Center); legal, accounting, and
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administrative costs; expenses imposed on the Landlord pursuant to any law or to
any collective bargaining agreement with respect to such employees; workers'
compensation insurance; and payroll, social security, unemployment, and other
similar taxes with respect to such employees. Landlord may contract for the
performance of some or all of the management and maintenance functions generally
described in this subsection with such persons or entities as Landlord shall
deem appropriate, including persons or entities which are affiliated with
Landlord.
Expenses shall exclude, or have deducted from them, as the case may be
and as shall be appropriate:
Real estate taxes (although Tenant shall be
responsible for paying the Allocated Share of the increase in Real
Estate Taxes as described below);
Leasing commissions, rent concessions to tenants,
tenant improvements, and advertising expenses;
Executive's salaries above the grade of building
manager;
Expenditures for capital items, except (i) those
which, under generally accepted accounting principles, are expenses or
regarded as deferred expenses, (ii) capital expenditures required by
law, (iii) expenditures for materials, tools, supplies, and equipment
purchased by Landlord to enable Landlord to supply services which
Landlord would otherwise have obtained from a third party, in any of
which cases the cost of such capital improvements or expenditures shall
be included in Expenses for the year in which the costs are incurred
and subsequent years, amortized on a straight-line basis over the
estimated useful life of such item, but in no event more than ten (10)
years, with an interest factor equal to the Prime Rate in effect at the
time of Landlord's having incurred such expenditure, but in no event
greater than the Maximum Rate; and (iv) expenditures for capital
equipment or any other capital expenditure designed to result in
savings or reductions in Expenses, then the costs are to be included
within the definition of "Expenses" for the year in which the costs are
incurred and subsequent years on a basis reasonably determined by
Landlord to the extent that such items are amortized over such period
of time as reasonably can be estimated as the time in which such
savings or reductions in Expenses are expected to equal Landlord's cost
for such capital equipment or capital expenditure with an interest
factor equal to the Prime Rate but not in excess of the Maximum Rate.
If Landlord shall lease any such item of capital equipment designed to
result in savings or reductions in Expenses, then the Rent and other
costs paid pursuant to such leasing arrangement shall be included in
Expenses for the year in which they are incurred.
Painting, redecorating, or other work or service
which Landlord performs or provides for any tenant or prospective
tenant of the Office Center other than painting, redecorating, or other
work which is standard for the Office Center and performed for a tenant
subsequent to its initial occupancy;
Rent payable under any lease to which this Lease is
subject;
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Those costs incurred in negotiating or enforcing
leases against tenants, including attorneys' fees;
"Guarantor(s)" shall mean ASA International Ltd., a Delaware
corporation, and any other party who subsequently guaranties all or any part of
Tenant's obligations under this Lease (See Section 46).
"Landlord's Notice Address" shall mean:
IF TO LANDLORD: Xxxxxxx X. Xxxxxxx, Esq.
Colonnade Properties LLC
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
WITH COPY TO: Xx. Xxxxxxxx Xxxxxxx
Colonnade Properties LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxx. 0000
Xxxxx, Xxxxxxx 00000
WITH COPY TO: Xxxxxxx X. Xxxxxxxx, Esq.
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000
000 X. Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
"Landlord's Property" shall have the definition set forth in
Section 31.
"Lease Term" shall mean 67 calendar months after the
Commencement Date as set forth in Exhibit "C", as otherwise extended or sooner
terminated pursuant to the terms of this Lease (See Section 2).
"Leasing Broker" shall mean Xxxxxx Commercial Management
Company and CLW Realty Estate Services Group (See Section 29).
"Legal Holidays" shall mean days on which national banks are
closed for business in the city where the Office Center is located.
"Maximum Rate" shall mean the highest rate of interest
permitted to be charged by applicable law.
"Non-Monetary Default" shall have the definition set forth in
Subsection 9(a).
"Normal Business Hours" shall mean 8:00 a.m. to 6:00 p.m.
Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays, Legal Holidays
excluded.
"Parking Areas" shall mean the areas available for automobile
parking in connection with the Office Center as such areas may be designated by
Landlord from time to time (See Section 51).
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"Personal Property" shall have the definition set forth in
Section 13.
"Premises" shall mean Suite No. 2675 located on the 26th floor
of the Office Center. The Premises are depicted in the sketch attached as
Exhibit "B" to this Lease and made a part of this Lease. Except for the Premises
and the Storage Space (as defined hereinafter) no other space is demised by
intention or omission.
"Prime Rate" shall mean the per annum interest rate as
published in The Wall Street Journal from time to time as the "prime rate" or as
published in another publication selected by Landlord if The Wall Street Journal
is no longer published or if The Wall Street Journal no longer publishes the
"prime rate".
"Real Estate Taxes" shall mean the total of all of the taxes,
governmental charges, general assessments, special assessments, and any water,
sewer, or other assessments, levied, assessed, or imposed at any time by any
governmental authority with respect to any period during the Lease Term which
(i) are related to the ownership, operation, use, or maintenance of the Office
Center or any portion of the Office Center, any personal property owned by
Landlord with respect to the Office Center, or any alterations or improvements
to the Office Center, or (ii) may become a lien on the Office Center, any
personal property owned by Landlord with respect to the Office Center, or any
improvements to the Office Center or any portion of the Office Center; provided,
however, that the following taxes are excluded from Real Estate Taxes (unless
they are or shall become substitute taxes as herein below set forth): any
franchise, income, gross receipts, profits, or similar tax assessed on or with
respect to the income of Landlord, and any capital levy, estate, gift,
successive inheritance, transfer, or similar tax assessed by reason of any
inheritance, devise, gift, or transfer of any estate in the Office Center by
Landlord. If, due to a future change in the method of taxation or in the taxing
authority, or for any other reason, a franchise, income, transit, gross
receipts, profits, or other tax or governmental imposition, however designated,
shall be levied against Landlord in substitution in whole or in part for the
Real Estate Taxes, or in lieu of additions to or increases of said Real Estate
Taxes, then such franchise, income, transit, gross receipts, profits, or other
tax or governmental imposition shall be deemed to be included within the
definition of "Real Estate Taxes". As to special assessments which are payable
over a period of time extending beyond the Lease Term, only a pro rata portion
of such special assessments, covering the portion of the Lease Term which is
unexpired at the time of the imposition of such assessment shall be included in
"Real Estate Taxes". If, by law, any assessment may be paid in installments,
then, for the purposes of this Lease, (a) such assessment shall be deemed to
have been payable in the maximum number of installments permitted by law, and
(b) there shall be included in Real Estate Taxes, for each year in which such
installments may be paid, the installments of such assessments so becoming
payable during such year, together with any interest payable on such assessments
during such year. "Real Estate Taxes" shall also include all costs and expenses
incurred by Landlord in connection with any action by Landlord to contest the
amount of the assessment of the Office Center made with respect to Real Estate
Taxes, including attorneys' and appraisers' fees.
"Reletting Expenses" shall mean all costs and expenses
incurred by Landlord in connection with the reletting of the Premises following
a default by Tenant, including, without limitation, the expenses of obtaining
possession of the Premises, the costs of cleaning, renovation, repairs,
5
decoration, and alteration of the Premises for a new tenant or tenants, all
advertising and marketing expenses, all brokerage and legal fees, the costs of
protecting or caring for the Premises while vacant, the costs of removing and
storing any property located on the Premises, any increase in insurance premiums
caused by the vacancy of the Premises, and any other out-of-pocket expenses
incurred by Landlord including tenant inducements such as the cost of moving the
new tenant or tenants and the cost of assuming any portion of the existing
lease(s) of the new tenant(s) (See Subsection 9(c)(ii)).
"Rent" shall have the definition set forth in Subsection 4(b).
"Rentable Area of the Premises" shall mean 12,232 square feet.
This square footage amount constitutes a material part of the economic basis of
this Lease and the consideration to Landlord in entering into this Lease and
shall not be adjusted without the written consent of Landlord or Tenant.
"Security Deposit" shall mean $18,857.67 (See Section 25).
"Storage Space" shall mean approximately 728 square feet of
secure, air-conditioned storage space on the 26th floor of the Office Center
which is depicted in the sketch attached as Exhibit "B" to this Lease and made a
part of this Lease (See Section 53).
"Taking" shall have definition set forth in Subsection 17(a).
"Tenant Improvements" shall have the definition set forth in
the Tenant Improvements exhibit attached to this Lease.
"Tenant's Notice Address" shall mean Verticent, Inc., 400
North Ashley Plaza, 000 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000,
Attention: Xxxx Xxxxxxxx.
"Tenant's Property" shall have the definition set forth in
Section 31.
TERM.
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Tenant shall have and hold the Premises for the Lease Term.
The Lease Term shall commence on the Commencement Date.
Landlord and Tenant acknowledge and agree that Tenant is
currently occupying a portion of the Premises pursuant to the Prior Lease
(hereinafter defined). Therefore, Tenant shall commence payment of Rent due
under this Lease on the Commencement Date.
Tenant shall observe and perform all of its obligations under
this Lease from the Commencement Date. Under no circumstances, however, may
Tenant enter into possession of the portion of the Premises not currently
occupied by Tenant prior to the date upon which such portion of the Premises is
delivered to Tenant for the purpose of commencement of Tenant Improvements,
without the express written consent of Landlord and subject to any terms of such
consent.
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PURPOSE AND USE.
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Tenant shall use and occupy the Premises only for general
office purposes directly related to Tenant's present business. Tenant shall not
use or permit or suffer the use of the Premises for any other business or
purpose.
If the use of the Premises being made by Tenant on the
Commencement Date is not a use deemed a "place of public accommodation" under
the ADA, then, notwithstanding anything in this Lease to the contrary, no use of
the Premises during the Lease Term shall be made that would cause the Premises
to be deemed a "place of public accommodation" under the ADA.
RENT.
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Annual Base Rent. Tenant shall pay to Landlord in lawful
United States currency the Annual Base Rent. All Annual Base Rent shall be
payable in equal monthly installments, in advance, beginning on the Commencement
Date, and continuing on the first day of each and every calendar month
thereafter during the Lease Term. Should the Commencement Date fall on a day
other than the first day of the month, then Tenant shall pay Rent for the
fractional month commencing on the Commencement Date and ending on the last day
of the month in which the Commencement Date occurs on a per diem basis
(calculated on the basis of a thirty-day month), payable upon occupancy of the
Premises by Tenant. The Rent payment due under this Lease for any other
fractional month shall likewise be calculated and paid on such a per diem basis.
All Rent, Additional Rent, and other payments to Landlord under this Lease shall
be paid to Landlord, without demand, setoff, or deduction whatsoever, except as
specifically provided in this Lease, at Landlord's Notice Address, or at such
other place as Landlord shall designate in writing to Tenant. Tenant's
obligations to pay Rent and other amounts due under this Lease are covenants
independent of the Landlord's obligations under this Lease.
Additional Rent. All monetary obligations of Tenant to
Landlord under this Lease, of any type or nature, other than Annual Base Rent,
shall be denominated as Additional Rent. Landlord shall have the same rights and
remedies with respect to defaults in the payment of Additional Rent as set forth
in this Lease with respect to payment of Annual Base Rent. The term "Rent" when
used in this Lease shall be deemed to include Annual Base Rent and all forms of
Additional Rent.
OPERATING EXPENSES.
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Tenant shall pay to Landlord, as Additional Rent, its
Allocated Share of the increase in Expenses over the Base Year in accordance
with the terms and provisions of this section and its Allocated Share of the
increase of Real Estate Taxes over the Base Year in accordance with the terms
and provisions of this section.
Expense Payment:
Landlord shall reasonably estimate the increase in
Expenses over the Base Year which will be payable for each calendar
year during the Lease Term in advance and Tenant shall pay one-twelfth
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(1/12) of its share of such increase monthly in advance, together with
the payment of Annual Base Rent. After the end of each calendar year
and after receipt by Landlord of all necessary information and
computations, Landlord shall furnish Tenant a detailed statement of the
actual increase in Expenses over the Base Year for the year; and an
adjustment shall be made between Landlord and Tenant with payment to or
repayment by Landlord, as the case may require, to the end that
Landlord shall receive the entire amount actually owed by Tenant for
Expenses for its share of the increase for such year and Tenant shall
receive reimbursement for any overpayments. Any payment adjustment owed
by Tenant will be due forthwith. Any refund will be credited against
Tenant's monthly Rent obligations. Annual increases in Expenses
exclusive of taxes, insurance and utilities ("Controllable Expenses")
shall not exceed 6% (calculated on a cumulative basis) of the
Controllable Expenses for the prior year.
Tenant waives and releases any and all objections or
claims relating to Expenses for any calendar year unless, within ninety
(90) days after Landlord provides Tenant with the annual statement of
the actual Expenses for the calendar year, Tenant provides Landlord
with written notice that it seeks an audit of or disputes the accuracy
of the statement or its appropriateness, which notice shall specify the
particular respects in which the statement is allegedly inaccurate or
inappropriate. If Tenant shall dispute the statement then, pending the
resolution of such dispute, Tenant shall pay the Additional Rent to
Landlord in accordance with the disputed statement.
Tenant, at Tenant's expense, may audit Landlord's
records relating to the Expenses and the Allocated Share. Such audit
shall be performed during normal business hours at Landlord's
headquarters if Tenant provides the written notice from Tenant to
Landlord within the ninety (90) day period set forth in 5(b)(ii) and
conducts such audit no sooner than twenty (20) days and no later than
forty five (45) days after such notice. If any such audit reveals an
overcharge of Tenant with respect to Tenant's Expenses, such amounts
shall be immediately paid to Tenant by Landlord as a credit against
Rent. Such audit must be conducted by a "Big 4" accounting firm that
does not receive a contingency fee for such audit.
Real Estate Taxes: Landlord shall reasonably estimate the
increase in Real Estate Taxes over the Base Year which will be payable for each
calendar year during the Lease Term in advance, and Tenant shall pay one-twelfth
(1/12th) of its share of such increase monthly in advance, together with the
payment of Annual Base Rent. After the end of each calendar year and after
receipt by Landlord of all necessary information and computations, Landlord
shall Tenant with a statement of the actual increase in Real Estate Taxes for
the year over the Base Year and an adjustment shall be made between Landlord and
Tenant with payment to or repayment by Landlord, as the case may require, to the
end that Landlord shall receive the entire amount actually owed by Tenant for
its Allocated Share of the increase in the Real Estate Taxes for such year and
Tenant shall receive reimbursement for any overpayments. Any payment adjustment
owed by Tenant will be paid forthwith. Any refund will be credited against
Tenant's monthly Rent obligations. Landlord shall provide Tenant, upon request,
a copy of the Base Year xxxx(s) and any subsequent xxxx for Real Estate Taxes
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upon which the Allocated Share is calculated. The Allocated Share of Real Estate
Taxes payable by Tenant shall be based upon the maximum credit available for
early payment of such taxes.
In no event shall the Annual Base Rent under this
Lease be reduced by virtue of this section (except where a credit may
be due Tenant pursuant to this section).
If the Commencement Date is not January 1, then the
Additional Rent due under this section for the first year of the Lease
Term shall be a proportionate share of the Additional Rent for the
entire year, such proportionate share to be based upon the length of
time that the Lease Term will be in existence during such first year.
Upon the date of any expiration or termination of this Lease (except
termination because of Tenant's default), whether such date is the date
set forth in this Lease for the expiration of the Lease Term or any
prior or subsequent date, a proportionate share of the Expenses for the
year during which such expiration or termination occurs over the Base
Year and increase in Real Estate Taxes for the year during which such
expiration or termination occurs over the Base Year shall immediately
become due and payable by Tenant to Landlord, if not previously billed
and paid. Such proportionate share shall be based upon the number of
days that this Lease shall have been in existence during such year.
Notwithstanding any expiration or sooner termination of this Lease,
Landlord shall, as soon as reasonably practicable, compute the
Additional Rent due from Tenant, as aforesaid, which computations shall
either be based on that year's actual figures or be an estimate based
upon the most recent statements previously prepared by Landlord and
furnished to Tenant under this section. If an estimate is used, then
Landlord shall cause statements to be prepared on the basis of the
year's actual figures promptly after they are available, and within ten
(10) days after such statement or statements Landlord and Tenant shall
make appropriate adjustments of any estimated payments previously made.
