EXHIBIT 10.27
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LEASE AGREEMENT
BETWEEN
CROSSROADS BUSINESS PARK ASSOCIATES LLP
As Landlord
and
TRADESTATION GROUP, INC.
As Tenant
FOR THE PREMISES
Second Floor, Third Floor and Portion of the Fourth Floor,
Crossroads Business Park Building Four
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LEASE
THIS LEASE AGREEMENT is made and is entered into by and between
CROSSROADS BUSINESS PARK ASSOCIATES LLP, a Florida limited liability partnership
(the "Landlord") and TRADESTATION GROUP, INC., a Florida corporation (the
"Tenant" or "You").
TERMS
For and in consideration of the rentals hereinafter reserved and the
covenants and agreements herein contained, Landlord does hereby lease to Tenant,
and Tenant does take and lease from Landlord, the Premises hereinbelow described
for the term indicated at the rentals and upon and subject to the terms and
conditions stated herein.
ARTICLE I
DEFINITIONS
The terms defined in this Article shall, for all purposes of this Lease
and all future agreements which may become supplemental thereto, have the
meanings herein specified.
"Adjustment Date" means the first day of the Lease Year.
"Affiliate" means an affiliate of yours as defined in Rule 405
promulgated under the Securities Act of 1933, as amended. The term "Affiliate"
shall also include any entity which succeeds to your business by reason of
merger, consolidation or purchase of all or substantially all of your assets
provided that such entity has a net worth (determined in accordance with GAAP)
equal to or exceeding your net worth.
"Architect" means Xxxxx Design Group whom you have engaged pursuant to
a written contract, or another licensed architect reasonably acceptable to
Landlord, to prepare all space planning, architectural and engineering plans and
the Construction Drawings or other documents with respect to the Interior
Modifications and including the hiring of an engineer who will work under the
direction of and supervision of the Architect.
"Base Building" means the Building in at least Base Building Condition.
"Base Building Condition" means a shell building and site improvements
being constructed in accordance (within reasonable construction tolerances) with
those certain construction documents itemized on SCHEDULE 1.01 annexed hereto.
"Base Building Required Completion Date" means, with respect to the
construction of the Building in Base Building Condition, January 15, 2002 as
extended by each day of delay attributable to (i) rain delays claimed by the
general contractor of the Building; and (ii) war or to other force majeure
events beyond the control of Landlord. The Base Building Required Completion
Date will be deemed to have occurred on the date the City of Plantation issues a
certificate of completion or its equivalent required as a condition of the
Landlord: Tenant:
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issuance by the City of Plantation of a building permit for the construction of
the Interior Modifications. Notwithstanding anything herein to the contrary, if
the City of Plantation does not impose a requirement of the issuance of a
certificate of completion or its equivalent as a condition of the issuance of
the building permit for the Interior Modifications, then nonetheless, the Base
Building Required Completion Date shall occur no later than the Required
Completion Date.
"Building" means the four story office building located at 0000 X.X. 00
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, which Building is referred to by the Landlord
and which is officially named and designated as Crossroads Business Park
Building Four and which Building may hereafter be referred to by you and
publicly named (provided, however, that Landlord shall not be required to incur
any cost or expense associated with any such public naming) as "TradeStation".
Parking spaces situated or to be situated on the Land are 529 parking spaces of
which 483 parking spaces are available on a non- exclusive basis to all of the
tenants of the Building, 11 are handicapped spaces available on a non-exclusive
basis to all of the tenants of the Building and 30 are assigned covered parking
spaces. At such time as planned Crossroads Business Park Building Five is
constructed and occupied by one or more tenants, the Building, together with
Building Five, will have 642 parking spaces of which 594 parking spaces will be
available on a non-exclusive basis to all of the tenants of the Building and to
all of the tenants of Building Five, 18 will be handicapped spaces that will be
available on a non- exclusive basis to all of the tenants of the Building and to
all of the tenants of Building Five, and 30 will be assigned covered parking
spaces that Landlord, subject to your rights hereunder, shall have the right to
assign among the tenants of the Building and Building Five. The foregoing
parking counts may be reduced, to the extent necessary, in order to accommodate
the installation of your generator (See Section 25.08).
"Commencement Date" means the latest of (i) August 17, 2002 or (ii)
the date that the Interior Modifications have been Substantially Completed,
provided, however, that if a Tenant Delay occurs, then in that event the
Commencement Date shall be accelerated by the lesser of (i) the number of days
of such Tenant Delay or (ii) the number of days beginning from August 17, 2002
and ending on the date after August 17, 2002 that the Interior Modifications
have been Substantially Completed. (See Section 3.05 for additional provisions
regarding a Tenant Delay).
"Common Areas" means the Exterior Common Areas and the Interior Common
Areas.
"Construction Drawings" means, with respect to the Interior
Modifications, mutually agreed upon plans and specifications.
"Construction Management Fee" means the management fee paid by Landlord
to Premier Commercial Realty, Inc., which Construction Management Fee may not
exceed the lesser of (i) 3% of the Interior Buildout Cost (excluding the
Construction Management Fee); or (ii) 3% multiplied by Z where Z is the product
of $30.00 multiplied by the rentable square footage of the Premises.
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"Continuous Basis" means twenty four hours a day, seven days a week
fifty two weeks a year.
"Controllable Operating Costs" means all Operating Costs other than
Taxes, insurance premiums, association assessments, security, if any, contracted
for by Landlord, utilities and trash removal. Notwithstanding, security, if
contracted for by Landlord, will be a Controllable Operating Cost if the
contract for the provision of security services was not competitively bid to at
least two bidders.
"Crossroads Business Park" means all of the land within Jacaranda
Parcel 817 owned by Landlord.
"Development" means the Building together with all other land and
improvements within Crossroads Business Park.
"Early Return of Escrow Account Conditions" means (i) no uncured Event
of Default then exists; (ii) no monetary Event of Default occurred (irrespective
of whether such monetary Event of Default was then subsequently cured) during
the immediately preceding twelve month period; (iii) you agree in writing to pay
all costs of review or investigation of your financial condition charged
Landlord by a Superior Mortgagee and all reasonable costs of investigation of
your financial condition incurred by Landlord; (iv) you then have in effect a
senior unsecured debt Standard & Poors rating of BBB minus or better or if you
do not have any rated senior unsecured debt, if you would have such a rating if
you had issued and outstanding senior unsecured debt in an amount equal to your
monetary obligations under this Lease for the remainder of the term; and (v) if
the mortgage held by the then Superior Mortgagee is part of a securitized loan
portfolio, if the return of the Escrow Account would not cause the rating of the
securitized loan portfolio to be reduced.
"Effective Date" means the date of this Lease which date shall be
deemed to refer to the last date in point of time on which all parties hereto
have executed this Lease.
"Environmental Law" means any federal, state or local law, ordinance,
regulation, regulatory guidance or pronouncement relating to pollution or
protection of the environment including the use, analysis, generation,
manufacture, handling, storage, presence, disposal or transportation of any
Hazardous Substance. The term "Environmental Law" includes any applicable best
management practices for products being sold or used by you at the Premises.
"Escrow Account" means the sum of $2,389,282 which sum shall be held
pursuant to the terms and conditions of the Escrow Instructions annexed hereto
as SCHEDULE 6.01, as security for the full, timely and faithful performance of
your covenants and obligations under this Lease, it being expressly agreed that
the Escrow Account is not an advance rental deposit or a measure of Landlord's
damages. References to the initial Escrow Account amount means the sum of
$2,389,282.
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"Events of Default" means those events of default specifically
identified in this Lease.
"Expiration Date" means the last day of the tenth Lease Year.
"Exterior Common Areas" means all access openings, roadways and
sidewalks within the exterior boundary line of the Land, the parking areas
serving the Building, shipping and receiving areas for the Building and
landscaped areas within the Land . The Exterior Common Areas shall include any
land not owned by Landlord but which Landlord has a non exclusive right to
ingress, egress and parking (including any non exclusive rights to parking
reserved by Landlord pursuant to the vesting deed whereby Landlord conveyed land
to La Quinta Inns, Inc., provided, however, that Landlord shall not have any
maintenance or repair obligations as to such easement areas).
"GAAP" means generally accepted accounting principles consistently
applied.
"Hazardous Substances" means pollutants, contaminants, toxic or
hazardous wastes, medical waste, radioactive waste or any other substances, the
removal of which is required or the use of which is restricted, prohibited or
penalized by any Environmental Law.
"Holdover Rent" means the sum of (i) 200% of the monthly base rent
amount in effect on the termination date of this Lease (provided, however, that
it shall be 125%of the monthly base rent amount in effect on the termination
date of this Lease for the first 180 days of holdover and 150% of the monthly
base rent amount in effect on the termination date of this Lease for the next 90
days) plus (ii) your Proportionate share of Operating Costs plus (iii) all sales
tax required to be collected thereon.
"Interior Buildout Cost" means all hard and soft costs incurred by
Landlord to space plan, design, permit, and construct the Interior Modifications
including, without limitation, the Construction Management Fee and architect
fees that Landlord or you are obligated to pay to the Architect pursuant to this
Lease. The Interior Buildout Cost shall not include the cost of furnishing
electric to the Premises during construction which cost shall be paid for by
Landlord. The Interior Buildout Cost shall not include the cost of furniture and
equipment purchased by you to furnish and equip the Premises, which cost will be
paid for by you separately (See, however, Section 25.03 which provides for the
possibility of a reimbursement to you of a portion of the cost of such furniture
and other items). The Interior Buildout Cost shall not include any bonuses
expressly set forth in the construction contract for delivery on time or for
early delivery nor shall the Interior Buildout Cost include any increases to the
construction contract sum by change order for overtime, extended shift and bonus
incentives, which costs shall be paid for solely by Landlord. Notwithstanding,
if a change order results from a change in the Construction Drawings requested
by you, then overtime, extended shift or bonus charges expressly set forth in
such change order and specifically identified as the result of such change order
shall be part of the Interior Buildout Cost.
"Interior Common Areas" means the lobbies, elevators, common restrooms
and common hallways of the Building.
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"Interior Modifications" means the construction work that Landlord has
agreed to do as set forth in the Construction Drawings. All materials used by
Landlord will be in Building standard in accordance with the Construction Work
Letter attached to this Lease as EXHIBIT C or better, and installed in Building
standard manner unless Landlord and you otherwise agree in writing.
"Land" means the real property on which the Building is located as
legally described in EXHIBIT A annexed hereto, which legal description is
subject to non-material change based on the final as built survey to be prepared
by Landlord's surveyor, which change shall not reduce the Building's parking
spaces or alter access to the Building.
"Landlord's Broker" means Premier Commercial Realty, Inc.
"Lease" means this lease agreement including all exhibits attached
hereto.
"Lease Year" means, as to the first Lease Year, the 365 day period
beginning on the Rent Commencement Date (366 day period if February 29 falls
within such Lease Year), provided, however, that if the Rent Commencement Date
is a day other than the first day of a calendar month, then the first Lease Year
shall instead be measured from the first day of the calendar month immediately
following the calendar month within which the Rent Commencement Date falls.
Thereafter, each succeeding Lease Year shall be the 365 day period (366 day
period if February 29 falls within such period) immediately following the end of
the prior Lease Year. By way of example, if the Rent Commencement Date is August
17, 2002, then each Lease Year would run from September 1 through August 31.
"Market Rent" means base rent determined with reference to the average
of normal values being achieved by landlords in lease renewals entered into with
similarly sized tenants for comparable space (i.e., the Premises in its as-is
condition and size at the time of renewal) in comparable buildings in the
Plantation area assuming operating expense passthroughs and annual base rent
increases corresponding to those contained in this Lease(1). Consideration
should be given to the value of any concession as may then be customary in the
market for lease renewals, including, without limitation, rental abatements,
cash allowances and/or credits for renewal tenant improvements over the entire
renewal term. The determination of Market Rent shall be made by Landlord.
Notwithstanding, you shall have the right to disagree with Landlord's
determination, and to submit your own determination of Market Rent. If Landlord
does not agree with your determination, then you and Landlord shall mutually
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(1) If the required base rent increases pursuant to this Lease are less
than or greater than the then market rate standard for increases, then this will
be factored in to the determination of Market Rent so as to achieve a market
rental over the entire period of the extended term, e.g., if market rate
increases are greater than the increases provided for in this Lease, then this
would result in a Market Rent determination greater than what the Market Rent
determination would be if the annual increases provided for in this Lease were
equal to the then market rate increases and likewise, if the market rate
increases are less than the increases provided for in this Lease, then this
would result in a Market Rent determination which is less than what the Market
Rent determination would be if the annual increases provided for in this Lease
were equal to the then market rate increases in order to achieve a market rent
over the entire period of the extended term.
Landlord: Tenant:
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select an independent appraiser qualified to appraise commercial property and
who shall have at least five years experience in the appraisal of similar
properties within the referenced area. The sole function of the independent
appraiser shall be to determine which among Landlord's and your determinations
of Market Rent is most correct and the decision of the independent appraiser
shall be final and binding upon the parties. The cost of the independent
appraiser shall be paid for equally by the parties.
"Operating Costs" means all costs and expenses paid or incurred by
Landlord or on Landlord's behalf in connection with the ownership, management,
repair, replacement, remodeling, maintenance and operation of the Building,
including, without limitation, all Taxes, assessments (whether general or
special) and governmental charges of any kind and nature whatsoever, including
assessments due to deed restrictions and/or owner's associations which accrue
against the Building, the costs of maintaining and repairing parking lots,
parking structures, easements, landscaping, property management fees that do not
exceed 4% of the sum of base rent plus all Operating Costs other than management
fees, utility costs of the Common Areas and, subject to the definition of
Proportionate Share, utility costs of tenant premises to the extent not
separately metered, insurance premiums, depreciation of the costs of
replacements or improvements to the Building but not including any Structural
Repairs which are normally chargeable to capital accounts under GAAP. The term
"Operating Costs" does not include: (i) costs of alterations of tenants'
premises; (ii) costs of curing construction defects; (iii) interest and
principal payments on mortgages, and other debt cost; (iv) real estate brokers'
leasing commissions or compensation; (v) any cost or expenditure for which
Landlord is reimbursed, whether by insurance proceeds or otherwise; (vi) cost of
any service furnished to any other occupant of the Building which Landlord does
not provide to you hereunder; and (vii) capital improvements determined in
accordance with GAAP (see, however, the next sentence for the possibility of the
depreciation of such cost to be included as part of Operating Costs).
Notwithstanding anything contained herein to the contrary, depreciation of any
capital improvements over the estimated useful life of such capital improvements
which are reasonably intended to reduce Operating Costs, or are required under
any governmental laws, regulations or ordinances which were not applicable to
the Building at the time it was constructed, or are recommended by a change in
the N.F.P.A. Life Safety Code occurring subsequent to the date the Building was
constructed, shall be included in Operating Costs. Landlord shall use the
accrual method of accounting rather than the cash accounting method for
Operating Costs purposes and therefore, Operating Costs shall be deemed to have
been paid when such expenses have accrued in accordance with GAAP. Certain of
the costs of management, operation and maintenance of the Building may be common
to all of the buildings within the Development owned by Landlord and you consent
to Landlord's allocation of such common costs among the various buildings owned
by Landlord within the Development and the amount of such common costs allocated
by Landlord to the Building shall be deemed an Operating Cost, provided that the
allocation method used by Landlord is reasonable. Landlord may, in a reasonable
manner, allocate insurance premiums for so-called "blanket" insurance policies
which insure other properties as well as the Building and said allocated amount
shall be deemed to be an Operating Cost.
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"Parking Proportionate Share" means (i) until such time as the Building
Five parking spaces are constructed and Building Five is occupied by one or more
tenants, a fraction the numerator of which shall be the rentable area contained
in the Premises and the denominator of which shall be the rentable area
contained in the Building; and (ii) after the Building Five parking spaces are
constructed and Building Five is occupied by one or more tenants, a fraction the
numerator of which shall be the rentable area contained in the Premises and the
denominator of which shall be the rentable area contained in the Building plus
the rentable area contained in Building Five.
"Permitted Use" means the use of the Premises for general business
office use including but not limited to financial products and services,
software products and services, technology development and sales and support
call centers.
"Premises" means approximately 70,273 rentable square feet of space
within the Building comprised of the entire second and third floors of the
Building and a portion of the fourth floor of the Building. EXHIBIT B shows the
location of the fourth floor portion of the Premises. Rentable square footage,
in the case of a multi tenant floor, was derived by taking the usable square
footage and multiplying it by 1.15, the difference being the agreed upon common
area factor for multi tenant floors. Rentable square footage, in the case of a
single tenant floor, was derived by taking the gross square footage less
vertical penetrations (e.g., stairwells, air conditioning shafts and other
shafts, elevator areas, plumbing, pipe and conduit area) and multiplying it by
1.0357, the difference being the agreed upon common area factor for single
tenant floors.
"Proportionate Share" means a fraction the numerator of which shall be
the rentable area contained in the Premises and the denominator of which shall
be the rentable area contained in the Building, as determined by Landlord.
Notwithstanding the preceding and in recognition of the fact that electric for
any single tenant floor is paid directly by the tenant, your Proportionate Share
for purposes of calculating additional rent payable by you under Section 5.02A
attributable to electric for tenant premises as opposed to electric for common
areas, shall be (i) zero percent as to any portion of the Premises that is a
single tenant floor; and (ii) as to any portion of the Premises situated on a
multi tenant floor, a fraction the numerator of which is the rentable square
footage of the portion of the Premises situated on such multi-tenant floor and
the denominator of which is the rentable square footage of the Building reduced
by the rentable square footage of all single tenant floors. In no event may the
rentable square footage of the Building, for purposes of determining your
Proportionate share, be less than 94,945 rentable square feet.
