Exhibit 10.20
COLONIAL CENTER @ RESEARCH PARK
LEASE AGREEMENT
WITH
DIGITAL FUSION, Inc.
DATED: February 7, 2006
TABLE OF CONTENTS
1. PREMIses
2. TERM
3. COMPLETION OF IMPROVEMENTS
4. POSSESSION
5. BASE RENTAL; SECURITY DEPOSIT
6. BASE RENTAL ADJUSTMENT
7. ADDITIONAL RENT
8. BROKERAGE DISCLOSURE
9. USE
10. TENANT'S ACCEPTANCE
11. ASSIGNMENT AND SUBLETTING
12. HOLDING OVER
13. ALTERATIONS AND IMPROVEMENTS
14. REPAIRS TO THE PREMISES
15. ENTRY BY LESSOR
16. DEFAULT AND REMEDIES
17. LESSOR'S SERVICES
18. DESTRUCTION OF PREMISES
19. CONDEMNATION OF PREMISES
20. INSURANCE
21. INDEMNIFICATION AND HOLD HARMLESS
22. USUFRUCT ONLY
23. WAIVER
24. ENTIRE AGREEMENT
25. LESSOR'S CONSENT
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26. NOTICES
27. TRANSFER OF TENANTS
28. SUCCESSORS AND ASSIGNS; ATTORNMENT
29. TIME IS OF THE ESSENCE
30. CAPTIONS: GOVERNING LAW
31. SEVERABILITY
32. SUBORDINATION; ESTOPPEL CERTIFICATES
33. ATTORNEYS' FEES
34. LIMITATION OF LIABILITY
35. RULES AND REGULATIONS
36. PARKING
37. HAZARDOUS MATERIALS
38. FINANCIAL STATEMENTS
39. JOINT AND SEVERAL LIABILITY
40. QUIET ENJOYMENT
41. SUBMISSION OF LEASE
42. SPECIAL STIPULATIONS
EXHIBIT "A" - The Premises
EXHIBIT "B" - Rules and Regulations
EXHIBIT "C" - Operating Expenses
EXHIBIT "D" - Work Agreement
EXHIBIT "E" - Parking Rules and Regulations
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LEASE AGREEMENT
This Lease Agreement ("Lease") is made this 7th day of February, 2006,
by and between COLONIAL REALTY LIMITED PARTNERSHIP (the "Landlord"); and DIGITAL
FUSION, Inc. ("the Tenant").
W I T N E S S E T H:
1. PREMISES.
Landlord does hereby rent and lease to Tenant the following described
space in the office complex known as Colonial Center @ Research Park (the
"Project"), Building 1, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx (the
"Building"): office space in the Building on the first (1st) floor, known as
Suite 120 and on the second (2nd) Floor, known as Suite 210, as more
specifically shown on Exhibit "A" (the "Premises"). For all purposes under this
Lease, Landlord and Tenant agree that the Premises shall be deemed to include
approximately 25,487 rentable square feet (including both Tenant's usable area
and common areas attributable to Tenant's usable area). Landlord represents that
the Premises has been measured in accordance with the Standard Method for
Measuring Floor Area in a multi-tenant office building as promulgated by the
Building Owners and Managers Association International, as approved June 7, 1996
by the American National Standards Institute, Inc. (ANSI/BOMA Z65.1-1996) (the
"BOMA Method"). and Tenant and Landlord acknowledge and agree that said figure
is accurate for all purposes used herein.
2. TERM.
The term of this Lease shall be for a period commencing at 12:01 a.m.
on the earlier to occur of (i) the 1st day of March, 2006 (the "Scheduled
Commencement Date") (provided, that if the Premises are not ready for occupancy
on the Scheduled Commencement Date due to any reason other than omissions,
delays or defaults caused by Tenant or its employees, agents or contractors,
then the Scheduled Commencement Date shall be postponed to the date on which the
Premises are ready for occupancy or would have been ready for occupancy were it
not for such omissions, delays or defaults), or (ii) the day Tenant occupies any
portion of the Premises for the purpose of conducting business therefrom (said
earlier date being referred to herein as the "Commencement Date"), and expiring
at 11:59 p.m. on the final day of the month in which the sixty-sixth (66th)
month anniversary of the date prior to the Commencement Date occurs (the
"Term").
3. COMPLETION OF IMPROVEMENTS.
Landlord agrees to proceed with due diligence to prepare the Premises
for Tenant's occupancy in accordance with the terms of this Lease and in
accordance with the work schedule attached hereto as Exhibit "D".
4. POSSESSION.
If this Lease is executed before the Premises become ready for
occupancy and Landlord cannot deliver possession of the Premises on or before
the Scheduled Commencement Date for any reason other than omissions, delays or
defaults caused by Tenant or its employees, agents or contractors, then the
Scheduled Commencement Date shall be postponed as provided in Paragraph 2 above,
and "Base Rental" (as herein defined) shall xxxxx until the Commencement Date
occurs, and Tenant hereby accepts such abatement in full settlement of any and
all claims Tenant may have against Landlord arising from Landlord's inability to
deliver possession at the Scheduled Commencement Date. Occupancy by Tenant prior
to the Scheduled Commencement Date shall in all other respects be pursuant to
the terms of this Lease. By occupying the Premises, Tenant shall be deemed to
have accepted the same and acknowledged that the Premises are in the condition
required hereunder, subject to any "punch list" items agreed to by Landlord and
Tenant prior to Tenant's occupancy of the Premises and further subject to the
truth and accuracy of any and all of Landlord's representations as provided in
this Lease in regards to the condition of the Premises.
Notwithstanding anything to the contrary hereinabove, in the event that Landlord
is unable to deliver possession of the Premises on or before May 31, 2006 for
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any reason within the reasonable control of Landlord or any reason other than
omissions, delays or defaults caused by Tenant or its employees, agents or
contractors, Tenant shall have the right, upon not less than ten (10) days prior
written notice, to terminate and cancel this Lease and thereby releasing both
parties from any further obligations.
5. BASE RENTAL; SECURITY DEPOSIT.
(a) Tenant shall pay in advance to Landlord at Landlord's address
for rental payments set out in Paragraph 26 hereof, or at such other place as
Landlord shall designate in writing, promptly, without demand, deduction or
offset, on the first day of each month during the Term a Base Rental in
accordance with the following schedule:
For the period beginning the first (1st) month of the Term through the sixth
(6th) month of the Term, the monthly Base Rental shall be TWENTY THREE THOUSAND
TWO HUNDRED THIRTY SIX and 12/100 Dollars ($23,236.12);
For the period beginning the seventh (7th) month of the Term through the twelfth
(12th) month of the Term, the monthly Base Rental shall be THIRTY FIVE THOUSAND
FORTY FOUR and 62/100 Dollars ($35,044.62);
For the period beginning the thirteenth (13th) month of the Term through the
twenty-fourth (24th) month of the Term, the monthly Base Rental shall be THIRTY
FIVE THOUSAND EIGHT HUNDRED FIFTY ONE and 71/100 Dollars ($35,851.71) being at a
rate of FOUR HUNDRED THIRTY THOUSAND TWO HUNDRED TWENTY and 56/100 Dollars
($430,220.56) per annum;
For the period beginning the twenty-fifth (25th) month of the Term through the
thirty-sixth (36th) month of the Term, the monthly Base Rental shall be THIRTY
SIX THOUSAND FIVE HUNDRED SEVENTY THREE and 84/100 Dollars ($36,573.84) being at
a rate of FOUR HUNDRED THIRTY EIGHT THOUSAND EIGHT HUNDRED EIGHTY SIX and 14/100
Dollars ($438,886.14) per annum;
For the period beginning the thirty-seventh (37th) month of the Term through the
forty-eighth (48th) month of the Term, the monthly Base Rental shall be THIRTY
SEVEN THOUSAND TWO HUNDRED NINETY FIVE and 98/100 Dollars ($37,295.98) being at
a rate of FOUR HUNDRED FORTY SEVEN THOUSAND FIVE HUNDRED FIFTY ONE and 72/100
Dollars ($447,551.72) per annum;
For the period beginning the forty-ninth (49th) month of the Term through the
sixtieth (60th) month of the Term, the monthly Base Rental shall be THIRTY EIGHT
THOUSAND THIRTY NINE and 35/100 Dollars ($38,039.35) being at a rate of FOUR
HUNDRED FIFTY SIX THOUSAND FOUR HUNDRED SEVENTY TWO and 17/100 Dollars
($456,472.17) per annum;
For the period beginning the sixty-first (61st) month of the Term through the
sixty-sixth (66th) month of the Term, the monthly Base Rental shall be THIRTY
EIGHT THOUSAND EIGHT HUNDRED THREE and 96/100 Dollars ($38,803.96)
(the "Base Rental").
If the Term commences on a day other than the first day of a month, or
terminates or expires on a day other than the last day of a month, the Base
Rental for such partial month shall be prorated based upon the actual number of
days in such a month. In the event the Base Rental to be paid hereunder, or
other charges as hereinafter provided, is not received by Landlord by the fifth
(5th) day of the month due, Landlord shall have the right to impose a late
charge of five percent (5%) of all amounts past due.
(b) Simultaneously with the execution of this Lease, Tenant has paid
to Landlord, and Landlord hereby acknowledges the receipt of, TWENTY THREE
THOUSAND TWO HUNDRED THIRTY SIX and 12/100 Dollars ($23,236.12) (the "Initial
Installment"). Such sum shall be applied by Landlord to the first installment(s)
of monthly Base Rental as they become due hereunder. If Tenant fails to take
possession of the Premises in accordance with all of the terms hereof, the
Initial Installment shall be retained by Landlord for application in reduction,
but not in satisfaction, of damages suffered by Landlord as a result of such
breach by Tenant.
(c) Landlord has agreed to waive a Security Deposit subject to its
receipt, review and approval of audited financial information to be delivered by
Tenant.
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6. BASE RENTAL ADJUSTMENT.
