Exhibit 10.15
OFFICE LEASE
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK
CORPORATION (LANDLORD)
AND
PLAN VISTA CORPORATION, A DELAWARE CORPORATION
(TENANT)
DATED: JANUARY 9, 2002
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OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS - In the event of any conflict between these
Basic Lease Provisions and any other Lease provision, such other Lease provision
shall control.
BUILDING AND ADDRESS:
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One MetroCenter
0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
LANDLORD AND ADDRESS:
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METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION
c/o Taylor&Mathis
0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
TENANT AND CURRENT ADDRESS:
PLAN VISTA CORPORATION, A DELAWARE CORPORATION
Post Office Box 30216
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Xxxxx, XX 00000-0000
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DATE OF LEASE: January 9, 2002
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LEASE TERM: Thirty-six (36) months
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COMMENCEMENT DATE: February 1, 2002
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EXPIRATION DATE: January 31, 2005
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MONTHLY BASE RENT:
Period from /to Rate/Per RSF Monthly Annually
--------------- ------------ ------- --------
February 1, 2002-January 31, 2003 $22.00 $15,106.67 $181,280.04
February 1, 2003-January 31, 2004 $22.66 $15,559.87 $186,718.44
February 1, 2004-January 31, 2005 $23.34 $16,026.80 $192,321.60
RENTABLE AREA OF THE BUILDING: 240,325 square feet
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RENTABLE AREA OF THE PREMISES: 8,240 square feet
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SECURITY DEPOSIT: One hundred twenty-five thousand and 00/1000 Dollars
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($125,000.00) or as described in Article Five of this Lease.
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LETTER OF CREDIT: A clean, irrevocable and unconditional Letter of
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Credit whose initial amount shall be equal to One hundred twenty-three
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and 00/100 Dollars ($123,000) or Two Hundred twenty-three thousand and
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00/100 Dollars as described in Article Five of this Lease.
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SUITE NUMBER OF PREMISES: Suite 200
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TENANT'S SHARE: 3.4287 %
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TENANT'S USE OF PREMISES: Executive and administrative offices for a
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provider of health administrative services.
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1.02 ENUMERATION OF EXHIBITS - The exhibits set forth below and attached to
this Lease are incorporated in this Lease by this reference:
EXHIBIT A. Plan of Premises
EXHIBIT A-1. The Additional Space
EXHIBIT B. Work Letter Agreement
EXHIBIT C. Rules and Regulations
EXHIBIT D. Legal Description
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1.03 DEFINITIONS - For purposes hereof, the following terms, when
capitalized in this Lease, shall have the following meanings:
AFFILIATE: Any corporation or other business entity which is
currently, or hereinafter during the term of this Lease, owned or controlled by,
owns or controls, or is under common ownership or control with Tenant.
ADJUSTMENT YEAR: The calendar year or any portion thereof after the
Commencement Date of this Lease for which a Rent Adjustment computation is being
made.
BUILDING: The office building located at 4010 Boy Scout Boulevard,
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Xxxxx, XX 00000 .
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BUILDING GRADE: (i) the type, brand and/or quality of materials
Landlord designates from time to time to be the minimum quality to be used in
the Building or, as the case may be, the exclusive type, grade or quality of
material to be used in the Building; and (ii) the standard method of
construction and installation technique to be used in the Building.
COMMENCEMENT DATE: The date specified in Article 1.01 as the
Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Real Property made available by
Landlord from time to time for the general common use or benefit of the tenants
of the Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Tenant Improvements which do not require a building permit
and which do not involve any of the structural elements of the Building, or any
of the Building's systems, including, without limitation, its electrical,
mechanical, plumbing and security and life/safety systems.
DEFAULT RATE: The lesser of eighteen percent (18%) per annum or the
maximum rate allowed by the laws of the state in which the Building is located.
ENVIRONMENTAL LAWS: Any state, federal or other Law governing the use,
storage, disposal or generation of any Hazardous Material, as defined by any
such Law, including without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended and the Resource Conservation
and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Article 1.01 unless changed by
operation of Article Two.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil
commotion, strike or labor troubles, or any cause whatsoever beyond the
reasonable control of Landlord, including, but not limited to, energy shortages
or governmental preemption in connection with a national emergency, or by reason
of government laws or any rule, order or regulation of any department or
subdivision thereof or any governmental agency, or by reason of the conditions
of supply and demand which have been or are affected by war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or
become regulated under any Environmental Law; or which are classified as
hazardous or toxic under any Environmental Law; and explosives and firearms,
radioactive material, asbestos, and polychlorinated byphenyls.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of
the Property, the property manager and the leasing manager for the Property and
their respective directors, officers, agents and employees.
LAND: The parcels of real estate on which the Building is located more
particularly described on Exhibit E attached hereto.
LANDLORD WORK: The construction or installation of improvements to the
Premises, to be furnished by Landlord, specifically described in the Work Letter
Agreement attached hereto as Exhibit B.
LAWS: All laws, ordinances, rules, regulations and other requirements
adopted by any governmental body, or agency or department having jurisdiction
over the Property, the Premises or Tenant's activities at the Premises and any
covenants, conditions or restrictions of record which affect the Property.
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LEASE: This instrument and all exhibits and riders attached hereto, as may
be amended from time to time.
LEASE YEAR: The twelve month period beginning on the first day of the first
month following the Commencement Date (unless the Commencement Date is the first
day of a calendar month in which case beginning on the Commencement Date), and
each subsequent twelve month, or shorter, period until the Expiration Date.
LETTER OF CREDIT: Clean, irrevocable, unconditional letter of credit in a
form acceptable to Landlord in its sole discretion issued by a bank approved by
Landlord as described in Article 5.02.
MONTHLY BASE RENT: The monthly rent specified in Article 1.01.
MORTGAGEE: Any holder of a mortgage, deed of trust or other security
instrument encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and Christmas Day and other holidays recognized by the
Landlord or the janitorial and other unions servicing the Building in accordance
with their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, management, operation, maintenance, replacement and repair of the
Property or the Premises (including but not limited to the amortized portion of
any capital expenditure or improvement, together with interest thereon).
Operating Expenses shall not include, (i) costs of alterations of the premises
of tenants of the Building, (ii) costs of capital improvements to the Building
(except for amortized portion of capital improvements installed for the purpose
of reducing or controlling Operating Expenses or complying with applicable
Laws), (iii) depreciation charges, (iv) interest and principal payments on loans
(except for loans for capital improvements which Landlord is allowed to include
in Operating Expenses as provided above), (v) ground rental payments, (vi) real
estate brokerage and leasing commissions, (vii) advertising and marketing
expenses, (viii) costs of Landlord reimbursed by insurance proceeds, (ix)
expenses incurred in negotiating leases of other tenants in the Building or
enforcing lease obligations of other tenants in the Building and (x) Landlord's
or Landlord's property manager's corporate general overhead or corporate general
administrative expenses. If any Operating Expense, though paid in one year,
relates to more than one calendar year, at option of Landlord such expense may
be proportionately allocated among such related calendar years.
PREMISES: The space located in the Building described in Article 1.01 and
depicted on Exhibit A attached hereto.
PROPERTY: The Building, the Land, any other improvements located on the
Land, including, without limitation, any parking structures and the personal
property, fixtures, machinery, equipment, systems and apparatus located in or
used in conjunction with and of the foregoing.
REAL PROPERTY: The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Storage Space Rent, Rent Adjustments
and Rent Adjustment Deposits, and all other charges, payments, late fees or
other amounts required to be paid by Tenant under this Lease, including all
sales and use taxes levied or assessed against all rental payments due under
this Lease.
RENTABLE AREA OF THE BUILDING: 240,325 square feet, which represents the
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sum of the rentable area of all office space in Building.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in
1.01.
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating
Expenses or Taxes. The Rent Adjustments shall be determined and paid as provided
in Article Four.
SECURITY DEPOSIT: The funds specified in Article 1.01, if any, deposited by
Tenant with Landlord as security for Tenant's performance of its obligations
under this Lease.
SUBSTANTIALLY COMPLETE: The completion of the Landlord Work or Tenant Work,
as the case may be, except for minor, insubstantial or punchlist details of
construction, decoration or mechanical adjustments which remain to be done.
TAXES: All federal, state and local governmental taxes, assessments and
charges of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to
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pay because of or in connection with the ownership, leasing, management, control
or operation of the Property or any of its components, or any personal property
used in connection therewith, which shall also include any rental or similar
taxes levied in lieu of or in addition to general real and/or personal property
taxes. For purposes hereof, Taxes for any year shall be Taxes which are assessed
or become a lien during such year, whether or not such taxes are billed and
payable in a subsequent calendar year. There shall be included in Taxes for any
year the amount of all fees, costs and expenses (including reasonable attorneys'
fees) paid by Landlord during such year in seeking or obtaining any refund or
reduction of Taxes. Taxes for any year shall be reduced by the net amount of any
tax refund received by Landlord attributable to such year. If a special
assessment payable in installments is levied against any part of the Property,
Taxes for any year shall include only the installment of such assessment and any
interest payable or paid during such year. Taxes shall not include any federal
or state inheritance, general income, gift or estate taxes, except that if a
change occurs in the method of taxation resulting in whole or in part in the
substitution of any such taxes, or any other assessment, for any Taxes as above
defined, such substituted taxes or assessments shall be included in the Taxes.
TENANT ADDITIONS: Collectively, Tenant Work and Tenant Improvements.
TENANT IMPROVEMENTS: Any alterations, improvements, additions,
installations or construction in or to the Premises or any Building systems
serving the Premises (whether done as part of Landlord Work or Tenant Work); and
any supplementary air-conditioning systems installed by Landlord or by Tenant at
Landlord's request pursuant to Article 6.01(b).
TENANT DELAY: Any event or occurrence which delays the completion of the
Landlord Work which is caused by or is described as follows:
(i) special work, changes, alterations or additions requested or
made by Tenant in the design or finish in any part of the
Premises after Tenant's approval of the plans and
specifications (as described in the Work Letter);
(ii) Tenant's delay in submitting plans, supplying information,
approving plans, specifications or estimates, giving
authorizations or otherwise;
(iii) failure to approve and pay for such Tenant Work as Landlord
undertakes to complete at Tenant's expense; or
(iv) the performance or completion by Tenant or any person
engaged by Tenant of any work in or about the Premises.
TENANT WORK: All work installed or furnished to the Premises by Tenant
pursuant to the Work Letter.
TENANT'S SHARE: The percentage specified in Article 1.01 which represents
the ratio of the Rentable Area of the Premises to the Rentable Area of the
Building. With regard to Operating Expense escalations, Tenant's share shall be
determined with respect to each item of expense by dividing (a) the Rentable
Area of the Building not subject to separate assessment or billing with respect
to said item of expense into (b) the total of such item of expense and (c)
multiplying the resulting quotient by the Rentable Area of the Premises.
TERM: The term of this Lease commencing on the Commencement Date and
expiring on the Expiration Date, unless sooner terminated as provided in this
Lease.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
terminates or Tenant's right to possession of the Premises terminates.
WORK LETTER: The agreement regarding the manner of completion of Landlord
Work and Tenant Work attached hereto as Exhibit B.
ARTICLE TWO
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 LEASE OF PREMISES - Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the Premises for the Term and upon the conditions provided
in this Lease. In the event Landlord delivers possession of the Premises to
Tenant prior to the Commencement Date, Tenant shall be subject to all of the
terms, covenants and conditions of this Lease (except with respect to the
payment of Rent) as of the date of delivery of possession.
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2.02 TERM -
The term of this Lease shall commence on February 1, 2002 (the "
Commencement Date") and shall terminate on January 31, 2005 (the "Expiration
Date").
2.03 FAILURE TO GIVE POSSESSION - If the Landlord shall be unable to give
possession of the Premises on the Commencement Date by reason of the following:
( i) the holding over or retention of possession of any tenant, tenants or
occupants, or (ii) for any other reason, then Landlord shall not be subject to
any liability for the failure to give possession on said date. Under such
circumstances the rent reserved and covenanted to be paid herein shall not
commence until the Premises are made available to Tenant by Landlord, and no
such failure to give possession on the Commencement Date shall affect the
validity of this Lease or the obligations of the Tenant hereunder. At the
option of Landlord to be exercised within thirty (30) days of the delayed
delivery of possession to Tenant, the Lease shall be amended so that the term
shall be extended by the period of time possession is delayed.
2.04 AREA OF PREMISES - Landlord and Tenant agree that for all purposes of this
Lease the Rentable Area of the Premises and the Rentable Area of the Building as
set forth in Article One are controlling, and are not subject to revision after
the date of this Lease.
2.05 CONDITION OF PREMISES - Tenant shall notify Landlord in writing within
thirty (30) days after the later of Substantial Completion of the Landlord Work
of any defects in the Premises claimed by Tenant or in the materials or
workmanship furnished by Landlord in completing the Landlord Work. Except for
defects stated in such notice, Tenant shall be conclusively deemed to have
accepted the Premises "as is" in the condition existing on the date Tenant first
takes possession, and to have waived all claims relating to the condition of the
Premises. Landlord shall proceed diligently to correct the defects stated in
such notice unless Landlord disputes the existence of any such defects. In the
event of any dispute as to the existence of any such defects, the decision of
Landlord's architect shall be final and binding on the parties. No agreement of
Landlord to alter, remodel, decorate, clean or improve the Premises or the
Building and no representation regarding the condition of the Premises or the
Building has been made by or on behalf of Landlord to Tenant, except as may be
specifically stated in this Lease or in the Work Letter.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the property manager's office specified in
Article 1.01, or to such other persons, or at such other places designated by
Landlord, without any prior demand therefor in immediately available funds and
without any deduction whatsoever, Rent, including, without limitation, Monthly
Base Rent and Rent Adjustments in accordance with Article Four, during the Term.
Monthly Base Rent, plus all applicable sales and use tax, shall be paid monthly
in advance on the first day of each month of the Term, except that the first
installment of Monthly Base Rent, plus all applicable sales and use tax, shall
be paid by Tenant to Landlord on the Commencement Date. Monthly Base Rent, plus
all applicable sales and use tax, shall be prorated for partial months within
the Term. Unpaid Rent shall bear interest at the Default Rate from the date due
until paid. Tenant's covenant to pay Rent shall be independent of every other
covenant in this Lease.
ARTICLE FOUR
RENT ADJUSTMENTS AND PAYMENTS
4.01 RENT ADJUSTMENTS -
(a) In addition to the monthly base rent, as the same is adjusted, Tenant
shall pay to Landlord as additional rent, Tenant's pro rata share of the amount
by which the annual Operating Expenses incurred by Landlord during each
successive calendar year after the Base Year (as hereinafter defined) in
connection with the ownership, operation, maintenance and management of the
Building and the Property exceed the Operating Expenses incurred during the
"Base Year"; Tenant's share ("Tenant's Share") of any such increase in the
Operating Expenses (the "Excess Expenses") shall be determined with respect to
each item of expense by dividing (a) the Rentable Area of the Building not
subject to separate assessment or billing with respect to said item of expense
into (b) the total of such item of expense and (c) multiplying the resulting
quotient by the Rentable Area of the Premises.
(b) Tenant's obligation to pay its Tenant's Share of the Excess Expenses shall
commence as of the beginning of the first full calendar year following the
calendar year of the Commencement Date (the "Base Year"). For the purposes of
this Lease, the "Base Year" is understood to be the calendar year 2002.
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(c) The Operating Expenses shall be determined in accordance with sound
accounting principles
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consistently applied.
(d) Promptly following the beginning of each calendar year occurring during
the term of this Lease subsequent to the Base Year, and during any extension or
renewal of the Lease Term, Landlord shall deliver to Tenant a statement setting
forth (i) Landlord's projection of the Operating Expenses for the then current
calendar year and (ii) Tenant's Share of the Excess Expenses, based on the
portion of such calendar year during which this Lease is in effect. Tenant's
Share of the projected Excess Expenses shall be payable as additional rent in
equal monthly installments due on the first day of each calendar month for the
remaining months of such calendar year.
(e) Commencing with Landlord's statement delivered at the beginning of the
first full calendar year following the Base Year occurring during the term of
this Lease, Landlord shall also set forth (i) the actual amount of the Operating
Expenses incurred during the preceding calendar year, and (ii) any underpayment
or overpayment by Tenant based on Tenant's monthly payment(s) (if any) of
Tenant's Share of the projected Excess Expenses made during the preceding
calendar year. In the event of any underpayment by Tenant, Tenant shall pay the
full amount of such deficiency to Landlord within thirty (30) days of receipt of
Landlord's statement. Any overpayment by Tenant shall, at Landlord's option,
either be (i) paid to Tenant within thirty (30) days of delivery of Landlord's
statement or (ii) applied to Tenant's Share of the Excess Expenses as projected
for the ensuring calendar year.