"Public Accommodation Law" means any and all applicable laws,
regulations and building codes governing non-discrimination and public
accommodations and commercial facilities including, without limitation, the
requirements of the Americans with Disabilities Act, 42 USC 12-101 and all
regulations and promulgations thereunder.
"Punch List Items" means, with respect to the Interior Modifications,
details of construction and mechanical adjustment which, in the aggregate, are
minor in character and do not materially interfere with your use of the
Premises.
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"Renewal Notice" means written notice that you intend to exercise an
option to extend granted to you under this Lease. A Renewal Notice, to be
effective, must be received by Landlord no later than 365 days prior to the
Expiration Date, time being of the essence.
"Rent" means the sum of the monthly base rent plus the additional rent
as provided in Section 5.02 of this Lease. Notwithstanding anything in the Lease
to the contrary, all amounts payable by you to or on behalf of Landlord under
this Lease, whether or not expressly denominated as Rent, shall constitute
additional rent.
"Rent Commencement Date" means the Commencement Date.
"Required Completion Date" means the Target Completion Date as extended
by (i) each day of delay attributable to a Tenant Delay occurring after the
issuance of the building permit for the Interior Modifications; and (ii) each
day of delay attributable to war or to other force majeure events beyond the
control of Landlord.
"Restoration Period " means a two hundred (200) day period beginning on
the date Landlord is notified that the Building has been damaged or destroyed by
a casualty occurrence.
"Structural Repairs" means repairs and replacements to the Building's
foundations, load-bearing walls, columns and joists and replacement of roofing
and roof deck and mechanical systems including HVAC.
"Substantial Completion" means the completion of the Interior
Modifications, Punch List Items excepted. Substantial Completion shall be deemed
to have occurred on the date that the City of Plantation issues a partial
certificate of occupancy or its equivalent permitting you to occupy the entire
Premises.
"Superior Mortgagee" means a bank, insurance company or other
institutional lender now or hereafter holding a mortgage encumbering the
Building. The current Superior Mortgagee is Bank of America, N.A., a national
banking association.
"Target Completion Date" means the one hundred and twentieth (120th)
day immediately following the date that the building permit is issued for the
Interior Modifications.
"Taxes" means all taxes, assessments, or governmental charges levied,
assessed or imposed on the Land or Building. If at any time during the term of
this Lease the present method of taxation shall be changed so that, in lieu of
the whole or any part of any such Taxes, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the Building, then all such
taxes, assessments, levies or charges, or the part thereof so measured or based,
shall be deemed to be included within the term "Taxes" for the purposes hereof.
If the Building is not separately assessed, real property taxes allocated to the
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Building shall be an equitable proportion of the real property taxes for all of
the land and improvements included within the tax parcel assessed. Where
discounts are available for prepayment, Taxes will be computed using the
discount available for payment in December irrespective of whether the Taxes are
paid earlier or later and irrespective of the actual amount of discount
utilized, provided, however, if Taxes are not paid within the discount period in
connection with the filing of a petition for a redetermination of the assessed
amount or other petition contesting the amount of Taxes, then in such event the
preceding provisions of this sentence shall not apply.
"Tenant's Broker" means CRESA Partners, LLC.
"Tenant Delay" means, with respect to the construction of the Interior
Modifications, any one or more of (i) Your failure to deliver the Construction
Drawings (in a form that a reasonable architect would deem to be complete)
within the time specified in this Lease; (ii) your request for materials,
finishes or installations other than in Building standard the use of which
causes actual delays in construction; (iii) your changes in the Construction
Drawings after the Construction Drawings have been approved by the parties if
the change causes an actual delay in construction; (iv) your failure to timely
pay the Tenant Share; or (v) any delays in the issuance of the certificate of
occupancy caused by you or your contractors, agents or employees including those
attributable to the Architect, provided, however, that no Tenant Delays
attributable to this subparagraph with respect to any actions occurring during
the period of time beginning on the date the Construction Drawings are received
and ending on the date of the issuance of the building permit may be claimed if,
nonetheless, the building permit is issued by the City of Plantation within
thirty days of the filing of the application for the building permit with the
City of Plantation. Subject to the foregoing proviso, Tenant Delays attributable
to the Architect would include any delays in issuance of the building permit for
the Interior Modifications resulting from the Construction Drawings missing a
substantial amount of information required by the City of Plantation but shall
not include the time necessary to make changes in the Construction Drawings
required by the City of Plantation (other than required changes to which
Landlord, in approving the Construction Drawings, advised you in writing that it
is more than likely that the City of Plantation would require such specific
change) provided that the Architect timely and promptly submits the required
change. (See Section 3.07 for provision requiring Landlord to provide you with
written notice of any claimed Tenant Delay days).
"Tenant Share" means the portion of the Interior Buildout Cost, whether
initially determined or subsequently increased by change order, in excess of
$40.00 r.s.f. The initial Tenant Share, if any, shall be paid by you within
fifteen days of Landlord notifying you of the determination of amount. Any
increase in the Tenant Share shall be paid by you to Landlord within fifteen
days of Landlord notifying you of the determination of the amount.
"Term", "term" or "rental term" means the primary term of this Lease.
If the term of this Lease has been extended pursuant to an option granted to you
under this Lease to extend the term or pursuant to any amendment to this Lease
extending the term, then such extended term shall be included as part of the
term.
Landlord: Tenant:
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"Transfer Premium" means all rent, additional rent or other
consideration payable by an assignee or subtenant (other than an Affiliate) in
excess of the Rent payable by you under this Lease (on a per rentable square
foot basis in the case of a subletting where the subletting is for less than the
entire Premises) after deducting the reasonable expenses incurred by you for (i)
any changes, alterations and improvements to the Premises in connection with the
assignment or subletting, including any reasonable fees or costs incurred with
respect thereto; (ii) any brokerage commissions and reasonable attorney fees in
connection with the assignment or subletting; (iii) any marketing or promotional
fees; and (iv) the unamortized balance (straight line amortization without an
interest factor) of the Tenant Share, if any.
ARTICLE II
PREMISES AND COMMON AREAS
2.01 PREMISES. In consideration of your obligation to pay Rent and of
the other terms, provisions and covenants hereof, Landlord leases the Premises
to you and you lease the Premises from Landlord. You shall also have the right
to your Parking Proportionate Share of the covered parking spaces subject to
your payment of a rental of $60.00 per space per month. Notwithstanding, as to
the first ten covered parking spaces used by you, the rental shall be $30.00 per
space per month.
2.02 COMMON AREAS. During the term of this Lease, you and your
employees, customers, licensees and invitees shall have the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Landlord under the terms hereof or under the terms of any rules and
regulations or covenants, conditions and restrictions governing the use of the
Development. Landlord reserves and may exercise the following rights without
affecting your obligations hereunder: (i) to make changes to the Exterior Common
Areas, including, without limitation, changes in the locations, size, shape and
number of driveways, entrances, roadways, ingress, egress, direction of traffic,
landscaped areas, walkways and utility raceways and to make changes to the
Interior Common Areas provided that such changes do not materially adversely
affect your ingress and egress to and from the Premises; (ii) to close
temporarily any of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available; and/or (iii) to restrict
your use of the parking spaces included as part of the Exterior Common Areas to
the extent your use of such parking spaces exceeds the product of the number of
the parking spaces serving the Building (and proposed Building Five after
Building Five is constructed) multiplied by your Parking Proportionate Share
rounded up to the nearest whole number.
2.03 LANDLORD'S RESERVATION OF ACCESS, INGRESS AND EGRESS. During the
term of this Lease, Landlord reserves the right, for its benefit and for the
benefit of itself and Landlord's tenants and others, to use any access openings
or roadways falling within the Land and to grant easements or modify easements
falling wholly or partly within the Land for any purpose provided that the
granting of any such easement does not interfere with your Permitted Use of the
Premises or otherwise violate an express provision of this Lease.
Landlord: Tenant:
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2.04 ACCESS TO PREMISES. During the term of this Lease and subject to
any casualty event, threat of casualty event or other unforseen circumstances
beyond Landlord's reasonable control, you shall have access to the Premises and
to the Common Areas on a Continuous Basis. At your request, Landlord will not
restrict your access to the Premises during a hurricane watch, hurricane warning
or actual hurricane, post hurricane or other storm event or casualty unless
required to do so pursuant to governmental requirement or unless Landlord's
failure to restrict your access would result in a coverage defense under
Landlord's insurance policies then in effect, provided, however, that any such
access shall be at your own risk and shall be subject to the requirement that
you and your employees and invitees must take reasonable precautions to prevent
or minimize the possibility of damage to the Building or Common Areas in excess
of damage that would have resulted from the storm itself irrespective of whether
any of your employees or invitees were present at the Premises. Reasonable
precautions include but are not limited to making sure that your employees or
invitees reasonably secure doors, windows and personalty. In consideration
thereof and in addition to any other indemnification obligation imposed on you
under this Lease, you agree to indemnify Landlord and to hold Landlord harmless
for any claim for injury to person or property resulting from the failure of
your employees or invitees to take the foregoing reasonable precautions.
2.05 CARD KEYS. Landlord, at no cost to you, will provide you with up
to six card keys for each 1,000 r.s.f. of space that the Premises is comprised
of. Any additional card keys requested by you shall be paid for by you at
Landlord's then current rate. The existing current rate is $15.00 per card key.
At your request, the Construction Drawings will provide for the restriction of
elevator access to single tenant floors and the cost to provide for such
restricted access will be included as part of the Interior Buildout Cost.
2.06 RESTRICTIVE COVENANTS. Landlord covenants and agrees that during
the term of this Lease and unless Landlord has received your written consent,
which consent may be given or withheld in your sole and absolute discretion (i)
Building Five, if constructed, will not exceed 25,000 r.s.f.; (ii) Landlord will
not modify, amend or terminate the rights Landlord reserved in the paragraph F
of the La Quinta deed to ingress, egress and parking; (iii) Landlord will not
reduce the number of parking spaces serving the Building and Building Five,
provided, however, that the foregoing will not apply to reductions resulting
from a governmental taking or purchase in lieu of condemnation or actions
resulting from a requirement of the City of Plantation or Broward County
unrelated to a request made by Landlord, e.g., the foregoing limitation upon
Landlord's right to reduce the parking spaces would apply if the City of
Plantation imposed a reduction of parking space requirement in connection with
Landlord's request for further improvement of the Development; and (iv) all
leases for space at Buildings Four and Five must include language that gives
Landlord the ability to restrict the tenant's use of non exclusive parking to
the extent such use would exceed such tenant's Parking Proportionate Share,
which Parking Proportionate share shall be defined in such leases in the manner
defined in this Lease (the "Parking Restriction"). Landlord agrees, to the
extent Landlord is reasonably able to do so, to enforce the provisions of the
Parking Restriction contained in such tenant leases for Buildings Four and Five
Landlord: Tenant:
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and to promptly investigate any complaint raised by you as to a violation of the
Parking Restrictions by any tenant of Building Four or Building Five. If there
is a conflict between the provisions of this Section and Section 2.02 of this
Lease, then the provisions of this Section shall control. Nothing contained in
this Section or anywhere else in this Lease shall be construed to require
Landlord to construct Building Five or the planned parking spaces to be situated
within the Building Five land if Building Five is not constructed. Concurrently
with the Effective Date, Landlord will execute and record in the Public Records
of Broward County, Florida a memorandum of restrictive covenants in the form
annexed hereto as SCHEDULE 2.06.
ARTICLE III
CONSTRUCTION OF THE BASE BUILDING AND INTERIOR MODIFICATIONS
3.01 CONSTRUCTION OF BASE BUILDING/PENALTIES. Landlord will diligently
pursue the completion of the construction of the Building in Base Building
Condition and in compliance with all applicable building codes and ordinances
and other applicable laws, rules and regulations, including, without limitation,
Public Accommodation Laws. If Landlord fails to complete the Building in Base
Building Condition on or before the Base Building Required Completion Date, then
in such event Landlord grants to you a credit to be taken against base rent
first due and owing under the Lease in an amount equal to $4,014.25 multiplied
by the number of days from the Base Building Required Completion Date through
the day immediately preceding the date the City of Plantation issues a
certificate of completion or its equivalent required as a condition of the
issuance by the City of Plantation of a building permit for the construction of
the Interior Modifications (such number of days are hereinafter referred to as
"Base Building Landlord Delay Days"), provided, however, the number of days of
Base Building Landlord Delay Days will be reduced by each such day that did not
result in an actual delay in the issuance of the building permit for the
construction of the Interior Modifications. By way of example and assuming the
Base Building Required Completion Date of January 15, 2002, if the certificate
of completion date is January 25, 2002 but the permit application for the
Interior Modifications is not ready for submission to the City of Plantation
until January 20, 2002 through no fault of Landlord, then the number of Base
Building Landlord Delay Days would be reduced to five days. By way of a second
example and again assuming the Base Building Required Completion Date of January
15, 2002, if the certificate of completion date is January 25, 2002 but the City
of Plantation changed its rules and permitted the application for the building
permit for the construction of the Interior Modifications to be filed and
reviewed prior to the issuance of the certificate of completion for the Base
Building such that there was no delay in the review the application or issuance
of the building permit for the construction of the Interior Modifications as a
result of the delay in issuance of the certificate of completion for the Base
Building, then the number of Base Building Landlord Delay Days would be reduced
to none.
3.02 CONSTRUCTION DRAWINGS. (a) The Construction Drawings will be
finalized in accordance with the time line contained in this Section as follows:
(i) You must provide Landlord with three sets of the
Construction Drawings (in a form that a reasonable architect would deem to be
complete), in hard copy, and a set, if available, in electronic format, no later
than December 1, 2001, provided, however, the mechanical, electrical and
plumbing portions of the Construction Drawings do not have to be provided until
December 10, 2001 at which time any revisions necessary to assure coordination
of the mechanical, electrical and plumbing portions with previously delivered
Landlord: Tenant:
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portions shall also be delivered. In addition, to the extent it is possible, you
will instruct the Architect to provide Landlord with the portions of the
Construction Drawings as they are completed by the Architect, e.g., at the 30%,
60% and 90% completion and/or as an identifiable segment is completed, e.g,
space plan, mechanical drawings, electric drawings, etc.
(ii) As Landlord receives parts of the Construction Drawings
(to the extent provided in parts rather than after fully completed), Landlord
will promptly review and provide comments to the Architect. The parties will use
reasonable efforts and will cause the Architect and Premier Commercial Realty,
Inc. to use reasonable efforts to diligently attempt to review, revise, finalize
and approve the Construction Drawings within ten days of Landlord's receipt of
the completed Construction Drawings. Landlord's rejection of Construction
Drawings must be specific as to the item(s) rejected and where applicable, must
state an alternative that Landlord would accept. Revised Construction Drawings
must contain an itemization of the revisions that were made. Your contract with
your Architect must require the Architect to diligently and continuously pursue
to completion the preparation of the Construction Drawings and to diligently and
promptly make any changes or additions to the Construction Drawings required by
the City of Plantation as a condition of the issuance of the building permit for
the Interior Modifications.
(b) Any approval by Landlord of or consent by Landlord to the
Construction Drawings or to any part thereof or to any changes thereto and any
inspection or approval of the Interior Modifications shall be deemed to be
strictly limited to an acknowledgment of approval or consent and such approval
or consent shall not constitute an assumption by Landlord of any responsibility
for the accuracy, sufficiency or feasibility of any plans, specifications or
other such items and shall not imply any representation, acknowledgment or
warranty by Landlord that the design is safe, feasible or structurally sound or
will comply with any legal or governmental requirements. Any deficiency in
design, although same had the prior approval of Landlord, shall be solely your
responsibility. It is your responsibility to ensure that the Construction
Drawings as they pertain to the Interior Modifications comply with all
applicable building codes and ordinances, with the N.F.P.A. Life Safety Code and
with the Public Accommodation Laws. Your obligations under Article XXIII of this
Lease shall apply to the Interior Modifications except to the extent the
Interior Modifications were not actually constructed in accordance with the
Construction Drawings.
3.03 GENERAL CONTRACTOR. The general contractor employed by Landlord to
construct the Interior Modifications will be Xxxxxxxx Associates, Inc. or Falke
Florida, Inc., at your election, which election must be made by you by written
notice to Landlord received by Landlord no later than December 3, 2001,
provided, however, if you request a different general contractor, then Landlord,
subject to its right to reasonably approve such different general contractor,
will employ the different general contractor provided that such selection does
not unreasonably delay the submission of the application for the permit for the
Interior Modifications. Landlord will not enter into the construction contract
for the construction of the Interior Modifications until you approve same, which
approval will not be unreasonably withheld, delayed or conditioned by you. After
the construction contract for the construction of the Interior Modifications is
entered into with the general contractor, Landlord will then cause the general
contractor to apply for the building permit at the earliest possible time and to
diligently pursue same from the City of Plantation. You and/or your designated
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representative(s), shall be entitled, but not obligated, to participate in
obtaining the building permit. Landlord agrees to promptly advise you and the
Architect of any changes to the Construction Drawings required by the City of
Plantation as a condition of issuance of the building permit.