Any delay or failure of Landlord in billing for any
Additional Rent under this section shall not constitute a waiver of or
in any way impair the continuing obligation of Tenant to pay such
Additional Rent. If any statement of Expenses should not be determined
on a timely basis, Tenant shall continue to make payments at the rate
in effect during the preceding period, and, promptly following such
final determination by Landlord, there shall be an appropriate
adjustment and payment by Tenant of all amounts on account of Expenses
which would have been made if such Expenses had been timely determined.
Similarly, if any statement of the increase in Real Estate Taxes over
the Base Year should not be determined on a timely basis, Tenant shall
continue to make payments at the rate in effect during the preceding
period, and promptly following such final determination by Landlord
there shall be an appropriate adjustment and payment by Tenant of all
amounts on account of the increase in Real Estate Taxes which would
have been made if the increase in Real Estate Taxes had been timely
determined. If any amount is owed Tenant pursuant to such final
determination, then Tenant shall deduct such amount from the Annual
Base Rent due hereunder for the month immediately following the month
in which such final determination is made, provided, however, that if
the Lease Term shall have expired in due course (and not because of a
default by Tenant) on the date when such final determination is made,
then Landlord shall promptly pay to Tenant all such amounts which are
then due and owing.
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(d) Utility Charges: Notwithstanding anything contained in
this section to the contrary, in lieu of including certain utility charges or
services in Expenses, Landlord may xxxx Tenant and Tenant shall pay for such
utilities or services in any one or a combination of the following manners: (i)
direct charges for services provided for the exclusive benefit of the Premises
which are subject to quantification; (ii) based on a formula which takes into
account the relative intensity or quantity of use of utilities or services by
Tenant and all other recipients of such utilities or services, as reasonably
determined by Landlord; or (iii) pro rata based upon the proportion that the
Rentable Area of the Premises bears to the total rentable area of the other
premises occupied by other tenants which use the Premises within the Office
Center which receive the applicable utilities or services. If Landlord includes
utilities in Expenses as provided herein, Landlord such utility charges shall be
at the rates charged by utility providers and Landlord shall have no right of
additional surcharge or profit thereon. In addition, Landlord may, in lieu of
including certain utility charges in Expenses, provide for direct delivery of
such utility services to Tenant by the utility providers. In such event, all
costs and expenses incurred in connection with provision of such utility
services directly to tenants, including all costs associated with the provision
of separate meters to the premises, shall be includable in Expenses or paid by
Tenant and the other tenants receiving such meters in amounts as reasonably
allocated by Landlord, and, after such direct provision of utility services has
been effected, the applicable utility charges for ongoing service shall not be
included in Expenses. Landlord and Tenant acknowledge and agree that the
Tenant's computer room shall be separately metered and Tenant shall pay the
entire utility charge relating to the computer room.
TAXES.
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Tenant shall pay monthly to Landlord, as Additional Rent, any
sales, use, or other tax (excluding State and/or Federal Income Tax) now or
hereafter imposed by the United States of America, the State in which the
Premises are located, or any political subdivision thereof, upon any form of
Rents due under this Lease, or in substitution for any such Rents,
notwithstanding the fact that the statute, ordinance, or enactment imposing the
same may endeavor to impose the tax on Landlord.
Tenant shall pay before delinquency all personal property
taxes and assessments and other taxes or charges which are levied or assessed on
Tenant's furniture, fixtures, trade fixtures, equipment, and other property
located in the Premises and on additions and improvements to the Premises
belonging to Tenant. In addition, Tenant shall pay any and all ad valorem
property taxes levied or assessed by any governmental authority against the
leasehold interest of Tenant in the Premises.
ASSIGNMENT OR SUBLETTING.
-------------------------
Neither Tenant nor Tenant's legal representatives or
successors in interest by operation of law or otherwise shall assign, mortgage,
or otherwise encumber this Lease or enter into a sublease or license agreement
with respect to all or any portion of the Premises or permit all or any portion
of the Premises to be used by others, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, Landlord's consent shall not be required
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in connection with (i) any transfer of equity interests in Tenant, or (ii) any
sublet or assignment to (1) any affiliated entity under common control with
Tenant, (2) the surviving entity resulting from a merger or consolidation of
Tenant, (3) the acquiror of substantially all of Tenant's assets. No subsequent
modification or amendment of any sublease or assignment may made without
Landlord's prior written consent.
In the event Landlord shall consent to the assignment or
sublease, then the Landlord shall have the right, upon five (5) days prior
written notice to Tenant, to require Tenant thereafter to pay to Landlord a sum
equal to fifty percent (50%) of (i) any Rent or other consideration paid to
Tenant by any assignee or sublessee which is in excess of the Rent, Expenses and
any other charges then being paid by Tenant to Landlord for the subleased space
or assigned space pursuant to the terms hereof, and (ii) any other profit or
gain realized by Tenant from any subletting or assignment after netting out
Tenant's cost of marketing the Premises, real estate commissions, any tenant
allowance that is actually utilized in the Premises or rental concession made by
Tenant to any assignee or sublessee. Nothing contained herein shall reduce the
amount payable to Landlord to a sum less than that which Landlord would
otherwise have received if the Premises had not been subleased or assigned. All
sums payable hereunder by Tenant shall be paid to Landlord as Additional Rent
immediately upon receipt thereof by Tenant.
Consent by Landlord to an assignment or subletting shall not
relieve Tenant from the obligation to obtain Landlord's written consent to any
further assignment or subletting. If Landlord consents to an assignment or
subletting, in no event shall any permitted assignee or subtenant assign or
encumber this Lease or its sublease, or further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space or any part thereof
to be used or occupied by others, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld, conditioned or
delayed.
If this Lease is nevertheless assigned or transferred, or the
Premises or any part thereof are sublet or occupied by anyone other than Tenant,
Landlord may, at its option, accept Rent directly from such assignee, subtenant,
transferee, or occupant and apply the net amount thereof to the Rent reserved in
this Lease, but no such assignment, subletting, occupancy, or acceptance of Rent
shall be deemed a waiver of the requirement for Landlord's consent set forth in
this section or constitute a novation or otherwise release Tenant from its
obligations under this Lease.
The joint and several liability of Tenant and any immediate
and remote successor in interest of Tenant (by assignment or otherwise), and the
due performance of the obligations of this Lease on Tenant's part to be
performed or observed, shall not in any way be discharged, released, or impaired
by any (i) agreement which modifies any of the rights or obligations of the
parties under this Lease, except for an agreement by Landlord expressly
releasing such liability (which may be provided by Landlord in Landlord's sole
discretion), (ii) stipulation which extends the time within which an obligation
under this Lease is to be performed, (iii) waiver of the performance of an
obligation required under this Lease, or (iv) failure to enforce any of the
obligations set forth in this Lease.
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If Landlord consents to any assignment or subletting, Tenant
shall pay all out-of-pocket costs and expenses reasonably incurred by Landlord
in connection with the assignment or sublease transaction, including Landlord's
attorneys' fees not to exceed $2,500.00 in each instance.
Landlord may assign or encumber its interest under this Lease.
If any portion of the Premises is sold, transferred, or leased, or if Landlord's
interest in any underlying lease of the Premises is transferred or sold,
Landlord shall be relieved of all future obligations and liabilities under this
Lease. In the event of such sale, transfer, or lease, subject to the assignment
and assumption of this Lease by such transferee, Landlord shall also be relieved
of all existing obligations and liabilities of Landlord under this Lease.
INSURANCE.
----------
Tenant shall, on or before the earlier of the Commencement
Date or the date on which Tenant first enters the Premises for any purpose, at
its sole cost and expense, obtain and keep in full force and effect at all times
thereafter the following insurance coverages with respect to the Premises:
Insurance against loss or liability in connection
with bodily injury, death, or property damage or destruction, occurring
on or about the Premises under one or more policies of commercial
general liability insurance. Each such policy shall specifically
include the Premises and all areas, including sidewalks and corridors,
adjoining or appurtenant to the Premises. The total insurance coverage
shall be in an initial amount, combined single limit, of not less than
$2,000,000.00, which coverage may be effected with umbrella coverage.
Each such policy must be in a form acceptable to the Landlord and shall
include the broad form comprehensive general liability endorsement or
equivalent and, in addition, shall provide at least the following
extensions or endorsements: (a) coverage for explosion, collapse, and
underground damage hazards, where applicable; (b) personal injury
coverage to include liability assumed under any contract; and (c) a
blanket additional insured extension or endorsement or equivalent
providing coverage for Landlord's mortgagee and management company as
their interest may appear with the insured and as specified by
Landlord.
Fire and lightning, extended coverage, sprinkler
damage, theft, vandalism and malicious mischief, all risks, and flood
insurance (if required by Landlord, or any mortgagee of the Office
Center, or any governmental authority) in an amount adequate to cover
80% of the replacement costs, without co-insurance, of Tenant's
Property.
Workers' compensation insurance in the maximum amount
permitted by the law of the State in which the Premises are located and
employer's liability coverage of $1,000,000.00 per occurrence and
covering all persons employed, directly or indirectly, in connection
with Tenant's business or Tenant Improvements or any future
Alterations.
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Extra expense insurance on an actual loss sustained
basis, but in all events in an amount sufficient to prevent Tenant from
being a co-insurer of any loss covered under the applicable policy or
policies.
Except for work to be performed by Landlord, before any
Alterations are undertaken by or on behalf of Tenant, Tenant shall obtain and
maintain, at its expense, or Tenant shall require any contractor performing work
on the Premises to obtain and maintain, at no expense to Landlord, in addition
to workers' compensation insurance as required by the State of Florida, all risk
builder's risk insurance in the amount of the replacement cost of the applicable
Alterations (or such other amount reasonably required by Landlord) and
commercial general liability insurance on an occurrence basis with a minimum
combined single limit of $2,000,000.00; such limit may be accomplished by means
of an umbrella policy and such other insurance that is required by Landlord. The
contractor's commercial general liability insurance shall cover claims arising
out of (i) the general contractor's operations, (ii) acts of independent
contractors, (iii) products/completed operations (with broad form property
damage), (iv) liability assumed under contract (on a broad form property damage
basis), (v) liability assumed under contract (on a broad form blanket basis),
(vi) explosion, collapse, and underground damage hazards, where applicable, and
(vii) owned/non-owned/hired vehicles.
All insurance policies shall be written with insurance
companies having a policyholder rating of at least "A" and a financial size
category of at least "Class V" as rated in the most recent edition of "Best's
Key Rating Guide" for insurance companies, and authorized to engage in the
business of insurance in the state in which the Premises are located. All
insurance policies shall name Landlord and Landlord's directors, officers,
partners, agents, employees, and managing agent as additional insureds and loss
payees as their interests may appear and shall provide that they may not be
terminated or modified in any way which would materially decrease the protection
afforded Landlord under this Lease without thirty (30) days' advance written
notice to Landlord. The minimum limits of insurance specified in this section
shall in no way limit or diminish Tenant's liability under this Lease. Tenant
shall furnish to Landlord, not less than fifteen (15) days prior to the date
such insurance is first required to be carried by Tenant, and thereafter at
least fifteen (15) days prior to the expiration of each such policy, true and
correct photocopies of all insurance policies required under this section,
together with any amendments and endorsements to such policies, certificates of
insurance, and such other evidence of coverages as Landlord may reasonably
request, and evidence of payment of all premiums and other expenses owed in
connection therewith. Upon Tenant's default in obtaining or delivering the
policy for any such insurance or Tenant's failure to pay the charges therefor,
Landlord may, at its option, on or after the tenth (10th) day after written
notice thereof is given to Tenant, procure or pay the charges for any such
policy or policies and the total cost and expense (including attorneys' fees)
thereof shall be immediately paid by Tenant to Landlord as Additional Rent upon
receipt of a xxxx therefor.
Landlord and Tenant each expressly, knowingly, and voluntarily
waives and releases any claims which it may have against the other or the
other's employees, agents, or contractors for damage to its properties and loss
of business (specifically including loss of Rent by Landlord and business
interruption by Tenant) as a result of the acts or omissions of the other party
or the other party's employees, agents, or contractors (specifically including
13
the negligence of either party or its employees, agents, or contractors and the
intentional misconduct of the employees, agents, or contractors of either
party), which claims are covered by the standard property insurance coverages
described in Subsection 8A. This waiver shall not apply to claims for damages of
less than the amount of any deductible under Landlord's property insurance
policies. Landlord and Tenant shall each, on or before the earlier of the
Commencement Date or the date on which Tenant first enters the Premises for any
purpose, at its sole cost and expense, obtain and keep in full force and effect
at all times thereafter a waiver of subrogation from its insurer with respect to
the property, Rent loss, and business interruption insurance maintained by it
with respect to the Office Center and the property located in the Office Center.
This subsection shall not apply to claims for personal injury or wrongful death.
Landlord shall maintain fire and extended coverage insurance
on the Office Center in an amount not less than eighty (80%) percent of the
replacement cost of the Office Center. In addition, Landlord shall maintain
commercial general liability insurance relating to the Office Center, the Common
Areas and appurtenances in an amount not less than $2,000,000.00, combined
single limit. In addition, Landlord may, at its option, maintain coverages in
excess of the minimum limits set forth in this subsection and additional
coverages as specified in the definition of Expenses. The total cost of all
insurance maintained by Landlord under this subsection shall be included in
Expenses. All insurance policies to be maintained by Landlord shall be written
with insurance companies having a policyholder rating of at least "A" and a
financial size category of at least "Class V" as rated in the most recent
edition of "Best's Key Rating Guide" for insurance companies, and authorized to
engage in the business of insurance in the state in which the Premises are
located. Upon request of Tenant, Landlord shall provide Tenant proof of such
insurance policies maintained by Landlord and included in Expenses.
DEFAULT.
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Events of Default. If (i) Tenant fails to pay Annual Base
Rent, any Additional Rent, or any other sums payable by it under this Lease
within ten (10) days after when due; or (ii) Tenant shall default in the
performance of any other covenant or agreement of this Lease or any rules and
regulations attached to this Lease or promulgated by Landlord pursuant to this
Lease (a "Non-Monetary Default"); or (iii) Tenant or any Guarantor or surety for
Tenant's obligations under this Lease shall become bankrupt or insolvent or make
a general assignment for the benefit of creditors or take the benefit of any
insolvency act, or if any debtor proceedings be taken by or against Tenant or
any such Guarantor or surety; or (iv) a receiver or trustee in bankruptcy be
appointed for the Tenant's property and such appointment be not vacated and set
aside within sixty (60) days from the date of such appointment; or (v) the
leasehold estate granted to Tenant by this Lease shall be taken on execution or
other process of law or equity in any action against Tenant; then Tenant shall
be in default under this Lease.
Grace Period. Notwithstanding anything contained in this Lease
to the contrary, Tenant shall have a period of ten (10) days after notice from
Landlord of a Non-Monetary Default in which to cure the default. In addition,
provided that Landlord or the Office Center is not otherwise jeopardized, this
grace period shall be extended if the default is of a nature that it cannot be
completely cured within the ten (10) day period solely as a result of
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non-financial circumstances outside of Tenant's control, provided that Tenant
has promptly commenced all appropriate actions to cure the default within the
ten (10) day period and such actions are thereafter diligently and continuously
pursued by Tenant in good faith. In no event, shall the grace period exceed
ninety (90) days. If the Non-Monetary Default is not cured prior to the
expiration of the grace period, as extended, then Landlord may pursue any or all
of its remedies.
Landlord's Remedies. In the event of a default by Tenant,
after the expiration of any applicable grace period, in addition to any and all
other remedies available to Landlord at law or in equity, Landlord may:
Terminate this Lease and any right of renewal and
retake possession of the Premises;
Enter the Premises and relet the same or any part of
the Premises in the name of Landlord, or otherwise, as Tenant's agent,
for a term shorter or longer than the balance of the Lease Term, and
may grant concessions or free Rent in connection therewith, thereby
terminating Tenant's right to possess the Premises, without terminating
Tenant's obligations to pay (a) the entire balance of all forms of
Annual Base Rent and Additional Rent for the remainder of the Lease
Term, plus (b) the Reletting Expenses, and (c) the unamortized balance
of any allowances granted to Tenant under this Lease and the
unamortized balance of the cost of any improvements to the Premises
made by Landlord pursuant to a Tenant Improvement exhibit to this
Lease. Landlord shall have no obligation to relet the Premises, and its
failure to do so, or failure to collect Rent on reletting, shall not
affect Tenant's liability under this Lease. Landlord shall not, in any
event, be required to pay Tenant any surplus of any sums received by
Landlord on a reletting of the Premises in excess of the Rent provided
in this Lease. Any entry or re-entry by Landlord, whether had or taken
under summary proceedings or otherwise, shall not absolve or discharge
Tenant from liability under this Lease. "Re-enter" and "re-entry" as
used in this Lease are not restricted to their technical legal meaning.