(f) The Security Deposit shall be held by Landlord as security for the
performance by Tenant of its obligation to promptly pay its Excess Expenses for
the final calendar year as provided above. In the event Tenant fails to make
such payment within thirty (30) days of delivery of the invoice for Tenant's
Share of Excess Expenses for such year, the amount of the invoice shall be
deducted from the Security Deposit.
4.02 STATEMENT OF LANDLORD - Within a reasonable period of time following the
end of the calendar year in which the Lease Term expires, Landlord shall deliver
to Tenant a statement setting forth (i) Tenant's Share of the actual Operating
Expenses incurred during the final calendar year of the Lease Term, up to and
including the expiration date of the Lease Term, and (ii) any underpayment or
overpayment of Tenant's Share of the projected Excess Expenses made during that
final calendar year. In the event of any underpayment, Tenant shall promptly
pay the full amount thereof to Landlord. If Tenant has overpaid, Landlord shall
promptly reimburse Tenant the full amount of such overpayment. The respective
obligations of the parties hereto pursuant to this Article 4.01 shall survive
the termination of this Lease.
4.03 BOOKS AND RECORDS - Landlord shall maintain books and records showing
Operating Expenses and Taxes in accordance with sound accounting and management
practices, consistently applied. The Tenant or its representative (which
representative shall be a certified public accountant licensed to do business in
the state in which the Property is located) shall have the right, for a period
of thirty (30) days following the date upon which Landlord's Statement is
delivered to Tenant, to examine the Landlord's books and records with respect to
the items in the foregoing statement of Operating Expenses and Taxes during
normal business hours, upon written notice, delivered at least three (3)
business days in advance. If Tenant does not object in writing to Landlord's
Statement within sixty (60) days of Tenant's receipt thereof, specifying the
nature of the item in dispute and the reasons therefor, then Landlord's
Statement shall be considered final and accepted by Tenant. Any amount due to
the Landlord as shown on Landlord's Statement, whether or not disputed by Tenant
as provided herein, shall be paid by Tenant when due as provided above, without
prejudice to any such written exception.
4.04 PARTIAL OCCUPANCY - For purposes of determining Rent Adjustments for any
Adjustment Year if the Building is not fully rented during all or a portion of
any year, Landlord may make appropriate adjustments to the Operating Expenses
for such Adjustment Year employing sound accounting and management principles
consistently applied, to determine the amount of Operating Expenses that would
have been paid or incurred by Landlord had the Building been 95% occupied, and
the amount so determined shall be deemed to have been the amount of Operating
Expenses for such Adjustment Year. In the event that the Real Property is not
fully assessed for any year, then Taxes shall be adjusted to an amount which
would have been payable in such year if the Real Property had been fully
assessed. In the event any other tenant in the Building provides itself with a
service which Landlord would supply under the Lease without an additional or
separate charge to Tenant, then Operating Expenses shall be deemed to include
the cost Landlord would have incurred had Landlord provided such service to such
other tenant.
ARTICLE FIVE
SECURITY DEPOSIT AND LETTER OF CREDIT
5.01 SECURITY DEPOSIT - Tenant concurrently with the execution of this Lease
shall pay to Landlord the Security Deposit. The Security Deposit may be applied
by Landlord to cure any default of Tenant under this Lease, and upon notice by
Landlord of such application, Tenant shall replenish the Security Deposit in
full by paying to Landlord within ten (10) days of demand the amount so applied.
The
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failure to so replenish the Security Deposit shall be a Default hereunder.
Landlord shall not pay any interest on the Security Deposit. The Security
Deposit shall not be deemed an advance payment of Rent, nor a measure of damages
for any default by Tenant under this Lease, nor shall it be a bar or defense to
any action which Landlord may at any time commence against Tenant. In the
absence of evidence satisfactory to Landlord of an assignment of the right to
receive the Security Deposit or the remaining balance thereof, and provided
Tenant has complied with all of its obligations hereunder, Landlord may return
the Security Deposit to the original Tenant, regardless of one or more
assignments of this Lease. Upon the transfer of Landlord's interest under this
Lease, Landlord's obligation to Tenant with respect to the security deposit
shall terminate.
If Tenant shall fully and faithfully comply with all the terms, provisions,
covenants, and conditions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant, in accordance with applicable law, after
the following:
(a) the expiration of the term of this Lease;
(b) the removal of Tenant and its property from the Premises;
(c) the surrender of the Premises by Tenant to Landlord in accordance
with this Lease; and
(d) the payment by Tenant of any outstanding Rent, including, without
limitation, all Rent Adjustments due pursuant to the Lease as
computed by Landlord.
5.02 LETTER OF CREDIT - In addition to the Security Deposit described in Article
5.01 of this Lease, Tenant, on or before March 31, 2002, shall deposit with
Landlord as an additional security deposit (the "Additional Security Deposit") a
clean, irrevocable and unconditional letter of credit in a form acceptable to
Landlord in its sole discretion ("Letter of Credit") issued by a bank approved
by Landlord in its sole judgment (hereinafter referred to as the "Bank") in
favor of Landlord, in the amount of One hundred twenty-three thousand and 00/100
Dollars ($123,000.00) or Two hundred twenty-three thousand and 00/100 Dollars
($223,000) as additional security for the faithful performance and observance by
Tenant of the terms, conditions and provisions of this Lease, including without
limitation the surrender of possession of the Premises to Landlord as herein
provided. If the Letter of Credit deposited by Tenant to Landlord is in the
amount of Two hundred twenty-three thousand and 00/100 Dollars ($223,000.00),
Lanldord shall return to Tenant One hundred thousand and 00/100 Dollars
($100,000.00) of the Security Deposit described in Article 5.01. The Letter of
Credit shall have a term which expires no sooner than the Expiration Date, or
Tenant may deliver a one (1) year unconditional and irrevocable Letter of Credit
which by its terms automatically, for the remainder of the Term, renews for
successive one (1) year periods unless the Bank provides no less than sixty (60)
days written notice to Landlord that such Letter of Credit shall not be renewed,
in which event Landlord shall have the right to draw down the entire amount of
the Letter of Credit unless Tenant substitutes, prior to the expiration of such
Letter of Credit, a new Letter of Credit which meets the requirements of this
Article 5.02 If Tenant defaults in respect to any of the terms, conditions or
provisions of this Lease including, but not limited to, the payment of Rent, and
Tenant fails to cure any such default after any required notice and within any
applicable cure period hereunder (i) Landlord shall have the right to require
the Bank to make payment to Landlord or its designee of the entire proceeds of
the Letter of Credit, and (ii) Landlord may, at the option of Landlord (but
Landlord shall not be required to) apply or retain the whole or any part of such
sum so paid to it by Tenant or the Bank to the extent required for the payment
of any Rent or any other sum as to which Tenant is in default, and (iii)
Landlord or any Superior Mortgagee shall hold the remainder of such sum paid to
it by the Bank or Tenant, if any, for Landlord's benefit, as security for the
faithful performance and observance by Tenant of the terms, covenants, and
conditions of this Lease on Tenant's part to be observed and performed, with the
same rights as hereinabove set forth to apply or retain the same in the event of
any further default by Tenant under this Lease. If Landlord applies or retains
any part of the proceeds of the Letter of Credit or the cash amount deposited by
Tenant, Tenant within five (5) business days after demand, shall deposit with
Landlord or its designee the amount so applied or retained so that Landlord or
its designee shall have the full deposit on hand at all times during the Term of
this Lease (and any extension). Tenant's failure to do so within ten (10) days
of receipt of such demand shall constitute a breach of this Lease.
Tenant, at any time during the term hereof (including any extension and
including prior to the Commencement Date, but at least sixty (60) days prior to
the expiration of the Letter of Credit, may deposit with Landlord the equivalent
cash amount as security hereunder in lieu of the Letter of Credit. Landlord
shall have all of the same rights with respect to such cash security as Landlord
has hereunder with respect to the Letter of Credit, and Tenant shall have the
same obligations with respect to the deposit of additional funds with Landlord
if Landlord applies or retains all or any portion of such cash security as
provided in the previous subsection. Landlord shall not be required to deposit
such cash in a segregated, interest bearing account.
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In the event of a transfer, sale or lease of Landlord's interest in the
Building, Landlord shall transfer or cause to be transferred either the cash or
Letter of Credit, Security Deposit or any sums collected thereunder by Landlord,
together with any other sums then held by Landlord or its designee as such
security, to the transferee, vendee or lessee, and Landlord thereupon shall be
released by Tenant from all liability under this Article 5. Tenant agrees to
cooperate with Landlord, if required, in the transfer of the Letter of Credit to
such transferee, vendee or lessee. Tenant agrees to look solely to the new
landlord for the return of the cash or Letter of Credit or Security Deposit or
any sums collected thereunder and any other security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the Letter
of Credit or any sums collected thereunder and any other security to a new
landlord. Tenant further covenants that it shall not assign or encumber, or
attempt to assign or encumber, any part of such security and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance. Landlord shall not
be required to exhaust its remedies against Tenant before having recourse to the
Letter of Credit or such cash security deposit held by Landlord. Recourse by
Landlord to the Letter of Credit or such security shall not affect any remedies
of Landlord which are provided in this Lease or which are available to Landlord
in law or equity.
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES -
(a) So long as the Lease is in full force and effect and Tenant has paid all
Rent then due, Landlord shall furnish the following services:
(1) heat and air-conditioning in the Premises, Monday through Friday
from 7:00 A.M. to 6:00 P.M., Saturday, from 8:00 A.M. to 1:00 P.M.,
excluding National Holidays, as necessary in Landlord's reasonable
judgment for the comfortable occupancy of the Premises under normal
business operations, subject to compliance with all applicable
voluntary and mandatory regulations and laws;
(2) tempered and cold water for use in lavatories in common with other
tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Premises five days
a week, excluding National Holidays;
(4) washing of the outside windows in the Premises weather permitting at
intervals determined by Landlord;
(5) automatic passenger elevator service in common with other tenants of
the Building and freight elevator service subject to reasonable
scheduling by Landlord and payment of Landlord's standard charges.
(6) routine maintenance and electric lighting service for all Common
Areas and Service Areas of the Building in the manner and to the
extent deemed by Landlord to be standard;
(7) subject to the provisions of Article 6.02 hereof, facilities to
provide all electrical current required by Tenant in its use and
occupancy of the Premises;
(8) all fluorescent bulb replacement in the Premises necessary to
maintain the lighting provided as a part of the Tenant Improvements
and fluorescent and incandescent bulb replacement in the Common
Areas and Service Areas;
(9) security in the form of limited access to the Building during other
than normal business hours shall be provided in such form as
Landlord deems appropriate. Security will be provided twenty-four
hours per day, seven days per week, the cost of which is to be
included as part of Operating Expenses. Landlord, however, shall
have no liability to Tenant, its employees, agents, invitees or
licensees for losses due to theft or burglary, or for damages done
by unauthorized persons on the Premises and neither shall Landlord
be required to insure against any such losses. Tenant shall
cooperate fully in Landlord's efforts to maintain security in the
Building and shall follow all regulations promulgated by Landlord
with respect thereto.
(b) Wherever heat generating machines or equipment are used by Tenant in the
Premises, the following additional provisions shall apply:
9
(1) If the use of such machinery exceeds the limits established in
Exhibit C thereby affecting the temperature otherwise maintained by
the air-cooling system or whenever the occupancy or electrical load
exceeds the standards set forth in Exhibit C, Landlord reserves the
right to install or to require Tenant to install supplementary air-
conditioning units in the Premises. Tenant shall bear all costs and
expenses related to the installation, maintenance and operation of
such units.
(2) Tenant shall pay Landlord at rates fixed by Landlord for all tenants
in the Building, charges for all water furnished to the Premises for
other purposes, including the expenses of installation of a water
line, meter and fixtures.
6.02 ELECTRICAL SERVICES -
(a) Tenant's use of electrical services furnished by Landlord shall be subject
to the following:
(1) Tenant's electrical requirements shall be restricted to that
equipment which individually does not have a name plate rating
greater than 16 amps at 120 volts, single phase. Collectively,
Tenant's leased Premises shall not have a computed electrical load
for overhead lighting and equipment greater than four and one-half
(4.5) xxxxx per square foot of usable area.
(2) Tenant's overhead lighting shall not have a design load greater than
an average of two (2) xxxxx per square foot of Rentable Area of the
Premises.
(3) Tenant will not install or connect any electrical equipment which in
Landlord's opinion will overload the wiring installations or
interfere with the reasonable use thereof by other users in the
Building. Tenant will not, without Landlord's prior written consent
in each instance, connect any items such as non-Building standard
tenant lighting, vending equipment, printing or duplicating machines,
computers (other than desktop word processors and personal
computers), auxiliary air conditioners, or other data,
communications, or electronic equipment to the Building's electrical
system, or make any alteration or addition to the system. If Tenant
desires any such items, additional 208/120 volt electrical power
beyond that supplied by Landlord as provided above, or other special
power requirements or circuits, then Tenant may request Landlord to
provide such supplemental power or circuits to the Premises, which
request Landlord may grant or withhold in its reasonable discretion.
If Landlord furnishes such power or circuits, Tenant shall pay
Landlord, on demand, the cost of the design, installation and
maintenance of the facilities required to provide such additional or
special electrical power or circuits and the cost of all electric
current so provided at a rate not to exceed that which would be
charged by Florida Power & Light, or its successor, if Tenant were a
direct customer thereof. Landlord may require separate electrical
metering of such supplemental electrical power or circuits to the
Premises, and Tenant shall pay, on demand, the cost of the design,
installation and maintenance of such metering facilities. In no event
shall Tenant have access to any electrical closets. Tenant agrees
that any electrical engineering design or contract work shall be
performed at Tenant's expense by Landlord or an electrical engineer
and/or electrical contractor designated by Landlord. All invoices
respecting the design, installation and maintenance of the facilities
requested by Tenant shall be paid within thirty (30) days of Tenant's
receipt thereof. Landlord's charge to Tenant for the cost of electric
current so provided shall be paid within thirty (30) days of receipt
of invoice by Tenant.
(b) Tenant shall not place a load upon any floor of the Premises exceeding the
floor load per square foot area which such floor was designed to carry and which
may be allowed by law. Landlord reserves the right to prescribe the weight
limitations and position of all heavy equipment and similar items, and to
prescribe the reinforcing necessary, if any, which in the opinion of the
Landlord may be required under the circumstances, such reinforcing to be at
Tenant's expense.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES - At Tenant's request, Landlord shall
furnish additional quantities of any of the services or utilities specified in
Article 6.01, if Landlord can reasonably do so, on the terms set forth herein.
Tenant shall deliver to Landlord a written request for such additional services
or utilities prior to 2:00 P.M. on Monday through Friday (except National
Holidays) for service on those days, and prior to 2:00 P.M. on the last business
day prior to Saturday, Sunday or a National Holiday, for service on said
Saturday, Sunday or National Holiday. For services or utilities requested by
Tenant and furnished by Landlord, Tenant shall pay to Landlord as a charge
therefor Landlord's prevailing rates for such services and utilities. If Tenant
shall fail to make any such payment, Landlord may, upon notice to Tenant and in
addition to Landlord's other remedies under this Lease, discontinue any or all
of the additional
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services.