3.04 COMMENCEMENT OF CONSTRUCTION. Upon receipt of the building permit,
or, if later, upon receipt of payment of the Tenant Share, if any is required,
Landlord will then diligently and continuously pursue to completion the
construction of the Interior Modifications, provided, however, nothing contained
herein shall be construed to prohibit Landlord from commencing construction
prior to receipt of the building permit if Landlord is lawfully able to do so or
to commence construction prior to receipt of the Tenant Share, if a Tenant Share
payment is required. Landlord will provide you with a copy of the building
permit as soon as is reasonably practical after its issuance and notice of when
Landlord commenced construction. Landlord will provide you with copies of
construction time lines, from time to time promulgated. Landlord will construct
the Interior Modifications (at its cost and expense up to an amount equal to
$40.00 r.s.f.) in a good and workmanlike manner in accordance with the
Construction Drawings, subject, however, to the right of Landlord to make
non-material changes in design or construction which are necessary, in
Landlord's reasonable judgement, provided that such changes do not materially
increase the Interior Buildout Cost or time of construction. You shall also be
permitted to make changes to the Construction Drawings, provided, however, that
Landlord shall not be required to accept any change which (i) increases the
Interior Buildout Cost above $40.00 r.s.f. (unless paid for by you as part of
the Tenant Share); (ii) increases the construction time unless you agree that
each extra day of construction with respect to such change shall be a Tenant
Delay day; or (iii) would not conform to all applicable codes, ordinances and
regulations.
3.05 NOTIFICATION OF SUBSTANTIAL COMPLETION. Landlord will notify you
in writing as soon as Landlord has Substantially Completed the Interior
Modifications. If you believe that the Interior Modifications have not been
Substantially Completed, you must notify Landlord in writing of your objections.
Landlord shall have a reasonable time after delivery of such notice in which to
take such corrective action as may be necessary, and shall notify you in writing
as soon as Landlord deems such corrective action has been completed so that the
Interior Modifications are Substantially Completed. The taking of possession of
the Premises by you for conduct of your business shall be deemed conclusively to
establish that the Landlord has completed all work required to be performed by
Landlord to get the Premises ready for your occupancy and that the Premises are
in good and satisfactory condition, as of when possession was so taken, Punch
List Items and latent defects excepted (other than latent defects resulting from
design deficiencies attributable to you or to the Architect) . Punch List Items
must be compiled by you and submitted to Landlord within ten (10) business days
of the date of Substantial Completion. Except as otherwise expressly set forth
in this Lease, you acknowledge that no representations as to the repair or
improvement of the Premises or the Development have been made by Landlord. If
there is a dispute as to Substantial Completion or work performed or required to
be performed by Landlord, the certificate of the Architect shall be conclusive,
provided, however, if the dispute is of such a nature that it involves
ambiguities in the Construction Drawings or other matters where a conflict of
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interest would exist by having the Architect make the determination, then in
such event the parties shall mutually select an independent architect to make
the determination and the cost of the independent architect shall be part of the
Interior Buildout Cost .
3.06 TENANT SET UP WORK. Exercise of your rights under this Section
shall not be deemed to be a taking of possession of the Premises for purposes of
Section 3.05. At any time prior to the Commencement Date and provided that you
do not unreasonably interfere with Landlord's construction of the Interior
Modifications and provided that it does not delay the Substantial Completion of
the Interior Modifications or the issuance of a certificate of occupancy, you
shall have the right to set up furniture, fixtures and equipment, provided,
however, that Landlord shall not be required to cause the carpeting of the
Premises to be completed until the third day immediately preceding the date of
Substantial Completion. All work not within the scope of Landlord's construction
of the Interior Modifications, such as installation of furniture, telephone
equipment, and office equipment, shall be furnished and installed by you at your
expense, subject, however, to the Allowance and Building Reimbursement. You
shall conduct your work in such a manner so as to maintain harmonious labor
relations and as not to interfere unreasonably with or delay the work of
Landlord's contractors or the contractors of other tenants. Your contractors,
subcontractors and labor shall be reasonably approved by Landlord and shall be
subject to the administrative supervision of Landlord's construction manager,
provided, however, that you shall not be required to pay a separate construction
management fee with respect to any such administrative supervision. All work
performed by you or at your direction shall conform to and comply with any and
all local and state building codes, ordinances and the N.F.P.A. Life Safety
Code. You shall not be charged by Landlord for access and use of loading docks,
if any, elevators, electrical systems, parking or related facilities in
connection with set up work performed by you pursuant to this Section.
3.07 LANDLORD'S INABILITY TO COMPLETE INTERIOR MODIFICATIONS DUE TO
TENANT DELAY. If Landlord cannot Substantially Complete the Interior
Modifications as a result of a Tenant Delay, Landlord may, at its sole and
absolute discretion, complete so much of the Interior Modifications as may be
practical under the circumstances and, by written notice to you, establish the
Commencement Date as the date of such partial completion, subject to any
accelerations due to any Tenant Delay, provided, however, that any such
accelerated Commencement Date shall be no earlier than August 17, 2002. If you
have not cured such Tenant Delay within sixty (60) days of Landlord's written
notice to you advising of the Tenant Delay and specifying that Landlord has
available the remedy of the right to terminate, or if the nature of such Tenant
Delay is such that it cannot be reasonably cured within such sixty (60) day
period, if you did not promptly commence such cure and proceed diligently and
continuously thereafter to effect such cure, then in such event, then Landlord,
in Landlord's sole and absolute discretion, may elect to terminate the Lease in
which case you shall be liable for, as liquidated damages, (i) all Interior
Buildout Costs expended by Landlord through the date of termination; plus (ii)
Rent that would have been paid for the first Lease Year, provided, however, that
items (i) and (ii) may not exceed, in the aggregate, the amount of the initial
Escrow Account amount. In order to claim accelerations due to a Tenant Delay,
Landlord must provide you with written notice as soon as is reasonably practical
but in no event no later than five (5) business days following the event giving
rise to the claimed Tenant Delay including specifying the number of days of
acceleration caused by the Tenant Delay.
Landlord: Tenant:
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3.08 MEASUREMENT OF THE PREMISES. The rentable square footage of single
tenant floors is agreed to and you shall have no right to claim that the
rentable square footage of such single tenant floor is different than the
rentable square footage amounts specified in this Lease as follows:
Second Floor 24,072 r.s.f.
Third Floor 25,033 r.s.f.
The rentable square footage of the fourth floor portion of the Premises is
agreed to as 21,168 r.s.f. and you shall have no right to claim that the
rentable square footage of such fourth floor portion of the Premises is
different than 21,168 r.s.f. provided that the fourth floor portion of the
Premises is constructed in accordance with the Construction Drawings.
3.09 ARCHITECT PAYMENTS. Landlord will make progress payments to your
Architect (or to you if the Architect certifies to Landlord that you paid such
payment directly to the Architect) in accordance with this Section, which
payments will be included as part of the Interior Buildout Cost, provided,
however, that progress payments and any final payment to your Architect required
to be paid by Landlord shall not exceed $2.15 per usable square foot plus any
hourly payments and other costs or charges required to be paid to the Architect
pursuant to such contract. In order to obtain a progress payment, your Architect
must submit a draw request to Landlord. Landlord agrees to promptly process the
draw request and make payment to your Architect within twenty five days of
Landlord's receipt of the draw request, provided, however, that your Architect
may not submit more than one draw request in any calendar month and provided
that the draw request for such month must be submitted on or before the second
business day of such calendar month . As a condition precedent to Landlord's
payment of the initial draw request, the initial Escrow Account amount must have
been deposited with the escrow agent. Landlord shall not be required to make
payment to your Architect of the final five percent (5%) of the contract sum
until (i) the certificate of occupancy for the Premises is issued; (ii) Landlord
has received from the Architect two sets of detailed as built final plans and
specifications and a computer diskette, if available, containing the final as
built plans and specifications; (iii) a certificate from your Architect in the
form annexed hereto as SCHEDULE 3.07; and (iv) a final waiver and release of
lien. Nothing contained in this Lease shall give your Architect any enforceable
rights against Landlord and nothing contained in this Lease shall be construed
to be an assumption by Landlord of your obligations under your contract with the
Architect.
3.10 FAILURE OF LANDLORD TO SUBSTANTIALLY COMPLETE BY REQUIRED
COMPLETION DATE. From time to time after determination, Landlord shall notify
you in writing if it reasonably appears that Landlord will not be able to
Substantially Complete the Interior Modifications on or before the Required
Completion Date. If the Interior Modifications are not Substantially Completed
by the Required Completion Date, then Landlord grants to you a credit to be
taken against base rent first due and owing under the Lease in an amount equal
to the following:
(a) the product of $4,014.25 multiplied by the number of days
from the Required Completion Date through the day immediately preceding the date
of Substantial Completion of the Interior Modifications (such number of days are
hereinafter referred to as "Landlord Delay Days"); plus
Landlord: Tenant:
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(b) as to any period on or after August 17, 2002, the amount
of holdover penalties (difference between the normal rental amount versus the
holdover amount) that you paid under your lease for your existing premises
attributable to the Landlord Delay Days, provided, however, the per diem amount
pursuant to this subparagraph (b) shall not exceed $1,467.00 a day. There is
hereby imposed upon you a covenant of good faith to use reasonable efforts to
attempt to persuade your existing landlord to not charge you holdover penalties
and to keep Landlord advised as to the results of your efforts including the
projected amount of the holdover penalties as well as to provide documentary
evidence to Landlord that would show the amount of holdover penalties actually
paid.
Subject to extension pursuant to Section 22.08 of this Lease (but not past June
30, 2003), if the Premises have not been Substantially Completed by December 31,
2002, then after such date and until such time as the Premises have been
substantially completed, you shall have the right to terminate this Lease by
providing Landlord with written notice of termination received by Landlord prior
to the date the Premises have been Substantially Completed. If termination
occurs pursuant to this paragraph, Landlord shall authorize the immediate return
of the Escrow Account to you, whereupon the rights and obligations of the
parties under this Lease shall end and neither party shall have any obligation
to the other.
3.11 BUILDING STANDARD BLINDS. Building standard blinds are part of the
Interior Modifications and not part of the Base Building Condition.
Notwithstanding, if the cost of the Building standard blinds for the Premises
exceeds $20,000, then any such excess above $20,000 shall not be part of the
Interior Buildout Cost and shall instead be paid for separately by Landlord.
ARTICLE IV
TERM
4.01 PRIMARY TERM. The primary term of this Lease shall begin on the
Commencement Date and the primary term of this Lease shall end on the Expiration
Date. After the Commencement Date, you shall, upon demand, execute and deliver
to Landlord a tenant acceptance letter in the form annexed hereto as SCHEDULE
4.01. After the Commencement Date and at the request of either party, the
parties will enter in to a Clarification of Lease Terms which will set forth the
Commencement Date, Rent Commencement Date, Expiration Date and scheduled
reductions in the Escrow Account amount. Within a commercially reasonable time
after the Commencement Date, you agree to occupy the Premises for your Permitted
Use.
4.02 HOLDING OVER. If Landlord agrees in writing that you may hold over
after the expiration or termination of this Lease, unless the parties hereto
otherwise agree in writing on the terms of such holding over, the hold over
tenancy shall be subject to termination by Landlord at any time upon not less
than thirty (30) days advance written notice, or by you at any time upon not
less than thirty (30) days advance written notice, and all of the other terms
and provisions of this Lease shall be applicable during that period, except that
you shall pay Landlord from time to time upon demand, as rental for the period
of any hold over, an amount equal to the Holdover Rent, computed on a daily
basis for each day of the hold over period. If Landlord does not consent to your
holdover, then you shall also pay to Landlord all actual damages sustained by
Landlord: Tenant:
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Landlord resulting from retention of possession by you, including the loss of
any proposed subsequent tenant for any portion of the Premises provided that
Landlord has provided you with advance written notice of the existence of such
subsequent tenant. No holding over by you, whether with or without consent of
Landlord, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this paragraph shall not be construed as
consent for you to hold over.
Notwithstanding the preceding, if you fail to exercise an option to extend
granted under Section 4.03, then in such event Landlord grants to you the right
to holdover and Landlord consents to such holdover for up to nine months, such
right to be exercised by providing Landlord with written notification of your
intention to holdover pursuant to this Section, which notification must specify
the holdover period (up to nine months) and which notification must be received
by Landlord no later than the three hundred and sixty fourth day immediately
preceding the last day of the expiring term, time being of the essence. Failure
to provide the required notification within the time specified will result in a
lapse of such right.
4.03 OPTION TO EXTEND. Landlord reserves the right to refuse to allow
you the option of extending the term of this Lease if you or a permitted
assignee or sublessee are not occupying and doing business from the Premises
(other than as a result of casualty) at the time an option to extend is
exercised or at the time an extended term commences or if you, after written
notice received from Landlord advising you that an Event of Default exists, are
nonetheless in default under the Lease beyond the expiration of the applicable
grace period, if any, either at the time the option to extend is exercised or at
the time the extended term commences or if you fail to timely provide Landlord
with the Renewal Notice . Subject to the foregoing, Landlord grants to you the
option to extend the term of this Lease for a five year extended term (the
"First Extended Term"), the First Extended Term to begin on the day after the
end of the primary term of this Lease. To effectively exercise your First
Extended Term option, you must timely provide the Landlord with the Renewal
Notice. If Landlord does not timely receive the Renewal Notice, time being of
the essence, you shall not be entitled to exercise your First Extended Term
option. If you exercised your First Extended Term option, and subject to the
first sentence of this Section, Landlord grants to you the option to extend the
term of this Lease for a second five year extended term (the "Second Extended
Term"), the Second Extended Term to begin on the day after the end of the First
Extended Term. To effectively exercise your Second Extended Term option, you
must timely provide the Landlord with the Renewal Notice. If Landlord does not
timely receive the Renewal Notice, time being of the essence, you shall not be
entitled to exercise your Second Extended Term option.
No earlier than the four hundred and twenty fifth (425th) day immediately
preceding the last day of an expiring term, you may provide Landlord with a
written request for an estoppel letter advising what Landlord's determination of
Market Rent would be if you were to exercise an option to extend granted under
this Lease in which case Landlord must provide you, within ten business days of
Landlord's receipt of the request, with such estoppel letter and in which event
and if you do then subsequently exercise the option to extend, Landlord's
determination of Market Rent may not exceed the amount stated in the estoppel
letter. No such request by you shall be deemed to be an exercise of your option
Landlord: Tenant:
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to extend and instead, your option to extend may only be exercised pursuant to
the Renewal Notice timely received by Landlord.
4.04 OCCUPANCY PRIOR TO COMMENCEMENT DATE. If the Premises have been
Substantially Completed before August 17, 2002, then upon advance written notice
to Landlord, you shall have the right to early occupancy of the Premises during
the period of time beginning on the date of Substantial Completion and ending on
August 16, 2002 in which case all of the terms and conditions of this Lease
shall apply except that you shall not be required to pay Rent during such period
of early occupancy. During such early occupancy period, any costs of electric
for a single tenant floor paid for by you up to the first $1.50 r.s.f. on an
annualized basis shall be reimbursed by Landlord to you within thirty days of
demand. During such early occupancy period, any costs of electric for a
multi-tenant floor occupied by you shall be reimbursed by you to Landlord to the
extent in excess of $1.50 r.s.f. of such electric cost on an annualized basis.
In no event shall you be entitled to possession or occupancy of the Premises
until such time as you have delivered to Landlord proof that you have in force
and effect all insurance required to be maintained by you under this Lease
including, where required under this Lease, naming Landlord as an additional
insured.
ARTICLE V
RENT
5.01 BASE RENT. Base Rent shall be payable during the primary or during
any extended term (if an option to extend has been granted under this Lease), in
accordance with this Section 5.01.
5.01(a) BASE RENT DURING PRIMARY TERM. You agree to pay to
Landlord base rent for the Premises for the entire primary term hereof on a
monthly basis beginning on the Rent Commencement Date (subject to any credits
available to you under this Lease), at the initial rate of $86,377.23 a month,
provided, however, that if the Rent Commencement Date is a day other than the
first day of a calendar month, then for the initial partial month, you agree to
pay a per diem base rental of $2,879.24 a day for each day of the partial month
beginning on the Rent Commencement Date and ending on the last day of the
partial month in which the Rent Commencement Date falls. On each Adjustment Date
falling within the primary term of this Lease beginning with the Adjustment Date
corresponding with the first day of the second Lease Year, the monthly base rent
amount shall increase to an amount equal to 103% of the monthly base rent amount
then in effect immediately prior to such Adjustment Date.
5.01(b) BASE RENT DURING EXTENDED TERM. If you exercised an
Extended Term option, then you agree to pay to Landlord monthly base rent for
the Premises, in advance, without demand, deduction or set off, for the entire
Extended Term hereof at an initial rate equal to 95% of Market Rent. On each
Adjustment Date falling within the Extended Term beginning with the Adjustment
Date corresponding to the first day of the second Lease Year of the Extended
Term, the monthly base rent amount shall increase to an amount equal to 103% of
the monthly base rent amount then in effect immediately prior to such Adjustment
Date.
5.01(c) BASE RENT ABATEMENT. If the sum of the Interior
Buildout Cost, Allowance (as defined in Section 25.03) actually paid by
Landlord, and the Building Reimbursements (as defined in Section 25.03) actually
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paid by Landlord is less than the product of $40.00 multiplied by the rentable
square footage of the Premises, then such difference shall be credited to you in
the form of an abatement of base rent first due and owing until such time as the
entire credit is exhausted, provided, however, that the aggregate credit granted
to you under this paragraph shall not exceed $12.00 r.s.f.
5.02A ADDITIONAL RENT FOR TENANT'S PROPORTIONATE SHARE OF OPERATING
COSTS. Beginning on the Rent Commencement Date and continuing during the primary
and any extended term of this Lease, you agree to pay to Landlord, as additional
rent, your Proportionate Share of Operating Costs. Any payments with respect to
any partial calendar year in which the term commences or ends shall be prorated.