No such re-entry or taking possession of the Premises by Landlord shall
be construed as an election on Landlord's part to terminate this Lease
or to accept a surrender of the Premises unless a written notice of
such intention is given to Tenant. Notwithstanding any such re-letting
without termination, Landlord may at all times thereafter elect to
terminate this Lease for such previous default;
Stand by and do nothing, and hold Tenant liable for
all Annual Base Rent and Additional Rent payable under this Lease
through the remainder of the Lease Term;
Institute a distress for Rent action and obtain a
distress writ pursuant to Sections 83.11 through 83.19, Florida
Statutes (2002). Tenant expressly, knowingly, and voluntarily waives
all constitutional, statutory, or common law bonding requirements,
including the requirement under Section 83.12, Florida Statutes (2002),
that Landlord file a bond payable to Tenant in at least double the sum
demanded by Landlord (or double the value of the property sought to be
distrained), it being the intention of the parties that no bond shall
be required to be filed by Landlord in any such distress action. Tenant
15
further waives the right under Section 83.14, Florida Statutes (2002)
to replevy distrained property;
Obtain injunctive and declaratory relief, temporary
or permanent, or both, against Tenant or any acts, conduct, or
omissions of Tenant, and further to obtain specific performance of any
term, covenant, or condition of this Lease; and
After regaining possession of the Premises, remove
all or any part of Tenant's property from the Premises and any property
removed may be stored at the cost of, and for the account of, Tenant,
and Landlord shall not be responsible for the care or safekeeping of
such property whether in transport, storage, or otherwise, and Tenant
waives any and all claims against Landlord for loss, destruction,
damage, or injury which may be occasioned by any of the aforesaid acts.
Landlord may retain possession of such property until all storage
charges and all other amounts owed by Tenant to Landlord under this
Default section have been paid in full. Nothing set forth in this
subsection shall limit Landlord's rights to enforce any statutory lien
in favor of Landlord against any such property of Tenant.
Acceleration. If Landlord exercises the remedies provided in
Subsections (ii), (iii), or (iv) above, Landlord may declare the entire balance
of all forms of Rent due under this Lease for the remainder of the Lease Term to
be forthwith due and payable and may collect the then present value of such
Rents (calculated using a discount equal to the yield then obtainable from the
United States Treasury Xxxx or Note with a maturity date closest to the date of
expiration of the Lease Term) by distress or otherwise. The accelerated
Additional Rent for Expenses shall be calculated by multiplying the highest
Additional Rent amount for Expenses payable by Tenant in any calendar year times
the number of calendar years (including any fractional calendar year) remaining
in the Lease Term following the date of default. If Landlord exercises the
remedy provided in Subsection (ii) above and collects from Tenant all forms of
Rent owed for the remainder of the Lease Term, Landlord shall account to Tenant,
at the date of the expiration of the Lease Term, for amounts actually collected
by Landlord as a result of a reletting, net of the Tenant's obligations pursuant
to Subsections 9C(ii). Landlord agrees to use its reasonable efforts to mitigate
its damages.
Should Tenant default in the observance or performance of any
term or covenant on Tenant's part to be observed or performed pursuant to this
Lease, Landlord may perform the obligations of Tenant, and if Landlord, in
connection therewith, makes any expenditures or incurs any obligation for the
payment of money, including, but not limited to, reasonable attorneys' fees,
such sums so paid or obligations incurred shall be deemed to be Additional Rent
under this Lease and shall be paid by Tenant to Landlord within five (5) days of
rendition of a xxxx or statement to Tenant therefor. If the Lease Term shall
have expired at the time of the making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Landlord as damages. This section
shall survive the expiration or sooner termination of this Lease.
Jurisdiction and Venue. Tenant consents that any legal action
or proceeding arising out of or in any way connected with this Lease may be
instituted or brought by Landlord or its agents in any court (federal or state)
16
located in Hillsborough County, Florida, and submits to the jurisdiction of such
court in any such legal action or proceeding. In addition, Tenant waives any
objection which Tenant may now or hereafter have to the laying of venue of any
action or proceeding in such courts, and further waives the right to plead or
claim that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
Remedies Cumulative. The remedies provided in this Lease or
presently or hereafter existing at law or in equity shall be cumulative and
concurrent, and may be exercised as often as occasion therefor shall occur. No
single or partial exercise by Landlord of any remedy shall preclude any other or
further exercise of such remedy or of any other remedy.
Multiple Defaults. Tenant acknowledges that any rights or
options of first refusal, or to extend the Lease Term, to expand the size of the
Premises, to purchase the Premises or the Office Center, or other such or
similar rights or options which have been granted to Tenant under this Lease are
conditioned upon the prompt and diligent performance of the terms of this Lease
by Tenant. Accordingly, should Tenant default under this Lease beyond any
applicable grace period on three (3) or more occasions during any twelve (12)
month period, in addition to all other remedies available to Landlord, all such
rights and options shall automatically, and without further action on the part
of any party, expire and be deemed canceled and of no further force and effect.
Late Charges. If any payment due Landlord under this Lease
shall not be paid within five (5) days of the date when due, Tenant shall pay,
in addition to the payment then due, an administrative charge equal to the
greater of (i) five (5%) percent of the past due payment; and (ii) Two Hundred
Fifty ($250.00) Dollars.
Interest. All overdue installments of Annual Base Rent and
Additional Rent shall bear interest at the lesser of: (i) the Prime Rate in
effect as of the date when the installment was due, plus 500 basis points, or
(ii) the Maximum Rate, accruing from the date the obligation arose through the
date payment is actually received by Landlord. Interest shall not be payable on
late charges incurred by Tenant nor on any amounts upon which late charges are
paid by Tenant.
Landlord Default. Landlord shall be in default under this
Lease if Landlord has not commenced and pursued with reasonable diligence the
cure of any failure of Landlord to meet its obligations under this Lease within
thirty (30) days of the receipt by Landlord of written notice from Tenant of the
alleged failure to perform unless such cure cannot be accomplished within thirty
(30) days and in that event Landlord shall have such time that is reasonable
under the circumstances to cure such default. If the alleged default is
Landlord's failure to (i) maintain, repair, replace, alter, add to or improve
Office Center structure or systems as required by this Lease, and if the Notice
from Tenant was labeled "CONFIDENTIAL/URGENT" on the envelope containing the
notice and alerted Landlord to the possibility of self-help by Tenant pursuant
to this Section, then Tenant may have an engineering structure or system survey
conducted with respect to the Office Center by a qualified engineer selected by
Tenant and subject to Landlord's approval (not to be unreasonably withheld,
conditioned or delayed) for the purpose of establishing (i) whether or not
Landlord is in default with respect to the performance specifications or other
requirements of this Lease, (ii) if Landlord is in default, the estimated cost
of performance of the defaulted obligation to comply with this Lease, and (iii)
17
the method by which the default, if any, should be cured. If the survey
establishes that Landlord is in default, then Tenant shall have the right to
offset the cost of the survey from Tenant's Annual Base Rent. If after the
survey is completed Landlord fails to commence the prompt and diligent cure of
the default of its obligation, then Tenant shall have the option -- but
commencing no sooner than twenty (20) days after another written notice and
demand by Tenant to Landlord, which must also be labeled "CONFIDENTIAL/URGENT"
on the envelope and must be delivered to Landlord no earlier than the completion
and delivery of the survey -- to perform the defaulted obligation in the manner
prescribed in the survey and offset the cost thereof against the next
installment(s) of Annual Base Rent. Except as otherwise provided in this Lease,
in the event of a default by Landlord, Tenant shall be entitled to any remedies
available at law or in equity except for the right to terminate or rescind the
Lease. It is expressly understood and agreed to between the parties that except
as specifically provided in this Lease, Tenant expressly, knowingly, and
voluntarily waives any right, claim, or remedy otherwise available to Tenant to
terminate or rescind this Lease as a result of Landlord's default as to any
covenant or agreement contained in this Lease or as a result of the breach of
any promise or inducement allegedly made on behalf of Landlord, whether in this
Lease or elsewhere. No act or omission of Landlord or its agents shall
constitute an actual or constructive eviction of Tenant unless Landlord shall
have first received written notice of Tenant's claim and shall have failed to
cure it after having been afforded a reasonable time to do so, which in no event
shall be less than thirty (30) days. Notwithstanding anything in this Lease to
the contrary, Landlord shall never be liable to Tenant in the event of a default
by Landlord or otherwise under any provision of this Lease for any loss of
business or profits or other consequential damages or for punitive or special
damages of any kind. None of Landlord's officers, members, managers, employees,
agents, directors, shareholders, or partners shall ever have any personal
liability to Tenant under or in connection with this Lease. Tenant shall look
solely to Landlord's estate and interest in the Office Center for the
satisfaction of any right or remedy of Tenant under this Lease, or for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord, it being intended that there will be absolutely no personal
liability on the part of Landlord, and no other property or assets of Landlord
or its principals shall be subject to levy, execution, or other enforcement
procedure for the satisfaction of Tenant's rights or remedies under this Lease,
the relationship of Landlord and Tenant under this Lease, Tenant's use and
occupancy of the Premises, or any other liability of Landlord to Tenant of
whatever kind or nature, this exculpation of liability to be absolute and
without exception whatsoever.
ALTERATIONS. Landlord agrees that Tenant may, at its own expense from
time to time during the term hereof make alterations, additions and changes in
and to the interior of the Premises (except those of structural nature) as it
may find necessary or convenient for its purposes, provided that the value of
the Premises is not thereby diminished and provided that Tenant shall use only
those entities which are on Landlord's current list of approved contractors and
subcontractors. Notwithstanding any provision to the contrary, no alterations,
additions or changes costing in excess of Ten Thousand Dollars ($10,000.00) may
be made without first procuring the approval in writing of Landlord, which
approval shall not be unreasonably withheld. In addition, no alterations,
additions or changes shall be made to the exterior walls or roof of the Premises
and the electrical, plumbing and HVAC systems servicing the Premises, nor shall
Tenant erect any mezzanine or increase the size of any mezzanine, if one shall
18
be initially constructed without the prior written approval of Landlord. In no
event shall Tenant make or cause to be made any penetration through the roof of
the Premises or Office Center. Tenant shall be directly responsible for any and
all damages resulting from any violation of the provisions of this Section. All
alterations, additions, improvements or changes to be made to the Premises which
require the approval of Landlord shall be under the supervision of a competent
architect or competent licensed structural engineer and made in accordance with
plans and specifications with respect thereto, approved in writing by Landlord
before the commencement of any work. In addition to the approval of the plans
and specifications as herein described, Tenant shall further submit the names of
all contractors, subcontractors and other entities utilized to make alterations
of the Premises for Landlord's approval prior to commencement of any work. All
work done with respect to alterations, additions and changes must be done in a
good and workmanlike manner and diligently prosecuted. Any such changes,
alterations and improvements shall be performed and done strictly in accordance
with the laws and ordinances related thereto, and shall comply with the ADA. In
performing the work of any such alterations, additions or changes, Tenant shall
have the work performed in a manner that will not obstruct the access to the
premises of any other tenant in the Office Center. Tenant may remove any
alterations, improvements and changes made by Tenant pursuant to this Section
upon the termination of this Lease provided Tenant repairs any damage caused by
such removal. All improvements not removed by Tenant prior to the expiration or
early termination of this Lease shall become a part of the Premises.
LIENS. The interest of Landlord in the Premises shall not be subject in
any way to any liens, including construction liens, for improvements to or other
work performed with respect to the Premises by or on behalf of Tenant. Tenant
shall have no power or authority to create any lien or permit any lien to attach
to the present estate, reversion, or other estate of Landlord (or the interest
of any ground lessor) in the Premises or in the Office Center and all mechanics,
materialmen, contractors, artisans, and other parties contracting with Tenant or
its representatives or privies with respect to the Premises or any part of the
Premises are hereby charged with notice that they must look to the Tenant to
secure payment of any xxxx for work done or material furnished or for any other
purpose during the Lease Term. The foregoing provisions are made with express
reference to Section 713.10, Florida Statutes (2002). Notwithstanding the
foregoing provisions, Tenant, at its expense, shall cause any lien filed against
the Premises or the Office Center for work or materials claimed to have been
furnished to Tenant to be discharged of record or properly transferred to a bond
pursuant to Section 713.24, Florida Statutes (2002), within ten (10) days after
notice thereof to Tenant. Further, Tenant agrees to indemnify, defend, and save
Landlord harmless from and against any damage or loss, including reasonable
attorneys' fees, incurred by Landlord as a result of any such lien. Tenant shall
notify every contractor making improvements to the Premises that the interest of
the Landlord in the Premises shall not be subject to liens for improvements to
or other work performed with respect to the Premises by or on behalf of Tenant.
Tenant shall execute, acknowledge, and deliver without charge a short form of
lease or notice in recordable form containing a confirmation that the interest
of Landlord in the Premises and the Office Center shall not be subject to liens
for improvements or other work performed with respect to the Premises by or on
behalf of Tenant. If such a short form of lease or notice is executed, it shall
expressly provide that it shall be of no further force or effect after the last
day of the Lease Term or on the filing by Landlord of an affidavit that the
19
Lease Term has expired or the Lease has been terminated or that the Tenant's
right to possession of the Premises has been terminated.
ACCESS TO PREMISES.
-------------------
Landlord reserves the right to install, use, maintain, and
repair pipes, ducts, and conduits in and through the Premises. Landlord and
persons authorized by Landlord may enter the Premises at any time without notice
to Tenant in the event of an emergency involving possible injury to property or
persons in or around the Premises or the Office Center or to provide routine
janitorial services. Landlord and persons authorized by Landlord shall also have
the right to enter the Premises at all reasonable times and upon reasonable
advance oral or written notice for the purposes of making repairs, replacements,
and improvements which may be Landlord's obligation under this Lease or which
Landlord deems necessary for the safety, protection, or preservation of the
Office Center or when such entry will facilitate repairs, alterations, or
additions to the Office Center or any tenant's premises. If reasonably necessary
in emergency circumstances for the protection and safety of Tenant and its
agents and employees, Landlord may temporarily close the Premises to perform
repairs, alterations, or additions to the Office Center, provided that Landlord
shall use best efforts to notify Tenant in advance of such closure and to
perform all such work after Normal Business Hours. If any such closure shall
exceed forty-eight (48) hours, rent shall xxxxx one (1) day for each day of
closure commencing after the forty-eight (48) hour period.
Landlord may exhibit the Premises to prospective purchasers or
mortgagees of Landlord's interest in the Premises at reasonable times during
Normal Business Hours after reasonable advance oral or written notice. During
the last twelve (12) months of the Lease Term, Landlord or its agents may
exhibit the Premises to prospective tenants at reasonable times during Normal
Business Hours.
LANDLORD LIEN. Landlord shall be entitled to any and all rights it may
have to a statutory landlord's lien on Tenant's personal property, including
without limitation, Tenant's inventory, trade fixtures, and removable equipment
and fixtures located within the Premises. Notwithstanding the foregoing,
Landlord's lien shall be subordinate to the lien of any lender holding a
mortgage or security interest in Tenant's personal property pursuant to any
financing agreements and Landlord shall execute, upon the request of Tenant and
at Tenant's expense including reasonable attorneys' fees, confirmation of such
subordination in form reasonably satisfactory to such lender and Landlord.
OFFICE CENTER AND COMMON AREAS.