6.04 PHONE SERVICES - All telegraph, telephone and electric connections which
Tenant may desire shall be first approved by Landlord in writing, before the
same are installed, and the location of all wires and the work in connection
therewith shall be performed by contractors approved by Landlord and shall be
subject to the direction of Landlord. Landlord reserves the right to designate
and control the entity or entities providing telephone or other communication
cable installation, repair and maintenance in the Building and to restrict and
control access to telephone cabinets. In the event Landlord designates a
particular vendor or vendors to provide such cable installation, repair and
maintenance for the Building, Tenant agrees to abide by and participate in such
program. Tenant shall be responsible for and shall pay all costs incurred in
connection with the installation of telephone cables and related wiring in the
Premises, including, without limitation, any hook-up, access and maintenance
fees related to the installation of such wires and cables in the Premises and
the commencement of service therein, and the maintenance thereafter of such wire
and cables. Additionally, there shall be included in Operating Expenses for the
Building all installation, hook-up or maintenance costs incurred by Landlord in
connection with telephone cables and related wiring in the Building which are
not allocable to any individual users of such service but are allocable to the
Building generally. If Tenant fails to maintain all telephone cables and related
wiring in the Premises and such failure affects or interferes with the operation
or maintenance of any other telephone cables or related wiring in the Building,
Landlord or any vendor hired by Landlord may enter into and upon the Premises
forthwith and perform such repairs, restorations or alterations as Landlord
deems necessary in order to eliminate any such interference (and Landlord may
recover from Tenant all of Landlord's costs in connection therewith). Upon the
Termination Date, Tenant agrees to remove all telephone cables and related
wiring installed by Tenant for and during Tenant's occupancy, which Landlord
shall request Tenant to remove. Tenant agrees that neither Landlord nor any of
its agents or employees shall be liable to Tenant, or any of Tenant's employees,
agents, customers or invitees or anyone claiming through, by or under Tenant,
for any damages, injuries, losses, expenses, claims or causes of action because
of any interruption, diminution, delay or discontinuance at any time for any
reason in the furnishing of any telephone service to the Premises and the
Building.
6.05 DELAYS IN FURNISHING SERVICES - Tenant agrees that Landlord shall not be
liable to Tenant for damages or otherwise, for any failure to furnish, or a
delay in furnishing, any service when such failure or delay is occasioned, in
whole or in part, by repairs, improvements or mechanical breakdowns by the act
or default of Tenant or other parties or by an event of Force Majeure. No such
failure or delay shall be deemed to be an eviction or disturbance of Tenant's
use and possession of the Premises, or relieve Tenant from paying Rent or from
performing any other obligations of Tenant under this Lease.
ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES -
(a) Tenant shall be entitled to possession of the Premises when the Landlord
Work is Substantially Complete. Tenant shall occupy and use the Premises only
for the uses specified in Article 1.01 to conduct Tenant's business. Tenant
shall not occupy or use the Premises (or permit the use or occupancy of the
Premises) for any purpose or in any manner which: (1) is unlawful or in
violation of any Law or Environmental Law; (2) may be dangerous to persons or
property or which may increase the cost of, or invalidate, any policy of
insurance carried on the Building or covering its operations; (3) is contrary to
or prohibited by the terms and conditions of this Lease or the rules of the
Building set forth in Article Eighteen; (4) would conflict with any right of
exclusive use granted to any other tenant in the Building; or (5) would tend to
create or continue a nuisance.
(b) Tenant and Landlord shall each comply with all Environmental Laws
concerning the proper storage, handling and disposal of any Hazardous Material
with respect to the Property. Tenant shall not generate, store, handle or
dispose of any Hazardous Material in, on, or about the Property without the
prior written consent of Landlord. In the event that Tenant is notified of any
investigation or violation of any Environmental Law arising from Tenant's
activities at the Premises, Tenant shall immediately deliver to Landlord a copy
of such notice. In such event or in the event Landlord reasonably believes that
a violation of Environmental Law exists, Landlord may conduct such tests and
studies relating to compliance by Tenant with Environmental Laws or the alleged
presence of Hazardous Materials upon the Premises as Landlord deems desirable,
all of which shall be completed at Tenant's expense. Landlord's inspection and
testing rights are for Landlord's own protection only, and Landlord has not, and
shall not be deemed to have assumed any responsibility to Tenant or any other
party for compliance with Environmental Laws, as a result of the exercise, or
non-exercise of such rights. Tenant shall indemnify, defend, protect and hold
harmless the Indemnitees from any and all loss, claim, expense, liability and
cost (including attorneys' fees) arising out of or in any way related to the
presence of any Hazardous Material introduced to the Premises during the Lease
Term by any party other than Landlord. If any Hazardous Material is released,
discharged
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or disposed of on or about the Property and such release, discharge or disposal
is not caused by Tenant or other occupants of the Premises, or their employees,
agents or contractors, such release, discharge or disposal shall be deemed
casualty damage under Article Fourteen to the extent that the Premises are
affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under such Article.
(c) Landlord and Tenant acknowledge that the Americans With Disabilities Act
of 1990 (42 X.X.X '00000 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establish requirements for
business operations, accessibility and barrier removal, and that such
requirements may or may not apply to the Premises and the Building depending on,
among other things: (1) whether Tenant's business is deemed a "public
accommodation" or "commercial facility", (2) whether such requirements are
"readily achievable", and (3) whether a given alteration affects a "primary
function area" or triggers "path of travel" requirements. The parties hereby
agree that: (a) Landlord shall be responsible for ADA Title III compliance in
the Common Areas, except as provided below, (b) Tenant shall be responsible for
ADA Title III compliance in the Premises, including any leasehold improvements
or other work to be performed in the Premises under or in connection with this
Lease, (c) Landlord may perform, or require that Tenant perform, and Tenant
shall be responsible for the cost of, ADA Title III "path of travel"
requirements triggered by alterations in the Premises, and (d) Landlord may
perform, or require Tenant to perform, and Tenant shall be responsible for the
cost of, ADA Title III compliance in the Common Areas necessitated by the
Building being deemed to be a "public accommodation" instead of a "commercial
facility" as a result of Tenant's use of the Premises. Tenant shall be solely
responsible for requirements under Title I of the ADA relating to Tenant's
employees.
7.02 LANDLORD ACCESS TO PREMISES -
(a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts,
wiring and conduits in and through the Premises, so long as Tenant's use, layout
or design of the Premises is not materially affected or altered. Landlord or
Landlord's agents shall have the right to enter upon the Premises in the event
of an emergency, or to inspect the Premises, to perform janitorial and other
services, to conduct safety and other testing in the Premises and to make such
repairs, alterations, improvements or additions to the Premises or the Building
as Landlord may deem necessary or desirable. Janitorial and cleaning services
shall be performed after normal business hours. In connection therewith,
Landlord shall be allowed to store on the Premises all necessary supplies and
materials. Any entry or work by Landlord may be during normal business hours and
Landlord may use reasonable efforts to ensure that any entry or work shall not
materially interfere with Tenant's occupancy of the Premises.
(b) If Tenant shall not be personally present to permit an entry into the
Premises when for any reason an entry therein shall be necessary or permissible,
Landlord (or Landlord's agents), after attempting to notify Tenant (unless
Landlord believes an emergency situation exists), may enter the Premises without
rendering Landlord or its agents liable therefor (if during such entry Landlord
or Landlord's agent shall accord reasonable care to Tenant's property), and
without relieving Tenant of any obligations under this Lease.
(c) Landlord may enter the Premises for the purpose of conducting such
inspections,tests and studies as Landlord may deem desirable or necessary to
confirm Tenant's compliance with all Laws and Environmental Laws or for other
purposes necessary in Landlord's reasonable judgment to ensure the sound
condition of the Building and the systems serving the Building. Landlord's
rights under this Article 7.02(c) are for Landlord's own protection only, and
Landlord has not, and shall not be deemed to have assumed any responsibility to
Tenant or any other party for compliance with Laws or Environmental Laws, as a
result of the exercise or non-exercise of such rights.
(d) Landlord may do any of the foregoing, or undertake any of the inspection
or work described in the preceding paragraphs without such action constituting
an actual or constructive eviction of Tenant, in whole or in part, or giving
rise to an abatement of Rent by reason of loss or interruption of business of
the Tenant, or otherwise.
7.03 QUIET ENJOYMENT - Landlord covenants that so long as Tenant is in
compliance with the covenants and conditions set forth in this Lease, Tenant
shall have the right to quiet enjoyment of the Premises without hindrance or
interference from Landlord or those claiming through Landlord, but at all times
subject to the rights of any Mortgagee or ground lessor.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE - Subject to the provisions of Article Fourteen,
Landlord shall maintain and make necessary repairs to the foundations, roofs,
exterior walls, and the structural elements of
12
the Building, the electrical, plumbing, heating, ventilation and air
conditioning systems of the Building and the public corridors, washrooms and
lobby of the Building, except that: (a) Landlord shall not be responsible for
the maintenance or repair of any floor or wall coverings in the Premises or any
of such systems which are located within the Premises and are supplemental or
special to the Building's standard systems; and (b) the cost of performing any
of said maintenance or repairs whether to the Premises or to the Building caused
by the negligence of Tenant, its employees, agents, servants, licensees,
subtenants, contractors or invitees, shall be paid by Tenant. Landlord shall not
be liable to Tenant for any expense, injury, loss or damage resulting from work
done in or upon, or the use of, any adjacent or nearby building, land, street,
or alley.
8.02 TENANT'S MAINTENANCE - Subject to the provisions of Article Fourteen,
Tenant, at its expense, shall keep and maintain the Premises and all Tenant
Additions in good order, condition and repair and in accordance with all Laws
and Environmental Laws. Tenant shall not permit waste and shall promptly and
adequately repair all damages to the Premises, fixtures or appurtenances, and
shall replace or repair all damaged or broken glass in the interior of the
Premises. Any repairs or maintenance shall be completed with materials of
similar quality to the original materials, all such work to be completed under
the supervision of Landlord. Any such repairs or maintenance shall be performed
only by contractors or mechanics approved by Landlord, which approval shall not
be unreasonably withheld, and whose work will not cause or threaten to cause
disharmony or interference with Landlord or other tenants in the Building and
their respective agents and contractors performing work in or about the
Building. If Tenant fails to perform any of its obligations set forth in this
Article 8.02, Landlord may, in its sole discretion and upon 24 hours prior
notice to Tenant (except in the case of emergencies), perform the same, and
Tenant shall pay to Landlord any costs or expenses incurred by Landlord upon
demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT'S ALTERATIONS -
(a) Except for completion of Tenant Work undertaken by Tenant pursuant to the
Work Letter, attached hereto as Exhibit B, the following provisions shall apply
to the completion of any Tenant Improvements:
(1) Tenant shall not, except as provided herein, without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld, make or cause to be made any Tenant
Improvements in or to the Premises or any Building systems
serving the Premises. Prior to making any Tenant Improvements,
Tenant shall give Landlord ten (10) days prior written notice (or
such earlier notice as would be necessary pursuant to applicable
law) to permit Landlord sufficient time to post appropriate
notices of non-responsibility or to otherwise object to such
Tenant Improvements, as may be provided herein. Subject to all
other requirements of this Article Nine, Tenant may undertake
Decoration work without Landlord's prior written consent. Tenant
shall furnish Landlord with the names and addresses of all
contractors and subcontractors and copies of all contracts. All
Tenant Improvements shall be completed at such time and in such
manner as Landlord may from time to time designate, and only by
contractors or mechanics approved by Landlord, which approval
shall not be unreasonably withheld, and whose work will not cause
or threaten to cause disharmony or interference with Landlord or
other tenants in the Building and their respective agents and
contractors performing work in or about the Building. Landlord
may further condition its consent upon Tenant furnishing to
Landlord and Landlord approving prior to the commencement of any
work or delivery of materials to the Premises related to the
Tenant Improvements such of the following as specified by
Landlord: architectural plans and specifications, opinions from
engineers reasonably acceptable to Landlord stating that the
Tenant Improvements will not in any way adversely affect the
Building's systems, including, without limitation, the
mechanical, heating, plumbing, security, ventilating, air-
conditioning, electrical, and the fire and life safety systems in
the Building, necessary permits and licenses, certificates of
insurance, and such other documents in such form reasonably
requested by Landlord. Landlord may, in the exercise of
reasonable judgment, request that Tenant provide Landlord with
appropriate evidence of Tenant's ability to complete and pay for
the completion of the Tenant Improvements such as a performance
bond or letter of credit. Upon completion of the Tenant
Improvements, Tenant shall deliver to Landlord an as-built mylar
and digitized (if available) set of plans and specifications for
the Tenant Improvements.
(2) Tenant shall pay the cost of all Tenant Improvements and the cost
of decorating the Premises and any work to the Building
occasioned thereby. In connection with completion of any Tenant
Improvements, Tenant shall pay Landlord a construction fee and
all elevator
13
and hoisting charges at Landlord's then standard rate/1/. Upon
completion of Tenant Improvements, Tenant shall furnish Landlord
with contractors' affidavits and full and final waivers of lien
and receipted bills covering all labor and materials expended and
used in connection therewith and such other documentation
reasonably requested by Landlord or Mortgagee.
(3) Tenant agrees to complete all Tenant Improvements (i) in
accordance with all Laws, Environmental Laws, all requirements of
applicable insurance companies and in accordance with Landlord's
standard construction rules and regulations, and (ii) in a good
and workmanlike manner with the use of good grades of materials.
Tenant shall notify Landlord immediately if Tenant receives any
notice of violation of any Law in connection with completion of
any Tenant Improvements and shall immediately take such steps as
are necessary to remedy such violation. In no event shall such
supervision or right to supervise by Landlord nor shall any
approvals given by Landlord under this Lease constitute any
warranty by Landlord to Tenant of the adequacy of the design,
workmanship or quality of such work or materials for Tenant's
intended use or of compliance with the requirements of Article
9.01(a)(3)(i) and (ii) above or impose any liability upon
Landlord in connection with the performance of such work.
(b) All Tenant Additions whether installed by Landlord or Tenant,
shall without compensation or credit to Tenant, become part of
the Premises and the property of Landlord at the time of their
installation and shall remain in the Premises, unless pursuant to
Article Twelve, Tenant may remove them or is required to remove
them at Landlord's request.
9.02 LIENS - Tenant shall not permit any lien or claim of lien of any
mechanic, laborer or supplier or any other lien to be filed against the
Building, the Land, the Premises, or any part thereof arising out of work
performed by, or alleged to have been performed by, or at the direction of, or
on behalf of, Tenant. If any such lien or claim of lien is filed, Tenant shall
within ten (10) days of receiving notice of such lien or claim (a) have such
lien or claim of lien released of record or (b) deliver to Landlord a bond in
form, content, amount, and issued by surety, satisfactory to Landlord,
indemnifying, protecting, defending and holding harmless the Indemnitees against
all costs and liabilities resulting from such lien or claim of lien and the
foreclosure or attempted foreclosure thereof. If Tenant fails to take any of the
above actions, Landlord, without investigating the validity of such lien or
claim for lien, may pay or discharge the same and Tenant shall, as payment of
additional Rent hereunder, reimburse Landlord upon demand for the amount so paid
by Landlord, including Landlord's expenses and attorneys' fees.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING -
(a) Without the prior written consent of Landlord/2/, Tenant may not
sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit
the transfer of this Lease or the encumbering of Tenant's interest therein in
whole or in part, by operation of law or otherwise, or permit the use or
occupancy of the Premises, or any part thereof, by anyone other than Tenant. If
Tenant desires to enter into any sublease of the Premises or assignment of this
Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's
Notice"), together with the identity of the proposed subtenant or assignee and
the proposed principal terms thereof and financial and other information
sufficient for Landlord to make an informed judgment with respect to such
proposed subtenant or assignee at least sixty (60)/3/ days prior to the
commencement date of the term of the proposed sublease or assignment. If Tenant
proposes to sublease less than all of the Rentable Area of the Premises, the
space proposed to be sublet and the space retained by Tenant must each be a
marketable unit as reasonably determined by Landlord and otherwise in compliance
with all Laws. Landlord shall notify Tenant in writing of its approval or
disapproval of the proposed sublease or assignment or its decision to exercise
its rights under Article 10.02 within thirty (30)/4/ days after receipt of
Tenant's Notice (and all required information). In no event may Tenant sublease
any portion of the Premises or assign the Lease to any other tenant of the
Building/5/. Tenant shall submit for Landlord's approval (which approval shall
not be unreasonably withheld) any advertising which Tenant or its agents intend
to use with respect to the space proposed to be sublet.
(b) In making its determination of whether to consent to any proposed
sublease or assignment,
-------------------------
/1/ , if applicable. Tenant shall not be required to pay Landlord a construction
fee or elevator and hoisting charges in connection with the Tenant Improvements
outlined in the Work Letter Agreement.