You agree to pay $38,064.54 per month (subject to adjustment with respect to a
change in the rentable square footage of the Premises) as an estimated amount
for Operating Costs. Landlord may, at any time, deliver to you its good faith
estimate (or revised estimate) of such additional amounts payable under this
Section for each calendar year. On or before the first day of the next month and
on or before the first day of each month thereafter, you shall pay to Landlord
as additional rent such amount as Landlord reasonably determines to be necessary
to bring and keep you current. As soon as practicable after the close of each
calendar year, Landlord shall deliver to you a statement showing the total
amount payable by you under this Article. If such statement shows an amount due
from you that is less than the estimated payments previously paid by you, it
shall be accompanied by a refund of the excess to you or at Landlord's option
the excess shall be credited against the next monthly installment of Rent unless
such statement pertains to the last year of the term in which case the refund
reflected in such statement will be paid to you within twenty days of the
statement date. If such statement shows an amount due from you that is more than
the estimated payments paid by you, you shall pay the deficiency to Landlord, as
additional rent. If an amount is due and is not paid within thirty (30) days
after the date of Landlord's statement to you, you agree to pay a late fee of
10% of the unpaid balance. You or your representatives shall have the right
after seven (7) days prior written notice to Landlord to examine Landlord's
books and records of Operating Costs during normal business hours within one
hundred and twenty (120) days following the furnishing of the statement to you.
Unless you take written exception to any item within one hundred and twenty
(120) days following the furnishing of the statement to you (which item shall be
paid in any event), such statement shall be considered as final and accepted by
you. The taking of exception to any item shall not excuse you from the
obligation to make timely payment based upon the statement as delivered by
Landlord. If you timely take written exception to any item, any dispute with
respect to the written exception not resolved to the mutual satisfaction of both
Landlord and you within thirty (30) days following Landlord's receipt of your
written exception shall be resolved in accordance with the following procedures.
First, Landlord shall have seven days immediately following the thirty day
period to provide you with a list of three independent certified public
accountants. You shall then have seven days following you receipt of the list of
independent certified public accountants to designate one of the three
independent certified public accountants (hereinafter the "CPA") and to provide
Landlord with written notice of your designation. If Landlord fails to timely
provide you with the list of three independent certified public accountants,
then you may select any independent certified public accountant you wish to
serve as the CPA. If you fail to timely designate one of the three independent
certified public accountants as the CPA, then Landlord may select any
independent certified public accountant it wishes to serve as the CPA. The
decision of the CPA shall be final and binding as to any dispute with respect to
your written exception and the cost of the CPA shall be paid for by the party
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who does not prevail. For purposes of the preceding, (i) the term "independent
certified public accountant" means a certified public accountant who has not
previously rendered accounting services of any kind for either you or Landlord;
and (ii) Landlord will be deemed to have prevailed if the determination of the
CPA results in a reduction in your Proportionate share of Operating Costs which
is five percent or less of the Landlord's determination of your Proportionate
share of Operating Costs and you will be deemed to have prevailed if the
determination of the CPA results in a reduction in your Proportionate share of
Operating Costs which is more than five percent of the Landlord's determination
of your Proportionate share of Operating Costs. Notwithstanding anything in this
Lease to the contrary, payments to and agreements with related parties of
Landlord (parties owned at least fifty percent, directly or indirectly, by any
one or more of Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxx and/or Xxxxx Xxxxxx or in
which any of such individuals are the largest equity holders, directly or
indirectly, or parties controlled by a general partner controlled by any of such
individuals) included as part of Operating Costs must be commercially
reasonable.
5.02B CAP ON ADDITIONAL RENT FOR TENANT'S PROPORTIONATE SHARE OF
OPERATING COSTS. Notwithstanding anything in Section 5.02A to the contrary and
subsequent to the first stabilized year, the increase in your Proportionate
Share of Controllable Operating Costs shall not exceed 5% from one year to the
next, on a cumulative basis. By way of example of what is meant by a cumulative
basis, if your Proportionate Share of Controllable Operating Costs for calendar
year 2004 increased by 3% from calendar year 2003, then your maximum
Proportionate Share of Controllable Operating Costs for calendar year 2005 would
be 107% of the calendar year 2004 amount.
5.03 SALES TAX. With each installment of Rent, you shall pay to
Landlord all sales taxes due thereon.
5.04 TIME FOR PAYMENT OF RENT. The first month's Rent shall be paid on
or before the Commencement Date. Thereafter, each monthly installment of Rent
shall be due and payable on or before the first day of the calendar month for
which such Rent is payable. Rent shall be payable without demand, deduction or
right of set off.
5.05 PLACE FOR PAYMENT. All Rent and other payments required to be made
by you to Landlord shall be payable to: Crossroads Business Park Associates LLP
or to such other entity at the such other address as Landlord may specify from
time to time by written notice delivered in accordance herewith. Notwithstanding
anything herein to the contrary, if the Building is encumbered by an assignment
of leases and rents made by Landlord and recorded in the Public Records of the
County in which the Building is located, then upon the written demand of the
lender named in such assignment of leases and rents or the successor in interest
to such lender (hereinafter the "Lender"), then in such event you agree to pay
all Rent and other payments required to be made by you hereunder to such Lender
and Landlord agrees that you will be credited by Landlord for any payments so
made.
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ARTICLE VI
ESCROW ACCOUNT
The Escrow Account will be held pursuant to the terms and conditions of
the Escrow Instructions annexed to this Lease in SCHEDULE 6.01. You agree to
deliver the Escrow Account amount to the escrow agent named in such escrow
agreement no later than the later of the third business day immediately
following your receipt of the Subordination, Non-Disturbance and Attornment
Agreement annexed to this Lease as Schedule 19.01 signed by the current Superior
Mortgagee, or the tenth business day immediately following the Effective Date,
time being of the essence. If the entire Escrow Account amount is not delivered
within such period, then until such time as it is delivered, you agree to pay to
Landlord a penalty of $100.00 a day for each day until delivered and until such
time as it is delivered, Landlord shall have the right to terminate this Lease.
Upon an Event of Default, Landlord may, from time to time, without prejudice to
any other remedy available to Landlord, draw upon the Escrow Account to the
extent necessary to make good any arrears of Rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by your
default, and you shall pay to the escrow agent on demand by Landlord the amount
so withdrawn in order to restore the Escrow Account amount to its original
amount, as the same may have been adjusted pursuant to the last paragraph of
this Section and Article XXV. Subject to the earlier termination of the escrow
agreement as permitted by an express provision of this Lease, you shall be
entitled to make demand on to the escrow agent for the return of the Escrow
Account on and after the fifteenth day immediately following the Expiration Date
and Landlord shall provide all required notices to the escrow agent to
effectuate same.
If each of the Early Return of the Escrow Account Conditions exist, then within
sixty days of Landlord's receipt of your written request for the return of the
Escrow Account, you shall be entitled to the early return of the Escrow Account,
provided, however, if within thirty days of Landlord's receipt of your written
request, Landlord or the Superior Mortgagee requests documents or documents
reasonably necessary to verify that each of the Early Return of Escrow Account
Conditions exist, then the period of time within which you shall have the right
to the return of the Escrow Account shall be extended to the date that is sixty
days immediately following the date that Landlord receives the requested
documents or documentation.
Provided that no Event of Default then exists beyond the applicable grace
period, if any, on each Adjustment Date beginning with the Adjustment Date
corresponding to the first day of the second Lease Year, Landlord will consent
to the disbursement to you by the escrow agent of one-tenth (1/10th) of the
initial Escrow Account amount and you shall not have any obligation to replenish
any such one-tenth (1/10th) amount. The parties agree, after the Commencement
Date, to execute any schedule to be provided pursuant to the Escrow Instructions
to evidence the reductions in Escrow Account amount pursuant to this paragraph.
Landlord: Tenant:
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ARTICLE VII
USE OF THE PREMISES
7.01 PERMITTED USE. The Premises shall be continuously used for the
sole purpose of the Permitted Use and for no other use or purpose. You shall at
your own cost and expense obtain any and all licenses and permits necessary for
any such use. The overnight parking of automobiles, trucks or other vehicles
(other than occasional overnight parking(2) is prohibited. The outside storage
of any property including trash or garbage is prohibited. You agree that you
will, at your own cost and expense keep your employees, agents, customers,
invitees, and/or licensees from parking on any streets running through or
contiguous to the Development. You agree that no washing of vehicles will take
place in the Exterior Common Areas. You shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to emanate from the
Premises, nor take any other action which would constitute a nuisance or would
disturb or endanger any other tenants of the Building or unreasonably interfere
with any tenant's use of their respective premises or permit any use which would
adversely affect the reputation of the Development.
7.02 RULES AND REGULATIONS. The current Rules and Regulations
applicable to this Building and your use of the Premises and Common Areas is
attached to this Lease as EXHIBIT D. Landlord reserves the right to make
reasonable changes to the Rules and Regulations from time to time provided that
any such change is uniformly applied to all tenants of the Building and provided
that you receive advance written notice of the change in the Rules and
Regulations. You covenant and agree to comply with the Rules and Regulations as
same may from time to time be modified as aforesaid, provided, however, that if
there is a conflict between an express provision of this Lease and the Rules and
Regulations, then the express provision of this Lease shall control.
7.03 COMPLIANCE WITH LAWS. You covenant to comply with any and all
laws, statutes, ordinances and regulations, federal, state, county or municipal,
now or hereinafter in force applicable to the Premises relating to the use or
occupancy thereof or to the making of repairs thereto required to be made by you
pursuant to the terms of this Lease or of changes, alterations or improvements
therein, ordinary or extraordinary, structural or otherwise, seen or unforseen,
provided, however, that your obligations pursuant to this sentence shall not
apply to any discrepancy between the Construction Drawings and the actual
construction of the Interior Modifications nor shall such obligations of yours
pursuant to this Section apply to the Base Building Condition or required
changes thereto. You also covenant to comply with any and all regulations and
rules applicable to the Premises issued by the Board of Fire Underwriters, or by
any other body exercising similar functions, and insurance companies writing
policies covering the Premises which now or hereafter may become applicable to
the Premises. You shall pay all costs, expenses, claims, fines, penalties and
damages that may in any manner arise out of or be imposed because of your
failure to comply with this section, and in any event, you agree to indemnify
the Landlord from all liability with reference to the same. The Landlord and you
shall each promptly give notice to the other in writing at the address listed in
the Lease of any notice of violation received by you or Landlord, respectively.
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(2) Should there be occasional overnight parking, Landlord, the
property manager and any security service patrolling the Development shall not
be liable for damage or theft to the overnight parked vehicle, it being agreed
and understood that overnight parking is at the risk of the person choosing to
do so and you agree to indemnify and hold Landlord harmless from and against any
claims for damages resulting from such overnight parking, including any claims
that the indemnified party was negligent in providing security if the claimant
is your employee, guest, invitee or agent.
Landlord: Tenant:
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7.04 TENANT'S REPAIR AND MAINTENANCE OBLIGATIONS. Subject to Landlord's
obligations under Section 8.01(a), you shall, at your own cost and expense, keep
and maintain all parts of the Premises and, if applicable, such portion of the
Development within your exclusive control, in good condition, ordinary wear and
tear excepted and damage by casualty excepted, promptly making all necessary
repairs and replacement, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original, including
but not limited to, interior windows, glass and plate glass, doors, any special
office entries, interior walls and finish work, floors and floor coverings and
water heaters. As part of your obligation hereunder, you shall keep the whole of
the Premises in a clean and sanitary condition. You will as far as reasonably
possible keep all parts of the Premises from deteriorating, ordinary wear and
tear excepted, and from falling temporarily out of repair, and upon termination
of this Lease in any way, you will yield up the Premises to Landlord in the
condition that the Premises was initially delivered to you by Landlord, ordinary
wear and tear excepted and loss by fire or other casualty covered by insurance
to be secured pursuant to this Lease excepted (but not excepting any damage to
glass or loss not reimbursed by insurance because of the existence of a
deductible under the appropriate policy). You shall not damage any dividing wall
or disturb the integrity and supports provided by any demising wall and shall,
at your sole cost and expense, properly repair any damage or injury to any
demising wall caused by you or your employees, agents or invitees. You shall, at
your own cost and expense, as additional rent, pay for the repair of any damage
to the Premises, the Building, or the Development to the extent resulting from
and/or caused in whole or in part by your negligence or misconduct, or the
negligence or misconduct of your agents, servants, employees, patrons,
customers, or any other invited person entering upon the Development as a result
of your business activities or caused by your default hereunder, but only to the
extent that the cost of the repair was not covered by insurance proceeds from
any source received by Landlord.
7.05 UTILITIES. You agree to pay for all electric and other utilities
and services used on or from the Premises, together with any taxes, penalties
and surcharges or the like pertaining thereto and any maintenance charges for
utilities and any utility hookup fees. You will not, without the written consent
of Landlord, which consent will not be unreasonably withheld, use any apparatus
or device in the Premises which will in any way increase the amount of
electricity (beyond 1,500 kilowatts) or water which Landlord determines to be
reasonable for use of the Premises as general office space; nor connect with
electrical current, except through existing electrical outlets in the Premises,
or with water pipes, any apparatus or device. If you require water, electrical
current or any other resource in excess of that usually furnished, you shall
first procure the consent of Landlord, which Landlord may refuse, and if not
already installed, the Landlord may cause a special meter to be installed in the
Premises, at your cost and expense, so as to measure the amount of water,
electric current or other resource consumed. Subject to Section 8.01(c),
Landlord shall in no event be liable for any interruption or failure of utility
services on or to the Premises. Electricity for any single tenant floor occupied
by you will be metered in your name and you will pay the electric costs
directly. Electricity for any portion of a multi tenant floor occupied by you
will be metered in the name of Landlord and the electric costs for such multi
tenant floor will be included as part of Operating Costs.
7.06 END OF THE TERM. You covenant that on the last day of the term,
you will peaceably and quietly leave and surrender the Premises in the condition
Landlord: Tenant:
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that the Premises was initially delivered to you by Landlord, ordinary wear and
tear and destruction or damage by fire or other casualty excepted, and that all
payments required to be made by you in payment of utilities pursuant to Section
7.05 shall have been paid or provision for payment shall have been made. If you
had any permit issued for alterations or improvements, whether consented to or
not by Landlord, then you covenant that as of the last day of the term, such
permits will be closed. You shall endeavor to give written notice to Landlord at
least thirty (30) days prior to vacating the Premises and you shall arrange to
meet with Landlord for a joint inspection of the Premises prior to vacating. If
you fail to arrange such joint inspection, Landlord's inspection at or after you
vacate the Premises shall be presumed correct for purposes of determining your
responsibility for repairs and restoration.
ARTICLE VIII
LANDLORD'S OBLIGATIONS
8.01 REPAIRS AND MAINTENANCE. (a) Landlord shall maintain and repair
when needed the Common Areas, the exterior windows, roof, the Building's load
bearing walls, the mechanical, HVAC, life safety, plumbing and electrical
systems serving the Building (including the Premises), landscaping, and the
structure of the Building, itself, in reasonably good order and condition
consistent with other buildings of similar age, class and size within the
Plantation market, except for damage occasioned by your negligent or
intentionally wrongful acts or the negligent or intentionally wrongful acts of
your employees, agents, or contractors, which damage will be repaired by
Landlord at your expense (other than damage resulting from a casualty covered by
insurance required to be maintained by Landlord). Landlord's liability with
respect to any defects, repairs, or maintenance or the curing of such defect for
which Landlord is responsible under the provisions of this Lease shall be
limited to the cost of such repairs or maintenance or the curing of such defect.
To the extent economically practical and feasible, Landlord will attempt to
perform its obligations under this paragraph in a manner reasonably designed to
minimize interference with the conduct of your Permitted Use.
(b) Landlord agrees to furnish to the Premises janitorial
services in accordance with the schedule of services annexed to this Lease as
SCHEDULE 8.01(B) as well as any additional janitorial services that Landlord
determines is reasonably necessary or desirable. The cost of such janitorial
services will be included as part of Operating Costs. You will not contract for
separate janitorial services without Landlord's written consent which may be
withheld in Landlord's sole discretion unless such services are not offered by
Landlord, in which case Landlord's consent shall not be unreasonably withheld or
delayed. Any such janitorial services contracted for separately by you shall be
at your sole cost, risk and responsibility. During the term, Landlord shall
replace when needed Building standard ballasts and bulbs within the Premises (as
well as within all other tenant spaces) and the cost thereof shall be part of
Operating Costs.
(c) Landlord shall provide the Premises with (i) elevator
service and (ii) water for ordinary lavoratory and drinking at those points of
Landlord: Tenant:
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supply provided for general use of tenants, and (iii) subject to the fact that
electric for any single tenant floor of the Premises occupied by you will be
separately metered in your name and paid for by you, a minimum of 1,500
kilowatts of electric power to the Premises. The foregoing notwithstanding,
interruptions of any utilities or service shall not be deemed an eviction or
disturbance of your use and possession of the Premises, or render Landlord
liable for damages by abatement of Rent or otherwise or relieve you from
performance of your obligations under this Lease, provided, however, that if the
interruption or failure was caused primarily by the negligent or intentional
wrongful acts of Landlord or of Landlord's agents or contractors (i) if Landlord
then fails to diligently attempt to restore the utility services, then you shall
be entitled to an abatement of Rent for each day after the third day of such
interruption or failure until such time as Landlord commences to diligently
attempt to restore the utility services; and (ii) if such interruption or
failure continues for at least thirty consecutive days, then irrespective of
Landlord's efforts to restore the utility services, you shall be entitled to an
abatement of Rent (the abatement to be reduced by the amount of recovery you
receive from the proceeds of business interruption insurance, if any,
attributable to the Rent that would otherwise have been abated) for each day
after such thirtieth day until such time as the utility services are restored.
During any period of a failure of electric services and provided that it does
not damage the Building and provided that the use of same is in compliance with
all Environmental Laws, Landlord will not object to you bringing a portable
generator on to the Premises to keep the Premises operational. Landlord will
also not object to the inclusion in the Construction Drawings or alterations to
the Premises made by you at a later date for additional switchgear (additional
transformers, high and low voltage panels, etc.).