Intentionally omitted.
7. ADDITIONAL RENT.
(a) The following terms, as used in this Lease, shall have the
following meanings:
"Escalation Year" means each calendar year, commencing with the first
full calendar year following the calendar year in which the Commencement Date
occurs, falling, in whole or in part, within the Term.
"Base Year", as used herein, shall be defined as calendar year, 2006.
"Operating Expenses" are defined in Exhibit "C".
"Excess Expenses" means the amount by which the annual Operating
Expenses incurred by Landlord during each successive Escalation Year exceed the
Operating Expenses incurred during the Base Year.
"Tenant's Share" means Tenant's pro rata share of the Excess Expenses
for a given Escalation Year, which shall be determined with respect to each item
of expense by dividing the rentable area of the Premises, which is hereby agreed
to be 25,487 square feet by the rentable area of the Building, which is hereby
agreed to be 67,654 square feet and multiplying the resultant quotient by the
rentable area of the Premises. For all purposes of this Lease, Tenant's Share
shall be deemed to be 37.67%.
(b) Tenant shall pay to Landlord as additional rent (the "Additional
Rent"), for each Escalation Year during the Term, Tenant's Share for such
Escalation Year.
(c) As soon as practicable prior to the beginning of each Escalation
Year (including during any extension or renewal of the Term), Landlord shall
deliver to Tenant a statement setting forth (i) Landlord's projection of the
Operating Expenses for the upcoming Escalation Year, (ii) Tenant's Share for the
upcoming Escalation Year and (iii) a computation of the monthly installments to
be paid by Tenant toward Tenant's Share for the upcoming Escalation Year, which
amount shall be one-twelfth (1/12) of the amount determined pursuant to (ii)
above. In the event such statement is not delivered until after the commencement
of the Escalation Year, Tenant shall continue to pay Tenant's Share based on the
prior year's statement until the statement for the then-current Escalation Year
is delivered, and when such statement is delivered, Tenant shall pay to Landlord
the amount by which the monthly installments of Tenant's Share shown on such
statement exceed the installments of Tenant's Share actually paid by Tenant for
the expired months in the then-current Escalation Year within thirty (30) days
after the rendering of such statement by Landlord, and from and after the
delivery of such statement Tenant shall pay to Landlord in advance on the first
day of each calendar month following the rendering of such statement the monthly
installments provided for in such statement, such payments to continue until
another statement is rendered. If at any time it appears to Landlord that
Tenant's Share for such Escalation Year will exceed Landlord's prior estimate of
Tenant's Share for such Escalation Year by more than five percent (5%), Landlord
shall have the right to revise, by notice to Tenant, its estimate for such
Escalation Year, and subsequent payments by Tenant for such Escalation Year
shall be based upon the revised estimate of Tenant's Share for such Escalation
Year.
(d) Commencing with Landlord's statement delivered following the
beginning of the second full Escalation Year occurring during the Term, Landlord
shall also set forth (i) the actual amount of the Operating Expenses incurred
during the preceding Escalation Year, and (ii) any underpayment or overpayment
by Tenant based on Tenant's monthly payment(s) (if any) of Tenant's Share made
during the preceding Escalation 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 as
projected for the ensuing calendar year.
(e) For the Escalation Year in which the Term expires, Landlord shall
deliver to Tenant, as soon as practicable after the expiration of the Term, a
statement setting forth (i) Tenant's Share determined by annualizing Operating
Expenses actually incurred or accrued during the portion of the Escalation Year
falling within the Term and then prorating Tenant's Share thereby determined,
based on the number of days of such Escalation Year falling within the Term, and
(ii) any underpayment or overpayment of Tenant's Share made during that final
Escalation Year. In 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 Paragraph 7 shall survive the expiration or
earlier termination of the Lease.
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(f) If the Building is not fully occupied during any calendar year
of the Term, including for purposes hereof the Base Year, the Operating Expenses
and the Excess Expenses for purposes of this Paragraph 7 shall be determined as
if the Building had been fully occupied during such calendar year (and fully
assessed for real estate tax purposes). For the purposes of this Paragraph 7,
"fully occupied" shall mean occupancy of 100% of the rentable area of the
Building.
(g) In the first Escalation Year, Tenant shall not be responsible
for Excess Expenses greater than five-percent (5%) above the Operating Expenses
incurred by Landlord during the Base Year (excepting taxes, insurance, utilities
and any governmental mandates imposed after the execution of this Lease).
Thereafter, Tenant shall not be responsible for Excess Expenses greater than
five (5%) over the Operating Expenses incurred by Landlord in the previous
Escalation Year (excepting taxes, insurance, utilities and any governmental
mandates imposed after the execution of the Lease which, specifically, shall not
be subject to this restriction).
8. BROKERAGE DISCLOSURE.
COLONIAL PROPERTIES SERVICES, INC. ("CPSI") HAS REPRESENTED LANDLORD IN
THIS LEASE. XXXXXX CORPORATE SERVICES (the "XXXXXX") HAS REPRESENTED TENANT IN
THIS LEASE. EACH OF CPSI AND XXXXXX SHALL BE PAID A COMMISSION BY LANDLORD
PURSUANT TO THE TERMS OF A SEPARATE AGREEMENT. Tenant warrants it has not caused
any other claims for brokers' commissions or finders' fees in connection with
its execution of this Lease. Tenant hereby indemnifies and holds Landlord and
Landlord's agents harmless from and against any and all loss, cost, damage or
expense incurred by Landlord or Landlord's agents as a result of or in
connection with a claim of any real estate agent or broker, if made by, through
or under Tenant. Landlord hereby indemnifies and holds Tenant and Tenant's
agents harmless from and against any and all loss, cost, damage or expense
incurred by Tenant or Tenant's agents as a result of or in connection with a
claim of any real estate agent or broker, if made by, through or under Landlord.
Tenant shall, upon Landlord's request, cause the party representing Tenant as
set forth above to provide to Landlord a broker's lien waiver, sufficient to
waive such broker's lien rights to the Building and Project.
9. USE.
The Premises shall be used for business office and related ancillary
purposes and for no other purposes. The occupancy rate of the Premises shall in
no event be more than one (1) person per two hundred fifty (250) rentable square
feet. The Premises shall not be used for any illegal purposes, nor in violation
of any regulation of any governmental body, nor in any manner to create any
nuisance or trespass, nor in any manner to vitiate the insurance or increase the
rate of insurance on the Premises or the Building. Tenant shall, at its own
expense, promptly comply with any and all municipal, county, state and federal
statutes, regulations and/or requirements applicable or relating to the use,
occupancy or condition of the Premises.
10. TENANT'S ACCEPTANCE.
Tenant acknowledges that it has been afforded an opportunity to inspect
the Premises and accepts the Premises "as is" and as suited for Tenant's
intended use thereof, subject only to the provisions of Paragraph 3. Upon
completion of the improvements contemplated by Paragraph 3, or occupancy of the
Premises by Tenant, whichever first occurs, Tenant shall be deemed to have
accepted any improvements made since the date hereof. Tenant's acknowledgment
herein is subject to the truth and accuracy of any and all of Landlord's
representations as provided in this Lease in regards to the condition of the
Premises.
11. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, whether by operation of law or otherwise,
assign, transfer, hypothecate or otherwise encumber this Lease or any interest
herein and shall not sublet or permit the use by others of the Premises or any
portion thereof without obtaining in each instance Landlord's prior written
consent, which consent Landlord shall not unreasonably withheld, conditioned or
delayed. Without limiting the foregoing prohibition, in no event shall Tenant
assign this Lease or any interest herein, or sublet the Premises or any part
thereof or permit the use of the Premises or any part thereof by any party, and
Landlord may withhold its consent to any requested assignment or subletting (and
the withholding of consent shall be conclusively deemed to be reasonable), (i)
if the proposed assignee or subtenant is a party who would (or whose use would)
detract from the character of the Building as a first-class office building,
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(ii) if the proposed assignment or subletting shall be to a governmental
subdivision or agency or any person or entity who enjoys diplomatic or sovereign
immunity, (iii) if such proposed assignee or sublessee is an existing tenant of
the Project, or (iv) if such proposed assignment, subletting or use would
contravene any restrictive covenant affecting the Building (including any
exclusive use granted to any other tenant of the Building). Landlord may deny
consent to an assignment or sublease if, by way of illustration but not
limitation, the rate of compensation, including, but not limited to, all rent,
requested by Tenant for the portion of the Premises to be subleased or for the
assignment of the Lease would impact upon or impair Landlord's ability to rent
space in the Building at the then current market rate as offered by Landlord or
if the financial statements of the proposed assignee or sublessee are
unsatisfactory. Landlord's consent to one assignment, sublease, transfer or
hypothecation shall not be deemed as a consent to any other or further
assignment, sublease, transfer or hypothecation. Any such assignment, sublease,
transfer or hypothecation without Landlord's prior written consent shall be void
and shall, at Landlord's option, constitute a default under this Lease and,
notwithstanding any other remedy contained herein, shall constitute a penalty
imposed upon Tenant in an amount equal to one hundred fifty percent (150%) of
the monthly Base Rental in effect at the commencement of such sublease. No
acceptance by Landlord of any rent or any other sum of money from any assignee,
sublessee or other category of transferee shall release Tenant from any of its
obligations hereunder or be deemed to constitute Landlord's consent to any
assignment, sublease, transfer or hypothecation, and in any event, Tenant shall
remain primarily liable on this Lease for the entire Term hereof and shall in no
way be released from the full and complete performance of all the terms,
conditions, covenants and agreements contained herein. Notwithstanding the
above, in no event shall Tenant install, paint, affix or place any sign(s) on or
about the Premises, Building or Park advertising or giving notice that the
Premises are available "for lease", "for sublease", "for rent" or the like.