/2/ which consent shall not be unreasonably withheld or delayed
/3/ forty-five (45)
/4/ twenty (20)
/5/ without Landlord's consent
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Landlord may take into consideration the business reputation and credit-
worthiness of the proposed subtenant or assignee; the intended use of the
Premises by the proposed subtenant or assignee; the nature of the business
conducted by such subtenant or assignee and whether such business would be
deleterious to the reputation of the Building or Landlord or would violate the
provisions of any other leases of tenants of the Building; the estimated
pedestrian and vehicular traffic in the Premises and to the Building which would
be generated by the proposed subtenant or assignee; whether the proposed
assignee or subtenant is a department, representative or agency of any
governmental body, foreign or domestic; and any other factors which Landlord
shall in its sole discretion deem relevant. In no event shall Landlord be
obligated to consider a consent to any proposed (i) sublease of the Premises or
assignment of the Lease if a Default then exists under the Lease, or a fact or
condition exists, which but for the giving of notice or the passage of time
would constitute a Default, or (ii) assignment of the Lease which would assign
less than the entire Premises. In the event Tenant believes that Landlord has
wrongfully withheld its consent to any proposed sublease of the Premises or
assignment of the Lease, Tenant's sole and exclusive remedy therefor shall be to
seek specific performance or a declaratory judgment of Landlord's obligations to
consent to such sublease or assignment.
(c) If Landlord chooses not to recapture the space proposed to be subleased or
assigned as provided in Article 10.02, Landlord shall not unreasonably withhold
its consent to a subletting or assignment under this Article 10.01. Any approved
sublease or assignment shall be expressly subject to the terms and conditions of
this Lease. Any such subtenant or assignee shall execute such documents as
Landlord may reasonably require to evidence such subtenant or assignee's
assumption of such obligations and liabilities. Tenant shall deliver to Landlord
a copy of all agreements executed by Tenant and the proposed subtenant and
assignee with respect to the Premises. Landlord's approval of a sublease or
assignment shall not constitute a waiver of Landlord's right to consent to
further assignments or subleases. Furthermore, Tenant shall remain jointly and
severally liable to perform all terms and conditions of this Lease,
notwithstanding any sublease or assignment to which Landlord may have consented.
(d) For purposes of this Article Ten, an assignment shall be deemed to include
a change in the majority control of Tenant, resulting from any transfer, sale or
assignment of shares of stock of Tenant occurring by operation of law or
otherwise if Tenant is a corporation whose shares of stock are not traded
publicly. If Tenant is a partnership, any change in the partners of Tenant shall
be deemed to be an assignment.
(e) Notwithstanding anything to the contrary contained in this Article Ten,
Tenant shall have the right, without the prior written consent of Landlord, to
sublease the Premises, or to assign this Lease to an Affiliate.
10.02 RECAPTURE - Except as provided in Article 10.01(e) Landlord shall have the
option to exclude from the Premises covered by this Lease ("Recapture"), the
space proposed to be sublet or subject to the assignment, effective as of the
proposed commencement date of such sublease or assignment. If Landlord elects
to Recapture, Tenant shall surrender possession of the space proposed to be
subleased or subject to the assignment to Landlord on the effective date of
Recapture of such space from the Premises, such date being the Termination Date
for such space. Effective as of the date of Recapture of any portion of the
Premises pursuant to this section, the Monthly Base Rent, Rentable Area of the
Premises and Tenant's Share shall be adjusted accordingly.
10.03 EXCESS RENT - Tenant shall pay Landlord on the first day of each month
during the term of the sublease or assignment, /6/of the amount by which the sum
of all rent and other consideration (direct or indirect) due from the subtenant
or assignee for such month exceeds: (i) that portion of the Monthly Base Rent
and Rent Adjustments due under this Lease for said month which is allocable to
the space sublet or assigned; and (ii) the following costs and expenses for the
subletting or assignment of such space: (1) brokerage commissions and attorneys'
fees and expenses, (2) advertising for subtenants or assignees; (3) the actual
costs paid in making any improvements or substitutions in the Premises required
by any sublease or assignment; and (4) "free rent" periods, costs of any
inducements or concessions given to subtenant or assignee, moving costs, and
other amounts in respect of such subtenant's or assignee's other leases or
occupancy arrangements. All such costs will be amortized over the term of the
sublease or assignment pursuant to sound accounting principles.
10.04 TENANT LIABILITY - In the event of any sublease or assignment, Tenant
shall not be released or discharged from any liability, whether past, present or
future, under this Lease, including any liability arising from the exercise of
any renewal or expansion option, to the extent expressly permitted by Landlord.
If Landlord grants consent to such sublease or assignment, Tenant shall pay all
reasonable attorneys' fees and expenses incurred by Landlord with respect to
such assignment or sublease. In addition, if Tenant has any options to extend
the term of this Lease or to add other space to the Premises, such options shall
not be
----------------------
/6/ seventy-five percent (75%)
15
available to any subtenant or assignee, directly or indirectly without
Landlord's express written consent, which may be given, or not given, in
Landlord's sole discretion.
10.05 ASSUMPTION AND ATTORNMENT - If Tenant shall assign this Lease as permitted
herein, the assignee shall expressly assume all of the obligations of Tenant
hereunder in a written instrument satisfactory to Landlord and furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Premises as permitted herein, Tenant
shall, at Landlord's option, within fifteen (15) days following any request by
Landlord, obtain and furnish to Landlord the written agreement of such subtenant
to the effect that the subtenant will attorn to Landlord and will pay all
subrent directly to Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT - The occurrence or existence of any one or more of the
following shall constitute a "Default" by Tenant under this Lease:
(i) tenant fails to pay any installment or other payment of Rent
including without limitation Rent Adjustment Deposits or Rent Adjustments within
three (3) days after the date when due/7/;
(ii) tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or the Work Letter and fails to cure such
default within fifteen (15) days after written notice thereof to Tenant (unless
the default involves a hazardous condition, which shall be cured forthwith);
(iii) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(iv) tenant notifies Landlord, at any time prior to the Commencement
Date, that Tenant does not intend to take occupancy of the Premises upon the
Commencement Date, or Tenant shall fail to promptly move into and take
possession of the Premises when the Premises are ready for occupancy or shall
cease to do business in or abandon any substantial portion of the Premises;
(v) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any Chapter of
the Bankruptcy Code, or any amendment, replacement or substitution therefor, or
to delay payment of, reduce or modify Tenant's debts, which in the case of an
involuntary action is not discharged within thirty (30) days;
(vi) tenant is declared insolvent by law or any assignment of
Tenant's property is made for the benefit of creditors;
(vii) a receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged within thirty (30) days;
(viii) any action is taken by or against Tenant to reorganize or
modify Tenant's capital structure in a materially adverse way which in the case
of an involuntary action is not discharged within thirty (30) days;
(ix) upon the dissolution of Tenant; or
(x) upon the third occurrence within any Lease Year that Tenant
fails to pay Rent when due or has breached a particular covenant of this Lease
(whether or not such failure or breach is thereafter cured within any stated
cure or grace period or statutory period).
11.02 LANDLORD'S REMEDIES -
(a) If a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct and cumulative, and which shall
be in addition to all other remedies available under applicable law: (i)
Landlord may terminate this Lease by giving Tenant notice of Landlord's election
to do so, in which event, the term of this Lease shall end and all of Tenant's
rights and interests shall expire on the date stated in such notice; (ii)
Landlord may terminate Tenant's right of possession of the Premises without
terminating this Lease by giving notice to Tenant that Tenant's right of
possession shall end on the date specified in such notice; or (iii) Landlord may
enforce the provisions of this Lease and may enforce and protect the rights of
the Landlord hereunder by a suit or suits in equity or at law for the specific
performance of any covenant or agreement contained herein, or for the
enforcement of any other appropriate legal or equitable remedy,
-----------------------
/7/, provided that one time during the Term, default shall not occur until five
(5) days after notice from Landlord that Rent is past due
16
including but not limited to the right to accelerate all Rent and other sums due
hereunder and thereby seek the immediate recovery of all monies due or to become
due for the balance of the Term from Tenant under any of the provisions of this
Lease.
(b) In the event that Landlord terminates the Lease, Landlord shall be
entitled to recover as damages for loss of the bargain and not as a penalty, the
accelerated Rent for the balance of the Term, plus all Landlord's expenses of
reletting, including without limitation, repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions (collectively, the
"Reletting Expenses").
(c) In the event Landlord proceeds pursuant to subparagraph (a)(ii) above,
Landlord may, but shall not be obligated to (except as may be required by law),
relet the Premises, or any part thereof for the account of Tenant, for such rent
and term and upon such terms and conditions as are reasonably acceptable to
Landlord. For purposes of such reletting, Landlord is authorized to decorate,
repair, alter and improve the Premises to the extent reasonably necessary or
desirable. If the Premises are relet and the consideration realized therefrom
after payment of all Landlord's Reletting Expenses, is insufficient to satisfy
the payment when due of Rent reserved under this Lease for any monthly period,
then Tenant shall pay Landlord upon demand any such deficiency monthly, or at
Landlord's option, Tenant shall pay the accelerated deficiency which Landlord
reasonably estimates will be due for the remainder of the Term. If such
consideration is greater than the amount necessary to pay the full amount of the
Rent, the full amount of such excess shall be retained by Landlord and shall in
no event be payable to Tenant. Tenant agrees that upon its Default, Landlord may
either file suit to collect the accelerated Rent and all other sums due for the
remainder of the Term, or may file suit to recover any sums due to Landlord
hereunder from time to time, in which event such suit or recovery of any amount
due Landlord hereunder shall not be any defense to any subsequent action brought
for any amount not theretofore reduced to judgment in favor of Landlord.
(d) In the event a Default occurs, Landlord may, at Landlord's option, enter
into the Premises, remove Tenant's property, fixtures, furnishings, signs and
other evidences of tenancy, and take and hold such property; provided, however,
that such entry and possession shall not terminate this Lease or release Tenant,
in whole or in part, from Tenant's obligation to pay the Rent reserved hereunder
for the full Term or from any other obligation of Tenant under this Lease. Any
and all property which may be removed from the Premises by Landlord pursuant to
the authority of the Lease or law, to which Tenant is or may be entitled, may be
handled, removed or stored by Landlord at the risk, cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay 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 the Landlord's possession or under the
Landlord's control. Any such property of Tenant not retaken from storage by
Tenant within thirty (30) days after the Termination Date, shall be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as a xxxx
of sale without further payment or credit by Landlord to Tenant.
11.03 ATTORNEY'S FEES - Tenant shall be liable for, and shall pay upon demand,
all costs and expenses, including reasonable attorneys' fees, incurred by
Landlord in enforcing the Tenant's performance of its obligations under this
Lease, or resulting from Tenant's Default (regardless of whether suit is
initiated), or incurred by Landlord in any litigation, negotiation or
transaction in which Tenant causes Landlord, without Landlord's fault, to become
involved or concerned.
11.04 BANKRUPTCY - The following provisions shall apply in the event of the
bankruptcy or insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy Code
where the trustee of Tenant elects to assume this Lease for the purposes of
assigning it, such election or assignment, may only be made upon compliance with
the provisions of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the trustee elects to
reject this Lease then Landlord shall immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the Bankruptcy
Code by Tenant as debtor-in-possession or by Tenant's trustee (the "Electing
Party") must provide for:
The Electing Party to cure or provide to Landlord adequate assurance that
it will cure all monetary defaults under this Lease within fifteen (15)
days from the date of assumption and it will cure all nonmonetary defaults
under this Lease within thirty (30) days from the date of assumption.
Landlord and Tenant acknowledge such condition to be commercially
reasonable.
(c) If the Electing Party has assumed this Lease or elects to assign Tenant's
interest under this Lease to any other person, such interest may be assigned
only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this
17
Lease.
For the purposes hereof, "adequate assurance of future performance" means
that Landlord has ascertained that each of the following conditions has
been satisfied:
(i) The assignee has submitted a current financial statement, certified
by its chief financial officer, which shows a net worth and working
capital in amounts sufficient to assure the future performance by
the assignee of Tenant's obligations under this Lease; and
(ii) Landlord has obtained consents or waivers from any third parties
which may be required under a lease, mortgage, financing
arrangement, or other agreement by which Landlord is bound, to
enable Landlord to permit such assignment. Landlord and Tenant
acknowledge such condition to be commercially reasonable.
(d) Landlord's acceptance of rent or any other payment from any trustee,
receiver, assignee, person, or other entity will not be deemed to have waived,
or waive, the requirement of Landlord's consent, Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this Lease without such
consent, or Landlord's claim for any amount of Rent due from Tenant.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL - Upon the Termination Date, Tenant shall surrender and vacate
the Premises immediately and deliver possession thereof to Landlord in a clean,
good and tenantable condition, ordinary wear and tear, and damage caused by
Landlord excepted. Tenant shall deliver to Landlord all keys to the Premises.
Tenant shall be entitled to remove from the Premises all movable personal
property of Tenant, Tenant's trade fixtures and such Tenant Additions which at
the time of their installation Landlord and Tenant agreed may be removed by
Tenant. Tenant shall also remove such other Tenant Additions as required by
Landlord, including, but not limited to, any Tenant Additions containing
Hazardous Materials. Tenant immediately shall repair all damage resulting from
removal of any of Tenant's property, furnishings or Tenant Additions, shall
close all floor, ceiling and roof openings and shall restore the Premises to a
tenantable condition as reasonably determined by Landlord. If any of the Tenant
Additions which were installed by Tenant involved the lowering of ceilings,
raising of floors or the installation of specialized wall or floor coverings or
lights, then Tenant shall also be obligated to return such surfaces to their
condition prior to the commencement of this Lease. Tenant shall also be
required to close any staircases or other openings between floors occasioned by
any Tenant Additions. In the event possession of the Premises is not delivered
to Landlord when required hereunder, or if Tenant shall fail to remove those
items described above, Landlord may, at Tenant's expense, remove any of such
property therefrom without any liability to Landlord and undertake, at Tenant's
expense such restoration work as Landlord deems necessary or advisable.
12.02 LANDLORD'S RIGHTS - All property which may be removed from the Premises by
Landlord shall be conclusively presumed to have been abandoned by Tenant and
Landlord may deal with such property as provided in Article 11.02(d). Tenant
shall also reimburse Landlord for all costs and expenses incurred by Landlord in
removing any of Tenant Additions and in restoring the Premises to the condition
required by this Lease at the Termination Date.
ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (i) /8/ the monthly Rent payable for
the month immediately preceding the holding over (including increases for Rent
Adjustments which Landlord may reasonably estimate) /9/or, (ii) /10/ the fair
market rental value of the Premises as reasonably determined by Landlord for
each month or portion thereof that Tenant holds over/11/, or otherwise retains
possession of the Premises, or any portion thereof, after the Termination Date
(without reduction for any partial month that Tenant retains possession)/12/.
Tenant shall also pay all damages sustained by Landlord by reason of such
holding over or retention of possession. The provisions of this Article shall
not constitute a waiver by Landlord of any re-entry rights of Landlord and
Tenant's continued occupancy of the Premises shall be as a tenancy in
-----------------------
/8/ one and one half times
/9/ for the first three (3) months of the holding over and double the monthly
Rent payable for the month immediately preceding the holding over (including
increases for Rent Adjustments which Landlord may reasonably estimate) for
holding months thereafter
/10/ one and one half times
/11/ for the first three (3) months or any portion thereof that Tenant holds
over
/12/ and double the fair market value of the Premises as reasonably determined
by Landlord for holding months thereafter
18
sufferance. If Tenant retains possession of the Premises, or any part thereof
for thirty (30) or more days after the Termination Date, then at the sole option
of Landlord expressed by written notice to Tenant, but not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one (1)
year on the same terms and conditions (including those with respect to the
payment of Rent) as provided in this Lease, except that the Monthly Base Rent
for such period shall be equal to the greater of (i) 150% of the Monthly Base
Rent payable during the month preceding the Termination Date, or (ii) 150% of
the monthly base rent then being quoted by Landlord for similar space in the
Building.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENANTABILITY -
(a) If any fire or other casualty (whether insured or uninsured) renders all
or a substantial portion of the Premises or the Building untenantable, Landlord
s1hall, with reasonable promptness after the occurrence of such damage, estimate
the length of time that will be required to Substantially Complete the repair
and restoration and shall by notice advise Tenant of such estimate ("Landlord's
Notice"). If Landlord estimates that the amount of time required to
Substantially Complete such repair and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then Landlord, or Tenant
if all or a substantial portion of the Premises is rendered untenantable, shall
have the right to terminate this Lease as of the date of such damage upon giving
written notice to the other at any time within twenty (20) days after delivery
of Landlord's Notice, provided that if Landlord so chooses, Landlord's Notice
may also constitute such notice of termination.