(d) Landlord agrees to furnish to the Premises weekdays,
exclusive of holidays (New Years Day, Christmas Day, Thanksgiving Day and the
day immediately following, Memorial Day, Labor Day and Independence Day), from
8:00 A.M. to 8:00 P.M. and on Saturday, from 9:00 A.M. to 3:00 P.M., heat and
air conditioning (HVAC). For any portion of the Premises that is a part of a
multi-tenant floor, additional HVAC usage shall be billed to you as additional
rent at a rate equal to Landlord's actual cost, from time to time determined,
which is currently $35.00 an hour. The cost of chilled water for HVAC usage
during each of normal usage and after hours usage will be included as part of
Operating Costs.
8.02 COVENANT OF QUIET ENJOYMENT. Landlord covenants that it now has
good title to the Premises, free and clear of all liens and encumbrances,
excepting only the lien for current taxes not yet due, such mortgage or
mortgages that from time to time encumber the Building, zoning ordinances and
other building and fire ordinances and governmental regulations relating to the
use of such property, and easements, restrictions and other conditions of
record. Landlord represents and warrants that it has full authority and right to
enter into this Lease and that upon paying the Rent and other charges herein set
forth and performing your other covenants and agreements herein set forth, you
shall peaceably and quietly have, hold and enjoy the Premises for the term
hereof without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease. Landlord agrees to make reasonable efforts to protect
you from interference or disturbance by other tenants or third persons; however,
Landlord shall not be liable for any such interference or disturbance, nor shall
you be released from any of the obligations of this Lease because of such
interference or disturbance.
Landlord: Tenant:
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ARTICLE IX
ALTERATIONS AND SIGNAGE
9.01 ALTERATIONS. You agree that you will not make any alterations,
additions or improvements to the Premises (including, without limitation, the
roof and wall penetrations) without the prior written consent of Landlord (or
the consent given in this Lease if some other provision of this Lease expressly
grants such consent), which consent will not be unreasonably withheld, delayed
or conditioned. If Landlord shall consent to any alterations, additions or
improvements proposed by you, you shall construct the same in accordance with
all governmental laws, ordinances, rules and regulations and all requirements of
Landlord's and your insurance policies and only in accordance with plans and
specifications approved by Landlord; and any contractor or person selected by
you to make the same, or, at Landlord's option and discretion, the alterations,
additions or improvements (other than cosmetic alterations) shall be made by
Landlord for your account and you shall fully reimburse Landlord for the entire
cost thereof. You may, without the consent of Landlord, but at your own cost and
expense and in good workmanlike manner erect such shelves, bins, machinery and
other trade fixtures as you may deem advisable, without altering the basic
character of the Building and without overloading the floor or damaging the
Building, and in each case after complying with all applicable governmental
laws, ordinances, regulations and other requirements. All shelves, bins, work
stations, terminals, cabling, machinery and trade fixtures installed by you or
on your behalf may be removed by you prior to the termination of this Lease if
you so elect, and shall be removed by the date of termination of this Lease or
upon earlier vacating of the Premises if required by Landlord; upon any such
removal you agree to repair any damage caused to the Premises by such removal.
All such removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the primary structure or structural
quality of the Building. Notwithstanding the foregoing, you may make without
Landlord's prior consent but only after written notice to Landlord,
non-structural alterations which, in the aggregate, do not exceed $50,000. As to
any alteration that does not require Landlord's consent, you will provide
Landlord with advance notification of the making of the alteration. You shall
not be required to remove the Interior Modifications.
9.02 SIGNS AND WINDOW TREATMENT. (a) Except as is otherwise expressly
allowed in this paragraph and in the next succeeding paragraphs, you agree that
you will not install any signs upon the interior or exterior of the Building.
Landlord will provide, at your cost, Landlord's standard identification signage
to be placed on the exterior doors to the Premises and in the Building
directory, which signage shall be removed by you upon termination of this Lease
at which time you shall restore the property to the same condition as prior to
installation of said signage. Landlord may from time to time require you to
change such signage to conform to a revised standard for the Building, provided
Landlord pays the cost of removing and replacing such signage. Landlord shall
maintain all signage (other than the exterior signage installed by you in
accordance with subparagraph b) and the cost thereof shall be part of Operating
Costs.
(b) Provided that the Premises equals or exceeds 50,000 r.s.f.,
you shall have the right, at your sole cost and expense (which will not be
Landlord: Tenant:
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considered part of the Interior Buildout Cost), to place signage on the top
south side exterior of the Building and on the top north side exterior of the
Building provided that such signage is reasonably approved by Landlord and
further provided that such signage is approved by the City of Plantation and the
Southpointe Property Owners Association. Landlord agrees not to place any
signage on the exterior of the Building unless you waive your right to such
signage or unless you no longer have the right to exterior signage pursuant to
this Section. Subject to the condition that Landlord shall not be required to
incur any expense or cost, Landlord agrees to cooperate with you in your
dealings with the City of Plantation and the Southpointe Property Owner's
Association and in any contests arising from the refusal of the City of
Plantation and/or the Southpointe Property Owner's Association to approve your
requested signage. At any point in time that the Premises is less than 50,000
r.s.f., and at the expiration of the Lease, you will immediately remove, at your
cost and expense, your exterior Building signage and repair any damage to the
Building caused by such removal. Any such exterior signage installed by you
shall be maintained by you and kept by you in good condition and repair at your
cost and expense. Subject to approval by the City of Plantation and the
Southpointe Property Owner's Association, and provided that you pay for all
electric costs resulting therefrom, Landlord will not object to the exterior
signage being backlit (See Section 25.03 for possibility of reimbursement by
Landlord for such signage installation costs). References in this Section to the
top of the Building means the mechanical equipment screening walls.
(c) Subject to approval by the City of Plantation and the
Southpointe Property Owner's Association, Landlord shall install one or more
monuments for signage at the front and rear door entrances of the Building and
you shall be entitled, at your cost and expense, to install your signage in the
top slot of one of the front door entrance monuments and in the top slot of one
of the rear door entrance monuments. Any such installation shall be in
accordance with signage criteria for the monuments reasonably promulgated by
Landlord. (See Section 25.03 for possibility of reimbursement by Landlord for
such slot installation costs). Notwithstanding any grant by Landlord pertaining
to Building name, monument signage will identify the Building as "Crossroads
Four" or any variation thereof at the top of such monument signage.
(d) Subject to approval by the City of Plantation and the
Southpointe Property Owner's Association, you shall be entitled to attach
signage, reasonably acceptable to Landlord as to size, materials and precise
location, at the front and rear entrances to the Building that read
"Tradestation".
(e) You shall not install drapes, curtains, blinds or any window
treatment without Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or conditioned.
Landlord: Tenant:
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ARTICLE X
LANDLORD ACCESS TO PREMISES
Landlord and Landlord's agents shall have the right to enter the Premises
at any time, in the case of an emergency, and otherwise at reasonable times upon
reasonable notice for the purpose of showing the same to prospective purchasers,
lenders, or tenants (but as to tenants only in the final Lease Year), and making
such alterations, repairs, improvements or additions to the Premises or to the
Building (including other tenant spaces), as Landlord may reasonably deem
advisable or necessary. Landlord may at any time place on or about the Building
any ordinary "For Sale" signs and Landlord may at any time during the last 180
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs. All such activities of Landlord shall be without abatement of Rent or
liability to you.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
11.01 REQUIREMENT OF LANDLORD CONSENT. (a) Subject to your right to
assign or sublet to an Affiliate as specified elsewhere in this Article, you
shall not have the right to assign, sublet, transfer or encumber this Lease, or
any interest therein, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, delayed or conditioned upon payment
of any consideration. Landlord's failure to respond to you within thirty days
following Landlord's receipt of your written request pursuant to this paragraph
shall be deemed to be consent. Any attempted assignment, subletting, transfer or
encumbrance by you in violation of the terms and covenants of this Section shall
be void. If Landlord consents to an assignment or subletting, as a condition
thereto which the parties agree is reasonable, you shall pay to Landlord
one-half (1/2) of any Transfer Premium. If any assignment, subletting for more
than fifty percent (50%) of the remainder of the term, or other form of transfer
of your interest in this Lease other than to an Affiliate is less than eighty
percent (80%) of the then fair market value of such interest, Landlord, in lieu
of consenting to such assignment, subletting or other transfer of your interest
in this Lease may instead elect, upon written notice to you, unless you withdraw
your request to assign, sublet or otherwise transfer your interest in this Lease
within ten days following your receipt of Landlord's written election, to
terminate this Lease by providing you with written notice of such termination,
provided, however, if the transaction is a subletting for more than fifty
percent (50%) of the remainder of the term but which is for less than the entire
Premises, then Landlord's right of termination shall only apply to the portion
of the Premises to which the subletting applies. These covenants shall run with
the land and shall bind you and your representatives in any bankruptcy
proceeding, successors and assigns. Any assignee, sublessee or transferee of
your interest in this Lease (all such assignees, sublessees and transferees
being hereinafter referred to as "successors"), by assuming your obligations
hereunder shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such successors in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Landlord or
not, shall relieve you of your liability and obligations hereunder. Upon the
occurrence of an "Event of Default" as hereinafter defined, if the Premises or
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any part thereof are then assigned or sublet, Landlord, in addition to any other
remedies herein provided, as provided by law, may at its option collect directly
from such assignee or subtenant all rents becoming due to you under such
assignment or sublease and apply such rent against any sums due to Landlord for
you hereunder, and no such collection shall be construed to constitute a
novation or a release of you from the further performance of your obligations
hereunder.
(b) If you are not a publicly traded company, then a change in
control shall constitute an assignment requiring Landlord's consent. The
transfer of 50% or more of your stock, if you are a corporation, or a change in
50% or more of your partners, if you are a general partnership or limited
partnership, or a change in your general partner if you are a limited
partnership, shall constitute a change in control for this purpose, requiring
Landlord's consent.
(c) Your involvement in a merger transaction, if you or a
subsidiary of yours is not the surviving corporation in the merger, shall be
considered an assignment of this Lease requiring Landlord's consent.
11.02 BANKRUPTCY PROVISIONS. If this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq.
(The "Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute your property or of your estate within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of the Landlord and be promptly
paid or delivered to Landlord. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations arising
under this lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to Landlord an instrument confirming such
assumption.
11.03 EFFECT OF UNCONSENTED TO ASSIGNMENT OR SUBLETTING. An assignment
or subletting of your interest in this Lease without Landlord's specific written
prior consent (where Landlord's consent is required pursuant to the terms of
this Lease) shall, at Landlord's option, be an Event of Default curable after a
ten day notice period or a non curable Event of Default without the necessity of
any notice or grace period. If Landlord elects to treat such unconsented to
assignment or subletting as a non curable Event of Default, Landlord shall have
the right to either (i) terminate this Lease, or (ii) not terminate the Lease
and to instead increase the monthly base rent to the Holdover Rent amount as if
you were holding over.
11.04 ASSIGNMENT TO AN AFFILIATE. Notwithstanding anything in Section
11.01 to the contrary, you shall have the right to assign your leasehold
interest in the Premises to an Affiliate without Landlord's consent provided
that (i) you provide Landlord with advance written notice of the assignment;
(ii) you provide Landlord, in advance, with proof that the Affiliate has all
insurance in place required to be maintained under this Lease including naming
Landlord as an additional insured; (iii) you provide Landlord, in advance, with
a fully executed assignment and assumption of lease document reasonably
acceptable to Landlord including an acknowledgment that such assignment does not
release you from liability; and (iv) you provide Landlord with an administrative
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charge payment of $350.00 to reimburse Landlord for the administrative and legal
costs Landlord can reasonably be expected to incur regarding such assignment.
11.05 SUBLETTING TO AN AFFILIATE. Notwithstanding anything in Section
11.01 to the contrary, you shall have the right to sublet all or a portion of
the Premises to an Affiliate without Landlord's consent provided that (i) you
provide Landlord with advance written notice of the subletting; (ii) you provide
Landlord, in advance, with proof that the Affiliate has all insurance in place
required to be maintained under this Lease including naming Landlord as an
additional insured; (iii) you provide Landlord, in advance, with a fully
executed sublease reasonably acceptable to Landlord; and (iv) you provide
Landlord with an administrative charge payment of $350.00 to reimburse Landlord
for the administrative and legal costs Landlord can reasonably be expected to
incur regarding such subletting.
11.06 SUB-LEASE TERMINATION: MERGER. Unless specifically stated
otherwise in writing by Landlord, the voluntary or other surrender of this Lease
by you, the mutual termination or cancellation hereof, or a termination hereof
by Landlord for and uncured Event of Default by you, shall automatically
terminate any sublease or lesser estate in the Premises, provided, however,
Landlord shall, in the event of any such surrender, termination or cancellation,
have the option to continue any one or all of any existing subtenancies.
Landlord's failure within ten (10) days following any such event to make a
written election to the contrary by written notice to the holder of any such
lesser interest, shall constitute Landlord's election to have such event
constitute the termination of such interest.
11.07 THIRD PARTY PAYMENTS. You acknowledge that Landlord may not fully
scrutinize and examine each Rent or other payment to see that the check
submitted in payment is your check and not a third party check. Accordingly, if
a third party check is tendered for payment of Rent or any other payment due
under this Lease from you, and if such payment is accepted by Landlord, such
acceptance shall not confer any rights upon the third party payor nor entitle
the third party payor to make a claim as an assignee or subtenant of yours nor
shall such acceptance entitle the third party payor to occupy the Premises or
create a landlord/tenant relationship between the third party payor and
Landlord.
ARTICLE XII
INSURANCE
During the term of this Lease, Landlord and you shall carry and
maintain the following types of insurance and in the amounts specified in this
Article, all as follows:
12.01 FIRE AND CASUALTY DAMAGE. Landlord agrees to maintain insurance
covering the Building (including the Premises and the Interior Modifications and
any other improvements to the Premises made by Landlord) in an amount not less
than full insurable value (subject to any applicable commercially reasonable
deductibles) insuring against loss or damage by fire and other hazards included
within the term "special causes of loss", "all risk" or "extended coverage" and
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against such other hazards as Landlord may deem advisable or which a Superior
Mortgagee requires. Such insurance will not, however, insure your personal
property or any improvements made to the Premises by you. Subject to the
provisions of subparagraph 13.01(d) below, such insurance shall be for the sole
benefit of Landlord and under its sole control.
12.02 PERSONAL PROPERTY. You shall procure and maintain throughout the
term of this Lease a policy or policies of insurance, at your sole cost and
expense, insuring all personal property situated within the Premises against
loss or damage by fire and other hazards included within the term "special
causes of loss", "all risk" or "extended coverage" in the full insurable value.
12.03 TENANT'S LIABILITY INSURANCE. You shall procure and maintain
throughout the term of the Lease a policy or policies of insurance, at your sole
cost and expense, insuring both Landlord and you against all claims, demands or
actions arising out of or in connection with: (i) the Premises; (ii) the
condition of the Premises; (iii) your operations in and maintenance and use of
the Premises; and (iv) your liability assumed under this Lease, the limits of
such policy or policies to be in the amount of not less than $2,000,000 per
occurrence in respect to injury to persons (including death), and in the amount
of not less than $250,000 per occurrence in respect to property damage or
destruction, including loss of use thereof. If Landlord has also obtained
comprehensive liability insurance, then the insurance required to be maintained
by you pursuant to this Section shall be primary.
12.04 LANDLORD AND SUPERIOR MORTGAGEE AS ADDITIONAL INSUREDS. Insurance
required to be procured and maintained by you pursuant to this Article shall be
procured by you from responsible insurance companies satisfactory to Landlord.
Certificate(s) of insurance evidencing your compliance this Article shall be
delivered to Landlord prior to the Commencement Date, or, if you have been
granted a right of early access, prior to your right of early access to the
Premises. Not less than fifteen (15) days prior to the expiration date of any
such policies, renewal certificates of insurance shall be delivered to Landlord.
Such policies shall further provide that not less than thirty (30) days written
notice shall be given to Landlord before such policy may be canceled or changed
to reduce insurance provided thereby. All such insurance shall name Landlord as
an additional insured, and at the request, of Landlord, name a Superior
Mortgagee as an additional insured. No such policies may be terminated prior to
the giving of notice to Landlord (and to the Superior Mortgagee if named as an
additional insured).
12.05 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and you each hereby waive any and all rights of
recovery, claim, action, or cause of action, against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises,
or any improvements thereto, or the Building, or any improvements thereto, or
any personal property of such party therein, by reason of fire, the elements, or
any other cause(s) which may be insured against under the terms of insurance
policies properly endorsed, regardless of cause or origin, including negligence
of the other party hereto, its agents, officers, or employees, and without
regard to whether any such policies are maintained, and without regard to the
amount of any deductibles other than as set forth in the last sentence of this
Section . The provisions of this Section are conditioned upon the ability of
Landlord and you to each obtain endorsements, at no additional cost, to their
property insurance with respect to the Premises or the Building, as the case may
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be, consistent with this Section. Each property insurance policy shall also
provide that the policy shall not be invalidated if the insured waives, in
writing prior to a loss, any or all rights of recovery against any party for
losses covered by such policy. If you are unable to obtain the provisions set
forth herein from your property insurance company, you shall name Landlord as an
additional insured on your property insurance policy. Notwithstanding anything
in the preceding to the contrary, if the damage or destruction to the Building
was caused by your negligence, then you agree, upon demand, to reimburse
Landlord for the deductible expended by Landlord under Landlord's policy of
insurance (but not in excess of $10,000) to repair or rebuild the Building or
part thereof after such damage or destruction.