(b) If Tenant should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall give Landlord prior written notice,
which notice shall specify (i) the name and business of the proposed assignee or
sublessee, (ii) the amount and location of the space affected, (iii) the
proposed effective date and duration of the subletting or assignment, and (iv)
the proposed rental or other consideration to be paid to Tenant by such
sublessee or assignee. Landlord shall then have a period of ten (10) days
following receipt of such notice within which to notify Tenant in writing that
Landlord elects (1) to terminate this Lease as to the space so affected as of
the date so specified by Tenant, in which event Tenant will on that date be
relieved of all further obligations to pay rent hereunder as to such space, (2)
to withhold consent to Tenant's assigning or subleasing such space and to
continue this Lease in full force and effect as to the entire Premises, or (3)
to consent to Tenant assigning or subleasing such space, subject to Landlord's
approval of the assignment or sublease document. If Landlord should fail to
notify Tenant in writing of such election within said ten (10) day period,
Landlord shall be deemed to have elected option (2) above. Tenant agrees to
reimburse Landlord for Landlord's reasonable attorneys' fees and costs incurred
in connection with the processing and documentation of any request made pursuant
to this Paragraph not to exceed $1,000.00. Notwithstanding the giving by
Landlord of its consent to any assignment or sublease with respect to the
Premises, no such assignee or sublessee may exercise any expansion option, right
of first refusal option, or renewal option under this Lease except in accordance
with a separate written agreement entered into directly between such assignee or
sublessee and Landlord, and, absent Landlord's written agreement to the
contrary, all option rights of Tenant, and all lease rights of Tenant created
pursuant to the exercise of any option rights, with respect to any space so
assigned or subleased shall be extinguished.
(c) It hereby understood and agreed that Landlord's consent shall
not be required in the event that the sale or transfer of Tenant's voting stock
(if a corporation) or a partnership interest (if a partnership) or member
interest (if a limited liability company) in Tenant resulting in the transfer of
control of a majority of such stock or interest, or the occupancy of the
Premises by any successor firm of Tenant or by any firm into which or with which
Tenant may become merged or consolidated. However, in such event, Tenant is
required to provide Landlord with seasonable notice of any such event.
12. HOLDING OVER.
If Tenant remains in possession after the expiration of the Term, or
the termination of this Lease, it shall be a tenant at sufferance only and there
shall be no renewal hereof by operation of law. In such event, such occupancy
shall be at an amount equal to one hundred fifty (150%) of the Base Rental in
effect immediately prior to the expiration or termination of this Lease and
shall otherwise be subject to all of the covenants and provisions of this Lease
(including, without limitation, Paragraph 7) insofar as the same are applicable
to a month-to-month tenancy. Tenant shall be liable to Landlord for all damages
incurred by Landlord as a result, in whole or in part, of Tenant's failure to
deliver possession of the Premises to Landlord upon expiration or termination of
the Term.
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13. ALTERATIONS AND IMPROVEMENTS.
(a) No alteration in, or addition to, the Premises will be made
without first obtaining Landlord's prior written consent, which shall not be
unreasonably withheld, and any such work consented to, although paid for by
Tenant, will be done by a mutually agreed upon contractor. Contemporaneous with
said consent, Landlord shall notify Tenant whether such alteration in or
addition to the Premises must be removed at the termination of the Term. In the
event Landlord does not provide such notification, it shall be construed that
any such alteration in or addition to the Premises shall remain Landlord's
property.
(b) If Tenant's actions, omissions or occupancy of the Premises
shall cause the rate of fire or other insurance either on the Building or the
Premises to be increased, Tenant shall pay, as additional rent, the amount of
any such increase promptly upon request by Landlord.
(c) All erections, additions, fixtures and improvements, whether
temporary or permanent in character (except only the trade fixtures and movable
office furniture of Tenant) made in or upon the Premises, shall be and remain
Landlord's property and shall remain upon the Premises at the expiration or
earlier termination of this Lease, with no compensation to Tenant unless
specifically expressed otherwise, in writing, prior to its installation.
Landlord may, at its election, repair any damage to the Premises caused by or in
connection with the removal of any articles of personal property, business or
trade fixtures, alterations, improvements and installations, and all costs for
such repairs shall be at Tenant's expense.
14. REPAIRS TO THE PREMISES.
Except for Landlord's obligation to maintain, repair and replace the
roof, load bearing walls and all building systems including heating and
air-conditioning, electrical, plumbing and mechanical necessary for the safety
and tenantability of the Building and Premises, Landlord shall not be required
to make any repairs or improvements to the Premises. . Tenant shall, at its own
cost and expense, keep in good repair all portions of the Premises, including
but not limited to windows, glass and plate glass, doors, any special store
front, interior walls and finish work, floors and floor coverings, and
supplemental or special heating and air conditioning systems, and shall take
good care of the Premises and its fixtures and permit no waste, except normal
wear and tear with due consideration for the purpose for which the Premises are
leased. Tenant shall maintain and replace, at its cost and expense, all light
bulbs and fixtures in the Premises that are not the Building's standard light
fixtures and bulbs. Any repairs required under this Paragraph, although paid for
by Tenant, will be performed by Landlord and Landlord agrees that any cost
incurred by Landlord in accordance with this Section 14 shall be priced
competively.
15. ENTRY BY LANDLORD.
Landlord or its agents may enter the Premises at reasonable hours to
exhibit same to prospective purchasers or tenants, to inspect the Premises to
see that Tenant is complying with all of its obligations hereunder, and to make
repairs, improvements, alterations or additions which Landlord shall deem
necessary for the safety, preservation or improvement of the Building or to make
repairs or modifications to any adjoining space. Landlord shall be allowed to
take all material into and upon the Premises that may be required to make such
repairs, improvements, alterations or additions for the benefit of Tenant
without in any way being deemed or held guilty of an eviction of Tenant, and the
Base Rental, Additional Rent and other charges hereunder shall in no wise xxxxx
while said repairs, improvements, alterations or additions are being made. All
such repairs, improvements, alterations and additions shall be done during
ordinary business hours, or, if any such work is at the request of Tenant to be
done during any other hours, Tenant shall pay for all overtime costs.
Notwithstanding, Landlord agrees to use reasonable efforts to minimize
interference to Tenant's normal conduct of its business during any such entry.
16. DEFAULT AND REMEDIES.
(a) In addition to the circumstances hereinbefore set forth, the
occurrence of any of the following shall constitute a default of this Lease by
Tenant:
(i) the filing of any voluntary petition or similar pleading
under any section or sections of any bankruptcy or insolvency act by or against
Tenant or the institution of any voluntary or involuntary proceeding in any
court or tribunal to declare Tenant insolvent or unable to pay Tenant's debts as
they mature and, in the case of an involuntary petition or proceeding, the
petition or proceeding is not dismissed within sixty (60) days from the date it
is filed, or the making of an assignment for the benefit of its creditors by
Tenant, or the appointment of a trustee or receiver for Tenant or for the major
part of Tenant's property;
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(ii) Tenant's failure to pay the monthly Base Rental,
Additional Rent or any other sum due hereunder, if such nonpayment continues for
five (5) or more days after the date notice of such late payment is received by
Tenant; provided, however, if more than one (1) payment due of Tenant hereunder
in any twelve (12) month period during the Term is not made until after notice
of such late payment is received by Tenant, then it shall be a default hereunder
by Tenant if any subsequent payment due of Tenant hereunder in the same twelve
(12) month period is not made within ten (10) days after the date the same is
due;
(iii) Tenant's default in the prompt and full performance of
any other provision of this Lease and Tenant does not cure the default within
thirty (30) days after written demand by Landlord that the default be cured to
the reasonable satisfaction of Landlord or in the event the default cannot be
reasonably cured within a thirty (30) day period, Tenant does not commence
reasonable action within said thirty (30) day period and proceeds diligently to
cure such default. (unless the default involves a condition dangerous to person
or property, in which event such default shall be cured forthwith upon
Landlord's demand). Any such written demand shall describe the nature of the
default and the suggested action to be taken to cure said default.
(iv) the levy, execution or attachment against assets of
Tenant located in the Premises; or
(v) Tenant's failure to take possession or occupancy of, or
desertion or abandonment of, the Premises (or any substantial portion thereof),
or the Premises (or any substantial portion thereof) otherwise becoming vacant.
(b) Upon the occurrence of any default by Tenant as aforesaid,
Landlord, in addition to any and all other rights or remedies it may have at law
or in equity, shall have the option of pursuing any one or more of the following
remedies:
(i) Landlord shall have the immediate right of reentry and may
remove all property from the Premises to a warehouse or elsewhere at the cost
of, and for the account of Tenant, all without being deemed guilty of trespass
or becoming liable for any loss, damage or damages which may be occasioned
thereby;
(ii) Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination, with the same force and effect as
though the date so specified were the date herein originally fixed as the
expiration date of the Term of this Lease, and all rights of Tenant under this
Lease and in and to the Premises shall expire and terminate, and Tenant shall
remain liable for all obligations under this Lease arising up to the date of
such termination, and Tenant shall surrender the Premises to Landlord on the
date specified in such notice;
(iii) Landlord may, without terminating this Lease, declare
immediately due and payable all Base Rental, Additional Rent, and other rents
and amounts due and coming due under this Lease for the entire remaining Term
hereof, together with all other amounts previously due, at once; provided,
however, that such payment shall not be deemed a penalty or liquidated damages
but shall merely constitute payment in advance of rent for the remainder of said
Term; upon making such payment, Tenant shall be entitled to receive from
Landlord all rents received by Landlord from other assignees, tenants and
subtenants on account of said Premises during the Term of this Lease, provided
that the monies to which Tenant shall so become entitled shall in no event
exceed the entire amount actually paid by Tenant to Landlord pursuant to this
clause (iv) less all costs, expenses and attorneys' fees of Landlord incurred in
connection with the reletting of the Premises; or
(iv) Landlord may, from time to time without terminating this
Lease, and without releasing Tenant in whole or in part from Tenant's obligation
to pay Base Rental, Additional Rent and all other amounts due under this Lease
and perform all of the covenants, conditions and agreements to be performed by
Tenant provided in this Lease, make such alterations and repairs as necessary to
relet the Premises, and, after making such alterations and repairs, Landlord
may, but shall not be obligated to, relet the Premises or any part thereof for
such term (which may be for a term extending beyond the Term of this Lease) at
such rental and upon such other terms and conditions as Landlord in its sole
discretion may deem advisable or acceptable; upon each reletting, all rentals
received by Landlord from such reletting shall be applied first, to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees and attorneys' fees, and of costs of such alterations and
repairs; third, to the payment of the Base Rental, Additional Rent and other
charges due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied against payments of future Base Rental, Additional Rent or
other charges as the same may become due and payable hereunder. In no event
shall Tenant be entitled to any excess rental received by Landlord over and
above charges that Tenant is obligated to pay hereunder, including Base Rental,
Additional Rent and all other charges; if such rentals received from such
reletting during any month are less than those to be paid during the month by
Tenant hereunder, including Base Rental, Additional Rent and all other charges,
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Tenant shall pay any such deficiency to Landlord, which deficiency shall be
calculated and paid monthly. Tenant shall also pay Landlord as soon as
ascertained and upon demand all costs and expenses incurred by Landlord in
connection with such reletting and in making any alterations and repairs which
are not covered by the rentals received from such reletting; notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach.