(b) Unless this Lease is terminated as provided in the preceding subparagraph,
Landlord shall proceed with reasonable promptness to repair and restore the
Premises to its condition as existed prior to such casualty, subject to
reasonable delays for insurance adjustments and Force Majeure delays, and also
subject to zoning laws and building codes then in effect. Landlord shall have no
liability to Tenant, and Tenant shall not be entitled to terminate this Lease if
such repairs and restoration are not in fact completed within the time period
estimated by Landlord so long as Landlord shall proceed with reasonable
diligence to complete such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full proceeds
of any insurance coverage, whether carried by Landlord or Tenant, for damages to
the Premises, except for those proceeds of Tenant's insurance of its own
personal property and equipment which would be removable by Tenant at the
Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored.
(d) Notwithstanding anything to the contrary herein set forth: (i) Landlord
shall have no duty pursuant to this Article to repair or restore any portion of
any Tenant Additions or to expend for any repair or restoration of the Premises
or Building amounts in excess of insurance proceeds paid to Landlord and
available for repair or restoration; and (ii) Tenant shall not have the right to
terminate this Lease pursuant to this Article if any damage or destruction was
caused by the act, omission or neglect of Tenant, its agents or employees.
(e) Any repair or restoration of the Premises performed by Tenant shall be in
accordance with the provisions of Article Nine hereof.
14.02 INSUBSTANTIAL UNTENANTABILITY - If the Premises or the Building is damaged
by a casualty but neither is rendered substantially untenantable, then Landlord
shall proceed to repair and restore the Building or the Premises, other than
Tenant Additions, with reasonable promptness, unless such damage is to the
Premises and occurs during the last six (6) months of the Term, in which event
either Tenant or Landlord shall have the right to terminate this Lease as of the
date of such casualty by giving written notice thereof to the other within
twenty (20) days after the date of such casualty.
14.03 RENT ABATEMENT - Except for the negligence or willful act of Tenant or its
agents, employees, contractors or invitees, if all or any part of the Premises
are rendered untenantable by fire or other casualty and this Lease is not
terminated, Monthly Base Rent and Rent Adjustments shall xxxxx for that part of
the Premises which is untenantable on a per diem basis from the date of the
casualty until Landlord has Substantially Completed the repair and restoration
work in the Premises which it is required to perform, provided, that as a result
of such casualty, Tenant does not occupy the portion of the Premises which is
untenantable during such period.
ARTICLE FIFTEEN
EMINENT DOMAIN
19
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART - In the event the whole or any
substantial part of the Building or of the Premises is taken or condemned by any
competent authority for any public use or purpose (including a deed given in
lieu of condemnation) and is thereby rendered untenantable, this Lease shall
terminate as of the date title vests in such authority, and Monthly Base Rent
and Rent Adjustments shall be apportioned as of the Termination Date.
Notwithstanding anything to the contrary herein set forth, in the event the
taking is temporary (for less than the remaining term of the Lease), Landlord
may elect either (i) to terminate this Lease or (ii) permit Tenant to receive
the entire award in which case Tenant shall continue to pay Rent and this Lease
shall not terminate.
15.02 TAKING OF PART - In the event a part of the Building or the Premises is
taken or condemned by any competent authority (or a deed is delivered in lieu of
condemnation) and this Lease is not terminated, the Lease shall be amended to
reduce or increase, as the case may be, the Monthly Base Rent and Tenant's
Proportionate Share to reflect the Rentable Area of the Premises or Building, as
the case may be, remaining after any such taking or condemnation. Landlord, upon
receipt and to the extent of the award in condemnation (or proceeds of sale)
shall make necessary repairs and restorations to the Premises (exclusive of
Tenant Additions) and to the Building to the extent necessary to constitute the
portion of the Building not so taken or condemned as a complete architectural
unit. Notwithstanding the foregoing, if as a result of any taking, or a
governmental order that the grade of any street or alley adjacent to the
Building is to be changed and such taking or change of grade makes it necessary
or desirable to substantially remodel or restore the Building or, in the
Landlord's sole discretion, prevents the economical operation of the Building,
Landlord shall have the right to terminate this Lease upon ninety (90) days
prior written notice to Tenant.
15.03 COMPENSATION - Landlord shall be entitled to receive the entire award (or
sale proceeds) from any such taking, condemnation or sale without any payment to
Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if any, in such
award; provided, however, Tenant shall have the right separately to pursue
against the condemning authority a separate award in respect of the loss, if
any, to Tenant Additions paid for by Tenant without any credit or allowance from
Landlord so long as there is no diminution of Landlord's award as a result.
ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE - Tenant, at Tenant's expense, agrees to maintain in
force, with a company or companies acceptable to Landlord, during the Term: (a)
Commercial General Liability Insurance on a primary basis and without any right
of contribution from any insurance carried by Landlord covering the Premises on
an occurrence basis against all claims for personal injury, bodily injury, death
and property damage, including contractual liability covering the
indemnification provisions in this Lease. Such insurance shall be for such
limits that are reasonably required by Landlord from time to time but not less
than a combined single limit of Five Million and No/100 Dollars ($5,000,000.00);
(b) Workers' Compensation and Employers' Liability Insurance for an amount of
not less than One Million and No/100 Dollars ($1,000,000.00), both in accordance
with the laws of the State of Florida; (c) "All Risks" property insurance in an
amount adequate to cover the full replacement cost of all equipment,
installations, fixtures and contents of the Premises in the event of loss and
any such policy shall contain a provision requiring the insurance carriers to
waive their rights of subrogation against Landlord; (d) In the event a motor
vehicle is to be used by Tenant in connection with its business operation from
the Premises, Comprehensive Automobile Liability Insurance coverage with limits
of not less than Three Million and No/100 Dollars ($3,000,000.00) combined
single limit coverage against bodily injury liability and property damage
liability arising out of the use by or on behalf of Tenant, its agents and
employees in connection with this Lease, of any owned, non-owned or hired motor
vehicles; and (e) such other insurance or coverages as Landlord reasonably
requires.
16.02 FORM OF POLICIES - Each policy referred to in 16.01 shall satisfy the
following requirements. Each policy shall (i) name Landlord and Property
Manager and the Indemnitees as additional insureds, (ii) be issued by one or
more responsible insurance companies licensed to do business in the State of
Florida, and reasonably satisfactory to Landlord, (iii) where applicable,
provide for deductible amounts satisfactory to Landlord and not permit co-
insurance, (iv) shall provide that such insurance may not be canceled or amended
without thirty (30) days' prior written notice to the Landlord, and (v) shall
provide that the policy shall not be invalidated should the insured waive in
writing prior to a loss, any or all rights of recovery against any other party
for losses covered by such policies. Tenant shall deliver to Landlord
certificates of insurance, and at Landlord's request, copies of all policies and
renewals thereof to be maintained by Tenant hereunder, not less than ten (10)
days prior to the Commencement Date and not less than ten (10) days prior to the
expiration date of each policy.
16.03 LANDLORD'S INSURANCE - Landlord agrees to purchase and keep in full force
and effect during the Term hereof, including any extensions or renewals thereof,
insurance under policies issued by insurers of recognized responsibility,
qualified to do business in the State of Florida on the Building in
20
amounts not less than the greater of eighty (80%) percent of the then full
replacement cost (without depreciation) of the Building (above foundations) or
an amount sufficient to prevent Landlord from becoming a co-insurer under the
terms of the applicable policies, against fire and such other risks as may be
included in standard forms of all risk coverage insurance reasonably available
from time to time. Landlord agrees to maintain in force during the Term,
Commercial General Liability Insurance covering the Building on an occurrence
basis against all claims for personal injury, bodily injury, death and property
damage. Such insurance shall be for a combined single limit of Five Million and
No/100 Dollars ($5,000,000.00). Neither Landlord's obligation to carry such
insurance nor the carrying of such insurance shall be deemed to be an indemnity
by Landlord with respect to any claim, liability, loss, cost or expense due, in
whole or in part, to Tenant's negligent acts or omissions or willful misconduct.
16.04 WAIVER OF SUBROGATION -
(a) Landlord agrees that, if obtainable at no, or minimal, additional cost, it
will include in its "All Risks" policies appropriate clauses pursuant to which
the insurance companies (i) waive all right of subrogation against Tenant with
respect to losses payable under such policies and/or (ii) agree that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policies.
(b) Tenant agrees to include, if obtainable, at no, or minimal, additional
cost, in its "All Risks" insurance policy or policies on its furniture,
furnishings, fixtures and other property removable by Tenant under the
provisions of its lease of space in the Building appropriate clauses pursuant to
which the insurance company or companies (i) waive the right of subrogation
against Landlord and/or any tenant of space in the Building with respect to
losses payable under such policy or policies and/or (ii) agree that such policy
or policies shall not be invalidated should the insured waive in writing prior
to a loss any or all right of recovery against any party for losses covered by
such policy or policies. If Tenant is unable to obtain in such policy or
policies either of the clauses described in the preceding sentence, Tenant
shall, if legally possible and without necessitating a change in insurance
carriers, have Landlord named in such policy or policies as an additional
insured. If Landlord shall be named as an additional insured in accordance with
the foregoing, Landlord agrees to endorse promptly to the order of Tenant,
without recourse, any check, draft, or order for the payment of money
representing the proceeds of any such policy or representing any other payment
growing out of or connected with said policies, and Landlord does hereby
irrevocably waive any and all rights in and to such proceeds and payments.
(c) Provided that Landlord's right of full recovery under its policy or
policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Building and the fixtures, appurtenances and equipment therein, to the
extent the same is covered by Landlord's insurance, notwithstanding that such
loss or damage may result from the negligence or fault of Tenant, its servants,
agents or employees. Provided that Tenant's right of full recovery under its
aforesaid policy or policies is not adversely affected or prejudiced thereby,
Tenant hereby waives any and all right of recovery which it might otherwise have
against Landlord, its servants, and employees and against every other tenant in
the Building who shall have executed a similar waiver as set forth in this
Article 16.04 (c) for loss or damage to Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the provisions hereof to
the extent that same is covered by Tenant's insurance, notwithstanding that such
loss or damage may result from the negligence or fault of Landlord, its
servants, agents or employees, or such other tenant and the servants, agents or
employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if the
clauses to be included in their respective insurance policies pursuant to
subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
provided and thereafter to furnish the other with a certificate of insurance or
copy of such policies showing the naming of the other as an additional insured,
as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly
of any cancellation or change of the terms of any such policy which would affect
such clauses or naming. All such policies which name both Landlord and Tenant as
additional insureds shall, to the extent obtainable, contain agreements by the
insurers to the effect that no act or omission of any additional insured will
invalidate the policy as to the other additional insureds.
16.05 NOTICE OF CASUALTY - Tenant shall give Landlord notice in case of a fire,
accident or any other casualty or insured event in the Premises promptly after
Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS - To the extent permitted by law, Tenant releases the
Indemnitees from, and waives all claims for, damage to person or property
sustained by the Tenant or any occupant of the Building or Premises resulting
directly or indirectly from any existing or future condition, defect, matter or
21
thing in and about the Property or the Premises or any part of either or any
equipment or appurtenance therein, or resulting from any accident in or about
the Property, or resulting directly or indirectly from any act or neglect of any
tenant or occupant of the Building or of any other person, including Landlord's
agents and servants, except where resulting from the willful and wrongful act of
any of the Indemnitees. Tenant hereby waives any consequential damages,
compensation or claims for inconvenience or loss of business, rents, or profits
as a result of such injury or damage. If any such damage, whether to the
Premises or to any part of the Property or any part thereof, or whether to
Landlord or to other tenants in the Building, results from any act or neglect of
Tenant, its employees, servants, agents, contractors, invitees and customers,
Tenant shall be liable therefor and Landlord may, at Landlord's option, repair
such damage and Tenant shall, upon demand by Landlord, as payment of additional
Rent hereunder, reimburse Landlord within ten (10) days of demand for the total
cost of such repairs, in excess of amounts, if any, paid to Landlord under
insurance covering such damages. Tenant shall not be liable for any damage
caused by its acts or neglect if Landlord or a tenant has recovered the full
amount of the damage from proceeds of insurance policies and the insurance
company has waived its right of subrogation against Tenant.
17.02 INDEMNITY BY TENANT - To the extent permitted by law, Tenant agrees to
indemnify, protect, defend and hold the Indemnitees harmless from and against
any and all actions, claims, demands, costs and expenses, including reasonable
attorney's fees and expenses for the defense thereof, arising from Tenant's
occupancy of the Premises, from the undertaking of any Tenant Additions or
repairs to the Premises, from the conduct of Tenant's business on the Premises,
or from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, or from any willful or negligent act or omission of Tenant,
its agents, contractors, servants, employees, customers or invitees, in or about
the Premises, but only to the extent of Landlord's liability, if any, in excess
of amounts, if any, paid to Landlord under insurance covering such claims or
liabilities. In case of any action or proceeding brought against the
Indemnitees by reason of any such claim, upon notice from Landlord, Tenant
covenants to defend such action or proceeding by counsel reasonably satisfactory
to Landlord.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES - Tenant agrees for itself and for its subtenants, employees,
agents, and invitees to comply with the rules and regulations listed on Exhibit
C attached hereto and with all reasonable modifications and additions thereto
which Landlord may make from time to time.
18.02 ENFORCEMENT - Nothing in this Lease shall be construed to impose upon the
Landlord any duty or obligation to enforce the rules and regulations as set
forth on Exhibit C or as hereafter adopted, or the terms, covenants or
conditions of any other lease as against any other tenant, and the Landlord
shall not be liable to the Tenant for violation of the same by any other tenant,
its servants, employees, agents, visitors or licensees. Landlord shall use
reasonable efforts to enforce the rules and regulations of the Building in a
uniform and non-discriminatory manner. Tenant shall pay to Landlord all damages
caused by Tenant's failure to comply with the provisions of this Article
Eighteen and shall also pay to Landlord as additional Rent an amount equal to
any increase in insurance premiums caused by such failure to comply.
22
ARTICLE NINETEEN
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant
and without liability to Tenant for damage or injury to persons, property or
business and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for setoff or abatement
of Rent: (1) To change the Building's name or street address upon thirty (30)
days' prior written notice to Tenant; (2) To install, affix and maintain any
signs now or hereafter existing on the exterior and/or interior of the Building;
(3) To designate and/or approve prior to installation, all types of signs,
window shades, blinds, drapes, awnings or other similar items, and all internal
lighting that may be visible from the exterior of the Premises; (4) Upon
reasonable notice to Tenant, to display the Premises to prospective tenants at
reasonable hours during the last twelve (12) months of the Term; (5) To grant to
any party the exclusive right to conduct any business or render any service in
or to the Building, provided such exclusive right shall not operate to prohibit
Tenant from using the Premises for the purpose permitted hereunder; (6) To
change the arrangement and/or location of entrances or passageways, doors and
doorways, corridors, elevators, stairs, washrooms or public portions of the
Building, and to close entrances, doors, corridors, elevators or other
facilities, provided that such action shall not materially and adversely
interfere with Tenant's access to the Premises or the Building; (7) To have
access for Landlord and other tenants of the Building to any mail chutes and
boxes located in or on the Premises as required by any applicable rules of the
United States Post Office; and (8) To close the Building after normal business
hours, except that Tenant and its employees and invitees shall be entitled to
admission at all times, under such regulations as Landlord prescribes for
security purposes.
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL - Within fifteen (15) days after request therefor by Landlord,
Mortgagee or any prospective mortgagee or owner, Tenant agrees as directed in
such request to execute an Estoppel Certificate in recordable form, binding upon
Tenant, certifying (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications, a description of such modifications
and that this Lease as modified is in full force and effect); (ii) the dates to
which Rent has been paid; (iii) that Tenant is in the possession of the Premises
if that is the case; (iv) that Landlord is not in default under this Lease, or,
if Tenant believes Landlord is in default, the nature thereof in detail; (v)
that Tenant has no off-sets or defenses to the performance of its obligations
under this Lease (or if Tenant believes there are any off-sets or defenses, a
full and complete explanation thereof); (vi) that the Premises have been
completed in accordance with the terms and provisions hereof or the Work Letter,
that Tenant has accepted the Premises and the condition thereof and of all
improvements thereto and has no claims against Landlord or any other party with
respect thereto; (vii) that if an assignment of rents or leases has been served
upon the Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and
agree to be bound by the provisions thereof; (viii) that Tenant will give to the
Mortgagee copies of all notices required or permitted to be given by Tenant to
Landlord; and (ix) any other information reasonably requested.
20.02 ENFORCEMENT - In the event that Tenant fails to deliver an Estoppel
Certificate, then such failure shall be a Default for which there shall be no
cure or grace period. In addition to any other remedy available to Landlord,
Landlord may impose a penalty equal to $500.00 for each day that Tenant fails to
deliver an Estoppel Certificate and Tenant shall be deemed to have irrevocably
appointed Landlord as Tenant's attorney-in-fact to execute and deliver such
Estoppel Certificate.