ARTICLE XIII
CASUALTY AND CONDEMNATION
13.01 DAMAGE OR DESTRUCTION. (a) If the Building should be damaged or
destroyed by fire, tornado or other casualty, you shall give written notice
thereof to Landlord.
(b) If the Building should be totally destroyed by fire,
tornado or other casualty, or if the Building should be so damaged thereby that
rebuilding or repairs of the Building including the Premises cannot in
Landlord's reasonable estimation be completed within the Restoration Period,
this Lease shall terminate and the Rent shall be abated during the unexpired
portion of this Lease, effective upon the date of the occurrence of such damage.
(c) If the Building should be damaged by any peril covered by
insurance to be provided by Landlord under Section 12.01, but only to such
extent that rebuilding or repairs can in Landlord's reasonable estimation be
completed within the Restoration Period, this Lease shall not terminate, and
Landlord shall at its sole cost and expense thereupon proceed with reasonable
diligence to rebuild and repair the Building and the Premises (including the
Interior Modifications) to substantially the condition in which they existed
prior to such damage, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by you
except that Landlord may elect not to rebuild if such damage occurs during the
last year of the term of the Lease exclusive of any option which is unexercised
at the time of such damage. If the Premises are untenantable in whole or in part
following such damage, the Rent payable hereunder during the period in which
they are untenantable shall be reduced or eliminated to such extent as may be
fair and reasonable under all of the circumstances. If Landlord should fail to
complete such repairs and rebuilding within the Restoration Period, you may, at
your option, terminate this Lease by delivering written notice of termination to
Landlord as your exclusive remedy, whereupon all rights and or obligations
hereunder shall cease and terminate. Should construction be delayed because of
changes, deletions, or additions in construction requested by you, strikes,
lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other causes beyond the reasonable control
of Landlord, the Restoration Period shall be extended for the time Landlord is
so delayed but in no event shall the Restoration Period exceed 365 days.
(d) Notwithstanding anything herein to the contrary, if a
Superior Mortgagee requires that the insurance proceeds be applied to the
indebtedness secured by a mortgage encumbering the Building, then Landlord shall
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have the right to terminate this Lease by delivering written notice of
termination to you within fifteen (15) days after such requirement is made by
the Superior Mortgagee, whereupon all rights and obligations hereunder shall
cease and terminate.
13.02 CONDEMNATION. (a) If the whole or any substantial part of the
Premises or Building should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking would prevent or materially
interfere with the use of the Premises or Building for the Purpose for which
they are then being used, this Lease shall terminate effective when the legal
taking shall occur as if the date of such taking were the date originally fixed
in the Lease for the expiration of the Term.
(b) If the part of the Premises or Building shall be taken for
any public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided above, this Lease shall not terminate but
the Rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for your use, as near to the condition thereof immediately
prior to such taking as is reasonably feasible under all the circumstances.
(c) If there is a taking or private purchase in lieu thereof,
you and Landlord shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings; provided that you shall not be
entitled to receive any award for the loss of any improvements paid for by
Landlord or for your loss of your leasehold interest, the right to such award as
to such items being hereby assigned by you to Landlord.
ARTICLE XIV
LANDLORD'S LIABILITY
14.01 LIABILITY AND INDEMNIFICATION. (a) If the waiver of subrogation
provisions of Section 12.05 are not applicable, Landlord shall nonetheless not
be liable to you for any damage to property on or about the Premises unless
caused by or resulting from the gross negligence or intentional wrongful act of
Landlord or its agents, servants or employees in the operation or maintenance of
the Premises or the Development, subject to the doctrine of comparative
negligence in the event of contributory negligence on your part or on the part
of your agents, employees or servants. In no case will a Superior Mortgagee be
liable to you for injury, damage or loss caused by Landlord, regardless of the
cause. In those cases specified above where Landlord is liable to you for damage
to your property, Landlord's liability is limited to the replacement value of
the property damaged. In no case will Landlord be liable to you for incidental
or consequential damages or for lost profits.
(b) You agree to indemnify Landlord and hold Landlord harmless
from and against all claims, actions, damages, liability, and expenses which may
arise in connection with bodily injury or loss of life to persons while at the
Premises if the injury or loss of life was occasioned totally or in part by any
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negligent or wrongful intentional act by you or by your agents, contractors,
servants or employees. Your indemnification obligation under this paragraph
shall not, however, apply to those instances where the injury or loss of life
was due to the negligent or wrongful intentional act of Landlord.
(c) You agree to indemnify Landlord and hold Landlord harmless
from and against all claims, actions, damages, liability, and expenses which may
arise in connection with damage to the property of third persons if the property
is damaged while at the Premises and if the damage was occasioned totally or in
part by any negligent or wrongful intentional act by you or by your agents,
contractors, servants or employees. Your indemnification obligation under this
paragraph shall not, however, apply to those instances where the damage to third
persons property was due to the negligent or wrongful intentional act of
Landlord.
(d) In case a party (the "Indemnified Party") shall, without
any fault on its part, be made a party to any litigation commenced by or against
the other party (the "Indemnifying Party") in connection with the Premises, the
Indemnifying Party hereby agrees to hold the Indemnified Party harmless and
further agrees to pay all costs, expenses, and reasonable attorney's fees which
may be incurred by the Indemnified Party in connection with such litigation.
Notwithstanding, Landlord's obligation as an Indemnifying Party shall only apply
to those causes of action which arise while Landlord is the owner of the
Building and Landlord's obligations under this paragraph shall not be binding
upon a Superior Mortgagee.
14.02 TENANT REMEDIES (INCLUDES LIMITED SELF HELP REMEDY). In the event
of any default by Landlord, your exclusive remedies shall be actions for damages
or for specific performance, but prior to any such action you must give Landlord
written notice specifying such default with particularity, and Landlord shall
thereupon have thirty days in which to commence to cure such default and proceed
diligently thereafter to cure such default. Unless and until Landlord fails to
commence to cure such default with such thirty day period and to proceed
diligently thereafter to cure such default, you shall not have any remedy or
cause of action by reason thereof. Notwithstanding the preceding, if Landlord
fails to perform or to commence to perform and to proceed diligently thereafter
to completion, its obligations under Section 8.01 within a commercially
reasonable period of time considering the failure of performance after written
notice from you, then upon advance written notice received from you, you may
perform such obligations yourself and seek reimbursement from Landlord for your
actual cost to perform the obligation.
14.03 LIMITATION ON LIABILITY. It is expressly understood and agreed
that nothing in this Lease shall be construed as creating any liability against
Landlord, or its successors and assigns, personally, and in particular without
limiting the generality of the foregoing, there shall be no personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained, and that all personal liability of
Landlord, or its successors and assigns, of every sort, if any, is hereby
expressly waived by you, and that so far as Landlord, or its successors and
assigns is concerned you shall look solely to the Building for the payment
thereof or to the proceeds of the Building resulting from casualty or
condemnation, subject, however, to the right of the Superior Mortgagee to such
casualty or condemnation proceeds.
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ARTICLE XV
TENANT EVENTS OF DEFAULT AND LANDLORD REMEDIES
15.01 EVENTS OF DEFAULT. In addition to any other Event of Default
expressly provided for in this Lease, the following events shall be deemed to be
Events of Default by you under this Lease:
(a) If you fail to pay any installment of Rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due and such failure shall continue for a period of five (5) days from the date
such payment was due, provided, however, that with respect to the first two
failures only during any one calendar year, an Event of Default will not exist
unless you fail to make payment within five (5) days of written notice of non
payment.
(b) If you are generally not paying your debts as they become
due or if you admit in writing of the inability to pay debts or if you make a
general assignment for the benefit of creditors; or if you commence any case,
proceeding or other action seeking to have an order for relief entered on your
behalf as a debtor to adjudicate as being a bankrupt or insolvent, or seeking
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for you or for all or of any
substantial part of your property; or you take any action to authorize any of
the actions set forth above in this paragraph; or
(c) If any case, proceeding or other action against you shall
be commenced, which is not dismissed within sixty days of the filing, seeking to
have an order for relief entered against you as a debtor or to adjudicate you as
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of your debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for you
or for all or any substantial part of your property.
(d) If a receiver or trustee shall be appointed for all or
substantially all of your assets and such receiver is not discharged within
thirty days of appointment.
(e) If you fail to discharge or bond against any lien placed
upon the Premises in violation of this Lease within twenty (20) days after you
know or should have known that any such lien or encumbrance is filed against the
Premises.
(f) If you fail to comply with any term, provision or covenant
of this Lease (other than the foregoing in this Section), and shall not cure
such failure within twenty (20) days after receipt of written notice thereof to
you, provided, however, that if the nature of the breach is such that it cannot
be reasonably cured within such twenty day period, then the twenty day period
will be extended for up to an additional one hundred and twenty days provided
that you are continuously and diligently attempting to cure such breach.
15.02 REMEDIES. (a) Upon the occurrence of any Event of Default beyond
the applicable grace period, if any, specified in this Lease, Landlord shall
have the option to pursue any one or more of the following remedies without any
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notice or demand whatsoever and without limiting or restricting any other right
or remedy which Landlord might have available under law unless otherwise
expressly provided for herein to the contrary:
(i) Terminate this Lease, in which event you shall
immediately surrender the Premises to Landlord, and if you fail so to do,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in Rent, enter upon and take possession of the Premises
and expel or remove you and any other person who may be occupying the Premises
or any part thereof, without being liable for prosecution or any claim of
damages therefore.
(ii) Enter upon and take possession of the Premises
and expel or remove you and any other person who may be occupying the Premises
or any part thereof, without being liable for prosecution or any claim for
damages therefore, and relet the Premises and receive the rent therefore.
(iii) Enter upon the Premises, without being liable
for prosecution or any claim for damages therefore, and do whatever you are
obligated to do under the terms of this Lease; and you agree to reimburse
Landlord on demand for any expenses which Landlord may incur in thus effecting
compliance with your obligations under this Lease, and you further agree that
Landlord shall not be liable for any damages resulting to you from such action,
whether caused by the negligence of Landlord or otherwise.
(iv) Omitted.
(v) Exercise any other right or remedy available to
Landlord at law or in equity.
(b) Omitted.
(c) If you fail to pay any installment of Rent hereunder as when such
installment is due, to help defray the additional cost to Landlord for
processing such late payments, you agree to pay to Landlord on demand a late
charge in an amount equal to five (5%) percent of such installment; and the
failure to pay such amount within five (5) days after demand therefore shall be
an Event of Default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner. Notwithstanding as to the first late payment only during any one
calendar year, the late charge will not be assessed if you pay the Rent
installment or other payment within five (5) days of your receipt of written
notice from Landlord advising that a late charge will become due if not paid.
(d) If your check, given to Landlord in payment, is returned by the
bank for non-payment, you agree to pay all expenses incurred by Landlord as a
result thereof.
(e) Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance of surrender of
the Premises by you, whether by agreement or by operation of law, it being
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understood that such surrender can be effected only by written agreement between
you and Landlord. No removal or other exercise of dominion by Landlord over your
property or others at the Premises shall be deemed unauthorized or constitute a
conversion, you hereby consenting, after any Event of Default, to the aforesaid
exercise of dominion over your property within the Premises. All claims for
damages by reason of such re-entry and/or repossession are hereby waived, as are
all claims for damages by reason of any legal process. You agree that any
re-entry by Landlord may be pursuant to judgement obtained in a legal proceeding
and Landlord shall not be liable for trespass or otherwise.
(f) If Landlord elects to terminate the Lease by reason of an Event of
Default, then notwithstanding such termination, you shall be liable for and
shall pay to Landlord, at the address specified for notice to Landlord herein,
the sum of all Rent and other indebtedness accrued to date of such termination,
plus, as damages, an amount equal to the present value of the total Rent
hereunder for the remaining portion of the term (had such term not been
terminated by Landlord prior to the date of expiration). For these purposes,
present value will be determined by using a seven percent discount factor.
Landlord agrees that any final judgement for damages that it obtains pursuant to
this paragraph will contain a restriction that will prohibit Landlord from
enforcing collection on the portion of the judgement amount attributable to the
discounted amount of accelerated Rent that is more than thirty six months from
the date of collection, e.g., if the judgement amount includes accelerated Rent
for 72 months, discounted, then Landlord would initially be entitled to only
take collection action with respect to one-half of the portion of the judgement
amount attributable to accelerated Rent, and each succeeding month thereafter
Landlord would be entitled to only take collection action with respect to an
additional one-seventy second (1/72) of the portion of the judgement amount
attributable to accelerated Rent. Any final judgement obtained pursuant to this
paragraph shall include any provision required by law regarding an accounting
for subsequent rents collected, provided, however, in no event shall you be
entitled to any excess of any rental obtained by reletting over and above the
rental herein reserved.
(g) If Landlord elects to repossess the Premises without terminating
the Lease, then you, at Landlord's option, shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all Rent and
other indebtedness accrued to the date of such repossession, plus Rent required
to be paid by you to Landlord during the remainder of the term until the date of
expiration of the term diminished by any net sums thereafter received by
Landlord through reletting the Premises during said period (after deducting
expenses incurred by Landlord as provided in subparagraph 20.02(h). In no event
shall you be entitled to any excess of any rental obtained by reletting over and
above the rental herein reserved. Actions to collect amounts due by you to
Landlord under this subparagraph may be brought from time to time, on one or
more occasions, without the necessity of Landlord's waiting until the expiration
of the term.
(h) In case of any Event of Default resulting in Landlord regaining
possession of the Premises, you shall also be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, in addition to
any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the Premises; the costs of
removing and storing your property or the property of any other occupant; the
costs of repairing, altering, remodeling or otherwise putting the Premises into
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condition acceptable to a new tenant or tenants (but not including the cost of
tenant improvements for a new tenant), and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees and court costs, investigation costs, costs of
appeal, and all other expenses incurred by Landlord, whether or not suit is
actually filed.
(i) Upon a termination or repossession of the Premises for an Event of
Default, Landlord shall not have any obligation in excess of any obligation
imposed under Florida law to relet or to attempt to relet the Premises, or any
portion thereof, or to collect rental after reletting; and in the event of
reletting, Landlord may relet the whole or any portion of the Premises for any
period to any tenant and for any use and purpose.
(j) If you fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for your account (and enter the Premises for such
purpose), and thereupon you shall be obligated to, and hereby agree, to pay
Landlord upon demand, all reasonable costs, expenses and disbursements
(including reasonable attorney's fees) incurred by Landlord in taking such
remedial action.
(k) If Landlord shall have taken possession of the Premises pursuant to
the authority herein granted then Landlord shall have the right to keep in place
and use all of the furniture, fixtures and equipment at the Premises, including
that which is owned or leased to you at all times prior to any foreclosure
thereon by Landlord or repossession thereof by any lessor thereof or third party
having a lien thereon, Landlord shall also have the right to remove from the
Premises (without the necessity of obtaining a distress warrant, writ of
sequestration or other legal process) all or any portion of such furniture,
fixtures, equipment and other property located thereon and to place same in
storage at any premises within the County in which the Premises is located; and
in such event, you shall be liable to Landlord for costs incurred by Landlord in
connection with such removal and storage. Landlord shall also have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be entitled
to possession thereof who presents to Landlord a copy of any instrument
represented to Landlord by Claimant to have been executed by you (or a
predecessor Tenant) granting Claimant the right under various circumstances to
take possession of such furniture, fixtures, equipment or other property,
without the necessity on the part of Landlord to inquire into the authenticity
of said instrument's copy of your's or your predecessor's signature(s) thereon
and without the necessity of Landlord making any nature of investigation or
inquiry as to the validity of the factual or legal basis upon which Claimant
purports to act; and you agree to indemnify and hold Landlord harmless from all
cost, expense, loss, damage and liability incident to Landlord's relinquishment
of possession of all or any portion of such furniture, fixtures, equipment or
other property to Claimant. Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of this Lease or of Law, to which
you are or may be entitled, may be handled, removed and stored, as the case may
be, by or at the direction of Landlord at your risk, cost and expense, and
Landlord: Tenant:
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Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. You shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of yours not retaken by you from storage within
thirty (30) days after the removal from the Premises shall conclusively be
presumed to have been conveyed by you to Landlord under this Lease as a xxxx of
sale without further payment or credit by Landlord to you. The rights of
Landlord herein stated shall be in addition to any and all other rights which
Landlord has or may hereafter have at law or in equity; and you stipulate and
agree that the rights herein granted Landlord are commercially reasonable.
ARTICLE XVI
RIGHTS RESERVED TO LANDLORD
In addition to any other rights reserved to Landlord pursuant to this
Lease, Landlord reserves and may exercise the following rights without affecting
your obligations hereunder:
(a) To change the street address of the Building or the
Development provided that Landlord provides you with at least ninety days
advance written notice and further provided that Landlord reimburses you for
your reasonable out of pocket costs incurred to change your stationary, business
cards brochures or similar items and for the cost of printing and mailing change
of address announcements;
(b) To install and maintain a sign or signs on the exterior of
the Building (subject to the provisions of Section 9.02(b)) or the Development;
(c) To designate all sources furnishing sign painting and
lettering, lamps and bulbs used on the Premises;
(d) To retain at all times pass keys to the Premises provided
that Landlord will allow you to reserve the right to designate certain secure
areas of the Premises for which no key (or access card) will be provided to
Landlord;
(e) To grant to anyone the exclusive right to conduct any
particular business or undertaking (other than the exclusive granted to you)
provided that such exclusivity right does not materially adversely interfere
with your Permitted Use of the Premises.