(c) Landlord's reentry, demand for possession, notice that the
tenancy hereby created will be terminated on the date therein named, institution
of an action of forcible detainer or ejectment or the entering of a judgment for
possession in such action or any other act or acts resulting in the termination
of Tenant's right to possession of the Premises shall not relieve Tenant from
Tenant's obligation to pay all sums due hereunder, except as herein expressly
provided. Landlord may collect and receive any Base Rental, Additional Rent or
other charges due from Tenant, and the payment thereof shall not constitute a
waiver of or affect any notice or demand given, suit instituted or judgment
obtained by Landlord, or be held to waive, affect, change, modify or alter the
rights or remedies which Landlord has in equity or at law or by virtue of this
Lease.
(d) If Landlord commences any proceedings for nonpayment of Base
Rental, Additional Rent or other sums due hereunder, Tenant will not interpose
any counterclaim of whatever nature or description which is not directly related
to the Lease in any such proceeding. This shall not, however, be construed as a
waiver of Tenant's right to assert such claims in any separate action or actions
brought by Tenant. Any action brought under or with respect to this Lease must
be brought in a court located in Madison County, Alabama, and having
jurisdiction therein.
(e) All sums past due from Tenant under this Lease shall bear
interest at eighteen percent (18%) per annum, but in no event in excess of the
maximum lawful rate, from due date until paid in full.
(f) Except as expressly provided in this Lease, Tenant hereby waives
any and every form of demand and notice prescribed by statute or other law,
including without limitation the notice of any election of remedies made by
Landlord under this Paragraph, demand for payment of any rent, or demand for
possession.
(g) All rights and remedies of Landlord created or otherwise
existing at law are cumulative, and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to exercise any other.
(h) Tenant shall and hereby agrees to pay all costs and expenses
incurred by Landlord in enforcing any of the covenants and agreements of this
Lease, or as a result of an action brought by Landlord against Tenant for an
unlawful detainer of the Premises, and all such costs, expenses and attorneys'
fees shall, if paid by Landlord, be paid by Tenant to Landlord within fifteen
(15) days of Landlord's written demand therefor, together with interest at
eighteen percent (18%) per annum, but in no event in excess of the maximum
lawful rate, from the date of Landlord's payment thereof.
17. LANDLORD'S SERVICES.
(a) Landlord shall render certain services and supplies in
accordance with and as described in this Paragraph 17, as follows:
(i) Landlord shall cause the Premises to be cleaned at least
five (5) nights weekly.
(ii) Landlord shall furnish electric current for Building
standard tenant lighting and small business machinery only from electric
circuits designated by Landlord for Tenant's use. Such circuits will be fed into
one or more of the existing electrical panel(s) in the electrical closets
located on the same Building floor as the Premises. Tenant's usage of said
panels on any given floor shall not exceed Tenant's pro rata share (based on
rentable square footage) of the panels' capacity. Tenant will not use 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, and
other computer-related 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, electric current in excess of 208/120 volts for purposes other
than Building standard tenant lighting, 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
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reasonable discretion. If Landlord furnishes such power or circuits, Tenant
shall pay Landlord the cost of the design, installation and maintenance of the
facilities required to provide such additional or special electric power or
circuits and the cost of all electric current so provided at such rates as may
be reasonably determined from time to time by Landlord. Landlord 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. Tenant shall not have
access to any electrical closets in the Building; 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 (and
which shall be priced competitively). 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.
(iii) Landlord shall furnish seasonable air conditioning and
heating during normal business hours (7:00 A.M. to 7:00 P.M. Monday through
Friday and 8:00 A.M. until 12:00 P.M. Saturday), said heat or air conditioning
not being furnished Sunday or holidays observed by Landlord. Holidays which are
observed by Landlord are New Years Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day and the following Friday, and Christmas Day. Should Tenant
desire either heating or air conditioning at other times, Landlord agrees to
provide same, but at Tenant's expense at Twenty Five ($25.00) Dollars per hour,
which charge Tenant shall pay promptly upon being billed therefor. If Tenant
installs equipment which in Landlord's opinion produces enough heat to cause
comfort problems in the Building or any part thereof, or if Tenant desires a
supplemental air conditioning system and Landlord has approved same, then
Landlord may, at its option, either cause to be designed or permit Tenant to
design a supplemental air conditioning system, subject to Landlord's approval,
and Landlord shall install such system at Tenant's expense substantially in
accordance with such design. If Tenant has requested such supplemental system,
Tenant shall be responsible for determining that the design of such system is
adequate for its needs. Tenant agrees to pay Landlord for such equipment,
design, installation, metering and consumption of electricity for supplemental
air conditioning and to maintain such equipment at Tenant's expense. If such
supplemental air conditioning is installed at the request of either Tenant or
Landlord in a manner that utilizes the Building condenser water loop, Tenant
shall pay a one-time tap fee, payable within thirty (30) days of invoicing from
Landlord, at Landlord's then established rate for such. Tenant shall also pay
for the necessary pump and piping to connect the supplemental air conditioning
equipment to the Building condenser water risers. Regardless of whether such
supplemental air conditioning is tapped into the Building condenser water loop,
Tenant shall pay (in addition to the one-time tap fee, if applicable) each
calendar quarter in advance, as additional rent, a usage charge based upon the
tonnage of the cooling equipment installed. At the commencement of the Term,
this usage charge shall be Two Hundred Dollars ($200.00) per ton per year of
cooling equipment. Such usage charge may be increased at any time and from time
to time, provided, however, that in no event will such usage charge, as
increased hereunder, ever be decreased. All systems and/or equipment installed,
as provided hereinabove, shall become part and parcel with the Building and
forever remain Landlord's property.
(iv) In addition thereto, Landlord shall furnish all other
necessary and appropriate services as defined as "Operating Expenses" in Exhibit
"C" attached hereto and made part hereof.
(b) Landlord shall not be liable for any damages directly or
indirectly resulting from the installation, use or interruption of use of any
equipment in connection with the furnishing of services referred to in this
Paragraph, and particularly any interruption in services by any cause beyond the
immediate control of Landlord, provided Landlord shall use reasonable diligence
in the restoration of such services.
In the event that there is an interruption of essential
services (i.e. electricity, heat, cooling, etc.) to the Building or Premises for
a period of more than three (3) consecutive business day and such interruption
is within the reasonable control of Landlord, Base Rental shall xxxxx beginning
on the fourth (4th) day following such interruption and shall continue to xxxxx
until such services are restored to the Building or Premises. If any such
interruption continues for more than thirty (30) consecutive days, then Tenant
shall have the right to terminate the Lease upon not less than fifteen (15) days
prior written notice. Notwithstanding, said termination notice must be received
by Landlord within ten (10) days of such interruption or said right is hereby
forfeited.
18. DESTRUCTION OF PREMISES.
Should the Premises be so damaged by fire or other cause that
rebuilding or repairs cannot, in the opinion of Landlord's architect, be
completed within one hundred thirty five (135) days from the date of the fire,
or other cause of damage, then either Landlord or Tenant may terminate this
Lease by written notice to the other given within thirty (30) days of the date
of such damage or destruction, in which event rent shall be abated from the date
of such damage or destruction. However, if the damage or destruction is such
that rebuilding or repairs can be completed within one hundred thirty five (135)
days, Landlord covenants and agrees, subject to the provisions of this Paragraph
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18, to make such repairs with reasonable promptness and dispatch, and to allow
Tenant an abatement in the rent for such time as the Premises are untenantable
or proportionately for such portion of the Premises as shall be untenantable,
and Tenant covenants and agrees that the terms of this Lease shall not be
otherwise affected. Repairs and restoration to base Building improvements
required by this Lease to be furnished by Landlord at its expense (other than
Tenant's leasehold improvements initially paid for by Tenant) shall be made at
Landlord's expense. In no event shall Landlord be required to repair or replace
any trade fixtures, furniture, equipment or other property belonging to Tenant.
Notwithstanding anything to the contrary contained in this Paragraph, Landlord
shall not have any obligation whatsoever to repair, reconstruct or restore the
Premises when the damage resulting from any casualty occurs during the last
twelve (12) months of the Term.
19. CONDEMNATION OF PREMISES.
(a) If any part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, either
party shall have the right, at its option, to terminate this Lease effective as
of the date possession is taken by said authority, and Landlord shall be
entitled to any and all income, rent or award and any interest thereon
whatsoever which may be paid or made in connection with such public or quasi-
public use or purpose. Tenant hereby assigns to Landlord its entire interest in
any and all such awards, and shall have no claim against Landlord for the value
of any portion of the unexpired Term. If a part of the Premises shall be so
taken or appropriated, and neither party elects to terminate this Lease, the
Base Rental thereafter to be paid shall be reduced by an amount bearing the same
ratio to the total amount of Base Rental as the rentable area of the Premises so
taken bears to the entire Premises.