ARTICLE TWENTY-ONE
RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute for the
Premises, other premises in the Building (the "New Premises"), in which event
the New Premises shall be deemed to be the Premises for all purposes under this
Lease, provided that (i) the New Premises shall be substantially similar to the
Premises in area, elevator bank proximity and configuration; (ii) if Tenant is
then occupying the Premises, Landlord shall pay the actual and reasonable
expenses of physically moving Tenant, its property and equipment to the New
Premises; (iii) Landlord shall give Tenant not less than sixty (60) days' prior
written notice of such substitution; and (iv) Landlord, at its expense, shall
improve the New Premises with improvements substantially similar to those in the
Premises at the time of such substitution, if the Premises are then improved.
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that, except for Advantis Commercial Real Estate Services
----------------------------------------
Company and CLW Real Estate Services Group, Tenant has not dealt with any real
------------------------------------------
estate broker, sales person, or finder in connection
23
with this Lease, and no such person initiated or participated in the negotiation
of this Lease, or showed the Premises to Tenant. Tenant hereby agrees to
indemnify, protect, defend and hold Landlord and the Indemnitees, harmless from
and against any and all liabilities and claims for commissions and fees arising
out of a breach of the foregoing representation. Landlord shall be responsible
for the payment of all commissions to the broker, if any, specified in this
Article.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT - This Lease is and shall be expressly
subject and subordinate at all times to (i) any ground or underlying lease of
the Real Property, now or hereafter existing, and all amendments, renewals and
modifications to any such lease, and (ii) the lien of any first mortgage or
trust deed now or hereafter encumbering fee title to the Real Property and/or
the leasehold estate under any such lease, unless such ground lease or ground
lessor, or mortgage or Mortgagee, expressly provides or elects that the Lease
shall be superior to such lease or mortgage. If any such mortgage or trust deed
is foreclosed, or if any such lease is terminated, upon request of the Mortgagee
or ground lessor, as the case may be, Tenant will attorn to the purchaser at the
foreclosure sale or to the ground lessor under such lease, as the case may be,
provided, however, that such purchaser or ground lessor shall not be (i) bound
by any payment of Rent for more than one month in advance except payments in the
nature of security for the performance by Tenant of its obligations under this
Lease; (ii) subject to any offset, defense or damages arising out of a default
of any obligations of any preceding Landlord; or (iii) bound by any amendment or
modification of this Lease made without the written consent of the Mortgagee or
ground lessor; or (iv) liable for any security deposits not actually received in
cash by such purchaser or ground lessor. This subordination shall be self-
operative and no further certificate or instrument of subordination need be
required by any such Mortgagee or ground lessor. In confirmation of such
subordination, however, Tenant shall execute promptly any reasonable certificate
or instrument that Landlord, Mortgagee or ground lessor may request. Tenant
hereby constitutes Landlord as Tenant's attorney-in-fact to execute such
certificate or instrument for and on behalf of Tenant upon Tenant's failure to
do so within fifteen (15) days of a request to do so. Upon request by such
successor in interest, Tenant shall execute and deliver reasonable instruments
confirming the attornment provided for herein.
23.02 MORTGAGEE PROTECTION - Tenant agrees to give any Mortgagee or ground
lessor, by registered or certified mail, a copy of any notice of default served
upon the Landlord by Tenant, provided that prior to such notice Tenant has
received notice (by way of service on Tenant of a copy of an assignment of rents
and leases, or otherwise) of the address of such Mortgagee or ground lessor.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then the Mortgagee or ground lessor
shall have an additional thirty (30) days after receipt of notice thereof within
which to cure such default or if such default cannot be cured within that time,
then such additional notice time as may be necessary, if, within such thirty
(30) days, any Mortgagee or ground lessor has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings or other proceedings to acquire
possession of the Real Property, if necessary to effect such cure). Such period
of time shall be extended by any period within which such Mortgagee or ground
lessor is prevented from commencing or pursuing such foreclosure proceedings or
other proceedings to acquire possession of the Real Property by reason of
Landlord's bankruptcy or otherwise. Until the time allowed as aforesaid for
Mortgagee or ground lessor to cure such defaults has expired without cure,
Tenant shall have no right to, and shall not, terminate this Lease on account of
default. This Lease may not be modified or amended so as to reduce the rent or
shorten the term, or so as to adversely affect in any other respect to any
material extent the rights of the Landlord, nor shall this Lease be canceled or
surrendered, without the prior written consent, in each instance, of the ground
lessor or the Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be given
pursuant to this Lease must be in writing and shall be personally delivered,
sent by Federal Express or other overnight courier service, or mailed by first
class, registered or certified mail, return receipt requested, postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease shall
be deemed to have been properly given or served by delivering or sending the
same in accordance with this Article, addressed to the parties hereto at their
respective addresses listed below:
(1) Notices to Landlord shall be addressed:
---------------------------------------
Metropolitan Life Insurance Company, a New York corporation
c/o Taylor & Xxxxxx
4010 Boy Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
24
with a copy to the following:
-----------------------------
Metropolitan Life Insurance Company, a New York corporation
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
(2) Notices to Tenant shall be addressed:
-------------------------------------
Xx. Xxxx Xxxxxx
PlanVista Corporation
0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
(c) If notices, demands or requests are sent by registered or certified mail,
said notices, demands or requests shall be effective upon being deposited in the
United States mail. However, the time period in which a response to any such
notice, demand or request must be given shall commence to run from the date of
receipt on the return receipt of the notice, demand or request by the addressee
thereof, or in the case of hand delivery, on the date of delivery. Rejection or
other refusal to accept or the inability to deliver because of changed address
of which no notice was given shall be deemed to be receipt of notice, demand or
request sent.
Notices may also be served by personal service or hand delivery upon any
officer, director or partner of Landlord or Tenant. In the case of delivery by
Federal Express or other overnight courier service, notices shall be effective
upon acceptance of delivery by an employee, officer, director or partner of
Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days written notice
thereof, either party shall have the right from time to time during the term of
this Lease to change their respective addresses for notices, statements, demands
and requests, provided such new address shall be within the United States of
America.
ARTICLE TWENTY-FIVE
PARKING
(a) During the Lease Term, Tenant shall have the non-exclusive use in common
with Landlord, other Building tenants, and their respective guests and invitees,
of the non-reserved vehicle parking areas, driveways and pedestrian access to
same ("Parking Areas") located on the Property. Landlord shall have the right
from time to time to establish, modify and enforce rules and regulations with
respect to the Parking Areas, to police same; to restrict parking by tenants,
their officers, agents, invitees, employees, servants, licensees, visitors,
patrons and customers; to close all or any portion of said areas or facilities
to such extent as may in the opinion of Landlord's counsel be legally sufficient
to prevent a dedication thereof or the accrual of any rights to any person or
the public therein; to close temporarily all or any portion of the Parking
Areas; to discourage non-tenant parking; to charge a fee for visitor and/or
customer parking; and to do and perform such other acts in and to said areas and
improvements as, in the sole judgment of Landlord, Landlord shall determine to
be advisable with a view to the improvement of the convenience and use thereof
by tenants, their officers, agents, employees, servants, invitees, visitors,
patrons, licensees and customers.
(b) Landlord shall have a right to designate the location of Tenant's parking
and alter such designation upon reasonable notice to Tenant. Landlord shall also
have the right to establish or modify the methods used to control parking in the
Parking Areas, including without limitation the installation of certain control
devices or the hiring of parking attendants or a managing agent.
(c) Landlord shall have no liability whatsoever for any property damage or
personal injury which might occur as a result of or in connection with the use
of the Parking Areas by Tenant, its employees, agents, invitees and licensees,
and Tenant hereby agrees to indemnify and hold Landlord harmless from and
against any and all costs, claims, expenses, or causes of action which Landlord
may incur in connection with or arising out of Tenant's use of the Parking
Areas.
ARTICLE TWENTY-SIX
MISCELLANEOUS
26.01 LATE CHARGES - All payments required hereunder (other than the Monthly
Base Rent, Rent Adjustments, and Rent Adjustment Deposits, which shall be due as
hereinbefore provided) to Landlord shall be paid within ten (10) days after
Landlord's demand therefor. All such amounts (including, without limitation
Monthly Base Rent, Rent Adjustments, and Rent Adjustment Deposits) not paid when
due shall bear interest from the date due until the date paid at the Default
Rate in effect or the date such payment was due.
26.02 WAIVER OF JURY TRIAL - As a material inducement to Landlord to enter into
this Lease,
25
Tenant hereby waives its right to a trial by jury of any issues relating to or
arising out of its obligations under this Lease or its occupancy of the
Premises. Tenant acknowledges that it has read and understood the foregoing
provision.
26.03 DEFAULT UNDER OTHER LEASE - It shall be a Default under this Lease if
Tenant or any affiliated company under any other lease with Landlord for
premises in the Building defaults under such lease and as a result thereof such
lease is terminated or terminable.
26.04 OPTION - This Lease shall not become effective as a lease or otherwise
until executed and delivered by both Landlord and Tenant. The submission of the
Lease to Tenant does not constitute a reservation of or option for the Premises,
except that when it is executed by Tenant and delivered to Landlord or
Landlord's agent, it shall constitute an irrevocable offer on the part of Tenant
to the Landlord in effect for fifteen (15) days to lease the Premises on the
terms and conditions herein contained.
26.05 TENANT AUTHORITY - Tenant represents and warrants to Landlord that it has
full authority and power to enter into and perform its obligations under this
Lease, that the person executing this Lease is fully empowered to do so, and
that no consent or authorization is necessary from any third party. Landlord
may request that Tenant provide Landlord evidence of Tenant's authority.
26.06 ENTIRE AGREEMENT - This Lease, the Exhibits attached hereto and the Work
Letter contain the entire agreement between Landlord and Tenant concerning the
Premises and there are no other agreements, either oral or written. This Lease
shall not be modified except by a writing executed by Landlord and Tenant.
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE - If Mortgagee of Landlord
requires a modification of this Lease which shall not result in any increased
cost or expense to Tenant or in any other substantial and adverse change in the
rights and obligations of Tenant hereunder, then Tenant agrees that the Lease
may be so modified.
26.08 EXCULPATION - Tenant agrees, on its behalf and on behalf of its successors
and assigns, that any liability or obligation under this Lease shall only be
enforced against Landlord's equity interest in the Property and in no event
against any other assets of the Landlord, or Landlord's officers or directors.
26.09 ACCORD AND SATISFACTION - No payment by Tenant or receipt by Landlord of a
lesser amount than any installment or payment of Rent due shall be deemed to be
other than on account of the amount due, and no endorsement or statement on any
check or any letter accompanying any check or payment of Rent shall be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
payment of Rent or pursue any other remedies available to Landlord. No receipt
of money by Landlord from Tenant after the termination of this Lease or Tenant's
right of possession of the Premises shall reinstate, continue or extend the
Term.
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING - In the event of any sale or
other transfer of the Building, Landlord shall be entirely freed and relieved of
all agreements and obligations of Landlord hereunder accruing or to be performed
after the date of such sale or transfer.
26.11 BINDING EFFECT - This Lease shall be binding upon and inure to the benefit
of Landlord and Tenant and their respective heirs, legal representatives,
successors and permitted assigns.
26.12 CAPTIONS - The Article captions in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe, or describe the
scope or intent of such Articles.
26.13 APPLICABLE LAW - This Lease shall be construed in accordance with the laws
of the State of Florida. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each item, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
26.14 ABANDONMENT - In the event Tenant abandons the Premises but is otherwise
in compliance with all the terms, covenants and conditions of this Lease,
Landlord shall (i) have the right to enter into the Premises in order to show
the space to prospective tenants, (ii) have the right to reduce the services
provided to Tenant pursuant to the terms of this Lease to such levels as
Landlord reasonably determines to be adequate services for an unoccupied
premises and (iii) during the last six (6) months of the Term, have the right to
prepare the Premises for occupancy by another tenant upon the end of the Term.
26
26.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES - If Tenant fails timely to
perform any of its duties under this Lease or the Work Letter, Landlord shall
have the right (but not the obligation), to perform such duty on behalf and at
the expense of Tenant without prior notice to Tenant, and all sums expended or
expenses incurred by Landlord in performing such duty shall be deemed to be
additional Rent under this Lease and shall be due and payable upon demand by
Landlord.
26.16 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.
26.17 RIDERS - All Riders attached hereto and executed both by Landlord and
Tenant shall be deemed to be a part hereof and hereby incorporated herein.
26.18 RENEWAL OPTION - Tenant shall have and is hereby granted one option (the
"Renewal Option") to extend the term of this Lease with respect to the Premises
for one term of three (3) years (the "Renewal Option Term") commencing the day
immediately following the Expiration Date of the Lease Term. If Tenant exercises
such Renewal Option, all of the non-monetary terms and conditions set forth in
the Lease shall be applicable during such Renewal Option Term, except that
Tenant shall have no further options to renew. To exercise the Renewal Option,
Tenant shall notify Landlord in writing no earlier than twelve (12) months and
no later than nine (9) months prior to the expiration date ("Tenant's Notice").
If Tenant exercises the Renewal Option, then the word "Term" as used in the
Lease shall be deemed to include the Renewal Option Term.
(a) The "Base Rental" for the first year of the Renewal Option Term shall be
the greater of: (i) the Base Rental for the lease year prior to such
renewal or, (ii) an amount reasonably determined by Landlord on the basis
of the then prevailing market rental rate for office space comparable to
the Premises as reflected in one or more leases executed by Landlord with
new Building tenants within the twelve (12) month period immediately
preceding the commencement of such Renewal Option Term. If Landlord has
not executed any lease with new Building tenants within the twelve (12)
month period preceding the commencement of such Renewal Option Term, the
prevailing market rental rate determination shall be based on new leases
for premises comparable to the Premises herein, as executed within said
twelve (12) month period by owners of other comparable Class A office
building properties located in the Westshore submarket of Tampa, Florida.
Within thirty (30) days of its receipt of Tenant's Notice, Landlord shall
notify Tenant in writing of its determination of the Base Rental for the
Renewal Option Term ("Landlord's Base Rental Notice"). Tenant shall
thereafter have the right to cancel its election to extend the Lease for
the Renewal Option Term by so notifying Landlord within ten (10) business
days of the date of its receipt of Landlord's Base Rental Notice.
(b) It shall be a condition to Tenant's exercise of the Renewal Option that
both at the time of delivery of Tenant's Notice and at the commencement of
the Renewal Option Term: (i) there does not exist a default under this
Lease of which Tenant has received notice, and (ii) no part of the
Relocation Premises has been sublet or the Lease assigned except as
provided for in Item 7 of the Lease, (iii) Tenant is occupying the
Premises for the conduct of its business. In no event whatsoever may or
shall Tenant under any such option renew the term of this Lease for less
than all of the space then under Lease by Tenant from Landlord under the
terms and provisions of the Lease. Any termination of this Lease or
termination of Tenant's right of possession shall terminate all of
Tenant's rights to the Renewal Option. The Renewal Option may be exercised
only by and is personal to Tenant and may not be exercised by or for the
benefit of any other party.
(c) Landlord shall have no obligation to make improvements, decorations,
repairs, alterations or additions to the Relocation Premises as a
condition to Tenant's obligations to pay Rent for the Renewal Option Term.
(d) In the event that Tenant exercises and does not elect to terminate the
Renewal Option, as provided in subparagraph (b) above, Landlord and Tenant
agree to enter into an amendment to this Lease incorporating the Renewal
Option Term and the Base Rental applicable to such option within sixty
(60) days following Tenant's exercise of the Renewal Option.
(e) In the event that Tenant exercises the Renewal Option and Tenant has never
been in default of the Lease then the amount of Tenant's Security Deposit
for the Renewal Option Term shall be reduced to an amount equivalent to
50% of the Security Deposit as described in Article 5.01 of this Lease.
Such reduction in Tenant's Security Deposit is subject to Landlord's
request and review of Tenant's most current financial information
27
(f) In the event Tenant exercises the Renewal Option and Tenant has never been
in default of the Lease, then the amount of Tenant's Additional Security
Deposit which is in the form of a Letter of Credit shall be reduced to an
amount equivalent to 50% of the Letter of Credit as described in Article
5.02 of this Lease.. Such reduction in Additional Security Deposit is also
subject to Landlord's request and review of Tenant's most current
financial information.