------------------------------
Landlord shall make available within the Office Center such
areas and facilities (the "Common Areas") including, but not limited to, a
lobby, delivery facilities, walkways, common corridors, landscaped and planted
areas, elevators, stairways, and public restrooms, as Landlord shall deem
appropriate. Landlord shall operate, manage, equip, light, repair, maintain and
insure (as set forth in this Lease) the Common Areas for their intended purposes
and for such purposes may incur expenses as Landlord shall in its sole
discretion deem appropriate, all of which expenses shall be included within the
definition of Expenses. Landlord may, at any time and from time to time, without
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the same constituting an actual or constructive eviction, and without otherwise
incurring any liability to Tenant, increase, reduce, or change the number, type,
size, location, elevation, nature, and use of any of the Common Areas, make
improvements, alterations, or additions to the Office Center, remove or change
the arrangement and/or location of entrances or passageways, corridors,
elevators, stairs, public restrooms, or other public parts of the Office Center,
and change the name or number by which the Office Center is known: provided,
however Landlord shall maintain such Common Areas in accordance with applicable
laws and codes and shall maintain at least one (1) women's and one (1) men's
public restroom on the floor of the Office Center on which the Premises is
located. Landlord may also temporarily close the Common Areas to make repairs.
As long as Tenant is entitled to possession of the Premises,
Tenant shall have a non-exclusive right, in common with Landlord, the other
tenants of the Office Center, and all others to whom Landlord has granted or may
hereafter grant rights, to use the Common Areas (including using the Common
Areas for access to the Premises), subject to the terms of this Lease and such
rules and regulations as Landlord may from time to time impose. The Common Areas
shall at all times be subject to the exclusive control and management of
Landlord. Landlord may grant third parties specific rights with respect to
portions of the Common Areas and any such grant shall not be deemed an
infringement on any rights granted to Tenant pursuant to this Lease or
otherwise.
This Lease does not create, nor will Tenant have any express
or implied easement for, or other rights to, air, light, or view over, from, or
about the Office Center.
Tenant shall conform to the Rules and Regulations attached as
an exhibit to this Lease and all other rules and regulations promulgated by
Landlord regarding the use of the Office Center of which Tenant is given written
notice. No failure of Landlord to enforce such rules and regulations against any
other tenant shall be deemed a default by Landlord under this Lease, or excuse
compliance with the rules and regulations by Tenant.
ENVIRONMENTAL LAWS.
------------------
Tenant represents and warrants to Landlord that Tenant's use
of, and activities on, the Premises shall be conducted in compliance with all
Environmental Laws. In the event any of Tenant's activities require the use of
"hazardous" or "toxic" substances or materials, as such terms are defined by any
of the Environmental Laws, then Tenant represents and warrants to Landlord that
Tenant has received all permits and approvals required under the Environmental
Laws with respect to such toxic or hazardous substances. Tenant covenants and
agrees to maintain the Premises in a "clean" condition during the Lease Term, as
extended or renewed. As used in this section, the term "clean" shall mean that
the Premises are in complete compliance with the standards set forth under the
Environmental Laws and any standards set forth in this Lease. Notwithstanding
anything contained herein, Tenant shall not be liable to clean up or remediate
any environmental condition or contamination except contamination caused by
Tenant, its employees, contractors, agents, invitees and guests.
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In the event Tenant breaches any of its representations,
warranties, or covenants and agreements contained in this section or fails to
notify Landlord of the release of any hazardous or toxic substances from the
Premises, then such breach or failure to notify shall be deemed a material
default under this Lease and Landlord shall have all rights and remedies
available to it, including, but not limited to, the right to terminate this
Lease and the right to initiate a clean-up of the Premises, in which case
Landlord shall be immediately reimbursed by Tenant for, and indemnified by
Tenant from, any and all costs, expenses, losses, and liabilities incurred in
connection with such clean-up (including all reasonable attorneys' fees) by
Landlord. In the alternative, Landlord may require Tenant to clean-up the
Premises and to fully indemnify and hold Landlord harmless from any and all
losses, liabilities, expenses (including but not limited to reasonable
attorneys' fees), and costs incurred by Landlord in connection with Tenant's
clean-up action. Notwithstanding anything herein, Tenant agrees to pay, and
shall indemnify Landlord from and against, any and all losses, claims,
liabilities, costs, and expenses (including but not limited to reasonable
attorneys' fees) incurred by Landlord as a result of any breach by Tenant of
this section, and as a result of any contamination of the Premises due to
Tenant's use of hazardous or toxic substances on the Premises. Tenant's
indemnity hereunder shall not apply to any matter caused by Landlord, its
tenants and subtenants (other than Tenant) or their respective employees,
contractors or agents.
If Tenant's operations require the ongoing use of hazardous or
toxic substances, then Tenant shall supply Landlord with copies of reports and
any other monitoring information required by the Environmental Laws, and any
failure by Tenant to do so shall be, at Landlord's option, a default under this
Lease. As used in this section, "Premises" shall mean and refer to the property
which is the subject of this Lease as well as any portion of the Office Center
owned by Landlord which may be damaged or contaminated by the release of any
toxic or hazardous substance.
Notwithstanding anything herein, Landlord agrees to pay, and
shall indemnify Tenant from and against, any and all losses, claims,
liabilities, costs, and expenses (including but not limited to reasonable
attorneys' fees) incurred by Tenant as a result of any contamination of the
Premises or the Office Center caused by Landlord or its employees, contractors
or agents.
This section shall survive the expiration or sooner
termination of this Lease.
DESTRUCTION.
------------
If (i) the Office Center shall be so damaged that substantial
alteration or reconstruction of the Office Center shall, in Landlord's
reasonable opinion, be required (whether or not the Premises shall have been
damaged by such casualty); or (ii) any mortgagee of the Office Center should
require that the insurance proceeds payable as a result of a casualty be applied
to the payment of the mortgage debt; or (iii) there is any material uninsured
loss to the Office Center; or (iv) the Premises shall be partially damaged by
casualty during the last two (2) years of the Lease Term, and the estimated cost
of repair exceeds ten (10%) percent of the Annual Base Rent then remaining to be
paid by Tenant for the balance of the Lease Term; Landlord may, within ninety
(90) days after such casualty, give written notice to Tenant of Landlord's
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election to cancel and terminate this Lease, and the balance of the Lease Term
shall automatically expire on the fifth (5th) day after such notice is
delivered.
If (i) Landlord does not have the right to terminate this
Lease pursuant to Subsection (a), or (ii) Landlord has the right to terminate
and does not elect to do so, or (iii) the Premises shall be partially or
completely damaged by casualty at any time during the Lease Term and Landlord
does not terminate this Lease under Subsection (a), Landlord shall promptly
commence and proceed with reasonable diligence to restore the Office Center and
the Premises (including the initial Tenant Improvements) (provided that Landlord
shall not be required to restore any unleased premises in the Office Center)
within two years of Landlord's commencement of such restoration to substantially
the same condition they were in immediately prior to the happening of the
casualty. When repairs to the Premises which are Landlord's obligation pursuant
to this section, if any, have been completed by Landlord, Tenant shall complete
the restoration or replacement of the Premises and all of Tenant's Property
necessary to permit Tenant's re-occupancy of the Premises, and Tenant shall
present Landlord with evidence satisfactory to Landlord of Tenant's ability to
pay such cost prior, and as a condition, to Landlord's commencement of repair
and restoration of any portion of the Premises.
Notwithstanding Subsections (a) and (b), (i) Landlord shall
have no duty to restore, rebuild, or replace any Alterations (except the initial
Tenant Improvements) or Tenant's Property; and (ii) Landlord's obligations to
repair, rebuild, or restore the Office Center or the Premises shall exist only
to the extent that insurance proceeds are available to Landlord in connection
with the casualty which gave rise to Landlord's obligation to repair, rebuild,
or restore.
Rent shall xxxxx in proportion to the portion of the Premises
not useable by Tenant as a result of any casualty, as of the date on which the
Premises becomes unusable. Landlord shall not be liable to Tenant for any delay
in restoring the Premises or any inconvenience or annoyance to Tenant or injury
to Tenant's business resulting in any way from such damage or the repairs,
Tenant's sole remedy being the right to an abatement of Rent.
CONDEMNATION.
-------------
For purposes of this section, any of the following three (3)
events shall be deemed a "Taking": (i) if all or any part of the Premises or the
Office Center is taken or condemned through the exercise of the power of eminent
domain by any governmental or private board, body, or agency having the right to
exercise such power; or (ii) if all or any part of the Premises or the Office
Center is conveyed to any such condemning authority under threat of condemnation
before or after proceedings have been commenced to acquire such property by the
condemning authority; or (iii) if a "taking" is judicially declared in any
proceeding in which Landlord and Tenant have been served with process and given
the opportunity to participate in the proceeding. Landlord shall notify Tenant
in writing in the event of any Taking.
In the event of a Taking of all of the Premises or the Office
Center, this Lease shall terminate on the date upon which title vests in the
condemning authority (the "Date of Taking").
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In the event of a Taking of any portion of the Premises or,
even if no portion of the Premises is taken, if a portion of the Office Center
is taken resulting in a loss of parking spaces so that the Office Center has
fewer parking spaces than is required by applicable law as of such date, or if
access to the Office Center or the Premises is taken or substantially impaired,
then, and only under those circumstances described above, either Landlord or
Tenant may elect to terminate this Lease effective as of the Date of Taking by
providing written notice of termination to the other not later then ten (10)
days after the Date of Taking, and, in such event, Rent and all other charges
payable by Tenant under this Lease shall be apportioned and paid to the Date of
Taking. In the event of a Taking resulting in the loss of more than fifty
percent (50%) of the parking spaces leased to Tenant pursuant to Section 51
hereinbelow and such spaces are not replaced by Landlord with spaces as
determined by Landlord and provided by Landlord within 120 days, Tenant may
elect to terminate this Lease effective as of the Date of Taking by providing
written notice of termination to the other not later then ten (10) days after
the Date of Taking, and, in such event, Rent and all other charges payable by
Tenant under this Lease shall be apportioned and paid to the Date of Taking.
If either party, having a right to terminate this Lease
pursuant to Subsection (c) above, fails so to terminate this Lease within the
time and in the manner set forth in Subsection (c), or elects not to terminate
this Lease, this Lease shall continue in full force and effect but Rent payable
under this Lease shall xxxxx in direct proportion to the number of rentable
square feet of space in the Premises so taken. Except as expressly provided
herein, no rental abatement shall be due for loss of any other portion of the
Common Areas, Tenant recognizing that Tenant's right to utilize such parking
spaces and Common Areas in common with Landlord's other tenants does not vest in
Tenant any leasehold or other ownership interest in and to any of such parking
spaces or Common Areas.
In any case in which this Lease shall not terminate, but shall
continue with respect to the portion of the Premises remaining after the Taking,
Landlord shall restore that portion of the Premises so remaining to as near a
complete architectural unit as is practical; provided, however, that if
Landlord's costs and expenses incurred or to be incurred in connection with such
restoration are reasonably estimated by Landlord to exceed fifty (50%) percent
of the award to be received by Landlord for any buildings or structures taken
and for damages to the remaining buildings or structures, Landlord, regardless
of whether Landlord and Tenant have earlier elected to continue this Lease as to
the remaining Premises, may nevertheless terminate this Lease by written notice
to Tenant within thirty (30) days following Landlord's receipt of payment
representing full compensation for the Premises or Office Center so taken or
damaged by such Taking. Landlord's obligations to restore the Premises pursuant
to this subsection shall be conditioned upon the consent of any mortgagee of the
Office Center to the use of the condemnation award for such purpose.
Except to the extent set forth in Subsection (g) below, all
awards in condemnation, whether recovered as a result of litigation, or in
settlement thereof, or as part of a private purchase in lieu of condemnation,
and whether termed compensation or damages, but payable in any event for the
Taking of all or a portion of the Premises or the Office Center shall belong
solely to Landlord. Tenant assigns to Landlord all of Tenant's right, title, and
interest, if any, in and to such awards in condemnation, and all rights to an
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apportionment thereof. Tenant consents to Landlord's withdrawal of any sum
deposited into the court registry of any court of competent jurisdiction by a
condemning authority, at any time during the pendency of condemnation
proceedings, should such proceedings be initiated against Landlord, except to
the extent to which any sums so deposited represent damages or compensation
which belong to Tenant pursuant to the provisions of Subsection (g) below.
Tenant shall have the right to claim and recover, provided
Tenant asserts and pursues such claims against the condemning authority, only
that compensation or damage representing Tenant's moving and relocation expenses
and the value of personal property and trade fixtures owned by Tenant and which
do not become the property of Landlord upon the expiration or sooner termination
of this Lease. Tenant may also pursue its business damage claim against the
condemning authority; provided, however, that to the extent to which any
business damage claim asserted by Tenant serves as a basis upon which the
condemning authority elects to take or condemn more of Landlord's property than
otherwise required for its project in order to save acquisition costs, Tenant
assigns such claims to Landlord and Landlord shall be entitled to either pursue,
compromise, or abandon any of such claims as Landlord, in its sole discretion,
shall determine.
MAINTENANCE OF PREMISES.
------------------------
Landlord shall repair and maintain in good order and
condition, ordinary wear and tear excepted, the roof, the outside walls, the
structural portions of the Premises, and the electrical, plumbing, and HVAC
systems servicing the Premises. Tenant waives the provisions of any law, or any
right Tenant may have under common law, permitting Tenant to make repairs at
Landlord's expense or to withhold Rent or terminate this Lease based on any
alleged failure of Landlord to make repairs. All costs associated with the
repair and maintenance obligations of Landlord under this section shall be
included in and constitute Expenses.
Except as provided in Subsection (a), Landlord shall have no
maintenance obligation with respect to the Premises and no obligation to make
any repairs, in, on, or to the Premises. Tenant assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance,
and management of the Premises, including all improvements, throughout the Lease
Term, except to the extent expressly set forth in Subsection (a). Tenant shall
maintain the Premises (including, without limitation, all furniture, fixtures,
equipment, and decorations) in good repair and in a clean, attractive,
first-class condition. Without limiting the generality of foregoing, Tenant
agrees to repair, replace, and maintain in good and operational order and
condition the non-structural interior portions of the Premises, including
interior doors, interior windows, plate and window glass, floor coverings, wall
coverings, furniture, fixtures, equipment, and appliances and the electrical and
mechanical systems not considered Office Center standard which have been
installed for the exclusive use and benefit of Tenant such as electrical
services for computers or similar items and security or telephone systems for
the Premises. All replacements shall be of equal quality and class to the
original items replaced. Tenant shall not commit or allow to be committed any
waste on any portion of the Premises.
ESTOPPEL CERTIFICATES. From time to time, Tenant, upon not less than
five business (5) days' prior written notice, shall execute and deliver to
25
Landlord a statement in writing certifying, to the best of Tenant's knowledge:
(i) that this Lease is unmodified and in full force and effect (or if there
shall have been any modification, that the same is in full force and effect as
modified and stating the modification), (ii) the amount of any prepaid Rent or
security deposit paid under this Lease, (iii) the dates to which the Rent and
other charges have been paid, (iv) whether or not Tenant claims any defenses or
offsets with respect to its obligations under this Lease and whether or not
Landlord is in default in the performance of any covenant, agreement, or
condition contained in this Lease on its part to be performed and, if so,
specifying each such defense, offset, or default of which Tenant may have
knowledge, and (v) such other factual matters as may be reasonably required by
institutional lenders in similar estoppel certificates. In addition, if
requested, Tenant shall provide such financial information concerning Tenant and
Tenant's business operations and any Guarantor as may be reasonably requested by
any mortgagee or prospective mortgagee or purchaser of the Premises. Should
Tenant fail timely to deliver a statement, in addition to any other remedies
available to Landlord, Landlord shall have the right to deliver such statement
as Tenant's attorney-in-fact. The limited power of attorney granted by Tenant in
the immediately preceding sentence being coupled with an interest is deemed to
be irrevocable by Tenant. Nothing contained in this section shall constitute a
waiver by Landlord of any default in payment of Rent or other charges existing
as of the date of such notice.
SUBORDINATION. This Lease is and shall be subject and subordinate to
any ground, overriding, or underlying leases and the rights of the landlords
under such leases and to all mortgages which may now or hereafter affect such
leases or the Office Center, and to all renewals, modifications, consolidations,
replacements, and extensions of such leases and mortgages. This section shall be
self-operative and no further instrument of subordination shall be necessary.