ARTICLE XVII
Omitted
ARTICLE XVIII
LANDLORD'S LIEN
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have and you hereby grant to Landlord a continuing security
interest for all rentals and other sums of money becoming due hereunder from
Landlord: Tenant:
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you, upon all of your goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property situated on
the Premises, and such property shall not be removed therefrom without the
consent of Landlord until all arrearages in Rent as well as any and all other
sums of money then due to Landlord hereunder shall first have been paid and
discharged. In the event of a default under this Lease, Landlord shall have, in
addition to any other remedies provided herein or by law, all rights and
remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Section at public or private sale
upon five (5) days notice to you. You hereby agree to execute such financing
statements and other instruments necessary or desirable in Landlord's discretion
to perfect the security interest hereby created. You warrant that the collateral
subject to the security interest granted herein is not purchased or used by you
for personal, family or household purposes. In consideration for Landlord's
execution of this Lease, if Landlord brings an action for a distress writ
proceeding to enforce Landlord's statutory lien or to enforce any lien for rent
granted under this Article, then in such event you expressly agree that the
obligation of Landlord to post a bond, as required under ss.83.12, Florida
Statutes, or any successor provision of law, is waived and Landlord is released
from the obligation to post such bond.
Landlord agrees that upon your request and from time to time, and provided that
no uncured Event of Default exists, Landlord will execute a Landlord Waiver and
Consent in a form reasonably acceptable to Landlord, which contains an agreement
on the part of Landlord to subordinate its lien rights granted pursuant to this
Section to the lien rights you are granting to any lender of yours.
Notwithstanding anything herein to the contrary, the lien rights granted
Landlord either under this Article or under Florida law shall not apply and
Landlord expressly waives such lien rights, to your customer files, accounting
records, or computer software including any computer software owned by you that
you lease or sell to third parties.
ARTICLE XIX
SUBORDINATION AND ATTORNMENT
19.01 SUBORDINATION. You are accepting this Lease subject and
subordinate to any mortgage now or at any time hereafter constituting a lien or
charge upon the Building or the Premises held by a Superior Mortgagee, without
the necessity of any act or execution of any additional instrument of
subordination; provided, however, that if the Superior Mortgagee elects to have
your interest in this Lease superior to any such instrument, then by notice to
you from the Superior Mortgagee, this Lease shall be deemed superior to such
lien, whether this Lease was executed before or after said mortgage. You shall
at any time hereafter on demand execute any instruments, releases or other
documents which may be required by any Superior Mortgagee for the purpose of
evidencing the subjection and subordination of this Lease to the lien of any
such mortgage or for the purpose of evidencing the superiority of this Lease to
the lien of any such mortgage as may be the case.
Notwithstanding the preceding, your subordination obligation is conditioned on
the Superior Mortgagee agreeing in writing that during the term of this Lease
and any extended term thereof, so long as you are not in default under this
Lease, your possession of the Premises shall not be disturbed and your rights
Landlord: Tenant:
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and privileges under this Lease shall not be diminished or interfered with by
the Superior Mortgagee upon any proceeding to foreclose a mortgage, and the
Superior Mortgagee will not join you as a party defendant in any proceeding to
foreclose the mortgage for the purpose of terminating the Lease.
After written request is made by you from time to time, Landlord will obtain
from the Superior Mortgagee a Subordination, Non-Disturbance and Attornment
Agreement in the form annexed hereto as SCHEDULE 19.01. After written request is
made by Landlord from time to time, you will execute and deliver to Landlord a
Subordination, Non-Disturbance and Attornment Agreement in the form annexed
hereto as SCHEDULE 19.01. Any such Subordination, Non-Disturbance and Attornment
Agreement so executed by the Superior Mortgagee and delivered to you shall be
deemed to satisfy the requirements of the immediately preceding paragraph. If
Landlord fails to deliver to you, within thirty days of the Effective Date, a
Subordination, Non-Disturbance and Attornment Agreement in the form annexed
hereto as SCHEDULE 19.01 signed by the then existing Superior Mortgagee, then
from and after such date and until such time as same is actually delivered, you
shall have the right to terminate this Lease by providing written notice to
Landlord.
19.02 ATTORNMENT. If a Superior Mortgagee or any other party succeeds
to the interest of Landlord under the Lease in any manner, including but not
limited to foreclosure, exercise of any power of sale, succession by deed in
lieu or other conveyance (a "Succession"), then upon written notice from the
Superior Mortgagee or other party succeeding to the interest of Landlord under
the Lease (the "New Landlord"), you will attorn to and be bound to the New
Landlord upon such Succession and will recognize the New Landlord as the
landlord under the Lease. Such attornment is effective and self-operative
without the execution of any further instrument. Upon the request of the New
Landlord, you will sign and deliver any instruments reasonably requested to
evidence such attornment. You waive the provisions of any statute or rule of
law, now or hereafter in effect, which may give or purport to give you any right
or election to terminate or otherwise adversely affect the Lease and your
obligations hereunder as a result of any such Succession. Upon any Succession,
the New Landlord shall not be (a) liable for any act or omission of the Landlord
under the Lease occurring prior to the Succession, (b) subject to any offsets or
defenses which you may have against Landlord arising or occurring prior to the
Succession, or (c) bound by any rent or additional rent which you may have paid
to Landlord for more than the current month.
19.03 SUPERIOR MORTGAGEE CURE RIGHTS. No act or failure to act on the
part of Landlord which would entitle you, under the express terms of this Lease
or by law, to be relieved of your obligations under this Lease or to terminate
this Lease, shall result in a release of such obligations or a termination of
this Lease unless: (i) You have given notice by certified mail, return receipt
requested, to the Superior Mortgagee; and (ii) you offer the Superior Mortgagee
an opportunity to cure such default within thirty (30) days next following
receipt of such notice, or if such default cannot be cured within thirty days,
to commence to cure the default within the thirty day period and to proceed
diligently thereafter to cure the default.
Landlord: Tenant:
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ARTICLE XX
MECHANICS LIENS
You (the Tenant) shall have no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind the interests of Landlord in the Premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with you,
including those who may furnish materials or perform labor for any construction
or repairs and nothing contained in this Lease shall be construed as a consent
on the part of the Landlord to subject the estate of the Landlord to liability
under the Construction Lien Law of the State of Florida, it being expressly
understood that the Landlord's estate shall not be subject to liens for
improvements made by you and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to you by this
instrument. You covenant and agree that you will pay or cause to be paid all
sums legally due and payable by you on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that you will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the Premises or under the terms
of this Lease. You agree to give Landlord immediate written notice if any lien
or encumbrance is placed on the Premises.
Notwithstanding any provision of this Lease relating to improvements, additions,
alterations, repairs or reconstruction of or to the Premises, you and the
Landlord each agree and confirm that: (i) Landlord has not consented nor will
Landlord ever consent to the furnishing of any labor or materials to the
Premises that would or may result in any mechanic's or materialman's lien
attaching to Landlord's interest in the Premises; (ii) You are not the agent of
Landlord for the purposes of any such improvements, additions, alterations,
repairs or reconstruction; and (iii) except as expressly provided herein,
Landlord has retained no control over the manner in which any such improvements,
additions, alterations, repairs or reconstruction are accomplished, and has made
no agreement to make or be responsible for any payment to or for the benefit of
any person furnishing labor or materials in connection therewith. No one
furnishing labor or materials to or for your account shall be entitled to claim
any lien against the interest of Landlord in the Premises and such entities
shall look solely to you and your leasehold interest under this Lease for the
satisfaction of any such claims.
You shall be liable for all taxes levied or assessed against personal property,
furniture or fixtures placed by you in the Premises. If any such taxes for which
you are liable are levied or assessed against Landlord or Landlord's property
and if Landlord elects to pay the same or if the assessed value of Landlord's
property is increased by inclusion of personal property, furniture or fixtures
placed by you in the Premises, and Landlord elects to pay the taxes based on
such increase, you shall pay to Landlord upon demand that part of such taxes.
Landlord: Tenant:
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ARTICLE XXI
NOTICES
Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any notice shall be deemed to be complied with
when and if the following steps are taken:
(a) All notices, requests, demands and other communications required or
permitted to be given under this Lease shall be in writing and shall be deemed
to have been duly given if (i) delivered personally, (ii) mailed, certified or
registered mail (return receipt requested) with postage prepaid or (iii) sent by
next day or overnight mail or nationally recognized courier, in each case
addressed as follows, or at such other address as a party has specified by
written notice delivered in accordance herewith: (a) if to Landlord c/o Premier
Commercial Realty, Inc., 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxx 00000; and (b) if to you at the Premises address provided,
however, that prior to the Commencement Date, your notice address shall be 0000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000-0000, attn.: Xxxx X. Xxxxx,
Esq., General Counsel. Wherever Landlord is required to provide you with notice
after the Commencement Date, Landlord will attempt to also provide your
attorneys with a copy of such notice, provided, however, that the failure of
Landlord to so so will not render the notice to you defective. Your attorney's
notice address is Bilzin Xxxxxxx Xxxx Xxxxx Price & Xxxxxxx LLP, 2500 First
Union Financial Center, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000,
attn.: Xxxx X. Xxxxxxx, Esq., or such other address as you from time to time
direct. All notices, requests, demands and other communications shall be deemed
to have been received (w) if delivered personally, on the day delivered, (x) if
mailed registered or certified mail (return receipt requested), on the day on
which the written receipt of such mail is signed or delivery is refused and (y)
if sent by next day or overnight mail or courier, on the business day delivered.
(b) If and when included within the term "Landlord", or "Tenant", as
used in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address for the receipt of
notices and payments. All parties included within the terms "Landlord" and
"Tenant" respectively, shall be bound by notices given in accordance with the
provisions of this paragraph to the same effect as if each had received such
notice.
ARTICLE XXII
MISCELLANEOUS
22.01 Words of any gender used in this Lease shall be held or construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
22.02 The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
Landlord: Tenant:
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this Lease and Landlord's grantee or Landlord's successor, as the case may be,
shall upon such assignment, become Landlord hereunder, thereby freeing and
relieving the grantor or assignor, as the case may be, of all covenants and
obligations of Landlord hereunder. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
such party to enter into this Lease. Nothing herein contained shall give any
other tenant in the Building any enforceable rights either against Landlord or
you as a result of the covenants and obligations of either party set forth
herein. If there is more than one tenant, your obligation shall be joint and
several. Any indemnification of, insurance of, or option granted to Landlord
shall also include or be exercisable by Landlord's agents and employees.
22.03 The captions inserted in this Lease are for convenience only and
in no way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this Lease.
22.04 This Lease constitutes the entire understanding and agreement
between you and the Landlord with respect to the subject matter of this Lease,
and contains all of the covenants and agreements of Landlord and you with
respect thereto. You and the Landlord each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or you, or anyone acting on behalf of Landlord or you, which are not contained
herein, and any prior agreements, promises, negotiations, or representations not
expressly set forth in this Lease are of no force or effect.
22.05 All of Landlord and your obligations not fully performed as of
the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term, including without limitation,
all payment obligations with respect to Operating Costs and all obligations
concerning the condition of the Premises. Upon the expiration or earlier
termination of the term, and prior to you vacating the Premises, Landlord and
you shall jointly inspect the Premises and you shall pay to Landlord any amount
reasonably estimated by Landlord as necessary to put the Premises in the
condition required under this Lease. Any work required to be done by you prior
to your vacation of the Premises which has not been completed upon such
vacation, shall be completed by Landlord and billed to you at cost plus fifteen
percent. You shall also, prior to vacating the Premises, pay to Landlord the
amount, as estimated by Landlord, of your obligation hereunder for Operating
Costs. All such amounts shall be used and held by Landlord for payment of your
obligations hereunder, with you being liable for any additional costs therefore
upon demand by Landlord, or with any excess to be returned to you after all such
obligations have been determined and satisfied, as the case may be, which
obligation of Landlord shall survive the termination or expiration of this
Lease.
22.06 If any clause, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease nor any other
Landlord: Tenant:
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clause, phrase, provision or portion hereof, nor shall if affect the application
of any clause, phrase, provision or portion hereof to other persons or
circumstances, and it is also the intention of the parties to this Lease that in
lieu of each such phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease, a clause, phrase,
provision or portion which is valid.
22.07 Submission of this Lease shall not be deemed to be a reservation
of the Premises. Landlord shall not be bound hereby until its delivery to you of
an executed copy hereof signed by Landlord, already having been signed by you,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants.
22.08 Whenever a time period is prescribed for action to be taken by a
party, such party shall not be liable or responsible for, and there shall be
excluded from the computations for any such time period, any delays due to
causes beyond the control of such party, provided, however, that nothing
contained in this paragraph shall be construed to extend the required date of
payment or any grace period for any payment of Rent or any other payment
required to be paid pursuant to this Lease.
22.09 Each party agrees from time to time within fifteen (15) days
after request of the other party, time being of the essence and without
application of any grace period, to deliver to the requesting party or the
designee of the requesting party, an estoppel certificate stating whether this
Lease is in full force and effect, the date to which Rent has been paid, the
expired term of this Lease, and such other matters pertaining to this Lease as
may be reasonably requested by such party. It is intended that any estoppel
certificate delivered pursuant to this Section may be relied upon by the person
to whom such estoppel certificate is addressed. If Landlord desires to finance,
refinance, or sell the Building, the Development or any part thereof, you agree
to, at the request of Landlord, deliver to any potential lender or purchaser
designated by Landlord such most recent existing financial statements of yours
as may be reasonably required by such lender or purchaser. All such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth. You shall
not have any obligation to deliver such financial statements until the intended
recipient has executed and delivered to you a confidentiality agreement in form
reasonably requested by you.
22.10 Each party represents and warrants to the other that such party
has dealt with no broker, agent or other person in connection with this
transaction, and that no broker, agent or other person brought about this
transaction, other than Landlord's Broker and Tenant's Broker and each party
agrees to indemnify and hold the other harmless from and against any and all
claims to pay any other broker, agent or other person claiming a commission or
other form of compensation by virtue of having dealt with such party with regard
to this leasing transaction.
22.11 Landlord and you each waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties against the other on
any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and you or your use and occupancy of the Premises.
Landlord: Tenant:
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ARTICLE XXIII
PUBLIC ACCOMMODATION LAWS
Responsibility for compliance of the Premises with any and all Public
Accommodation Laws is hereby allocated among the parties as follows: (i)
Landlord shall be responsible for ensuring that the Common Areas and Base
Building Condition are in compliance with the Public Accommodations Laws; and
(ii) you shall be responsible for compliance with the Public Accommodations Laws
with respect to the Interior Modifications constructed in accordance with the
Construction Drawings and with respect to any special use of the Premises by you
and with respect to any alterations or improvements made to the Premises by you
after the Commencement Date. You agree that the Interior Modifications, as
designed in the Construction Drawings, must comply with all Public
Accommodations Laws and you agree to complete any subsequent alterations,
modifications or improvements to the Premises necessary in order to comply with
all Public Accommodation Laws during the term of this Lease if the
responsibility for compliance has been allocated to you under this Section. Each
party shall indemnify, defend and hold harmless the other from and against any
and all claims, liabilities, fines, penalties, losses and expenses, including
attorneys fees, arising in connection with such party's failure to comply with
the provisions of this Section. Notwithstanding, Landlord's indemnification
obligation under this Section shall not be binding upon a Superior Mortgagee or
the successor or assign of a Superior Mortgagee.
ARTICLE XXIV
ENVIRONMENTAL MATTERS
24.01 ENVIRONMENTAL MATTERS. You hereby agree that: (i) no activity
will be conducted on the Premises that will produce any Hazardous Substance,
except for such activities that are part of the ordinary course of your business
(the "Permitted Activities") provided said Permitted Activities are conducted in
accordance with all Environmental Laws and have been expressly approved in
advance in writing by Landlord (other than in the permitted use clause of this
Lease); (ii) the Premises will not be used in any manner for the storage of any
Hazardous Substances except for the temporary storage of such materials that are
used in the ordinary course of your Permitted Use (the "Permitted Materials")
provided such Permitted Materials are properly stored in a manner and location
meeting all Environmental Laws; (iii) no portion of the Premises or the common
areas of the Development will be used by you as a landfill or dump; (iv) You
will not install any underground tanks of any type in the common areas of the
Development; (v) You will not cause any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time may
constitute, a public or private nuisance; (vi) You will not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted Materials
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. If, at any time during
or after the term of this Lease, the Premises is found to be so contaminated or
subject to said conditions, you agree to indemnify and hold Landlord harmless
from all claims, demands, actions, liabilities, costs, expenses, damages and
obligations of any nature arising from or as a result of the use of the Premises
by you. The foregoing indemnification shall survive the termination or
expiration of this Lease.
Landlord: Tenant:
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Landlord represents and warrants to you that it has no actual knowledge that the
Building and the Development is currently not in compliance with all
Environmental Laws and that it has no actual knowledge that the Building was
constructed using any friable asbestos. The foregoing shall not be binding on a
Superior Mortgagee.
24.02 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 public health unit.
ARTICLE XXV
SPECIAL MATTERS
25.01 RIGHT OF FIRST OFFER. If, during the term, previously leased
space becomes vacant or is scheduled to become vacant within the Building, and
if there are at least three years remaining on the term of this Lease (not
including any unexercised option to extend), Landlord agrees to notify you that
the space is vacant or will become vacant and Landlord agrees to offer to Lease
such space to you in as-is condition. You shall have ten business days from your
receipt of the offer to advise Landlord whether you desire to lease the offered
space. Failure to respond within the ten business days shall be deemed to be an
irrevocable waiver of the right to exercise such offer, time being of the
essence, in which event Landlord will be free to lease the vacant space upon
such terms and conditions as Landlord desires. If you timely exercise the right
of first offer granted herein with respect to such offered space, then an
amendment to this Lease will be executed by the parties amending the Lease to
include the offered space as part of the Premises for the remainder of the Lease
term, in as is condition, with base rent being at Market Rent, with annual
increases consistent with the increases to match the current Lease and with
increases at the beginning of an extended term to match the current Lease. If
you lease the offered space for a term of at least five years, Landlord will pay
to you a refurbishment allowance of $10.00 r.s.f. The right granted pursuant to
this Section is a continuing right in that if Landlord offered the space to you
and you declined to accept the offer and if Landlord then subsequently leased
the space to a third party, then once the space subsequently again becomes
vacant or is scheduled to become vacant, such space will be subject to the right
granted to you under this Section.