26.19 RIGHT OF FIRST OFFER - Provided that Tenant is not then in default under
the terms of this Lease, Landlord shall notify Tenant that additional office
space on the second floor of the Building (the "Additional Space") is to become
available together with the terms on which Landlord desires to lease such space
(the "Offer Terms"). The Additional Space is outlined in green on Exhibit A-1
attached hereto and made a part expressly hereof. Tenant shall have an option
exercisable by written notice to Landlord within three (3) business days after
receipt of Landlord's notice together with the Offer Terms, to lease the
Additional Space upon the Offer Terms. Rent in respect of the Additional Space
shall commence to be due and payable on the date Landlord delivers the
Additional Space to Tenant free of other tenants and occupants and otherwise in
accordance with the Offer Terms. Promptly after Tenant exercises this option but
not later than five (5) business days after Tenant's notice to Landlord of its
exercise of this option, the parties shall enter into a supplemental agreement
to this Lease setting forth the terms and conditions upon which Tenant shall
lease the Additional Space and incorporating the Additional Space as part of the
Premises. This right of First Offer is subject to and subordinate to the rights
of other tenants (and their permitted subtenants and assignees) in the Building
to the Additional Space.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Article 1.01 hereof.
WITNESS: LANDLORD:
METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation
/s/ Xxxxx Xxxxxxxxx
____________________________ ------------------------------
Print Name: Xxxx X. Xxxxx By: Xxxxx Xxxxxxxxx
-----------------
/s/ Xxxx Xxxxxx Its: Assistant Vice President
----------------------------
Print Name: Xxxx Xxxxxx
-----------------
WITNESS: TENANT: PLAN VISTA CORPORATION, a Delaware
corporation
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. xxxxxx
---------------------------- ------------------------------
Print Name: Xxxxx X. Xxxxxx By: Xxxxxxx X. Xxxxxx
-----------------
/s/ Xxxx X. Xxxx Its: President and COO
----------------------------
Print Name: Xxxx X. Xxxx
-----------------
28
TABLE OF CONTENTS
PAGE
ARTICLE ONE - BASIC LEASE PROVISIONS............................ 1
1.01 BASIC LEASE PROVISIONS............................... 1
1.02 ENUMERATION OF EXHIBITS.............................. 1
1.03 DEFINITIONS.......................................... 2
ARTICLE TWO - PREMISES, TERM AND FAILURE TO GIVE POSSESSION..... 4
2.01 LEASE OF PREMISES.................................... 4
2.02 TERM................................................. 5
2.03 FAILURE TO GIVE POSSESSION........................... 5
2.04 AREA OF PREMISES..................................... 5
2.05 CONDITION OF PREMISES................................ 5
ARTICLE THREE - RENT............................................ 5
ARTICLE FOUR - RENT ADJUSTMENTS AND PAYMENTS.................... 6
4.01 RENT ADJUSTMENTS..................................... 6
4.02 STATEMENT OF LANDLORD................................ 6
4.03 BOOKS AND RECORDS.................................... 6
4.04 PARTIAL OCCUPANCY.................................... 7
ARTICLE FIVE - SECURITY DEPOSIT and LETTER OF CREDIT............ 7
ARTICLE SIX - SERVICES.......................................... 7
6.01 LANDLORD'S GENERAL SERVICES.......................... 7
6.02 ELECTRICAL SERVICES.................................. 8
6.03 ADDITIONAL AND AFTER-HOUR SERVICES................... 9
6.04 PHONE SERVICES....................................... 9
6.05 DELAYS IN FURNISHING SERVICES........................ 9
ARTICLE SEVEN - POSSESSION, USE AND CONDITION OF PREMISES....... 10
7.01 POSSESSION AND USE OF PREMISES....................... 10
7.02 LANDLORD ACCESS TO PREMISES.......................... 10
7.03 QUIET ENJOYMENT...................................... 11
ARTICLE EIGHT - MAINTENANCE..................................... 11
8.01 LANDLORD'S MAINTENANCE............................... 11
8.02 TENANT'S MAINTENANCE................................. 11
ARTICLE NINE - ALTERATIONS AND IMPROVEMENTS..................... 11
9.01 TENANT'S ALTERATIONS................................. 11
9.02 LIENS................................................ 12
ARTICLE TEN - ASSIGNMENT AND SUBLETTING......................... 13
10.01 ASSIGNMENT AND SUBLETTING............................ 13
10.02 RECAPTURE............................................ 14
10.03 EXCESS RENT.......................................... 14
10.04 TENANT LIABILITY..................................... 14
10.05 ASSUMPTION AND ATTORNMENT............................ 14
ARTICLE ELEVEN - DEFAULT AND REMEDIES........................... 14
11.01 EVENTS OF DEFAULT.................................... 14
11.02 LANDLORD'S REMEDIES.................................. 15
11.03 ATTORNEY'S FEES...................................... 16
11.04 BANKRUPTCY........................................... 16
ARTICLE TWELVE - SURRENDER OF PREMISES.......................... 16
12.01 IN GENERAL........................................... 16
12.02 LANDLORD'S RIGHTS.................................... 17
ARTICLE THIRTEEN - HOLDING OVER................................. 17
PAGE
ARTICLE FOURTEEN - DAMAGE BY FIRE OR OTHER CASUALTY............. 17
14.01 SUBSTANTIAL UNTENANTABILITY.......................... 17
14.02 INSUBSTANTIAL UNTENANTABILITY........................ 18
14.03 RENT ABATEMENT....................................... 18
ARTICLE FIFTEEN - EMINENT DOMAIN................................ 18
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART.................. 18
15.02 TAKING OF PART....................................... 18
15.03 COMPENSATION......................................... 18
ARTICLE SIXTEEN - INSURANCE..................................... 18
16.01 TENANT'S INSURANCE................................... 18
16.02 FORM OF POLICIES..................................... 19
16.03 LANDLORD'S INSURANCE................................. 19
16.04 WAIVER OF SUBROGATION................................ 19
16.05 NOTICE OF CASUALTY................................... 20
ARTICLE SEVENTEEN - WAIVER OF CLAIMS AND INDEMNITY.............. 20
17.01 WAIVER OF CLAIMS..................................... 20
17.02 INDEMNITY BY TENANT.................................. 20
ARTICLE EIGHTEEN - RULES AND REGULATIONS........................ 20
18.01 RULES................................................ 20
18.02 ENFORCEMENT.......................................... 20
ARTICLE NINETEEN - LANDLORD'S RESERVED RIGHTS................... 21
ARTICLE TWENTY - ESTOPPEL CERTIFICATE........................... 21
20.01 IN GENERAL........................................... 21
20.02 ENFORCEMENT.......................................... 21
ARTICLE TWENTY-ONE - RELOCATION OF TENANT....................... 21
ARTICLE TWENTY-TWO - REAL ESTATE BROKERS........................ 22
ARTICLE TWENTY-THREE - MORTGAGEE PROTECTION..................... 22
23.01 SUBORDINATION AND ATTORNMENT......................... 22
23.02 MORTGAGEE PROTECTION................................. 22
ARTICLE TWENTY-FOUR - NOTICES................................... 22
ARTICLE TWENTY-FIVE - PARKING................................... 23
ARTICLE TWENTY-SIX - MISCELLANEOUS.............................. 24
26.01 LATE CHARGES......................................... 24
26.02 WAIVER OF JURY TRIAL................................. 24
26.03 DEFAULT UNDER OTHER LEASE............................ 24
26.04 OPTION............................................... 24
26.05 TENANT AUTHORITY..................................... 24
26.06 ENTIRE AGREEMENT..................................... 24
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE....... 24
26.08 EXCULPATION.......................................... 24
26.09 ACCORD AND SATISFACTION.............................. 24
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING........... 24
26.11 BINDING EFFECT....................................... 25
26.12 CAPTIONS............................................. 25
26.13 APPLICABLE LAW....................................... 25
26.14 ABANDONMENT.......................................... 25
26.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES.......... 25
26.15 RADON GAS............................................ 25
26.17 RIDERS............................................... 25
26.18 RENEWAL OPTION....................................... 25
26.19 RIGHT OF FIRST OFFER................................. 26
EXHIBIT A
January 9, 2002
FLOOR PLAN OF PREMISES
EXHIBIT B
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT ("Work Letter") is attached to and made part of the
Lease dated the 9th day of January, 2002 by and between METROPOLITAN LIFE
--- -------------
INSURANCE COMPANY, a New York corporation ("Landlord") and Plan Vista
Corporation, a Delaware corporation ("Tenant"). The terms, definitions and
other provisions of the Lease are hereby incorporated into this Work Letter by
reference.
IN CONSIDERATION OF the execution of this Lease the mutual covenants and
conditions hereinafter set forth, Landlord and Tenant agree as follows:
1. Landlord shall have no obligation to construct and install the Tenant
Improvements and Non Standard Improvements, as defined below, until Landlord
has received the Security Deposit and Additional Security Deposit in the
form of a Letter of Credit from Tenant as described in Article Five of this
Lease, If Tenant has not deposited with Landlord the Security Deposit and
the Additional Security Deposit in the form of a Letter of Credit by April
1, 2002, Landlord shall have no obligation to construct and install the
Tenant Improvements and Non-Standard Improvements described in this Exhibit
B and Tenant accepts the Premises in its "As Is" condition.
2. Building Standard Improvements:
-------------------------------
(a) This Work Letter sets forth the agreement with respect to the
construction of the "Tenant Improvements" (defined below) "Building
Standard Improvements", shall mean (i) the "Shell Improvements" (as
hereinafter defined) and (ii) any additional improvements constructed
or installed on Premises for Tenant's use using "Building Grade" (as
hereinafter defined) construction and materials. Any other
improvements to the Premises that require construction methods or
materials other than Building Grade shall be deemed to be "Non-
Standard Improvements". All improvements to the Premises constructed
pursuant to this Work Letter other than the Shell Improvements,
whether constructed or installed by Landlord or Tenant, shall be
hereinafter referred to as the "Tenant Improvements", which term shall
include both Building Grade and any Non-Standard Improvements.
(b) "Shell Improvements" shall mean the following improvements, which have
been provided by Landlord, at its expense, in connection with the
construction of the Building:
(1) Exterior Building windows, walls and roof structure and
unfinished concrete block and sheet rock walls surrounding Common
Areas and Service Areas.
(2) Concrete floors and ceilings.
(3) Fully equipped and finished Common Areas and Service Areas,
including elevators, elevator lobbies, atrium entry area,
restrooms and mechanical and electrical rooms.
(4) Heating, ventilation and air-conditioning (chilled water) system
with main high pressure ductwork distribution to all floor areas,
including VAV boxes.
(5) Electrical meter rooms equipped with panels and breakers to code.
(6) Automatic sprinkler systems with construction heads per minimum
code requirements for Building shell.
(7) Public corridor areas as needed to serve the Premises (except
those Building Floors to be occupied by a single tenant), with
floors, interior walls and ceilings finished with Building Grade
materials.
(c) In accordance with and subject to the provisions of this Work Letter,
Landlord shall, at Tenant's expense, subject to the Tenant Improvement
Allowance, as hereinafter defined, construct and install the Tenant
Improvements, including the Non-Standard Improvements, if any in
accordance with the drawing prepared by Landlord's architect, approved
by Tenant on November 26 2001, and attached hereto as Exhibit "B-1"
(the" Approved Plan"). Unless otherwise agreed in writing, Landlord
shall use the following
Building Grade construction methods and materials where appropriate or
some other substantially comparable construction method or material
deemed by Landlord (in its sole discretion) to be Building Grade:
(1) Interior Partitions: Taped, finished and painted (two coats of
flat latex, MAB or approved equal) partitioning to be constructed
with one layer of 1/2" drywall mounted on each side of 3 1/2"
metal studs, extending to the finished ceiling height and having
2 1/2" vinyl base throughout the Premises.
(2) Interior Demising Walls: Tenant separation and corridor walls
consisting of one layer of 5/8" fire-rated drywall mounted on
each side of 3 5/8" metal studs, running from floor slab to
ceiling slab, with 3 5/8" layer of insulation in the wall cavity;
Tenant to be responsible only for one-half of the cost of such
tenant separation and corridor walls. Any other unfinished
concrete surfaces (walls or columns) to be wrapped with drywall;
Tenant to bear the full cost of such wrapped concrete walls. All
demising walls to be taped, finished and painted (two coats) and
baseboard (or vinyl base) installed in the same manner prescribed
for the interior partitions.
(3) Entry Doors: Solid core "C" label Anegre wood veneer doors (9'
high, 3' wide) set in metal frames (U.L. Listed). Russwin
passage set (5025LL L2 Regis US32). Xxxxxxx xxxxxxx xxxxxxx (XX
0000 XXX 000). All hardware in Bright Chrome (stainless steel
finish).
(4) Interior Doors: Solid core Anegre wood veneer doors (9' high, 3'
wide) set in metal frame. Russwin passage set (5025LL L2 Regis
US32). Xxxxxxx xxxxxxx xxxxxxx (XX 0000 XXX 000). All hardware
in Bright Chrome (stainless steal finish).
(5) Building Standard Carpet: Minimum 30 ounce face weight,
commercial grade direct glue throughout the Premises.
(6) Heating, ventilation and air conditioning: Low pressure ductwork
and flex duct air distribution system throughout the Premises
with air diffusers, VAV boxes (Trane or approved equal) and
thermostats (controls compatible with the Building Shell
Improvements) as required.
(7) Electrical: Wiring and conduit per code, as required for standard
wall-mounted duplex power outlets, switches and 2' x 4'
fluorescent lighting fixtures with complete circuitry to
electrical panels.
(8) Lighting: 2' x 4' lay-in fixtures with three fluorescent tubes
each and parabolic lens cover (with a 18 - division grate on a 2'
x 4' fixture), with wiring, conduit and circuitry.
(9) Telephone Outlets: Wall-mounted outlet with pull string or
conduit stubbed to partition height.
(10) Ceiling: U.S.G. Acoustone 707 Glacier Showline, reveal edge (or
approved equal) suspended, revealed edge acoustical tile lay-in
ceiling with 24" inch square tiles in a painted, exposed metal
grid system throughout Premises.
(11) Fire Protection and Security Equipment: sprinkler heads, exit
lights, fire extinguishers and fire dampers as required per code.
In addition to door locks for entry and interior doors, as
needed, Tenant shall provide a security lock as designated by
Landlord on each stairwell door that is an integral part of the
Premises.
(12) Window Blinds: Bali Classic window blinds at all exterior
windows.
(d) Landlord's obligation to construct any Non-Standard Improvements
requested by Tenant shall be subject to the provisions of this Work
Letter pertaining to any delay in "Substantial Completion" (as
hereinafter defined) due to Tenant's specification of construction or
materials other than Building Grade. If Tenant approves a Tenant
Improvement item which Landlord has specified as a cause of delay,
then there shall be no abatement of Rent due to any such delay.
3. Plans and Specifications; Construction Budget:
-----------------------------------------------
(a) The Tenant Improvements shall be completed in accordance with detailed
architectural and material specifications which shall be prepared and
sealed by Landlord's architect, as hereinafter defined, (collectively
the "Plans and Specifications") and Tenant shall be responsible for
any increases in the cost of construction resulting from changes and
additions to the Approved Plan requested by Tenant. All mechanical,
structural, electrical, plumbing and fire sprinkler engineering, if
required to furnish the Tenant Improvements requested by Tenant
subsequent to Tenant's approval of the Approved Plan, shall be done by
Landlord's engineers at Tenant's expense subject to "Landlord's Plans
and Specifications Contribution, as hereinafter defined." The Plans
and Specifications shall include the following:
(1) fully dimensioned architectural plan;
(2) electric/telephone outlet diagram;
(3) reflective ceiling plan with light switches;
(4) mechanical plan;
(5) electric power circuitry diagram;
(6) schematic plumbing riser diagram (if any);
(7) all color and finish selections; and
(8) all special equipment and fixture specifications.
(b) Landlord's expense to prepare the Plans and Specifications shall not
exceed Twelve Thousand Three Hundred Sixty and 00/100s Dollars
-------------------------------------------------------
($12,360.00), ("Plans and Specifications Allowance") which shall be
------------
applied as a credit against the Tenant Improvement Allowance as
defined in Paragraph 3(a) of this Work Letter to the Lease. Tenant
shall be responsible for the costs of the Plans and Specifications
that exceed the Plans and Specifications Allowance. The cost of Plans
and Specifications prepared by Landlord for Tenant in connection with
any Non-Standard Improvements above and beyond the Work Letter or
Change Orders shall be the responsibility of Tenant. Tenant shall not
be entitled to a credit for any remaining Plans and Specifications
Allowance except that Tenant shall have the right to apply such
balance to the Tenant Improvement Allowance outlined in Paragraph 3
below.