However, in confirmation of such subordination, Tenant shall execute promptly
any certificate that Landlord may reasonably request; provided, Landlord shall
use good faith efforts to obtain and agreement from such lien holder or
overlessor which shall assure Tenant's right to possession of the Premises and
other rights granted under this Lease in accordance with this Lease's terms and
conditions. The failure of Tenant to execute any such certificate within ten
(10) days following written demand by Landlord shall constitute a material
default under the terms of this Lease. In addition, and without limitation of
the rights set forth above, should Tenant fail timely to deliver a certificate,
in addition to any other remedies available to Landlord, Landlord shall have the
right to deliver such certificate as Tenant's attorney-in-fact. The limited
power of attorney granted by Tenant in the immediately preceding sentence being
coupled with an interest is deemed to be irrevocable by Tenant. If any ground or
underlying lease is terminated, or any mortgage foreclosed, this Lease shall not
terminate or be terminable by Tenant unless Tenant was specifically named in any
termination or foreclosure judgment or final order for the sole purpose of
terminating this Lease. If any ground or underlying lease is terminated as
aforesaid, or if the interest of Landlord under this Lease is transferred by
reason of or assigned in lieu of foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, or if this Lease is terminated by termination of any
lease or by foreclosure of any mortgage to which this Lease is or may be
subordinate, then Tenant will, at the option to be exercised in writing by the
landlord under any ground or underlying lease or such purchaser, assignee, or
tenant, as the case may be, (i) attorn to it and will perform for its benefit
all the terms, covenants, and conditions of this Lease on Tenant's part to be
26
performed with the same force and effect as if said landlord or such purchaser,
assignee, or tenant were the landlord originally named in this Lease, or (ii)
enter into a new lease with the landlord or the purchaser, assignee, or tenant
for the remainder of the Lease Term and otherwise on the same terms, conditions,
and Rents as provided in this Lease.
INDEMNIFICATION. Landlord and Tenant shall each indemnify, defend, and
save harmless the other party and such other party's employees, agents, and
contractors (the "Indemnified Parties") from and against any and all loss,
damage, claim, demand, liability, or expense (including reasonable attorneys'
fees) resulting from claims by third parties and based on any acts or omissions
of the indemnitor, its employees, agents, and contractors in connection with the
Office Center. The indemnitor shall have the right to assume the defense of any
claim covered by this indemnity on behalf of both itself and the Indemnified
Parties, provided that the lawyers selected by the indemnitor to handle such
defense are reasonably satisfactory to the Indemnified Parties and such
representation does not result in a conflict of interest for such lawyers. The
Indemnified Parties may not settle any claim covered by this Indemnity section
without the consent of the indemnitor.
ANTI-WAIVER. The failure of a party to insist upon the strict
performance of any provision of this Lease or to exercise any remedy for any
default shall not be construed as a waiver. The waiver of any breach of term,
covenant or condition contained in this Lease 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 contained in this Lease. No notice to or
demand on a party shall of itself entitle such party to any other or further
notice or demand in similar or other circumstances. No waiver shall be effective
unless expressed in writing and signed by the waiving party. The receipt or
acceptance by Landlord of any Rent after default on the part of Tenant (whether
such Rent is due before or after such default) shall not be deemed to operate as
a waiver of any preceding breach of Tenant of any term, covenant or condition of
this Lease (regardless of Landlord's knowledge of such preceding breach at the
time of such receipt or acceptance of such Rent), or as a waiver of the right of
Landlord to enforce the payment of any other Rent reserved in this Lease which
may be due and owing at such time, or otherwise, or to pursue any other remedies
provided in this Lease or otherwise available to Landlord. No payment by Tenant,
or receipt by Landlord, of a lesser amount than the Rent actually owed pursuant
to the terms of this Lease shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement of, or statement on, any
check or any letter accompanying any check or payment of Rent be deemed an
accord and satisfaction. Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or to pursue
any other remedy provided under this Lease. No act of Landlord shall be deemed
an acceptance of a surrender of the Premises and no agreement to accept such
surrender shall be valid unless in writing and signed by Landlord. The
acceptance of the keys to the Premises by the Landlord from the Tenant prior to
the termination of this Lease will not operate as a termination of the Lease or
a surrender of the Premises unless done pursuant to a written agreement duly
executed on behalf of Landlord and specifically evidencing an express intention
by Landlord so to effect a termination or accept a surrender. It is the
intention of the parties that this section modify the common law rules of waiver
and estoppel.
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NO REPRESENTATIONS BY LANDLORD. Neither Landlord nor Landlord's agents
have made any representations or promises with respect to the physical condition
of the Office Center or the Premises, the Rents, leases, expenses of operation,
or any other matter affecting or relating to the Premises, except as expressly
set forth in this Lease and no rights, easements, or licenses are acquired by
Tenant by implication or otherwise except as expressly set forth in this Lease.
SERVICES AND UTILITIES.
----------------------
During the Lease Term and so long as Tenant is entitled to
possession of the Premises, Landlord shall furnish the following services:
Air conditioning and heating in season during Normal
Business Hours. At other times, air conditioning and heating will be
furnished at a building standard charge (payable by Tenant to Landlord
on written demand by Landlord) and on building standard terms relating
to advance notice, minimum hours, minimum zones, and other matters.
Janitorial and general cleaning services on Business
Days.
Passenger elevator service to all floors of the
Office Center.
Reasonable amounts of cold running water to
lavatories and toilets in or appurtenant to the Premises.
Electricity.
Tenant shall pay to Landlord, as Additional Rent, any costs
associated with providing any building services or utilities to or for Tenant at
times other than the Normal Business Hours (including, but not limited to,
during the initial build-out of Premises, unless Tenant has commenced the
payment of Rent under this Lease), as determined from time to time by Landlord,
and the costs of any modification to any Office Center utility or service system
necessary to accommodate Tenant. Notwithstanding the foregoing, Landlord shall
not be required to make any modification to any utility or service system of the
Office Center on behalf of Tenant.
Landlord shall not be liable to Tenant for any loss or damage
or expense which Tenant may sustain or incur if either the quantity or character
of electric service or any other utility service to the Premises is changed or
is no longer available or suitable for Tenant's requirements. Tenant's use of
electrical and heating, ventilating, and air conditioning services furnished by
Landlord shall not exceed, either in voltage, rated capacity, use, or overall
load, that which Landlord deems to be standard for the Office Center. If Tenant
requests permission to consume electrical or heating, ventilating, and air
conditioning services in excess of those deemed by Landlord to be standard for
the Office Center, Landlord may refuse to consent to such usage or may consent
upon such conditions as Landlord elects (including the installation of utility
service upgrades, submeters, air handlers, or cooling units), and all costs
associated with such additional usage and the installation and maintenance of
facilities therefor shall be paid by Tenant as Additional Rent.
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In no event shall Landlord be liable for damages resulting
from any of the fixtures or equipment in the Office Center being out of repair,
or for injury to persons, property, or business caused by any defects in the
electric, elevator, HVAC, or water apparatus, or for any damages arising out of
the failure to furnish HVAC, elevator, water, janitor, or other service, unless
due to the gross negligence or intentional wrongful acts of Landlord, and any
such interruption or failure shall in no manner constitute an actual or
constructive eviction of Tenant or entitle Tenant to abatement of any Rent due
under this Lease.
Tenant expressly acknowledges that if Landlord, from time to
time, elects to provide security services, Landlord shall not be deemed to have
warranted the efficiency of such security personnel, services, procedures, or
equipment and Landlord shall not be liable in any manner for the failure of any
such security personnel, services, procedures, or equipment to prevent or
control, or apprehend anyone suspected of, personal injury or property damage
in, on, or around the Office Center.
SECURITY DEPOSIT. The Security Deposit shall be paid to Landlord on or
before the date that is 45 months after the Delivery Date.. The Security Deposit
shall be held by Landlord as security for Tenant's full and faithful performance
of the terms, covenants, and conditions of this Lease including the payment of
Annual Base Rent and Additional Rent for the last month of the Lease Term. The
Security Deposit shall never constitute liquidated damages for any default by
Tenant. The Security Deposit may be commingled with other funds of Landlord and
Landlord shall have no liability for the accrual or payment of any interest on
the Security Deposit.
Application of Security Deposit. Landlord may use, apply, or
retain the whole or any part of the Security Deposit to the extent required for
the payment of Annual Base Rent and Additional Rent for the last month of the
Lease Term. The right to possession of the Premises by Landlord for nonpayment
of Rent or for any other reason shall not in any event be affected by the
existence of the Security Deposit.
Payment. Tenant shall deliver to Landlord the Security Deposit
on the date specified herein. Failure to pay the amount due within the required
time period shall constitute a material default under this Lease.
Transfer of Office Center. In the event of a sale or transfer
of the Office Center or any part of the Office Center, Landlord shall have the
right to transfer the Security Deposit to the vendee, and if the Security
Deposit is so transferred, Landlord shall thereafter be relieved from any
liability with respect to the Security Deposit. Landlord shall provide Tenant
with written notice of such transfer of the Security Deposit.
Prohibition on Tenant Assignment. Tenant shall not assign
(except upon a full assignment of Tenant's leasehold interest) or encumber its
rights with respect to the Security Deposit. Landlord and its successors or
assigns shall not be bound by any purported assignment or have any liability to
any purported assignee.
When Returned. If Tenant fully and faithfully complies with
all of the terms, covenants, and conditions of this Lease, any part of the
Security Deposit not used or retained by Landlord pursuant to the terms of this
29
Lease shall be returned to Tenant after the expiration of the Lease Term and
after Tenant's delivery of possession of the Premises to Landlord.
GOVERNMENTAL REGULATIONS.
------------------------
Subject to the Landlord's obligations set forth in Exhibit
"F", Tenant, at its sole cost and expense, shall promptly comply with all laws,
orders, and regulations of all county, municipal, state, federal, and other
applicable governmental authorities, and all recorded covenants and restrictions
affecting the Office Center, now in force, or which may hereafter be in force,
pertaining to Tenant or its use of the Premises, and shall faithfully observe,
in the use of the Premises, all municipal and county ordinances and state and
federal laws now in force or which may hereafter be in force, which shall impose
any duty upon Tenant with respect to the Premises or the use or occupancy of the
Premises, including, but not limited to, all such laws relating to fire and
safety, hazardous materials, indoor air quality, and to persons with
disabilities, and specifically, but without limitation, maintenance of
sprinklers, fire alarms, smoke detectors and other sensors, and alterations and
other measures necessary to comply with the ADA, including, without limitation,
modification of Tenant's policies, practices and procedures, and providing
auxiliary aids and services to disabled persons. Nothing herein shall obligate
Tenant to make structural modifications to the Premises or the Office Center
unless such modifications are required because of Tenant's use of the Premises
and/or the Office Center. At Landlord's option, such compliance, installation,
and maintenance caused by of Tenant's use of the Premises and/or the Office
Center may be performed by Landlord, at Tenant's expense, to be paid by Tenant
promptly when billed by Landlord.
Tenant shall, at its sole cost and expense, comply with all
requirements of the Board of Fire Underwriters of Florida or any other similar
body affecting Tenant's use of the Premises and shall not use the Premises in a
manner which shall increase the rate of fire insurance or other insurance of
Landlord over that in effect during the year prior to the Commencement Date. If
the use of the Premises by Tenant increases any such insurance rate with respect
to the Office Center, Tenant shall reimburse Landlord for all such increased
costs.
Tenant shall, at its sole cost and expense, promptly apply
for, and with due diligence obtain, all licenses and permits from time to time
required to enable Tenant to conduct its business under this Lease. No failure
of Tenant to obtain or maintain such licenses or permits, or extensions or
renewals thereof, shall release Tenant from the performance and observance of
Tenant's obligations under this Lease.
SIGNS. Tenant will not place or permit to be placed or maintained on
any portion of the Office Center, including on any exterior door, wall, or
window of the Premises, or within the interior of the Premises, if visible from
the exterior of the Premises, any signage or advertising matter of any kind,
without first obtaining Landlord's written approval and consent, which may be
arbitrarily withheld. Notwithstanding the foregoing, Tenant shall be permitted
to place a sign bearing its name on the entrance door to the Premises and will
be furnished a single listing of its name in the Office Center's Directory, all
in accordance with the criteria adopted from time to time by Landlord for the
Office Center. Any changes or additional listings in the Directory shall be
furnished (subject to availability of space) for a building standard charge.
30
SURVIVAL; PRIOR LEASE. Any liability or obligation of Landlord or
Tenant arising during or accruing with respect to the Lease Term shall survive
the expiration or earlier termination of this Lease, including, without
limitation, obligations and liabilities relating to (i) the adjustments of
Additional Rent for Expenses referenced in the Operating Expenses section of
this Lease, (ii) the condition of the Premises or the removal of Tenant's
Property, and (iii) the indemnity provisions of this Lease. It is understood and
agreed that Tenant is successor in interest to PowerCerv Technologies
Corporation ("PowerCerv"), the tenant under that certain Office Lease dated
January 30, 1987, as amended (the "Prior Lease"), and the premises under the
Prior Lease will be made a part of the Premises. Promptly upon the Commencement
Date, Landlord and Tenant shall execute a termination of the Prior Lease and,
provided Tenant is not then in default under the Prior Lease, Tenant shall be
released from the unamortized tenant improvement allowance which would have been
paid by the tenant thereunder. However, Tenant shall remain liable for
liabilities or obligations that survive the expiration of the Prior Lease,
including but not limited to adjustments of the prorated portion of Additional
Rent for Expenses under the Prior Lease for the partial year prior to
termination thereof.
BROKER. Landlord and Tenant represent and warrant that they neither
consulted nor negotiated with any broker or finder with respect to the Premises,
except the Leasing Broker. Landlord and Tenant agree to indemnify, defend, and
save the other harmless from and against any claims for fees or commissions from
anyone other than the Leasing Broker with whom they have dealt in connection
with the Premises or this Lease including attorneys' fees incurred in connection
with the defense of any such claim. Landlord shall indemnify and hold Tenant
harmless against payment of any leasing commission due the Leasing Broker in
connection with this Lease.
QUIET ENJOYMENT.
---------------
Landlord covenants and agrees that, upon Tenant's paying the
Annual Base Rent and any Additional Rent payable under this Lease and performing
all of the other provisions of this Lease on its part to be performed, Tenant
may peaceably and quietly hold and enjoy the Premises and Storage Space for the
Lease Term without material hindrance or interruption by Landlord or any other
person claiming by, through, or under Landlord, subject, nevertheless, to the
terms, covenants, and conditions of this Lease and all existing or future ground
leases, underlying leases, mortgages, or deeds of trust encumbering the Office
Center.
Notwithstanding the foregoing, Landlord may close the Office
Center and preclude access to the Premises in the event of the threat of an
emergency such as a hurricane, civil commotion, war-like operation, invasion,
rebellion, hostilities, military or usurped power, sabotage, floods, other
natural disaster, or act of God.
END OF TERM.
-----------
Tenant shall surrender the Premises to Landlord at the
expiration or sooner termination of this Lease in good order and condition,
broom clean, except for reasonable wear and tear and damage by fire or other
casualty (but recognizing Tenant's obligations to maintain the Premises as
provided in this Lease) and Tenant shall surrender all keys for the Premises to
31
Landlord. Unless Landlord shall have consented in writing to Tenant's holding
over, Tenant shall be liable to Landlord for all damages which Landlord may
suffer by reason of any holding over by Tenant, and Tenant shall indemnify,
defend, and save Landlord harmless against all costs, claims, loss, or liability
resulting from delay by Tenant in so surrendering the Premises, including,
without limitation, any claims made by any succeeding tenant founded on such
delay. No holding over by Tenant or payments of money by Tenant to Landlord
after the expiration of the Lease Term shall be construed to extend the Lease
Term or prevent Landlord from immediate recovery of possession of the Premises.
The term "Landlord's Property" shall mean all fixtures,
including those items that may be denominated or characterized as Tenant's
business or trade fixtures, equipment, improvements, appurtenances, and
carpeting, attached to or built into the Premises at the Commencement Date or
during the Lease Term, whether or not by or at the expense of Tenant, and any
personal property in the Premises on the Commencement Date, unless installed and
paid for by Tenant. Alterations, whether temporary or permanent in character,
including, but not limited to, HVAC equipment, wall coverings, carpeting and
other floor coverings, blinds and other window treatments, lighting fixtures and
bulbs, built-in or attached shelving, built-in furniture, countertops,
cabinetry, bathroom fixtures, sinks, kitchen area improvements, and wall
mirrors, made by Landlord or Tenant in or upon the Premises shall be deemed
Landlord's Property. All Landlord's Property shall be and remain a part of the
Premises at the expiration or sooner termination of the Lease Term (without
compensation to Tenant) and shall not be removed or replaced by Tenant without
the prior written consent of Landlord.