(b) If any part of the Building other than the Premises shall be so
taken or appropriated, either party shall have the sole right, at its option, to
terminate this Lease and Landlord shall be entitled to the entire award as above
provided, and in such case Tenant shall likewise have no claim against Landlord
for the value of any unexpired Term of this Lease.
(c) Nothing hereinbefore contained shall be deemed to deny to Tenant
its right to claim from the condemning authority compensation or damages for its
trade fixtures and personal property, provided the condemning authority makes a
separate award therefor.
(d) If any part of the parking area shall be so taken or
appropriated and Landlord is unable (within a reasonable time) to replace such
parking in accordance with the provisions of this Lease, Tenant shall have the
right to terminate and cancel this Lease.
20. INSURANCE.
(a) Tenant shall carry special form/all risk insurance insuring
Tenant's interest in the improvements and betterments to the Premises, including
initial improvements installed by Landlord, and any and all furniture,
equipment, supplies and other property owned, leased, held or possessed by it
and contained therein, in an amount equal to the full replacement cost thereof,
subject to deductible amounts reasonably satisfactory to Landlord, plus business
interruption insurance respecting Tenant's business conducted from the Premises
in an amount reasonably satisfactory to Landlord. Tenant shall also procure and
maintain throughout the Term a policy or policies of commercial general
liability insurance, including contractual liability, insuring Tenant, Landlord,
any manager of the Building, the asset manager of the Building, and any
mortgagee which has an interest in or lien upon the Building, as additional
insureds, against any and all liabilities for injury to or death of a person or
persons and for damage to property occasioned by or arising out of any
construction work being done on the Premises, or arising out of the condition,
use or occupancy of the Premises, or in any way occasioned by or arising out of
the activities of Tenant or its agents, employees or licensees in the Premises,
or other portions of the Building, Building site and adjacent parking areas in
amounts not less than $3,000,000.00 with respect to any one casualty or
occurrence and $1,000,000.00 with respect to property damage, including fire
legal liability.
(b) All insurance policies procured and maintained by Tenant
pursuant to this Paragraph 20 shall be carried with companies licensed to do
business in the State of Alabama with a Best policyholder rating of not less
than A-, and a Best financial size rating of not less than VIII, and shall be
noncancelable and not subject to material change except after thirty (30) days
written notice to Landlord and any designees of Landlord. Such policies or duly
executed certificates of insurance with respect thereto shall be delivered to
Landlord prior to the date that Tenant takes possession of the Premises, and
renewals thereof as required shall be delivered to Landlord at least thirty (30)
days prior to the expiration of each respective policy term.
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(c) Tenant shall have included in all policies of fire, extended
coverage, business interruption and loss of rents insurance obtained by Tenant
hereunder, a waiver by the insurer of all right of subrogation against Landlord
in connection with any loss or damage thereby insured against. Any additional
premium for such waiver shall be paid by Tenant. To the full extent permitted by
law, Tenant waives all right of recovery against Landlord for, and agrees to
release Landlord from liability for, loss or damage to the extent such loss or
damage is covered by valid and collectible insurance in effect at the time of
such loss or damage or would be covered by the insurance required to be
maintained under this Lease by Tenant.
21. INDEMNIFICATION AND HOLD HARMLESS.
(a) Tenant agrees to indemnify and shall hold Landlord harmless
against all claims, judgments, demands and expenses (including reasonable
attorney's fees) of any person or persons whomsoever on account of any injuries
or accidents occurring in or around the Premises as a result of willful or
negligent acts or omissions of Tenant, its employees, agent or representatives.
(b) Landlord agrees to defend and indemnify and shall hold Tenant
harmless against all claims, judgments, demands and expenses (including
reasonable attorney's fees) of any person or persons whomsoever on account of
injuries or accidents occurring in, on or about the Building as a result of
willful or negligent acts or missions of Landlord, its employees, agents or
representatives.
(c) Tenant shall give notice to Landlord of any defective condition in
or about the Premises known to Tenant, and further agrees to attempt to contact
Landlord by telephone immediately in such instance.
22. USUFRUCT ONLY.
This contract shall create the relationship of landlord and tenant
between Landlord and Tenant; no estate shall pass out of Landlord. Tenant has
only a usufruct, not subject to levy and sale.
23. WAIVER.
The waiver by either party of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other term,
covenant or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Base Rental, Additional
Rent or other sums due hereunder by Landlord shall not be deemed to be a waiver
of any preceding breach by Tenant of any term, covenant or condition of this
Lease, other than the failure of Tenant to pay the particular payment so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such payment. No covenant, term or condition of this Lease
shall be deemed to have been waived by either party, unless such waiver is in
writing signed by such party.
24. ENTIRE AGREEMENT.
This Lease sets forth all the covenants, promises, agreements,
conditions and undertakings between Landlord and Tenant concerning the Premises,
and there are no covenants, promises, agreements, conditions or undertakings
other than as herein set forth. No subsequent alteration, amendment, change or
addition to this Lease, except as to changes or additions to the Rules and
Regulations described in Paragraph 35, shall be binding upon Landlord or Tenant
unless reduced to writing and signed by authorized representatives of each of
them. This Lease is not in recordable form, and Tenant agrees not to record or
cause to be recorded this Lease or any short form or memorandum thereof.
25. LANDLORD'S CONSENT.
In every instance herein in which Landlord is called upon to give its
consent, and the standards for granting such consent are not expressly set
forth, such consent shall not be unreasonably withheld, delayed or conditioned.
No such consent shall be binding upon Landlord unless made expressly in writing
signed by Landlord.
26. NOTICES.
(a) Every notice, demand or request hereunder shall be in writing,
and shall be deemed to have been properly given if delivered personally or by
courier (including a nationally recognized overnight delivery service), with a
signed receipt, or if deposited with the United States Postal Service (or any
official successor thereto) designated certified mail, return receipt requested,
bearing adequate postage and addressed as follows:
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If to Tenant: Digital Fusion
0000-X Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to Landlord: COLONIAL REALTY LIMITED PARTNERSHIP
c/o Colonial Properties Services, Inc.
000 Xxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Landlord's address
for rental payments: COLONIAL PROPERTIES TRUST
POST OFFICE BOX 55379
DEPARTMENT# 9411
XXXXXXXXXX, XXXXXXX 00000
As an added convenience, you may now transfer your payments
electronically. The wiring instructions are as follows:
Bank Name: SouthTrust Bank
Birmingham, Alabama
ABA#: 000000000
Account#: 00-000-000
Reference: Tenant ID Number
The foregoing addresses may be changed by thirty (30) days prior
written notice from time to time.
(b) Tenant hereby appoints as his agent to receive the service of
all dispossessory or distraint proceedings and notices thereunder, the person in
charge of or occupying the Premises at the time; and if no person is in charge
or occupying same, then such service or notice may be made by attaching the same
on the main entrance to the Premises. A copy of all notices under this Lease
shall also be sent to Tenant's last address of which notice was given to
Landlord in accordance with this Paragraph 26, if different from the Premises.
27. TRANSFER OF TENANT.
In the event that the size of the Premises, as used herein, becomes
less than 25,000 square feet of rentable area, Landlord shall have the right to
relocate Tenant from the Premises to any other comparable (as to size and
leasehold improvements) office space in the Building or Project. Landlord shall
deliver notice to Tenant of Landlord's desire to relocate Tenant, together with
a description of the space to which the Premises shall be relocated. If Landlord
exercises its right to relocate Tenant under this Paragraph, then (i) the actual
and reasonable expenses of said relocation (including any necessary renovation
or alteration of the substituted space, telecommunications and computer network
relocation expense, the cost of replacing Tenant's stationery and business cards
actually rendered obsolete, and moving costs), as calculated by Landlord prior
to any relocation, shall be paid by Landlord, and (ii) following such
relocation, the substituted space shall for all purposes thereinafter constitute
the Premises. This Lease shall apply with full force and effect to the Premises
as relocated. If Tenant has not vacated the prior space and relocated to the
substituted space within five (5) days after Landlord notifies Tenant that the
substituted space is ready for occupancy by Tenant, Tenant shall be in default
under this Lease and, in addition to (and not in lieu of) all other rights and
remedies provided in this Lease or at law or in equity for a default by Tenant,
(i) Landlord shall have the right to immediately terminate this Lease by giving
notice of such termination to Tenant (the "Termination Notice"), and/or (ii)
Landlord may recover from Tenant any and all costs and expenses incurred by
Landlord in making any alterations and repairs to the substituted space and in
preparing to relocate Tenant to such space, and/or (iii) Landlord may recover
from Tenant any and all costs and expenses suffered or incurred by Landlord as a
result of or in connection with Tenant's refusal or failure to relocate. Such
termination shall be effective upon any date selected by Landlord in the
Termination Notice which is at least ten (10) days after the Termination Notice
is given by Landlord. Tenant hereby further covenants and agrees to promptly
execute and deliver to Landlord any lease amendment or other such document
appropriate to reflect the changes in the Lease described or contemplated above.
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28. SUCCESSORS AND ASSIGNS; ATTORNMENT.
The covenants, conditions and agreements herein contained shall inure
to the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its heirs, executors, administrators, successors
and assigns, and shall inure to the benefit of Tenant and only such assigns of
Tenant to whom the assignment by Tenant has been consented to by Landlord or as
otherwise permitted in this Lease. Nothing contained in this Lease shall in any
manner restrict Landlord's right to assign or encumber this Lease in its sole
discretion. Should Landlord assign this Lease as provided for above, or should
Landlord enter into a security deed or other mortgage affecting the Premises and
should the holder of such deed or mortgage succeed to the interest of Landlord,
Tenant shall be bound to said assignee or any such holder under all the terms,
covenants and conditions of this Lease for the balance of the Term hereof
remaining after such succession, and Tenant shall attorn to such succeeding
party as its Landlord under this Lease promptly under any such succession.