25.02 ROOFTOP RIGHTS. Subject to any approvals required by the
Southpointe Property Owner's Association and the City of Plantation or any other
applicable governmental entity, at no rental cost to you, during the term of
this Lease and provided that you are not then in default beyond the applicable
grace period, if any, you shall have the non exclusive right to install and
maintain on the Building's roof, up to ten satellite dishes. The location of the
installation shall be at a location reasonably approved in advance by Landlord.
Any costs associated with the installation and maintenance shall be your
responsibility, including any applicable permit costs. All such installations
shall be in accord with applicable codes, regulation, rules and ordinances and
Landlord: Tenant:
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you shall pay for Landlord's roofer to observe the installation. Any satellite
dish installed pursuant to this Section must be removed by you at your sole cost
and expense no later than at the termination or expiration of the Lease
including the cost of Landlord's roofer inspecting the removal. In addition, at
your sole cost and expense and during any period of time in which there is a
hurricane warning in effect for the area in which the Building is situated, you
will temporarily remove or otherwise dismantle the satellite dishes. None of the
installed rooftop satellite dishes may extend above the parapet wall of the
Building or be visible from ground level. One satellite dish may be six feet in
diameter and the remaining satellite dishes must each be three feet or less in
diameter. Subject to the preceding portions of this Section, Landlord will
consider a request for the installation of one of the ten satellite dishes in a
ground location rather than the roof provided that the location is acceptable to
Landlord and the installation is aesthetically compatible with the Building.
25.03 ALLOWANCE AND BUILDING REIMBURSEMENTS. Provided that you have
provided Landlord with documentation as to actual cost and proof of payment and
provided that no uncured Event of Default then exists, Landlord will pay to you
the Allowance and the Building Reimbursements (as each is hereinafter defined)
within thirty days of submission to Landlord of all of the foregoing
documentation, or if later, within thirty days of the date you first begin to
occupy the Premises for your Permitted Use. Failure to submit the required
documentation within sixty days of the date you first begin to occupy the
Premises for your Permitted Use, or within thirty days of the Commencement Date,
whichever first occurs, shall constitute an irrevocable waiver by you of the
right to entitlement to the Allowance.
The Allowance shall be an amount equal to the lesser of (i) $12.00 r.s.f.; or
(ii) your actual incurred and paid moving costs to relocate to the Premises and
the cost of any new furniture purchased by you for installation or location at
the Premises. The Building Reimbursements shall be an amount equal to your
actual incurred and paid costs for built ins, computer and/or telephone wiring
or cabling, signage costs for the purchase of and installation of the exterior
signage that you are permitted to install pursuant to this Lease, the cost of
purchasing and installing slots on the monuments with respect to those monument
slots that you are entitled to pursuant to this Lease, the cost of the purchase
and installation of the generator and CBS constructed housing (see Section 25.08
), UPS, switchgear and/or additional fiber being brought to the Building by you,
if any, to the extent not included as part of the Interior Modifications and
subject to Landlord's reasonable approval as to same. Notwithstanding the
preceding, Landlord's obligation to pay to you the Allowance and Building
Reimbursement is subject to the limitation that the aggregate amount of the
Allowance and Building Reimbursement shall not exceed X - Y where X is the
product of $40.00 multiplied by the rentable square footage of the Premises and
where Y is the Interior Buildout Cost.
25.04 EXCLUSIVITY GRANT. Until such time as an uncured Event of Default
by you beyond any applicable grace period occurs under this Lease that is not
waived by Landlord, then, during the term of this Lease, Landlord agrees that it
will not lease any space in the Building to any other tenant whose primary
business is securities brokerage or whose primary business is the development of
technology which relates to securities trading, research or analysis. If, after
Landlord: Tenant:
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the applicable grace period, the Event of Default has not been cured, then as of
the close of business of the last day of the grace period, the provisions of
this Section shall lapse and be of no further force unless the Event of Default
is then subsequently cured, provided, however, if subsequent to the close of
business of the last day of such grace period and before you cured such Event of
Default, Landlord sends to a prospective tenant a lease proposal or Landlord
receives a lease proposal from a prospective tenant, and if a lease is then
entered in to with such prospective tenant, then irrespective of whether such
lease was entered in to before or after you cured the Event of Default, Landlord
will not deemed to have breached this Section if such lease permits the
prospective tenant to engage in the uses to which you have been granted an
exclusive.
25.05 RIGHT TO ADD FOURTH FLOOR SPACE. At any time prior to the earlier
of (i) the date Landlord commences construction of the Interior Modifications,
irrespective of whether or not the commencement of such construction occurs
before or after the issuance of the building permit, or (ii) Landlord is in
lease negotiations pursuant to an executed lease proposal for any portion of the
fourth floor, then in such event, by written notice to Landlord, you may elect
to add to the Premises all or a portion of the remainder of the fourth floor of
the Building, provided that if the addition is only a portion, then the
remaining portion that you do not choose to lease must be leasable in Landlord's
reasonable discretion, in which event an amendment will be entered in to which
will amend this Lease to include the added fourth floor portion and which will
adjust the base rental amount, Operating Cost amount, Escrow Account amount and
Interior Buildout Cost amount to an amount equal to the amount in effect prior
to such amendment multiplied by a fraction the numerator of which is the
rentable square footage of the Premises inclusive of such added space and the
denominator of which is the rentable square footage of the Premises prior to
such amendment. In such event, the portion of the Interior Modifications
attributable to such added space shall be permitted separately and in such event
the Commencement Date, as to the added portion of the Premises shall be the same
date as the Commencement Date irrespective of whether or not Landlord actually
Substantially Completes the portion of the Interior Modifications attributable
to the added space on or before such Commencement Date.
25.06 FOURTH FLOOR EXPANSION OPTION. If, pursuant to Section 25.05, you
have not previously elected to add the entire remaining portion of the fourth
floor of the Building as part of the Premises, then upon written notice received
by Landlord no later than on February 15, 2007, you shall have the right to
lease the portion of the fourth floor not then currently being leased by you
(the "Expansion Premises"), such right to be subject to the following terms and
conditions: (i) Landlord shall not be required to deliver the Expansion Premises
to you before any existing tenant of the Expansion Premises surrenders
possession, or if earlier, on February 15, 2008, provided, however, that if such
existing tenant holds over and Landlord is diligently pursuing the eviction of
such holdover tenant, then the required date of delivery of possession of the
Expansion Premises will be extended for so long as Landlord is diligently
pursuing such eviction; (ii) the Expansion Premises will be delivered in its
then as is condition; (iii) Landlord will pay to you a refurbishment allowance
of $10.00 r.s.f. or, if greater, a refurbishment allowance equal to (X-Y)
multiplied by Z where X equals the product of $40.00 multiplied by the rentable
square footage of the Expansion Premises, where Y equals the costs that Landlord
incurred to initially construct the Expansion Premises plus any rent credits or
allowances given to the initial tenant of such Expansion Premises, and where Z
equals a fraction the numerator of which is the number of full calendar months
immediately following the rent commencement date for the Expansion Premises and
the denominator of which is 120; (iv) the rent commencement date for the
Expansion Premises will be the earlier of the date you begin conducting business
from the Expansion Premises, or if earlier, the one hundred and twentieth day
immediately following the date of Landlord's tender of possession of the
Landlord: Tenant:
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Expansion Premises to you; (v) all of the other terms and conditions of the
Lease shall apply to the Expansion Premises including increasing the base rent
amount payable by you under the Lease, effective as of the rent commencement
date to an amount equal to the base rent amount in effect prior to such rent
commencement date multiplied by a fraction the numerator of which is rentable
square footage of the Premises including the Expansion Premises and the
denominator of which is the rentable square footage of the Premises prior to the
addition of the Expansion Premises. For all purposes, the rentable square
footage of the Expansion Premises shall be computed using the methodology for
computing the rentable square footage prescribed in this Lease. Landlord agrees
that it will not, without your prior written consent, lease any portion of the
fourth floor which may become part of the Expansion Premises for a term which
extends past January 1, 2008 unless you have failed to give the written notice
required by the first sentence of this Section by February 15, 2007.
25.07 FIRST FLOOR EXPANSION OPTION. Landlord was negotiating leases for
space on the first floor of the Building with three separate but related
entities (hereinafter the "Bahamas Entities"). If and only if one or more leases
for space on the first floor of the Building are entered in to with one or more
of the Bahamas Entities and if and only if such leases do not contain an option
to extend, then and only in that event and upon written notice received by
Landlord no later than 365 days immediately preceding the expiration date of the
primary term of such leases, you shall have the right to lease the portion of
the first floor occupied by the Bahamas Entities (the "First Floor Expansion
Premises"), such right to be subject to the following terms and conditions: (i)
Landlord shall not be required to deliver the First Floor Expansion Premises to
you before the expiration of the primary term for such leased space, provided,
however, that if the then occupant of such space holds over and Landlord is
diligently pursuing the eviction of such holdover tenant, then the required date
of delivery of possession of the Expansion Premises will be extended for so long
as Landlord is diligently pursuing such eviction; (ii) the First Floor Expansion
Premises will be delivered in its then as is condition; (iii) Landlord will pay
to you a refurbishment allowance equal to $10.00 r.s.f. or, if greater, an
amount equal to (X-Y) multiplied by Z where X equals the product of $40.00
multiplied by the rentable square footage of the First Floor Expansion Premises,
where Y equals the costs that Landlord incurred to initially construct the First
Floor Expansion Premises plus any rent credits or allowances given to the
Bahamas Entities, and where Z equals a fraction the numerator of which is the
number of full calendar months immediately following the rent commencement date
for the First Floor Expansion Premises and the denominator of which is 120; (iv)
the rent commencement date for the First Floor Expansion Premises will be the
earlier of the date you begin conducting business from the First Floor Expansion
Premises, or if earlier, the one hundred and twentieth day immediately following
the date of Landlord's tender of possession of the First Floor Expansion
Premises to you; (v) all of the other terms and conditions of the Lease shall
apply to the First Floor Expansion Premises except that the initial base rent
amount for the First Floor Expansion Premises shall be Market Rent with three
percent annual increases thereafter. For all purposes, the rentable square
footage of the Expansion Premises shall be computed using the methodology for
computing the rentable square footage prescribed in this Lease for multi tenant
Landlord: Tenant:
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floors. If Landlord enters in to one or more leases with the Bahamas Entities,
then as soon as is reasonably practical following the determination of what the
stated expiration date in such lease(s) is, Landlord will provide you with
written notice advising as to the date of such stated expiration date. Nothing
contained herein shall be construed to require Landlord, in connection with the
negotiation and finalization of leases with the Bahamas Entities to not grant an
option to extend the term of such leases, provided, however, there is hereby
imposed on Landlord a covenant of good faith and fair dealing to attempt to
finalize such leases without inclusion of the option to extend unless and except
inclusion is imposed by the Bahamas entities as an absolute condition without
which the Bahamas Entities would not sign such leases.
25.08 GENERATOR. Provided that it is in a location reasonably
acceptable to Landlord within one hundred feet of the place in the Building
where the transfer switch to the electrical system is located (the "Agreed
Location"), and provided that consent has been obtained from all applicable
governmental authorities including the Southpointe Property Owner's Association,
Landlord will consent to your installation of one generator not to exceed 800
KVA along with supporting equipment and an above ground fuel tank in the Agreed
Location including the construction of CBS constructed housing. The costs of the
procurement of and the installation and construction including obtaining
permits, approvals and electrical hookups shall be paid for by you. (See Section
25.03 for Landlord reimbursements). Landlord will cooperate in obtaining the
necessary approvals for the generator. During the term of this Lease, you will,
at your cost and expense, keep the generator, supporting equipment and fuel tank
and the CBS constructed housing in proper condition and repair, ordinary wear
and tear excepted. The generator, supporting equipment and fuel tank and the CBS
constructed housing shall be deemed fixtures the ownership of which will vest in
Landlord as of the Expiration Date and therefore, you shall not be entitled to
remove same and Landlord shall not be entitled to require you to remove same.
Landlord approves PowerBrothers as the contractor to install the generator.
25.09 FIBER OPTIC CABLE. Subject to approval by the applicable utility
providers and subject to the location of any required easements being in a
location reasonably acceptable to Landlord (if easements are required on land
not owned by Landlord, Landlord does not represent or warrant that you will be
able to obtain such easements), you shall have the right, at your sole cost and
expense (and at no charge from Landlord or Landlord's agents, contractors or
managers) to bring redundant fiber optic cable on to the Land and through
existing Building conduit to the Premises Landlord agrees, as part of the Base
Building Condition, to bring primary fiber optic cable from BellSouth or another
provider to the Building's fourth floor telephone room.
25.10 LEASE CONTINGENCY. During the thirty five (35) day period
immediately following the Effective Date, you will diligently pursue the
obtaining of assurances from the City of Plantation and the Southpointe Property
Owners Association, Inc. that you will be permitted to install the generator as
set forth in Section 25.08 (the "Assurances"). If, within such thirty five (35)
day period, you are unable to obtain the Assurances to your reasonable
satisfaction, then in such event, no later than the thirty sixth (36th) day
immediately following the Effective Date, you shall have the right to terminate
this Lease by providing Landlord with written notice of such termination
Landlord: Tenant:
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received by Landlord on or before the thirty sixth (36th) day immediately
following the Effective Date in which case this Lease shall terminate effective
as of the close of business on the thirty fifth (35th) day immediately following
the date of Landlord's receipt of such termination notice unless Landlord has
obtained the Assurances for you, or if earlier, upon Landlord advising you that
Landlord does not wish to or Landlord has abandoned its efforts to obtain the
Assurances. Failure to exercise your termination right within the aforesaid time
period shall be an irrevocable waiver of such right and if such written notice
is not received by Landlord on or before the thirty sixth (36th) day immediately
following the Effective Date, the right of termination granted to you pursuant
to this Section shall lapse as of 12:01 a.m. on the thirty sixth (36th) day
immediately following the Effective Date. Upon a termination of this Lease
pursuant to this Section, neither party shall have any rights or obligations to
the other under this Lease except that (i) you shall reimburse to Landlord all
third party payments (including construction management services charged to
Landlord by Premier Commercial Realty, Inc. equal to actual hours expended by
Xxxxxxx Xxxxxxxx or Xxx Xxxxxxxxxxx, PE billed at an hourly rate of $125.00 an
hour) incurred by Landlord from and after the Effective Date and prior to the
date that Landlord receives your termination notice with respect to this Lease,
provided, however, that such reimbursement obligation shall not exceed the sum
of $10,000; and (ii) you agree to indemnify and hold Landlord harmless from and
against any claims for payment by the Architect. Your obligations under items
(i) and (ii) above shall survive the termination of this Lease. Until such time
as the termination right granted pursuant to this Section is waived or lapses,
Landlord shall not be required to enter in to the construction contract with the
general contractor, to pay or reimburse any payment made to the Architect or to
incur any expense other than construction management services. Notwithstanding
anything in the above to the contrary, if you have exercised your termination
right pursuant to this Section, then in that event Landlord shall have the
right, but not the obligation, solely at Landlord's expense, to obtain the
Assurances on your behalf. Landlord will notify you in writing within three
business days of Landlord's receipt of your termination notice as to whether
Landlord will attempt to obtain the Assurances. If Landlord is unable to obtain
the Assurances within thirty (30) days of giving such notice, or fails to give
such notice within said three (3) day period, the Lease shall terminate as
described above.
Landlord: Tenant:
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Each and every term and provision of this Lease and all exhibits attached
hereto, is agreed to by you, the Tenant, on NOVEMBER 13 , 2001.
TRADESTATION GROUP, INC., a Florida
corporation
(Witnesses as to Tenant)
By: /s/ XXXX X. XXXXX
---------------------------- ------------------------------
Print Name: XXXX X. XXXXX
---------------------------- -----------------------
Print Title: VICE PRESIDENT
-----------------------
Each and every term and provision of this Lease and all exhibits attached
hereto, is agreed to by the Landlord on NOVEMBER 13 , 2001.
CROSSROADS BUSINESS PARK ASSOCIATES
LLP, a Florida limited liability
partnership
(Witnesses as to Landlord)
By: Argent Point, Inc., a Florida
corporation, as an authorized
partner
----------------------------- By: /s/ XXXX XXXXX
-----------------------------
----------------------------- Xxxx Xxxxx, President
By: Sparton Point, Inc., a Florida
corporation as an authorized
partner
----------------------------- By: /s/ XXXXX XXXXXX
-----------------------------
----------------------------- Xxxxx Xxxxxx
Landlord: Tenant:
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SCHEDULES AND EXHIBITS TO ATTACH:
Schedule 1.01...... Itemized list of Base Building construction documents
Schedule 2.06...... Memorandum of Restrictive Covenants
Schedule 3.07 ..... Required form of Architect Certificate
Schedule 4.01 ..... Tenant Acceptance Letter
Schedule 6.01 ..... Escrow Instructions
Schedule 8.01(b)... Janitorial Services
Schedule 19.01 .... Required form of SNDA
Exhibit A ......... Building Legal Description
Exhibit B ......... Location of fourth floor portion of the Premises
Exhibit C ......... Construction Work Letter
Exhibit D ......... Rules and Regulations
Landlord: Tenant:
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