The term "Tenant's Property" shall mean all moveable machinery
and equipment, including moveable communications equipment and moveable office
equipment, which are installed in the Premises by or for the account of Tenant
without expense to Landlord and which can be removed without structural damage
to the Premises and the Office Center, and all moveable furniture, furnishings,
and other articles of moveable personal property owned by Tenant and located in
the Premises. Subject to the Landlord's statutory landlord's lien, Tenant's
Property may be removed by Tenant at any time during the Lease Term; provided,
however, Tenant shall repair or pay the cost of repairing any damage to the
Premises or to the Office Center resulting from the initial installation or
removal, or both, of Tenant's Property. Any machinery, equipment, furniture,
furnishings, or other property for which Landlord shall have granted any
allowance or credit to Tenant shall not be deemed to have been installed by or
for the account of Tenant without expense to Landlord and shall not be
considered Tenant's Property, but shall be deemed Landlord's Property.
Upon the expiration or sooner termination of the Lease Term,
Tenant, at its expense, shall remove from the Premises all of Tenant's Property
(except such items as Landlord shall have expressly permitted to remain, which
property shall become the property of Landlord) and all Alterations which
Landlord designates by notice to Tenant given at any time up to six (6) months
prior to the termination of the Lease. Tenant, at Tenant's sole cost and
expense, shall also repair any damage to the Premises and the Office Center
caused by such removal. Any items of Tenant's Property which shall remain in the
Premises after the expiration or sooner termination of the Lease Term, may, at
the option of Landlord, be deemed to have been abandoned, and in such case, such
items may be retained by Landlord as its property to be disposed of by Landlord,
32
without accountability to Tenant or any other party, in such manner as Landlord
shall determine, at Tenant's expense.
RECORDATION. Tenant shall not record this Lease or any memorandum,
"short form," or other notice of this Lease without the prior written consent of
Landlord.
LEASE NOT BINDING UNLESS EXECUTED. Submission by Landlord of this Lease
for execution by Tenant shall not constitute an offer and shall confer no rights
nor impose any obligations on either party unless and until both Landlord and
Tenant shall have executed this Lease.
CONSTRUCTION OF LANGUAGE. Whenever in this Lease the context allows,
the terms "Lease," "Lease Term," and "term of this Lease," or terms of similar
import, shall be deemed to include all renewals, extensions, or modifications of
this Lease or the Lease Term; and the word "including" shall be deemed to mean
"including without limitation." The headings of sections or subsections in this
Lease are for convenience only and shall not be relevant for purposes of
interpretation of the provisions of this Lease. This Lease has been negotiated
"at arm's length" by and between Landlord and Tenant, each having the
opportunity to be represented by legal counsel of its choice and to negotiate
the form and substance of this Lease, and therefore this Lease shall not be more
strictly construed against either party by reason of the fact that one party may
have drafted any or all of the provisions of this Lease.
INTERLINEATION. Whenever in this Lease any printed portion has been
stricken out, whether or not any relative provision has been added, this Lease
shall be construed as if the material so stricken was never included in this
Lease and no inference shall be drawn from the material so stricken out which
would be inconsistent in any way with the construction or interpretation which
would be appropriate if such material were never contained in this Lease.
ATTORNEYS' FEES. In connection with any suit, action, or other
proceeding, including arbitration or bankruptcy, arising out of or in any manner
relating to this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees and disbursements (including disbursements which
would not otherwise be taxable as costs in the proceeding). In addition, if
Landlord becomes a party to any suit or proceeding affecting the Premises or
involving this Lease or Tenant's interest under this Lease, other than a suit
between Landlord and Tenant, or if Landlord engages counsel to collect any of
the amounts owed under this Lease, or to enforce performance of any of the
agreements, conditions, covenants, provisions, or stipulations of this Lease,
without commencing litigation, then Landlord's costs, expenses, and reasonable
attorneys' fees and disbursements incurred with respect thereto shall be paid to
Landlord by Tenant, on demand, as Additional Rent. All references in this Lease
to attorneys' fees shall be deemed to include all legal assistants' and
paralegals' fees and shall include all fees incurred through all post-judgment
and appellate levels and in connection with bankruptcy proceedings.
33
NOTICES.
--------
Except as otherwise expressly provided in this Lease, all
Communications shall be in writing. A Communication shall be deemed to have been
delivered and received on the earlier of the day actually received (by whatever
means sent) if received before 5:00 PM on a Business Day (or, if not received
before 5:00 PM on a Business Day, on the first Business Day after the day of
receipt) or, regardless of whether or not received after the dates hereinafter
specified, (i) on the date of transmittal by telecopier to the addressee's
Notice Address, with the confirmation sheet obtained by the sender being deemed
conclusive proof of the transmission of such telecopy; (ii) on the date of
delivery or refusal of delivery, if by hand delivery; (iii) on the first
Business Day after having been delivered to a nationally recognized overnight
air courier service (such as Federal Express) before 5:00 PM; or (iv) on the
third Business Day after having been deposited with the United States Postal
Service, Registered or Certified Mail, Return Receipt Requested; in each case
addressed to the respective party at the such party's Notice Address, which
Notice Address may be changed by notice delivered to the other party in
accordance with the terms of this section; provided that if Tenant has vacated
the Premises or is in default of this Lease, Communications may be delivered by
any manner permitted by law for service of process. Any Communication
transmitted by telecopier after 5:00 p.m. shall be deemed to have been made on
the next Business Day following the date on which it was transmitted.
The respective attorneys for each party are authorized to give
any Communication pursuant to this Lease on behalf of their respective clients.
Any Communication so given by an attorney shall be deemed to have been given by
such attorney's client. However, failure to give a copy of any Communication to
the attorney for a party does not affect the validity of the Communication
provided that the Communication has been given to or received by the party
represented by that attorney. If the addressee, or its attorney, refuses
delivery of any Communication or if the Communication is returned to the
addressor unopened by the addressee, effective notice shall still be deemed to
have been given. If there is more than one (1) party constituting Tenant, any
Communication may be given by or to any one thereof, and shall have the same
force and effect as if given by or to all thereof.
Notwithstanding anything contained in this Lease to the
contrary, for purposes of the notice requirement set forth in Section 83.20(2),
Florida Statutes (2002), delivery of such notice shall be deemed to have been
fully given, made, sent, and received upon hand delivery to the Premises, or
upon telecopy transmittal to Tenant at Tenant's Telecopier Number or at the
Premises, or one (1) day after being deposited with Federal Express or other
similar overnight delivery service addressed to Tenant's Notice Address. The
failure to deliver a copy of the notice required pursuant to Section 83.20(2),
Florida Statutes (2002) to any party entitled to receive copies of notices under
this Lease shall not affect the validity or effectiveness of the method of
service or the service or delivery of such notice.
34
RADON GAS. The following notification is provided pursuant to Section
404.056(6), Florida Statutes (2002) "Radon Gas": "Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county health department."
RIGHTS OF SUCCESSORS AND ASSIGNS. This Lease shall bind and inure to
the benefit of the heirs, personal representatives, administrators, and, except
as otherwise provided in this Lease, the successors or assigns of the parties in
this Lease. If there is more than one (1) party constituting Tenant, each such
party shall be jointly and severally liable with the other parties constituting
Tenant for the performance of all of the obligations of Tenant under this Lease.
SEVERABILITY. If any provision of any section or subsection of this
Lease or the application of such provision to any person or circumstance shall,
to any extent, be invalid or unenforceable, the remainder of that section or
subsection and this Lease and the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and the remainder of such section and this Lease shall
otherwise remain in full force and effect.
JURY WAIVER; COUNTERCLAIMS. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH (i) THIS LEASE, (ii) THE RELATIONSHIP OF
LANDLORD AND TENANT, (iii) TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR (iv)
THE RIGHT TO ANY STATUTORY RELIEF OR REMEDY. TENANT FURTHER WAIVES THE RIGHT TO
INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY NATURE IN ANY ACTION OR PROCEEDING
COMMENCED BY LANDLORD TO OBTAIN POSSESSION OF THE PREMISES. IF TENANT VIOLATES
THIS PROVISION BY FILING A PERMISSIVE COUNTERCLAIM, WITHOUT PREJUDICE TO
LANDLORD'S RIGHT TO HAVE SUCH COUNTERCLAIM DISMISSED, THE PARTIES STIPULATE THAT
SHOULD THE COURT PERMIT TENANT TO MAINTAIN THE COUNTERCLAIM, THE COUNTERCLAIM
SHALL BE SEVERED AND TRIED SEPARATELY FROM THE ACTION FOR POSSESSION PURSUANT TO
RULE 1.270(b) OF THE FLORIDA RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE LAW.
THE ACTION FOR POSSESSION SHALL THEN PROCEED PURSUANT TO THE SUMMARY PROCEDURES
SET FORTH IN SECTION 51.011, FLORIDA STATUTES (2002). THE WAIVERS SET FORTH IN
THIS SECTION ARE MADE KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY BY TENANT.
TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH COUNSEL. THIS PROVISION IS
A MATERIAL INDUCEMENT TO LANDLORD IN AGREEING TO ENTER INTO THIS LEASE.
35
INTEGRATION. This Lease shall constitute the entire agreement of the
parties with respect to the matters set forth in this Lease. All prior
understandings and agreements had between the parties with respect to such
matters, including all lease proposals, letters of intent, and similar
documents, are merged into this Lease, which alone fully and completely
expresses their understanding.
AMENDMENT. This Lease may not be amended, modified, altered, or changed
in any respect, except by further agreement in writing duly executed by Landlord
and Tenant.
TIME IS OF THE ESSENCE. Time is of the essence with respect to all of
the obligations of Tenant under this Lease.
FORCE MAJEURE. Notwithstanding anything in this Lease to the contrary,
if Landlord or Tenant shall be delayed or hindered in, or prevented from the
performance of, any act required under this Lease (other than the payment of
Rent by Tenant) by reason of strike, lockout, civil commotion, warlike
operation, invasion, rebellion, hostilities, military or usurped power,
sabotage, government regulations or controls, inability to obtain any material,
utility, service, or financing, through hurricanes, floods, other natural
disasters, or acts of God, or for any other cause beyond the direct control of
the party who is seeking additional time for the performance of such act, then
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a reasonable
period, in no event to exceed a period equivalent to the period of such delay.
GUARANTY. Payment of all Rents and charges, and the performance of all
covenants of Tenant set forth in this Lease, are guaranteed by the Guarantor
pursuant to the Guaranty which is attached as an exhibit to this Lease and made
a part of this Lease. The Guaranty is a part of this Lease and Tenant agrees to
be bound by the terms of the Guaranty which relate to this Lease. Contingent
upon (i) Tenant's payment of all Rent for the first forty-seven (47) months of
the Lease Term in accordance with the terms and conditions of this Lease, (ii)
Tenant's compliance with the other terms and conditions of this Lease and (iii)
Tenant's payment of the Security Deposit to Landlord, the Guaranty shall expire
on the date that is forty-five (45) months after the New Rent Date (hereinafter
defined). Notwithstanding any expiration of the Guaranty, the Guarantor shall
remain liable for any obligations under the Guaranty and/or the Lease that arise
or accrue prior to such expiration, and such obligations shall survive the
expiration of the Guaranty.
TENANT'S REPRESENTATIONS. Tenant represents and warrants as follows:
Tenant is duly organized, validly existing, and in good
standing under the laws of the state in which it was formed and is duly
qualified to transact business in the State in which the Premises are located.
Tenant has full power to execute, deliver, and perform its
obligations under this Lease.
The execution and delivery of this Lease, and the performance
by Tenant of its obligations under this Lease, have been duly authorized by all
necessary action of Tenant, and do not contravene or conflict with any
provisions of Tenant's Articles of Incorporation or By-laws, if Tenant is a
corporation, or Tenant's Partnership Agreement, if Tenant is a partnership, or
any other agreement binding on Tenant.
36
The individual executing this Lease on behalf of Tenant has
full authority to do so.
If Tenant is a corporation, the seal set forth immediately
below the signature of the individual executing this Lease on Tenant's behalf
has been adopted by the corporation as its seal for the purpose of execution of
this Lease and such seal has been affixed to this Lease as the seal of the
corporation and not as the personal or private seal of the officer executing
this Lease on behalf of the corporation.
Tenant's financial statements previously furnished to Landlord
were at the time given true and correct in all material respects and there have
been no material changes to the information contained in such financial
statements subsequent to the dates thereof.
LANDLORD'S REPRESENTATION. If Landlord is a corporation, the seal set
forth immediately below the signature of the individual signing this Lease on
Landlord's behalf has been adopted by the corporation as its seal for the
purpose of execution of this Lease and such seal has been affixed to this Lease
as the seal of the corporation and not as the personal or private seal of the
officer executing this Lease on behalf of the corporation.
RELOCATION OF TENANT. Intentionally Omitted.
HOLDOVER. Tenant agrees to quit and surrender vacant, full, broom-clean
possession of the Premises to Landlord at the expiration or sooner termination
of this Lease free and clear of any leases, tenancies, and rights of occupancy
in anyone claiming through Tenant. If Tenant shall fail or refuse to surrender
vacant, full, broom-clean possession of the Premises to Landlord at the
expiration or sooner termination of this Lease, then and in such event Tenant
shall pay to Landlord for each day or fraction of a day that Tenant shall fail
to surrender such vacant, full, broom-clean possession of the Premises to
Landlord (in addition to all Rent and Additional Rent provided to be paid under
this Lease which is applicable from and after the expiration or sooner
termination of this Lease) an agreed-upon sum equal to one and one-half (1.5)
times the quotient obtained by dividing (i) the sum of the monthly installments
of Annual Base Rent then payable under this Lease plus one-twelfth of all
Additional Rent then payable under this Lease; by (ii) 30. This daily rate for
the Premises is in the nature of liquidated damages to Landlord for Tenant's
failure to surrender such vacant, full, broom-clean possession of the Premises
to Landlord on or before the at the expiration or sooner termination of this
Lease. The payment of these liquidated damages shall be without prejudice to
Landlord's instituting proceedings to obtain possession of the Premises.
37
PARKING SPACES.
--------------
Subject to all of the terms, provisions, covenants and
conditions contained in this Office Lease, Tenant shall have the initial right
to lease in the parking facility thirty-two (32 parking spaces which parking
facility shall provide for the use of tenants of the Office Center and such
other people that Landlord decides to lease such parking spaces to in Landlord's
sole discretion, and which parking facility shall be maintained and insured by
Landlord in accordance with the applicable Landlord maintenance and insurance
provisions of this Lease. As part of the thirty-two (32) parking spaces, Tenant
shall have the right to retain and lease the reserved spaces assigned to
PowerCerv Technologies Corporation in connection with the Prior Lease. The Rent
for such parking spaces shall be at the prevailing monthly parking reserved or
non-reserved parking rate, as applicable (plus all applicable sales tax) that
Landlord charges other tenants for said Office Center parking facilities as
increased from time to time by Landlord. As of the Date of this Lease, the Rate
is $80.00 per month per non-reserved parking space. Landlord may, in Landlord's
sole discretion, adjust said monthly parking rate. The Rent for parking spaces
is payable in advance on the first day of each month throughout the Term of this
Office Lease. The Rent for such parking space(s) shall be deemed Additional Rent
payable in the same manner as Rent set forth in this Office Lease and shall be
subject to all of the terms, provisions, conditions and covenants of this Office
Lease including, but not limited to, any provisions pertaining to late charges
and Default. Notwithstanding anything herein, should Landlord require additional
spaces to provide parking for other tenants, occupants or other users of the
Office Center, then Landlord may at any time twenty-four (24) months after the
Commencement Date recapture up to three (3) parking spaces from Tenant upon not
less than seven (7) days' advance written notice to Tenant.