Tenant agrees that should any party so succeeding to the interest of Landlord
require a separate agreement of attornment regarding the matters covered by this
Lease, then Tenant shall enter into any such "attornment agreement," provided
the same does not modify any of the provisions of this Lease and has no adverse
effect upon Tenant's continued occupancy of the Premises.
29. TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of each of the
covenants and agreements of this Lease; provided, however, that failure of
Landlord to provide Tenant with any notification regarding adjustments in Base
Rental, Additional Rent, or any other charges provided for hereunder, within the
time periods prescribed in this Lease shall not relieve Tenant of its obligation
to make such payments, which payments shall be made by Tenant at such time as
notice is subsequently given.
30. CAPTIONS: GOVERNING LAW.
The captions of this Lease are for convenience of reference only and in
no way define, limit or describe the scope or intent of this Lease. The laws of
the State of Alabama shall govern the validity, performance and enforcement of
this Lease.
31. SEVERABILITY.
Landlord and Tenant intend and believe that each provision in this
Lease is in accordance with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Lease is or are ultimately determined by
a court of law to be in violation of any local, state or federal ordinance,
statute, law, administrative or judicial decision, or public policy, and if such
court shall declare such portion, provision or provisions of this Lease to be
illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent both of Landlord and Tenant that such portion, provision or provisions
shall be given force to the fullest possible extent that they are legal, valid
and enforceable, that the remainder of this Lease shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained herein, and that the rights, obligations and
interests of Landlord and Tenant under the remainder of this Lease shall
continue in full force and effect, provided such court action does not
materially affect the rights and obligations of the parties.
32. SUBORDINATION; ESTOPPEL CERTIFICATES.
At the option of Landlord, Tenant agrees that this Lease shall remain
subject and subordinate to all present and future mortgages, deeds to secure
debt or other security instruments (the "Security Deeds") affecting the Building
or the Premises, and Tenant shall, within ten (10) days after written request,
execute and deliver to Landlord such certificate or certificates in writing as
Landlord may request, showing the subordination of the Lease to such Security
Deeds. In addition, Tenant shall, within ten (10) days after written request, at
any time and from time to time execute, acknowledge and deliver to Landlord a
written statement addressed to Landlord, any mortgagee or assignee of Landlord's
interest in, or purchaser of, the Building or any portion thereof, certifying as
follows: (i) that this Lease is unmodified and in full force and effect (or if
there has been modification thereof, that the same is in full force and effect
as modified and stating the nature thereof); (ii) that to the best of its
knowledge there are no uncured defaults on the part of Landlord (or if any such
default exists, the specific nature and extent thereof); (iii) that there are no
defenses or offsets against the enforcement of the Lease (or stating those
claimed by Tenant); (iv) the date to which any rents and other charges have been
paid in advance, if any; and (v) such other matters as Landlord or such
mortgagee, assignee or purchaser may reasonably request. Any such certificate or
statement shall, at Landlord's request, be in recordable form and be recorded in
the public records, and may be relied upon by Landlord, any mortgagee, proposed
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mortgagee, assignee, purchaser and any other party to whom such certificate or
statement is addressed. Tenant's failure to execute such certificate or
statement within thirty (30) days after written request shall constitute an
immediate default by Tenant hereunder, without the requirement of any further
notice, grace period or cure period.
33. ATTORNEYS' FEES.
In any law suit or court action between Landlord and Tenant arising out
of or under this Lease, the prevailing party in such law suit or court action
shall be entitled to and shall collect from the non-prevailing party the
reasonable attorneys' fees and court costs actually incurred by the prevailing
party with respect to said lawsuit or court action. As used herein, the
prevailing party is the party who has substantially prevailed with respect to
the amount in controversy or substantially prevailed with respect to the most
significant issue or set of issues presented.
34. LIMITATION OF LIABILITY.
Landlord's obligations and liability to Tenant with respect to this
Lease shall be limited solely to Landlord's interest in the Building. Neither
Landlord nor any joint venturers of Landlord, nor any officer, director,
partner, shareholder or agent of Landlord or any joint venturers of Landlord,
shall have any personal liability whatsoever with respect to this Lease.
35. RULES AND REGULATIONS.
The rules and regulations (the "Rules and Regulations") attached as
Exhibit "B" shall be and are hereby made a part of this Lease. Tenant, its
employees and agents, will perform and abide by said Rules and Regulations, and
any reasonable amendments or additions to said Rules and Regulations made from
time to time by Landlord.
36. PARKING.
(a) Landlord shall make available for the Building at a location
within the Project unassigned parking, on a non-exclusive basis, at a ratio of 4
spaces per 1,000 rentable square feet of the Premises. Such parking is currently
provided without additional, out-of-pocket charge due from Tenant. Landlord,
however, reserves the right to charge for parking, on at least thirty (30) days
prior notice to Tenant, if the prevailing practice of other offices in
Huntsville, Alabama is to charge for parking.
(b) The number of parking spaces in the Building actually used by
Tenant and its employees and guests may never at any time exceed the ratio of 4
parking spaces per 1,000 rentable square feet of the Premises. Landlord shall
have the right to undertake any measures or promulgate and enforce any rules and
regulations which Landlord deems necessary or appropriate to enforce this
provision, including, by way of illustration but not limitation, restricting
access to such parking spaces, or imposing parking fines against or towing the
automobiles of violating parties.
37. HAZARDOUS MATERIALS.
Tenant represents and warrants to Landlord that neither the Premises,
nor any portion thereof, will be used for the handling or storage of any
"Hazardous Materials" as such are generally defined with respect to current or
future environmental regulations and/or laws, and that Tenant will not cause or
permit to be brought upon, kept or used in or about the Premises, Building or
Park any Hazardous Materials, other than commonly and legally used or stored
general office supplies and office cleaning supplies, but only so long as the
quantities thereof do not pose a threat to public health or to the environment
or would necessitate a "response action" as that term is defined in CERCLA, and
so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances. Without limiting any
other rights that Landlord may have at law or in equity, Tenant hereby
indemnifies Landlord and agrees to hold Landlord harmless from and against all
liens, demands, suits, actions, proceedings, disbursements, liabilities, losses,
litigation, damages, judgments, obligations, penalties, injuries, costs,
expenses (including, without limitation, attorneys' and experts' fees) and
claims of any and every kind whatsoever paid, incurred, suffered by, or asserted
against Landlord and/or the Premises, Building and/or Building site for, with
respect to, or as a direct or indirect result of the failure by Tenant to comply
with this Paragraph.
Landlord represents to Tenant, to the best of Landlord's knowledge,
that no Hazardous Materials are located on, within or upon the Project,
Building, Premises or common areas as of the Commencement Date.
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38. FINANCIAL STATEMENTS.
Upon Landlord's written request therefor, but not more often than once
per year, Tenant shall promptly furnish to Landlord a financial statement with
respect to Tenant for its most recent fiscal year prepared in accordance with
generally accepted accounting principles and certified to be true and correct by
Tenant, which statement Landlord agrees to keep confidential and not use except
in connection with proposed sale or loan transactions.
39. JOINT AND SEVERAL LIABILITY.
If Tenant comprises more than one person, corporation, partnership or
other entity, the liability hereunder of all such persons, corporations,
partnerships or other entities shall be joint and several.
40. QUIET ENJOYMENT.
So long as Tenant is in full compliance with the terms and conditions
of this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment
and possession of the Premises during the Term against any and all claims made
by, through or under Landlord, subject to the terms of this Lease.
41. SUBMISSION OF LEASE.
The submission of this Lease does not constitute an offer to lease and
this Lease shall be effective only upon the due execution and delivery hereof by
Landlord and Tenant.
42. WiFi INSTALLATION.
(a) Tenant shall have the right to install a wireless (also known as
"WiFi") intranet, internet and communications network (the "Network") within the
Premises for the use of Tenant and its employees and clients subject to this
Clause and all the other clauses of this Lease as are applicable.
(b) Tenant shall not solicit, suffer, or permit other tenants or
occupants of the Building to use the Network or any other communications
service, including, without limitation, any wired or wireless internet service
that passes through, is transmitted through, or emanates from the Premises.
(c) Tenant agrees that Tenant's and Tenant's service providers and
contractors' communications equipment located in or about the Premises or
installed in the Building to service the Premises, including, without
limitation, any antennas, switches, or other equipment (collectively, "Tenant's
Communications Equipment") shall be of a type and, if applicable, a frequency
that will not cause radio frequency, electro-magnetic, or other interference to
any other party or any equipment of any other party, including, without
limitation, Landlord, other tenants or occupants of the Buildling, or any other
party. In the event that Tenant's Communications Equipment causes or is
believed, by Landlord, to cause any such interference, upon receipt of notice
from Landlord of such interference, Tenant will take all steps necessary to
correct and eliminate the interference. If the interference is not eliminated
within 24 hours (or a shorter period if Landlord believes a shorter period to be
appropriate), then, upon request from Landlord, Tenant shall shut down the
Tenant's Communications Equipment pending resolution of the interference, with
the exception of intermittent testing upon prior notice to and with the approval
of Landlord.
(d) Tenant acknowledges that Landlord has granted and/or may in the
future grant lease rights, licenses, and other rights regarding WiFi to various
other tenants and occupants of the Building and to telecommunications service
providers.
43. SPECIAL STIPULATIONS.
If the special stipulations, if any, set forth in the special
stipulations attachment to this Lease conflict with any of the foregoing
provisions, the special stipulations shall control. Such special stipulations
are expressly incorporated herein by this reference. Exhibits referenced in this
Lease are a part of the Lease.