(c) Following Landlord's architect's preparation of the Plans and
Specifications, Landlord shall submit the Plans and Specifications to
Tenant for Tenant's review. Tenant shall then have a period of not
more than five (5) days following such submittal in which to review
and approve the Plans and Specifications or state any objections in
sufficient detail so as to allow necessary modifications by Landlord's
architect. If Tenant fails to either approve or disapprove the Plans
and Specifications within five (5) days of receipt thereof, such item
shall be deemed approved. If the Plans and Specifications are
disapproved, Tenant shall have five (5) days to submit revised Tenant
Approved Plan to Landlord and Landlord shall then have five (5) days
to submit revised Plans and Specifications, and a revised Construction
Budget, if necessary, in the event changes to the Plans and
Specifications made by Tenant and submitted to Landlord increase the
Landlord's Contribution to the Tenant Improvements.
4 Tenant Improvement Allowance; Tenant's Costs:
---------------------------------------------
(a) Landlord shall provide Tenant with an allowance (the "Tenant
Improvement Allowance") as a credit against the cost of the Tenant
Improvements, including the Non-Standard Improvements. The Tenant
Improvement Allowance shall be equal to Sixty-three thousand three
--------------------------
hundred sixty-five and 65/100s ($63,365.65). To the extent that the
--------------------------------------------
total cost of the Tenant Improvements (including the cost of the Non-
Standard Improvements) exceeds the Tenant Improvement Allowance,
Tenant shall pay the full amount of such excess ("Tenant Costs") as
follows:
(1) Prior to commencement of construction of the Tenant
Improvements, to the extent the total cost of the Tenant
Improvements exceeds the Tenant Improvement Allowance,
Tenant shall pay Landlord an amount equal to fifty percent
(50%) of the Tenant Costs, as such amount is then determined
by reference to the Construction Budget (as hereinafter
defined). Upon Substantial Completion of the Tenant
Improvements, Tenant shall pay Landlord an amount equal to
forty percent (40%) of the remaining 50% of Tenant Costs as
determined by the Construction Budget.
(2) Within ten (10) days following Landlord's submittal to
Tenant of a final accounting of Tenant Costs and completion
of the Punch List ("Punch List") as hereinafter defined
Tenant shall pay to Landlord the then remaining balance of
Tenant Costs.
(b) Tenant's Costs represent a reimbursement of monies expended by
Landlord on Tenant's behalf. Payment when due shall be a condition to
Landlord's continued performance under this Work Letter. Any delay in
construction of the Tenant's Improvements or in Tenant taking
occupancy of the Premises resulting from Tenant's failure to make any
Tenant's Costs payments when due shall be Tenant's responsibility.
Tenant's failure to pay any portion of Tenant's Costs when due shall
constitute a default under the Lease (subject to any applicable notice
requirements or grace periods), entitling Landlord to all of its
remedies thereunder.
(c) If after all amounts due Landlord, including any amounts due to
Landlord from Tenant for the Excess Costs, its vendors and contractors
are paid in full a credit remains in the Tenant Improvement Allowance,
Landlord shall advise Tenant of such amount and Tenant shall then
advise Landlord of its intention to use such credit towards Tenant's
costs to provide its cabling and telecommunication installation to the
Premises. Such credit shall not exceed Eight thousand two hundred
--------------------------
forty and No/100 Dollars ($8,240.00). Tenant shall within sixty (60)
-------------------------------------
days of Substantial Completion shall submit to Landlord all of
Tenant's paid invoices for cabling and telecommunication services
expended. Landlord shall within (30) days upon receipt of Tenant's
invoices reimburse Tenant up to the amount defined in this subsection
(c).
5 Construction of the Improvements:
---------------------------------
(a) Prior to Substantial Completion, as hereinafter defined Landlord
shall substantially complete the Building Standard Improvements and
Tenant Improvements, including the Non-Standard Improvements, if any,
with respect to the Premises in accordance with the Approved Plan.
"Substantial Completion" shall mean that the Building Standard
Improvements and the Non-Standard Improvements are sufficiently
complete so as to allow Tenant to occupy the Premises for the use and
purposes intended without unreasonable disturbance or interruption;
provided that Landlord, its employees, agents and contractors, shall
be allowed to enter upon the Premises at any reasonable time(s)
following Substantial Completion as necessary to complete any Punch
List Items. "Punch List" shall mean that Landlord and Tenant shall
walk through the Premises to inspect the Tenant Improvements and to
develop a list (the "Punch List") of all items that need to be
corrected by Landlord (the "Punch List Items"). Landlord shall repair
the Punch List Items within thirty (30) days after the date of
Substantial Completion.
(b) If the substantial completion of the Tenant Improvements shall be
delayed due to any act or omission of Tenant or Tenant's Agents
(including, but not limited to, (i) any delays due to change orders,
or (ii) any delays by Tenant in the submission of plans, drawings,
specifications or other information or in approving any working
drawings or estimates or in giving any authorizations or approvals, or
(iii) Tenant's interference with the progress of the Tenant
Improvements during any time that Tenant is given access to the
Premises), then the Premises shall be deemed substantially completed
in accordance with the Approved Plan on the date when they would have
been ready but for such delay.
(c) If, Tenant shall require improvements or changes (individually or
collectively, "Change Orders") to the Premises in addition to,
revision of, or substitution for the Tenant Improvements [as described
in the Approved Plan], Tenant shall deliver to Landlord for Landlord's
approval plans and specifications for such Change Orders. If Landlord
does not approve of the plans for Change Orders, Landlord shall advise
Tenant of the revisions required. In addition to any other items
reasonably required by Landlord,
Landlord's revisions may be based upon whether the plans and
specifications: (i) affect or are not consistent with the base
structural components or systems of the Building, (ii) are visible
from outside the Premises, (iii) affect safety, (iv) have or could
have the effect of increasing Operating Expenses, or (v) in Landlord's
judgment, are not consistent with quality and character of the
Building. Tenant shall revise and redeliver the plans and
specifications to Landlord within five (5) business days of Landlord's
advice or Tenant shall be deemed to have abandoned its request for
such Change Orders. Tenant shall pay for all preparations and
revisions of plans and specifications, and the net costs of the
construction of all Change Orders, subject to the Tenant Improvement
Allowance.
(d) The Premises shall be conclusively presumed to be in satisfactory
condition as of the date of Substantial Completion except for any
minor or insubstantial details of construction, mechanical adjustment
or decoration which remain to be performed, the non-performance of
which do not materially interfere with Tenant's use of the Premises
and of which Tenant gives Landlord notice within thirty (30) days
after the date of Substantial Completion specifying such details with
reasonable particularity which details Landlord shall repair within
thirty (30) days of receipt of such notice.
6. Contractor(s); Permits; Performance Bond:
-----------------------------------------
(a) In the event that the parties hereto have agreed that Tenant will
undertake to provide certain limited portions of the Tenant
Improvements, Tenant shall use licensed contractors, approved by
Landlord, and shall be responsible for obtaining all necessary permits
and approvals at Tenant's sole expense. Tenant shall advise its
contractor(s), subcontractor(s) and material supplier(s) that no
interest of Landlord in the Premises, the Building or the Property
shall be subject to liens to secure payment of any amount due for work
performed or materials installed in the Premises and that Landlord has
recorded a notice to that effect in the public records of Hillsborough
County, Florida. Landlord shall permit Tenant and Tenant's
contractor(s) to enter the Premises prior to Substantial Completion
to accomplish any work as agreed, however Tenant agrees to insure that
its contractor(s) does (do) not impede Landlord's contractor(s) in
performance of their respective tasks. Landlord shall not be liable
in any way for any injury, loss, damage or delay which may be caused
by or arise from such entry by Tenant, its employees or contractor(s).
Any damage to the Building caused by Tenant, its contractors,
subcontractors or agents shall be repaired by Tenant, at its expense,
and all such work shall be done to Landlord's satisfaction. If any
repaired area does not match the original surface, then the entire
surface shall be redone at Tenant's expense.
(b) Landlord shall have the right to disapprove any of Tenant's
contractors or subcontractors if Landlord has reason to believe that
such contractors or subcontractors are: (i) not licensed as required
by any governmental agency; (ii) not technically qualified or
sufficiently staffed to do the work; (iii) not financially capable of
undertaking the work; and/or (iv) incompatible with any of Landlord's
contractors or subcontractors working on the Building (such
incompatibility to include possible conflicts with any union
contractors employed by Landlord).
(c) Should Tenant undertake construction of a portion of the Tenant
Improvements costing in excess of $50,000.00, then Tenant shall
require its contractor(s) to provide performance and payment bond(s)
covering the total value of such work. In any case, the cost of the
performance and payment bond premiums shall be borne by Tenant.
EXHIBIT C
January 9, 2002
RULES AND REGULATIONS
(1) No sign, lettering, picture, notice or advertisement shall be placed on
any outside window or in a position to be visible from outside the Premises, and
if visible from the outside or public corridors within the Building shall be
installed in such manner and be of such character and style as Landlord shall
approve in writing. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any notice or liability, and may charge the
expense incurred by such removal to Tenant. Except as otherwise provided in this
Lease, interior signs on doors and directory tablet shall be inscribed, printed
or affixed for each tenant by Landlord, and shall be of a size, color and style
acceptable to Landlord.
(2) Tenant shall not use the name of the Building for any purpose other
than Tenant's business address; Tenant shall not use the name of the Building
for Tenant's business address after Tenant vacates the Premises; nor shall
Tenant use any picture or likeness of the Building in any circulars, notices,
advertisements or correspondence.
(3) No article which is explosive or inherently dangerous is allowed in the
Building.
(4) Tenant shall not represent itself as being associated with any company
or corporation by which the Building may be known or named.
(5) Sidewalks, entrances, passages, courts, corridors, halls, elevators and
stairways in and about the Premises shall not be obstructed. Subject to the
other provisions of this Lease, Landlord shall have the right to control and
operate the public portions of the Building, and the facilities furnished for
the common use of the Building, in such manner as Landlord reasonably deems best
for the benefit of the Building tenants generally. Tenant shall not permit the
visit to the Premises of persons in such numbers or under such conditions as to
unreasonably interfere with the use and enjoyment by other Building tenants of
the entrances, corridors, elevators and other public portions or facilities of
the Building.
(6) No animals (except for dogs in the company of a blind person), pets,
bicycles or other vehicles shall be brought or permitted to be in the Building
or the Premises.
(7) Room-to-room canvasses to solicit business from other tenants of the
Building are not permitted; Tenant shall not advertise the business, profession
or activities of Tenant conducted in the Building in any manner which violates
any code of ethics by any recognized association or organization pertaining to
such business, profession or activities.
(8) Tenant shall not waste electricity, water or air-conditioning and shall
cooperate fully with Landlord to assure the most effective and efficient
operation of the Building's heating and air-conditioning systems.
(9) No locks or similar devices shall be attached to any door except by
Landlord and Landlord shall have the right to retain a key to all such locks.
Tenant may not install any locks without Landlord's prior approval.
(10) Tenant assumes full responsibility of protecting the Premises from
theft, robbery and pilferage; the Indemnitees shall not be liable for damage
thereto or theft or misappropriation thereof. Except during Tenant's normal
business hours, Tenant shall keep all doors to the Premises locked and other
means of entry to the Premises closed and secured. All corridor doors shall
remain closed at all times. If Tenant desires telegraphic, telephones, burglar
alarms or other electronic mechanical devices, the Landlord will, upon request
direct where and how connections and all wiring for such services shall be
installed and no boring, cutting or installing of wires or cables is permitted
without Landlord's approval.
(11) Except with the prior approval of Landlord, all cleaning, repairing,
janitorial, decorating, painting or other services and work in and about the
Premises shall be done only by authorized Building personnel.
(12) The weight, size and location of safes, furniture, equipment, machines
and other large or bulky articles shall be subject to Landlord's approval and
shall be brought to the Building and into and out of the Premises at such times
and in such manner as the Landlord shall direct and at Tenant's sole risk and
cost. Prior to Tenant's removal of any of such articles from the Building,
Tenant shall obtain written authorization of the Office of the Building and
shall present such authorization to a designated employee of Landlord.
(13) Tenant shall not overload the safe capacity of the electrical writing
of the Building and the Premises or exceed the capacity of the feeders to the
Building or risers.
(14) To the extent permitted by law, Tenant shall not cause or permit
picketing or other activity which would interfere with the business of Landlord
or any other tenant or occupant of the Building, or distribution of written
materials involving its employees in or about the Building, except in those
locations and subject to time and other limitations as to which Landlord may
give prior written consent.
(15) Tenant shall not xxxx, otherwise prepare or sell any food or beverages
in or from the Premises or use the Premises for housing accommodations or
lodging or sleeping purposes except that Tenant may install and maintain vending
machines, coffee/beverage stations and food warming equipment and eating
facilities for the benefit of its employees or guests, provide the same are
maintained in compliance with applicable laws and regulations and do not disturb
other tenants in the Building with odor, refuse or pests.
(16) Tenant shall not permit the use of any apparatus for sound production
or transmission in such manner that the sound so transmitted or produced shall
be audible or vibrations therefrom shall be detectable beyond the Premises; nor
permit objectionable odors or vapors to emanate from the Premises.
(17) No floor covering shall be affixed to any floor in the Premises by
means of glue or other adhesive without Landlord's prior written consent.
(18) Tenant shall at all time maintain the window blinds in the lowered
position, though Tenant may keep the louvers open.
(19) Tenant shall only use the freight elevator for mail carts, dollies and
other similar devices for delivering material between floors that Tenant may
occupy.
(20) No smoking, eating, drinking, loitering or laying is permitted in the
Common Area except in designated areas.
(21) Landlord may require that all persons who enter or leave the Building
identify themselves to security guards, by registration or otherwise. Landlord,
however, shall have no responsibility or liability for any theft, robbery or
other crime in the Building. Tenant shall assume full responsibility for
protecting the Premises, including keeping all doors to the Premises locked
after the close of business.
(22) Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency
and shall cooperate and participate in all reasonable security and safety
programs affecting the Building.
(23) Except as otherwise provided in this Lease, no awnings or other
projections shall be attached to the outside walls of the Building without the
prior written consent of Landlord. Except for Building Grade window coverings,
no drapes, blinds, shades or screens shall be attached to or hung in or used in
connection with any window or door of the Premises, without the prior consent of
Landlord. Such awnings, projections, curtains, blinds, screens or other fixtures
must be of a quality, type, design and color and attached in the manner approved
by Landlord. Notwithstanding the foregoing, and notwithstanding any provision of
this Lease to the contrary, Tenant, from time to time, will be permitted to
install floor to ceiling drapes on the exterior windows of the Premises; said
drapes shall be submitted to Landlord for Landlord's approval.
(24) No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules without the prior written consent of Landlord.
(25) All contractors and/or technicians performing work for Tenant within
the Premises, Building or parking facilities shall be referred to Landlord for
approval before performing such work. This rule shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or parking facilities. None of this work shall be done by
Tenant without Landlord's prior written approval, which approval shall not be
unreasonably withheld. This rule shall not apply in situations governed by the
Work Letter Agreement attached to this Lease.
EXHIBIT D
January 9, 2002
LEGAL DESCRIPTION
A tract in the North 1/2 of the Northwest 1/4 of Section 16, Township 29 South,
Range 18 East, Hillsborough County, Florida, described as follows: From the
Southwest corner of the Xxxxxxxxx 0/0, xxx Xxxxx 0000'00" Xxxx 605.01 feet;
thence Xxxxx 0000'00" Xxxx 621.62 feet for a Point-of-Beginning: Thence North 30
West 441.96 feet to the Southeasterly right-of-way line of Xxxxx Xxxx Xx. 000;
run thence Northeasterly along said right-of-way line (100.0 feet from
centerline) to a point 100.00 feet West of the East boundary of the Xxxxxxxxx
0/0 Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 18, East; thence run South 0014'53"
West 628.65 feet; thence North 8940'54" West 614.74 feet to the Point-of-
Beginning
EXHIBT A-1
January 9, 2002
THE ADDITIONAL SPACESECOND FLOOR
The Additional Space as outlined in Green
The Existing Premises as outlined in Red