Tenant's right to use, and its right to permit its principals,
employees, contractors, and guests to use, the Parking Areas are subject to the
following conditions: (i) Landlord has made no representations or warranties
with respect to the Parking Areas, the number of spaces located therein, or
access thereto; (ii) Landlord reserves the right to change the access to the
Parking Areas and/or provide substitute parking spaces, provided that some
manner of reasonable access to the Parking Areas or substitute parking spaces
remain after such change; and such change shall not entitle Tenant to any claim
against Landlord or to any abatement of Rent; (iii) Landlord has no obligation
to provide security or a parking lot attendant and Landlord shall have no
liability on account of any loss or damage to any vehicle or the contents
thereof, or any personal injury, property damage, or other tort liability
suffered by Tenant, its employees, agents, or contractors, Tenant agreeing to
bear the risk of loss for same; (iv) if and when so requested by Landlord,
Tenant shall furnish Landlord with the license numbers and descriptions of any
vehicles of Tenant, its principals, employees, agents and contractors.
38
CONFIDENTIALITY. Landlord and Tenant shall not disclose the terms of
this Lease to any third party, except for bona fide business purposes, without
the consent of the other party.
STORAGE SPACE. As of the Date of this Lease, Tenant (as successor to
PowerCerv) is occupying the Storage Space. Throughout the term of this Lease,
Tenant shall have the right to use and occupy Storage Space solely for storage
purposes, which shall be at no charge to Tenant through June 1, 2005. After June
1, 2005, the Tenant shall pay Expenses and Real Estate Taxes with respect to the
Storage Space and the Allocated Share shall be adjusted to the sum obtained by
multiplying by 100 the quotient obtained by dividing (i) the Rentable Area of
the Premises and the Storage Space by (ii) the total rentable area of the Office
Center. Except as modified in this Section 53, all terms and conditions of this
Lease shall apply to Storage Space as well as the Premises. Notwithstanding the
foregoing, Landlord may, at Landlord's expense upon not less than ten (10) days'
prior written notice to Tenant, move Tenant from the Storage Space and relocate
Tenant to other air-conditioned, secure storage space of reasonably equivalent
size in the Office Center.
[Signatures on following page.]
39
IN WITNESS WHEREOF, this Lease has been executed on behalf of Landlord
and Tenant as of the Date of this Lease.
WITNESSES "LANDLORD"
--------- ----------
COLONNADE ASHLEY LLC a Delaware limited
liability company
By: COLONNADE ASHLEY PLAZA, LLC,
------------------------------------ a Delaware limited liability
Print Name: company, its Managing Member
-------------------------
------------------------------------ By:
Print Name: -----------------------------
------------------------- Print Name:
---------------------
Title:
--------------------------
Date Executed:
-------------------------
"TENANT"
--------
VERTICENT, INC.,
A Massachusetts corporation
------------------------------------
Print Name:
-------------------------
------------------------------------ By:
Print Name: ------------------------------------
------------------------- Print Name:
----------------------------
Its:
---------------------------------
Date Executed:
-------------------------
40
EXHIBIT "A"
LEGAL DESCRIPTION FOR OFFICE CENTER
That part of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 10 East, Hillsborough County,
Florida, described as follows:
From the Southwest corner of Block 62 of GENERAL MAP OF TAMPA, according to map
or plat thereof recorded in Plat Book 1, Page 7, Public Records of Hillsborough
County, Florida, run thence S 69 degrees 01' 57" W 00.00 feet to the Southeast
corner of Block 61 of said GENERAL MAP OF TAMPA; continue thence S 69 degrees
01'57" W 44.00 feet for a POINT OF BEGINNING; from said POINT OF BEGINNING
continue thence S 69 degrees 01' 57" W 95.25 feet, along the Southerly boundary
of said Block 61 and a Westerly extension thereof (Northerly right-of-way line
of XXXX X. XXXXXXX BOULEVARD); thence N 21 degrees 00' 33" W 46.00 feet,
parallel with the Easterly boundary of said Block 61; thence S 60 degrees 51'
27" W 91.00 feet to the beginning of a curve to the right; thence Westerly,
Northwesterly, Northerly and Northeasterly, 235.30 feet, along the arc of said
curve (having a radius of 00.00 feet, a central angle of 160 degrees 31' 15",
and a chord bearing and distance of N 26 degrees 52' 55.5 W 159.20 feet); thence
N 21 degrees 00' 33" W 6.06 feet, parallel with the Easterly boundary of said
Block 61; thence N 60 degrees 51' 27" C, 202.17 feet; thence S 21 degrees 00'
33" C, 210.75 feet, parallel with the Easterly boundary of said Block 61 to the
POINT OF BEGINNING.
EXHIBIT "B"
SKETCH OF PREMISES
EXHIBIT "C"
COMMENCEMENT DATE AND SCHEDULE OF ANNUAL BASE RENT
SUITE NO. 2675
The Lease Term shall commence on June 1, 2003 (the "Commencement
Date"). Beginning on the Commencement Date and continuing until July 31, 2003,
Tenant shall pay Monthly Rent in the amount of $6,525.00 plus applicable sales
tax. The five (5) month zero dollar Annual Base Rent period and other Annual
Base Rent set forth below shall commence on August 1, 2003 (the "New Rent
Date"). By occupying the Premises, the Tenant shall be conclusively deemed to
have accepted the same as complying fully with all of the Landlord's covenants
and obligations set forth herein.
The Annual Base Rent (stated monthly and excluding sales tax that also
shall be paid by Tenant) during the 65 months of the Lease Term beginning on the
New Rent Date shall be:
PERIOD RATE PER MONTHLY RENT
------ SQUARE FOOT ------------
-----------
Months 1 - 5 -0- $0.00
Months 6 - 17 $16.50 $16,819.00
Months 18 - 29 $17.00 $17,328.67
Months 30 - 41 $17.50 $17,838.33
Months 42 - 53 $18.00 $18,348.00
Months 54 - 65 $18.50 $18,857.67
EXHIBIT "D"
GUARANTY
For value received and in consideration of and in order to induce
Colonnade Ashley LLC (the "Landlord"), to enter into that certain Lease dated
June 1, 2003, between Landlord and Verticent, Inc., a Massachusetts corporation
(the "Tenant"), for space at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx
00000 (the "Lease") and other good and valuable considerations, the undersigned
(hereinafter sometimes called the "Guarantor"), acting as principal and not as
surety merely, absolutely and unconditionally, for himself and his legal
representatives, successors, and assigns, guarantees to the Landlord and to its
legal representatives, successors, and assigns, the prompt and full performance
and observance by the Tenant and by its legal representatives, successors, and
assigns, of all of the covenants, terms, provisions, conditions, and agreements
required to be performed by Tenant under the Lease, whether prior to, during the
term of, or after the termination of the term of the Lease.
The capitalized terms used in this Guaranty shall have the same
definitions as such capitalized terms have in the Lease unless the context
clearly indicates a contrary intent.
Notice of all defaults is waived, all suretyship defenses are waived,
and consent is given to all extensions of time that the Landlord may grant to
Tenant in the performance of any of the terms of the Lease and/or to the waiving
in whole or in part of any such performance, and/or to the releasing of Tenant
in whole or in part from any such performance, and/or to the adjusting of any
dispute in connection with the Lease; and no such defaults, extensions, waivers,
releases, or adjustments, with or without the knowledge of the undersigned,
shall affect or discharge the liability of the undersigned. The undersigned
further agrees to pay all expenses, including legal fees and disbursements paid
or incurred by Landlord in endeavoring to enforce this Guaranty.
This Guaranty shall not be impaired by, and the undersigned consents
to, any modification, supplement, extension, or amendment of the Lease to which
the parties thereto may hereafter agree. The liability of the Guarantor
hereunder is direct and unconditional and may be enforced without requiring the
Landlord first to resort to any other right, remedy, or security. The Guarantor
shall have no right of subrogation, reimbursement, or indemnity whatsoever, nor
any right of recourse to security for the debts and obligations of Tenant to
Landlord.
This Guaranty is a continuing guaranty which shall be and remain
effective prior to the commencement of the term of the Lease, during the term of
all or any portion of the Lease, and as to any surviving provisions that remain
effective after the termination of the Lease.
The liability of Guarantor under this Guaranty shall in no way be
affected, modified, or diminished by reason of (a) any assignment, renewal,
modification, amendment, or extension of the Lease, or (b) any modification or
waiver of or change in any of the terms, covenants, and conditions of the Lease
by Landlord and Tenant, or (c) any extension of time that may be granted by
Landlord to Tenant, or (d) any consent, release, indulgence, or other action,
inaction, or omission under or in respect of the Lease, or (e) any dealings or
transactions or matter or thing occurring between Landlord and Tenant, or (f)
any bankruptcy, insolvency, reorganization, liquidation, arrangement, assignment
for the benefit of creditors, receivership, trusteeship, or similar proceeding
affecting Tenant, or the rejection or disaffirmance of the Lease in any such
proceedings, whether or not notice thereof or of any thereof is given to
Guarantor.
Should Landlord be obligated by any bankruptcy or other law to repay to
Tenant or to Guarantor or to any trustee, receiver, or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such repayments if it in good faith
believes that such obligation exists.
For purposes of this Guaranty, upon a default by Tenant under the Lease
the entire balance of all forms of Rent due under the Lease for the remainder of
the term of the Lease may be declared to be forthwith due and payable as
provided in the Lease notwithstanding any stay, injunction, or other prohibition
preventing such declaration as against Tenant and, in the event of any such
declaration by Landlord, such obligations (whether or not due and payable by
Tenant) shall forthwith become due and payable by Guarantor under this Guaranty.
No delay on the part of Landlord in exercising any right, power, or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power, or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.
No waiver or modification of any provision or this Guaranty nor any
termination of this Guaranty shall be effective unless in writing and signed by
Landlord; nor shall any such waiver be applicable except in the specific
instance for which given.
All of Landlord's rights and remedies under the Lease and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate, and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Guarantor agrees that it will, at any time and from time to time within
ten (10) days following written request by Landlord, execute, acknowledge, and
deliver to Landlord a statement certifying that this Guaranty is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating such modifications). Guarantor
agrees that such certificate may be relied on by Landlord and by anyone holding
or proposing to acquire any interest in the Premises from or through Landlord or
by any mortgagee or prospective mortgagee of the Office Center or Premises or of
any interest therein. Guarantor further agrees that it will, at any time and
from time to time, within ten (10) days following written request by Landlord,
provide Landlord such information regarding the financial condition of Guarantor
as Landlord may reasonably request.
If Landlord assigns the Lease or sells the Office Center, Landlord may
assign this Guaranty to such assignee or transferee, who shall thereupon succeed
to the rights of Landlord under this Guaranty to the same extent as if such
assignee were an original guaranteed party named in this Guaranty, and the same
2
rights shall accrue to each subsequent assignee of this Guaranty. If Tenant
assigns or sublets the Premises, the obligations of the Guarantor under this
Guaranty shall remain in full force and effect.
If any provision of this Guaranty or the application of such provision
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of that provision and this Guaranty and the application of such
provision to persons or circumstances other than those as to which it is invalid
or enforceable shall not be affected thereby, and the remainder of such
provision and this Guaranty shall otherwise remain in full force and effect.
AS A FURTHER INDUCEMENT TO LANDLORD TO MAKE AND ENTER INTO THE LEASE
AND IN CONSIDERATION OF LANDLORD'S EXECUTION OF THE LEASE, LANDLORD AND
GUARANTOR WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT ON, UNDER, OR
BY VIRTUE OF THIS GUARANTY.
Without regard to principles of conflicts of laws, the validity,
interpretation, performance, and enforcement of this Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Florida
and shall be deemed to have been made and performed in the State of Florida.
Guarantor irrevocably consents that any legal action or proceeding
arising out of or in any way connected with this Guaranty may be instituted or
brought by Landlord or its agents in any court (federal or state) located in
Hillsborough County, Florida, and irrevocably submits to the jurisdiction of
such court in any such legal action or proceeding.
This Guaranty is expressly subject to the terms and conditions of
Section 46 of the Lease, and contingent upon (i) Tenant's payment of all Rent
for the forty-five (45) months after the New Rent Date in accordance with the
terms and conditions of the Lease, (ii) Tenant's compliance with the other terms
and conditions of the Lease and (iii) Tenant's payment of the Security Deposit
to Landlord, this Guaranty shall expire on the date that is forty-five (45)
months after the New Rent Date. Notwithstanding any expiration of this Guaranty,
the Guarantor shall remain liable for any obligations under this Guaranty and/or
the Lease that arise or accrue prior to such expiration, and such obligations
shall survive the expiration of this Guaranty.
3
WITNESSES: ASA INTERNATIONAL, LTD, a
--------- Delaware corporation
------------------------------------
Print Name:
-------------------------
------------------------------------ By:
Print Name: ------------------------------------
------------------------- Print Name:
----------------------------
Its:
---------------------------------
Guarantor's address:
0 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Dated:
---------------------------------
STATE OF _________________
COUNTY OF ________________
The foregoing instrument was acknowledged before me this ______ day of
______________, 2003, by ____________________________, as ____________________
of ASA INTERNATIONAL, LTD, a Delaware corporation, on behalf of the corporation.
He/she is [ ]personally known to me or has [ ]produced _______________________
as identification.
NOTARY PUBLIC
Print Name:
-----------------------------------
Serial #:
------------------------------------
My Commission Expires:
4
EXHIBIT "E"
RULES AND REGULATIONS
---------------------
1. The sidewalks and public portions of the Office Center, such as
entrances, passages, courts, parking areas, elevators, vestibules, stairways,
corridors, or halls shall not be obstructed or encumbered by Tenant or its
employees, agents, invitees, or guests nor shall they be used for any purpose
other than ingress and egress to and from the Premises.
2. No awnings or other projections shall be attached to the outside walls
of the Office Center. No curtains, blinds, shades, louvered openings, or screens
shall be attached to or hung in, or used in connection with, any window or door
of the Premises, without the prior written consent of Landlord, unless installed
by Landlord. No aerial or antenna shall be erected on the roof or exterior walls
of the Premises or on the Office Center without the prior written consent of
Landlord in each instance.
3. No sign, advertisement, notice, or other lettering shall be exhibited,
inscribed, painted, or affixed by Tenant on any part of the outside of the
Premises or Office Center or on corridor walls or doors or mounted on the inside
of any windows without the prior written consent of Landlord. Signs on any
entrance door or doors shall conform to Office Center standards and shall, at
Landlord's expense, be inscribed, painted, or affixed for Tenant by sign makers
approved by Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may install and/or remove same without any liability and may charge the
expense incurred to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating, and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways, or other public places in the Office Center shall not be
covered or obstructed by Tenant, or its employees, agents, invitees, or guests,
nor shall any bottles, parcels, or other articles be placed outside of the
Premises.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Office Center, nor placed in the public halls,
corridors, or vestibules without the prior written consent of Landlord.
6. Whenever Tenant shall submit to Landlord any plan, agreement,
assignment, sublease, or other document for Landlord's consent or approval,
Tenant agrees to pay Landlord, on demand, a processing fee in a sum equal to the
reasonable fee for review of same, including the services of any architect,
engineer, or attorney employed by Landlord to review or prepare any such plan,
agreement, assignment, sublease, consent, or other document.
7. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of fixtures shall be borne by the Tenant who,
or whose employees, agents, invitees, or guests, shall have caused the same.
8. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, or other similar floor covering, so
that the same shall come in direct contact with the floor of the Office Center,
and, if linoleum or other similar floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
9. No animals or any kind (except seeing eye dogs and other animals used to
assist physically challenged individuals) shall be brought upon the Premises or
Office Center.
10. No cooking shall be done or permitted by Tenant on the Premises except
in conformity to law and then only in the utility kitchen (if a utility kitchen
was provided for in approved plans for the Premises or if Landlord has consented
in writing thereto), which is to be primarily used by Tenant's employees for
heating beverages and light snacks. No refrigeration or heating equipment may be
placed inside the Premises without the prior written consent of Landlord in each
instance. Tenant shall not cause or permit any unusual or objectionable odors to
be produced upon or permeate from the Premises.
11. No office space in the Office Center shall be used for the distribution
or for the storage of merchandise or for the sale at auction or otherwise of
merchandise, goods, or property of any kind.
12. Tenant shall not make or permit to be made any unseemly or disturbing
noises or disturb or interfere with occupants of the Office Center or
neighboring premises or those having business with them. Tenant shall not throw
anything out of the doors or windows or down the corridors, stairwells, or
elevator shafts of the Office Center. Tenant shall not make or permit electrical
waves which will impair radio or television broadcasting or reception from or in
the Office Center.