(a) For the duration of the Term herein, Tenant shall have the first
right to lease the adjacent office area, Suite 220 (the "Refusal Space"),
consisting of approximately 13,143 rentable square feet, as shown on the
attached Exhibit "A" for the balance of the Term herein. During the Term herein,
Landlord shall, prior to entering into a lease agreement for said Refusal Space
with any third party, provide written notice of such to Tenant whereby Tenant
shall have not more than five (5) business days to respond to Landlord of its
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intent to exercise the right set forth herein. In the event Tenant elects to
lease such Refusal Space, Tenant shall be required to execute the appropriate
documentation effectuating such letting no later than ten (10) days after
receipt of such documentation and the rental due and payable for such Refusal
Space shall commence on the earlier to occur of, (a) the date in which Landlord
delivers the Refusal Space unto Tenant ready for occupancy, or (b) the
eighty-sixth (86th) day following delivery of the aforesaid documentation. The
terms and conditions of such letting shall be identical to that which is
contained herein excepting the (i) Base Rental, which shall be increased based
upon the then current annual square foot rate contained in this Lease, and (ii)
the Allowance and Design Allowance (as defined in Exhibit "D" hereinafter),
which shall be prorated based upon the remaining months in the Term.
(b) Landlord and Tenant acknowledge that Tenant is contractually
obligated under the terms and conditions of a lease agreement made with Landlord
at the property located at 0000 Xxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx (the
"Current Lease"). Provided that Landlord and Tenant agree to the terms herein,
Landlord shall terminate and cancel said Current Lease in lieu of a lease
agreement in accordance herewith. Nothing herein shall be construed as a
termination or cancellation of such Current Lease until the day in which the
Premises is ready for occupancy and Tenant vacates the offices which are subject
to such Current Lease. Notwithstanding, provided Tenant is not in default of any
terms and conditions of such Current Lease and upon full execution of this
Lease, Landlord and Tenant agree to executed documentation effectuating the
termination and cancellation of such Current Lease.
(c) Landlord represents to the best of its knowledge that as of the
Commencement Date; (i) the Building, Premises and common areas comply with all
applicable federal, state and local laws, ordinances and regulation, including,
without limitation, all building and fire codes, and the Americans with
Disabilities act; (ii) no Indoor Air Quality problems exist in the Premises or
with any of the Building systems; (iii) there are no Hazardous Substances
located on or with the Building, Premises or common areas; and, (iv) Landlord
has no knowledge of mold issues in the Building, Premises or common areas.
(d) Provided Tenant is not in default of any terms and/or conditions
of this Lease, or any subsequent amendments and only after the last day of the
forty-second (42nd) month of the Term, in the event Tenant notifies Landlord, in
writing, of Tenant's need for additional office area in excess of twenty-five
percent (25%) of the size of the Premises and, within ninety (90) days of
Landlord's receipt of such notice, Landlord is unable to identify office area to
accommodate said need (i.e. contiguous office area containing adequate square
footage to accommodate the Premises plus the additional office area) either in
the Building, Project or any other buildings owned by Landlord in or in close
proximity of the Xxxxxxxx Research Park area, then, upon ninety (90) days
written notice, Tenant shall have the right to terminate and cancel this Lease.
Should Tenant elect to terminate and cancel this Lease, as provided herein,
Tenant, as a condition precedent to such termination, shall, simultaneously with
delivery of its notice to terminate, tender unto Landlord a sum equal to the
unamortized portion of all leasehold improvement cost and brokerage fees
incurred by Landlord in connection with this Lease. Such amortization shall be
based on a term of sixty-six (66) months at an annual percentage rate of
ten-percent (10%). Notwithstanding, Tenant's failure to strictly comply with the
provisions herein shall constitute forfeiture of such right. Provided that
Landlord is able to accommodate Tenant's need at a location other than the
Building or Project, Tenant agrees to extend the Term of this Lease by at least
thirty-six (36) additional months.
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IN WITNESS WHEREOF, the parties hereto have herein set their hands and
seals, the day and year set forth below, effective as of the date first above
written.
TENANT:
DIGITAL FUSION, Inc.
_____________________________________ By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
Witness
Name: Xxxxxxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Date Executed: 02/07/06
LANDLORD:
COLONIAL REALTY LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Colonial Properties Trust
By: It's General Partner
____________________________________ By:/s/ Xxxxxx X. Xxxxxxx
Witness Xxxxxx X. Xxxxxxx
Its: Executive Vice President
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EXHIBIT "A"
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EXHIBIT "B"
RULES AND REGULATIONS
1. Sidewalks and public portions of the Building, such as
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls, shall not be obstructed or encumbered by Tenant or used for any purpose
other than ingress and egress to and from the Premises.
2. No curtains, blinds, shades, louvered openings or screens shall
be attached to or hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord. The sashes, sash doors,
skylights, windows, heating, ventilating and air conditioning vents and doors
that reflect or admit light and air into the halls, passageways or other public
places in the Building shall not be covered or obstructed by Tenant, nor shall
any bottles, parcels or other articles be placed on the window xxxxx.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside of
the Premises or Building or on corridor walls. Signs on entrance door or doors
shall conform to Building standard signs. Signs on doors shall, at Tenant's
expense, be inscribed, painted or affixed by sign makers approved by Landlord.
Landlord may, if Tenant violates this provision, remove same without any
liability, and any expense incurred in such removal shall be payable by Tenant.
4. Water closets and other plumbing fixtures shall be used in a
proper and safe manner. No sweepings, rubbish, rags or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures by,
through or under Tenant shall be borne by Tenant.
5. Tenant shall not deface the Premises or Building. If Tenant
shall lay linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is used, an interlining of builders deadening felt shall
be first affixed to the floor by a paste or other material, soluble in water.
The use of cement or other similar adhesive material for such purpose is
prohibited.
6. No bicycles, vehicles or animals (except seeing eye dogs) shall
be brought into or kept in or about the Premises. No cooking shall be done or
permitted by Tenant on the Premises except in conformity with law and then only
in the utility kitchen, if any, as set forth in Tenant's layout, which is to be
used by Tenant's employees and guests for heating beverages and light snacks.
Tenant shall not cause or permit any unusual or objectionable odors to be
produced upon or permeate from the Premises.
7. No portion of the Premises or Building shall be used for
manufacturing or distribution, or for the sale of merchandise, goods or
property.
8. Tenant shall not make, or permit to be made, any disturbing noises
or disturb or interfere with occupants of the Building or neighboring buildings
or premises or those having business with them.
9. Neither Tenant, nor any of Tenant's agents, employees,
contractors, licensees or invitees, shall at any time put up or operate fans or
electrical heaters or bring or keep upon the Premises inflammable, combustible
or explosive fluid, or chemical substance, other than reasonable amounts of
cleaning fluids or solvents required in the normal operation of Tenant's
business offices. No offensive gases or liquids will be permitted.
10. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the prior written approval of Landlord
and unless and until a duplicate key is delivered to Landlord. Tenant shall,
upon termination of its tenancy, restore to Landlord all keys of stores, offices
and toilet rooms, either furnished to, or otherwise procured by, Tenant. Tenant
shall pay to Landlord the cost of any replacement keys.
11. All moves in or out of the Premises, or the carrying in or out
of any safes, freight, furniture or bulky matter of any description, must take
place during the hours which Landlord determines for such activity from time to
time. Only the Building freight elevator shall be used for such purposes. Tenant
will ensure that movers take necessary measures required by Landlord to protect
the Building (e.g., windows, carpets, walls, doors and elevator cabs) from
damage. Landlord reserves the right to inspect all freight to be brought into
the Building and to exclude from the Building all freight which violates these
Rules or the Lease.
12. Tenant shall not place any furniture, accessories or other
materials on any balconies located within or adjacent to the Premises without
having obtained Landlord's express written approval thereof in each instance.
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13. Landlord shall have the right to prohibit advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices. Upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
14. Landlord reserves the right to exclude from the Building at all
times other than business hours all persons who do not present a pass to the
Building signed by Tenant. Tenant shall be responsible for all persons to whom
it issues such a pass and shall be liable to Landlord for all acts of such
persons.
15. The Premises shall not be used for lodging or sleeping.
16. Landlord shall respond to Tenant service requests only after
application at the management office for the Building.
17. Canvassing, soliciting and peddling in the Building are
prohibited, and Tenant shall cooperate to prevent the same.
18. There shall not be used in any space, or in the public halls of
the Building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. No hand trucks, mail carts or mail bags shall be used in
passenger elevators.
19. All paneling or other wood products not considered furniture
shall be of fire retardant materials. Before installation of such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Landlord, in a manner satisfactory to Landlord.
20. Tenant shall not employ any persons other than the janitors
retained by Landlord (who will be provided with pass-keys into the offices) for
the purpose of cleaning the Premises. Landlord shall not be responsible to
Tenant for any loss of property from the Premises, or for any damage done to
furniture or other effects of Tenant by the janitor or any of its employees. The
cost of janitorial service shall be competitively priced.
21. No painting shall be done, nor shall any alterations be made, to
any part of the Building by putting up or changing any partitions, doors or
windows, nor shall there be any nailing, boring or screwing into the woodwork or
walls, nor shall any connection be made to the electric wires or electric
fixtures, without the consent in writing on each occasion of Landlord which
consent shall not be unreasonably withheld, delayed or conditioned. No sunscreen
or other films shall be applied to the interior surface of any window glass. All
glass, locks and trimmings in or upon the doors and windows of the Building
shall be kept whole, and when any part thereof shall be broken, the same shall
be immediately replaced or repaired and put in order at Tenant's expense under
the direction and to the satisfaction of Landlord, and shall be left whole and
in good repair.
22. Landlord will post on the Building directories one name only for
Tenant at no charge. All additional names which Tenant shall desire put upon
said directories must be first consented to by Landlord, and if so approved, a
charge to Tenant will be made for each additional listing as prescribed by
Landlord to be paid to Landlord by Tenant.
23. Landlord reserves all vending rights, and in no event shall any
vending machines be visible from the exterior of the Premises. Request for such
service will be made to Landlord.
24. Parking facilities for the Building, if any, shall be used by
vehicles that may occupy a standard parking area only. The use of such parking
facilities shall be limited to normal business parking and shall not be used for
overnight parking.