13. Neither Tenant nor any of Tenant's employees, agents, invitees, or
guests shall at any time bring or keep upon the Premises any inflammable,
combustible, or explosive substance or any chemical substance, other than
reasonable amounts of cleaning fluids and solvents required in the normal
operation of Tenant's business, all of which shall only be used in strict
compliance with all applicable Environmental Laws.
14. Landlord shall have a valid pass key to all spaces within the Premises
at all times during the Lease Term. No additional locks or bolts of any kind
shall be placed upon any of the doors or windows by Tenant, nor shall any
changes be made in existing locks or the mechanism thereof, without the prior
written consent of the Landlord and unless and until a duplicate key is
delivered to Landlord. Tenant must, upon the termination of its tenancy, restore
to the Landlord all keys to stores, offices, and toilet rooms, either furnished
to or otherwise procured by Tenant, and in the event of the loss of any keys so
furnished, Tenant shall pay Landlord for the cost thereof.
15. All deliveries, removals, and/or the carrying in or out of any safes,
freights, furniture, or bulky matter of any description may be accomplished only
with the prior approval of Landlord and then only in approved areas, through the
2
approved loading/service area doors, and during approved hours. Tenant shall
assume all liability and risk with respect to such movements. Landlord may
restrict the location where such heavy or bulky matters may be placed inside the
Premises. Landlord reserves the right to inspect all freight to be brought into
the Office Center and to exclude from the Office Center all freight which can or
may violate any of these Rules and Regulations or the Lease of which these Rules
and Regulations are a part.
16. Tenant shall not, unless otherwise approved by Landlord, occupy or
permit any portion of the Premises demised to it to be occupied as, by, or for a
public stenographer or typist, xxxxxx shop, bootblacking, beauty shop or
manicuring, beauty parlor, telephone or telegraph agency, telephone or
secretarial service, messenger service, travel or tourist agency, employment
agency, public restaurant or bar, commercial document reproduction or offset
printing service, ATM or similar machines, retail, wholesale, or discount shop
for sale of merchandise, retail service shop, labor union, school or classroom,
governmental or quasi-governmental bureau, department, or agency, including an
autonomous governmental corporation, a firm the principal business of which is
real estate brokerage, or a company engaged in the business of renting office or
desk space; or for a public finance (personal loan) business or for
manufacturing, unless Tenant's Lease expressly grants permission to do so.
Tenant shall not operate or permit to be operated on the Premises any coin or
token operated vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices, and machines for sale
of beverages, foods, candy, cigarettes, or other goods), except for those
vending machines or similar devices which are for the sole and exclusive use of
Tenant's employees, and then only if such operation does not violate the lease
of any other tenant of the Office Center. Tenant shall not engage or pay any
employees on the Premises, except those actually working for Tenant on the
Premises, nor advertise for labor giving an address at the Premises.
Notwithstanding the foregoing, Tenant shall from time to time be allowed to
lease their conference room.
17. Tenant shall not create or use any advertising mentioning or exhibiting
any likeness of the Office Center without the prior written consent of Landlord.
Landlord shall have the right to prohibit any such advertising which, in
Landlord's reasonable opinion, tends to impair the reputation of the Office
Center or its desirability as a building for offices, and upon written notice
from Landlord, Tenant shall discontinue such advertising.
18. Landlord reserves the right to exclude from the Office Center at all
times other the Normal Business Hours all persons who do not present a pass to
the Office Center on a form or card approved by Landlord. Tenant shall be
responsible for all its employees, agents, invitees, or guests who have been
issued such a pass at the request of Tenant and shall be liable to Landlord for
all acts of such persons.
19. The Premises shall not be used for lodging or sleeping, or for any
immoral, disreputable, or illegal purposes, or for any purpose which may be
dangerous to life, limb, or property.
20. Any maintenance requirements of Tenant will be attended to by Landlord
only upon application at the Landlord's office at the Office Center. Landlord's
3
employees shall not perform any work or do anything outside of their regular
duties, unless under specific instructions from the office of Landlord.
21. Canvassing, soliciting, and peddling within the Office Center or in the
Common Areas is prohibited and Tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the public halls of the
Office Center, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise to Tenant, any hand trucks, except those equipped with
rubber tires and side guards. No hand trucks shall be used in elevators other
than those designated by Landlord as service elevators. All deliveries shall be
confined to the service areas and through the approved service entries.
23. In order to obtain maximum effectiveness of the cooling system, Tenant
shall lower and/or close venetian or vertical blinds or drapes when the sun's
rays fall directly on the exterior windows of the Premises.
24. In the event that, in Landlord's reasonable opinion, the replacement of
ceiling tiles becomes necessary after they have been removed on behalf of Tenant
by telephone company installers or others (in both the Premises and the public
corridors), the cost of such replacements shall be charged to Tenant on a per
tile basis.
25. All paneling or other wood products not considered furniture which
Tenant shall install in the Premises shall be of fire-retardant materials. Prior
to the installation of any such materials, Tenant shall submit to Landlord a
satisfactory (in the reasonable opinion of Landlord) certification of such
materials' fire-retardant characteristics.
26. All trucks and delivery vans shall be parked in designated areas only
and not parked in spaces reserved for cars. All delivery service doors are to
remain closed except during the time that deliveries, garbage removal, or other
approved uses are taking place therein. All loading and unloading of goods shall
be done only at such time, in the areas, and through the entrances designated
for such purposes by Landlord.
27. Tenant shall be responsible for the removal and proper disposition of
all crates, oversized trash, boxes, and items termed garbage from the Premises.
The corridors and parking and delivery areas are to be kept clean from such
items. Tenant shall provide convenient and adequate receptacles for the
collection of standard items of trash and shall facilitate the removal of such
trash by Landlord. Tenant shall ensure that liquids are not disposed of in such
receptacles.
28. Tenant shall not conduct any business, loading or unloading,
assembling, or any other work connected with Tenant's business in any public
areas.
29. Landlord shall not be responsible for lost or stolen personal property,
equipment, or money occurring within the Premises or Office Center, regardless
of how or when the loss occurs.
4
30. Neither Tenant, nor its employees, agents, invitees, or guests, shall
paint or decorate the Premises, or xxxx, paint, or cut into, drive nails or
screw into nor in any way deface any part of the Premises or Office Center
without the prior written consent of Landlord. Notwithstanding the foregoing,
standard picture hanging shall be permitted without Landlord's prior consent. If
Tenant desires a signal, communications, alarm, or other utility or service
connection installed or changed, such work shall be done at the expense of
Tenant, with the approval and under the direction of Landlord.
31. Tenant shall give Landlord prompt notice of all accidents to or defects
in air conditioning equipment, plumbing, electric facilities, or any part or
appurtenance of the Premises.
32. Tenant agrees and fully understands that the overall aesthetic
appearance of the Office Center is of paramount importance; thus Landlord shall
maintain complete aesthetic control over any and every portion of the Premises
visible from outside the Premises including but not limited to all fixtures,
equipment, signs, exterior lighting, plumbing fixtures, shades, awnings,
merchandise, displays, art work, wall coverings, or any other object used in
Tenant's business. Landlord's control over the visual aesthetics shall be
complete and arbitrary. Landlord will notify Tenant in writing of any aesthetic
deficiencies and Tenant will have seven (7) days to correct the deficiencies to
Landlord's satisfaction or Tenant shall be in default of this Lease and the
Default section shall apply.
33. Tenant shall not install, operate, or maintain in the Premises or in
any other area of the Office Center, any electrical equipment which does not
bear the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part of the system beyond its capacity for
proper, efficient, and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Office Center. Tenant shall not furnish any cooling
or heating to the Premises, including, without limitation, the use of any
electronic or gas heating devices, without Landlord's prior written consent.
34. Pursuant to applicable law, the Office Center is deemed to be a
"no-smoking" building and smoking is prohibited in all interior Common Areas. In
addition, Landlord may, from time to time, designate non-smoking areas in all or
any portion of the exterior Common Areas and within Tenant's Premises.
35. Whenever and to the extent that the above Rules and Regulations
conflict with any of the rights or obligations of Tenant pursuant to the
provisions of the Lease, the provisions of the Lease shall govern.
36. Tenant shall comply with any recycling programs for the Office Center
implemented by Landlord from time to time.
37. Landlord may, upon request by any tenant, waive compliance by such
tenant with any of the Rules and Regulations provided that (i) no waiver shall
be effective unless in writing and signed by Landlord or Landlord's authorized
agent, (ii) any such waiver shall not relieve such tenant from the obligation to
5
comply with such Rule or Regulation in the future unless expressly consented to
by Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the Rules and Regulations unless
such other tenant has received a similar waiver in writing from Landlord.
6
EXHIBIT "F"
TENANT IMPROVEMENTS
Landlord Builds
1. For purposes of this Rider: (i) "Plans" shall mean a permit set (final
construction drawings) of plans and specifications for the improvements to
the Premises desired by Tenant and shall include the following: fully
dimensioned architectural plan; electric/telephone outlet diagram;
reflective ceiling plan with light switches; mechanical plan; furniture
plan; electrical power circuitry diagram; plumbing plans; all color and
finish selections; all special equipment and fixture specifications; and
fire sprinkler design drawings; (ii) "Tenant Improvements" shall mean all
of the work described in the Plans and any extra work or changes performed
pursuant to revisions to the Plans; and (iii) "Work Cost" shall mean the
aggregate of (a) engineering and architectural fees in connection with the
Tenant Improvements, plus (b) filing fees and permit costs incurred in
connection with the Tenant Improvements, plus (c) all costs in connection
with demolition of any existing improvements in the Premises, plus (d) the
actual cost of all labor and materials furnished in connection with the
Tenant Improvements, including all costs associated with extra work or
change orders.
2. If and so long as Tenant is not in default under this Lease beyond any
applicable grace period, Tenant shall be entitled to a fixed price tenant
improvement allowance in the maximum amount of $8.00 per square foot of
Rentable Area of the Premises or $97,856.00 (the "Tenant Improvement
Allowance") to be applied to the Work Cost. Tenant may apply any unused
portion of the Tenant Improvement Allowance (if the Work Cost is less than
the Tenant Improvement Allowance) to its moving expenses or receive such
unused portion of the Tenant Improvement Allowance in cash on the New Rent
Date. The Tenant Improvement Allowance is being paid by Landlord as an
inducement to Tenant to enter into this Lease and as consideration for the
execution of this Lease by Tenant and the performance by Tenant under this
Lease for the full term of this Lease. If after Tenant has been granted all
or any portion of the Tenant Improvement Allowance and/or the Moving
Allowance (hereinafter defined), the Lease Term is thereafter terminated by
virtue of a default by Tenant or Landlord resumes possession of the
Premises consequent upon a default by Tenant, and Landlord is precluded by
applicable law from collecting the full amount of damages attributable to
such default as provided in the Default section of this Lease, then and in
such event, in addition to all other damages and remedies provided under
this Lease or otherwise provided by law, Landlord shall also be entitled to
recover from Tenant the unamortized portion (calculated using an interest
rate of fourteen percent (14%) per annum compounded monthly) of the Tenant
Improvement Allowance and the Moving Allowance, which sum shall be deemed
Additional Rent due and owing prior to the termination of this Lease. This
obligation of Tenant to repay the unamortized balance of the Tenant
Improvement Allowance and the Moving Allowance to Landlord shall survive
the expiration or sooner termination of the Lease Term.
3. Within fifteen (15) days after the Date of this Lease, Tenant shall furnish
the Plans to Landlord for Landlord's written approval. Tenant's failure to
deliver the Plans within such fifteen (15) day period shall constitute a
Delay pursuant to Paragraph 9. The Plans shall be prepared by a licensed
architect, except for the electrical and mechanical plans, which shall be
prepared by a licensed professional engineer. The architect and engineer
will be subject to Landlord's approval, which shall not be unreasonably
withheld. The Plans shall comply with all applicable laws, ordinances,
directives, rules, regulations, and other requirements imposed by any and
all governmental authorities having or asserting jurisdiction over the
Premises.
4. Landlord shall review the Plans and either approve or disapprove them, in
Landlord's reasonable discretion. The approval by Landlord of the Plans and
any approval by Landlord of any similar plans and specifications for any
other Alterations or the supervision by Landlord of any work performed on
behalf of Tenant shall not: (i) imply Landlord's approval of the plans and
specifications as to quality of design or fitness of any material or device
used; (ii) imply that the plans and specifications are in compliance with
any codes or other requirements of governmental authority; (iii) impose any
liability on Landlord to Tenant or any third party; or (iv) serve as a
waiver or forfeiture of any right of Landlord.
5. Landlord shall, in its sole discretion, select a general contractor to
perform the Tenant Improvements. Within ten (10) days after receipt of the
contractor's estimate of the anticipated Work Cost, Tenant shall pay
Landlord, in cash, the difference between the estimated Work Cost and the
Tenant Improvement Allowance; provided, however, Tenant shall not be
responsible to pay any Work Cost exceeding the Tenant Improvement Allowance
by more than 15% unless such cost is due to change orders or requests of
Tenant.
6. Landlord shall perform the Tenant Improvements, in a good and workmanlike
manner, using new materials in accordance with applicable laws, codes and
ordinances, and shall deliver the Premises to Tenant on July 15, 2003 when
Landlord's contractor has substantially completed the Tenant Improvements
(subject to punch list items) (the "Delivery Date"). Other than as set
forth in the preceding sentence, Landlord has made no representation or
promise as to the condition of the Premises. Notwithstanding the foregoing,
Landlord warrants that the Tenant Improvements shall be free from defects
in materials and workmanship for a period of one (1) year from the
Commencement Date. Landlord shall correct any such defects reported to it
within such one (1) year warranty period. Except pursuant to the foregoing
warranty, Landlord shall not otherwise be liable for any latent or patent
defect in the Premises.
7. Tenant shall have the right to make changes from time to time in the Plans
by submitting to Landlord revised Plans. If the cost of any changes, as
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estimated by the contractor, will exceed any remaining balance of the
tenant improvement allowance (after deducting the most current estimate of
the Work Cost prior to the change in question), Tenant shall pay to
Landlord the amount of such excess within five (5) days of receipt of a
notice from Landlord as to the amount. Until Landlord has received full
payment of such increases, Tenant shall not be permitted to occupy the
Premises notwithstanding that Tenant's obligation to pay Annual Base Rent
and Additional Rent under this Lease remains in full force and effect. Any
change in the Plans which delays the Delivery Date shall constitute a Delay
pursuant to Paragraph 9.
8. Tenant shall perform all work not shown on the Plans at its sole expense.
9. If Landlord or the general contractor is delayed in substantially
completing the Tenant Improvements as a result of the occurrence of any
Delay (as hereafter defined), then, the Delivery Date of July 15, 2003
shall be changed. For purposes of this provision each of the following
shall constitute a "Delay":
1. Tenant's failure to furnish information or to respond to any
request by Landlord for any approval within any time period prescribed, or
if no time period is prescribed, within two (2) business days of such
request; or
2. Tenant's insistence on materials, finishes, or installations that
have long lead times after having first been informed that such materials,
finishes, or installations shall cause a Delay; or
3. changes in the Plans by Tenant; or
4. performance or nonperformance by a person or entity employed by
Tenant in the completion of any work; or
5. any delay resulting from Tenant's having taken possession of the
Premises for any reason prior to substantial completion of the Tenant
Improvements; or
6. any other delay chargeable to Tenant, its agents, employees, or
independent contractors.
10. If Landlord or Landlord's general contractor is delayed in
substantially completing the Tenant Improvements for any reason other than a
Delay, then the Tenant's obligation to commence payment of that portion of the
Monthly Annual Base Rent for that portion of the Premises that is not occupied
by Tenant as of the Date of this Lease shall xxxxx one day for each day until
Landlord's contractor has substantially completed the Tenant Improvements.
However, the New Rent Date shall not be altered and the sixty-five month Rent
schedule set forth on Exhibit "C" shall not be altered by any such abatement.
Landlord shall also pay to ASA International, Ltd. ("ASA") or such other party
that ASA shall designate in writing for the benefit of Tenant and pursuant to
payment instructions provided by Tenant, the sum of $97,856.00 as a Tenant
moving allowance (the "Moving Allowance"). The Moving Allowance shall be paid by
Landlord on July 1, 2003.
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