25. Each Tenant expressly understands and agrees that Landlord
expressly reserves the right to grant or deny access (to the Building or any
portion thereof, including without limitation, any Tenant's leased Premises) to
any telecommunications service provider whatsoever, and that no Tenant shall
have the right to demand or require Landlord to grant such access to any such
telecommunications service provider. Tenant acknowledges and agrees that, in the
event any such telecommunications service provider desires access to the
Building to serve any or all Tenants thereof, such access shall be prescribed
and governed by the terms and provisions of Landlord's standard
Telecommunications License Agreement, which must be executed and delivered to
Landlord by such telecommunications service provider before it is allowed any
access to the Building.
26. Smoking shall only be permitted in such areas as Landlord may
from time to time designate. Landlord shall have the right, but not the
obligation, to designate an area or areas inside or outside buildings in the
Park as "Designated Smoking Areas." Landlord shall have the right to change and
or limit such Designated Smoking Areas and to enact future rules and regulations
concerning smoking in such Designated Smoking Areas, including the right in
23
Landlord's discretion, to prohibit smoking in the Designated Smoking Areas or
the right to refuse to designate Designated Smoking Areas. Tenant agrees to
comply in all respects with Landlord's prohibition and regulation of smoking and
to enforce compliance against its employees, agents, invitees and other persons
under the control and supervision of Tenant on Premises or the Park. Any
violation of this provision shall be a default under this Lease and in addition
and without limiting Landlord's rights and remedies in consequence of such
default, entitle Landlord to assess a monetary fine against Tenant for each
violation of this Rule in the amount of $25.00 for the first violation, $50.00
for the second violation, and $100.00 for each subsequent violation. For
purposes hereof, "smoking" means inhaling, exhaling, burning or carrying any
lighted cigar, cigarette, pipe or other smoking equipment or device in any
manner or form.
27. Landlord reserves the right to modify or delete any of the
foregoing Rules and to make such other and reasonable rules and regulations as
in its judgment may from time to time be needed for the safety, care and
cleanliness of the Premises and Project, and for the preservation of good order
therein. Landlord shall not be responsible to any tenant for the non-observance,
or violation, of any of these Rules by other tenants.
28. These Rules and Regulations shall be uniformly applied to all
tenants of the Building and Project.
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EXHIBIT "C"
OPERATING EXPENSES
"Operating Expenses" shall mean the operating costs and expenses
attributable to Landlord's Property, as hereinafter defined, and delineated as
follows:
1. Costs and expenses paid or incurred by Landlord for the
maintenance and repair of the Building, its grounds, and parking areas and
facilities (hereinafter called "Landlord's Property") and the personal property
used in connection therewith, including but not limited to (i) the heating,
ventilating and air-conditioning equipment, (ii) plumbing, electrical and
mechanical systems and equipment, (iii) light bulbs and broken glass, including
replacement thereof, and (iv) elevators and escalators;
2. Cleaning and janitorial costs and expenses, including window
cleaning expenses;
3. Landscaping and grounds maintenance costs and expenses;
4. Utility costs and expenses including, but not limited to, those
for electricity, gas, steam, other fuels and forms of power or energy, water
charges, sewer and waste disposal, heating and air conditioning;
5. Costs and expenses of redecorating, painting and carpeting the
common areas;
6. Costs of all repairs, alterations, additions, changes,
replacements and other items required by any law or governmental regulation, or
by any insurance carrier, imposed or arising out of an interpretation made or
issued after the date of this Lease, regardless of whether such costs, when
incurred, are classified as capital expenditures;
7. Costs of wages and salaries of all persons engaged in the
operation, maintenance, repair and security of Landlord's Property, and
so-called fringe benefits, including social security taxes, unemployment
insurance taxes, costs for providing coverage for disability benefits, costs of
any pensions, hospitalization, welfare or retirement plans, or any other similar
or like expense, costs of uniforms, and all other costs or expenses that
Landlord pays to or on behalf of employees engaged in the operation,
maintenance, repair and security of Landlord's Property;
8. Charges of any independent contractor who, under contract with
Landlord or its manager or representatives, does any of the work of operating,
maintaining or repairing Landlord's Property;
9. Legal and accounting expenses, including, but not limited to,
such expenses as relate to seeking or obtaining reductions in and/or refunds of
real estate taxes;
10. Amortization, with interest, of capital expenditures for capital
improvements made by Landlord after completion of the Building where such
capital improvements are for the purpose of, or result in, reducing Operating
Expenses, promoting safety, or complying with governmental requirements;
11. Landlord's insurance costs and expenses for all types of
insurance carried by Landlord;
12. Security service costs and expenses;
13. Management fees and expenses;
14. Expenses incurred in the purchase or acquisition of material and
supplies in connection with all of the foregoing expenses:
15. Taxes, which shall mean (i) personal property taxes
(attributable to the year in which paid) imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and appurtenances used in connection
with Landlord's Property for the operation thereof, and (ii) real estate taxes,
assessments, community improvement district taxes and fees, sewer rents, rates
and charges, transit taxes, taxes based upon the receipt of rent and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes or any other taxes
imposed upon or measured by Landlord's income or profits, unless the same shall
be imposed in lieu of real estate taxes) which may now or hereafter be levied or
assessed against Landlord's Property, any other improvements hereinafter
constructed on Landlord's Property, or the rents derived from Landlord's
Property and such other improvements (in case of special taxes or assessments
which may be payable in installments, only the amount of each installment paid
during a calendar year shall be included in Operating Expenses for that year);
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16. The Building's pro rata share of expenses incurred for the
operation and maintenance of, and taxes and assessments assessed against, the
common areas of Landlord's Property and the Park, or any portion thereof;
17. Such other expenses paid by Landlord, from time to time, in
connection with the operation and maintenance of Landlord's Property as would be
expected to be paid by a reasonable and prudent operator and manager of a
building and site comparable to Landlord's Property;
18. The cost of conducting air quality audits, and any costs
incurred arising out of or in connection with any recommendations made in any
such audits;
19. The reasonable cost of operating the management office for the
Building (and if such management office also serves any other building, such
costs shall be allocated among such buildings on a per square foot basis),
including the cost of office supplies, bulletins or newsletters distributed to
tenants, postage, telephone expenses, maintenance and repair of office
equipment, non-capital investment equipment, amortization (and reasonable
financing charges) of the cost of capital investment equipment, and rent; and
20. The cost of any bus shuttle or other transportation system or
equipment operated for the benefit of users of the Park.
All costs of special services rendered to particular tenants of the
Building, which are paid by such tenants, shall not be included in the Operating
Expenses. Payments by Landlord of interest and principal on any mortgage or
similar instrument secured by Landlord's Property shall not be included in
Operating Expenses. Except as specified in items 5, 6 and 10 hereof, the cost of
structural changes to the Building which should be capitalized in accordance
with sound accounting principles shall not be allocated or charged to the
Premises without Tenant's approval.
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EXHIBIT "D"
WORK AGREEMENT
l. Tenant's Plans: Not later than the 30th day of January, 2006 Tenant
shall furnish to Landlord plans, drawings and specifications ("Tenant's Plans",
collectively) for leasehold improvement work (the "Work") which Tenant desires
to be made to the Demised Premises in sufficient detail to enable Landlord's
architects and engineers to prepare the "Working Drawings" (hereinafter defined)
together with such additional information as is reasonably necessary to enable
Landlord to prepare the Working Drawings, including a final telephone layout and
special electrical connection requirements, if any. The Work and Tenant's Plans
shall be subject to Landlord's approval, which will not be unreasonably
withheld. Approval by Landlord of the Work and Tenant's plans shall not
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Premises.
2. Working Drawings: Landlord shall prepare final working drawings and
specifications for the Work based upon and consistent with Tenant's Plans
referred to above.
3. Performance of the Work: Except as otherwise provided herein,
Landlord shall perform the Work shown on the Working Drawings which is necessary
to install the items described on Exhibit "A" attached hereto.
Furthermore, all work performed by Landlord shall be performed in a
good and workmanlike manner and subject to and in accordance with all county and
city building and/or fire department codes and ordinances. Any required
alterations performed to meet said code and ordinances shall be performed by
Landlord and shall be included as building standard.
4. Payment: Prior to commencing the performance of the Work, Landlord
will submit to Tenant a written statement of the cost of that portion of the
Work to be paid for by Tenant, if any. Within three (3) days after submission of
such statement of cost, Tenant shall execute and deliver to Landlord, in the
form then in use by Landlord, an authorization to proceed with that portion of
the Work to be paid for by Tenant. Tenant shall pay to Landlord the amount set
forth in Landlord's statement within ten (l0) days of Tenant's receipt of
invoice. No work shall be commenced until Tenant has fully complied with the
requirements of this Paragraph. The cost incurred by Landlord in performing the
Work shall be competitively priced.
5. Substantial Completion: Landlord shall cause the Work to be
"substantially completed" on or before the commencement date stated in Paragraph
2 of the lease, subject to delays attributable to any cause described in the
Lease and delays attributable to Tenant. The Work shall be considered
"substantially completed" for all purposes under this Work Agreement and the
Lease if and when Landlord issues a written certificate to Tenant, certifying
that the Work has been completed (except for minor finish-out and "punchlist"
items) in substantial compliance with the Working Drawings. If the Work is not
substantially completed on the date stated in Paragraph 2 of the lease by reason
of any delay (other than a delay specified in Paragraph 6 below), this Lease
shall remain in effect, Landlord shall have no liability to Tenant as a result
of any delay in occupancy, the date stated in Paragraph 2 of the Lease shall be
extended (subject to Paragraph 6 below) to the date on which the Work is
substantially completed and the Expiration Date shall be extended by a like
number of days, except as otherwise provided in Section 4 of the Lease.
6. Tenant Delays: There shall be no extension of the date in Paragraph
2 of the Lease (as permissibly extended under Paragraph 5 above) if the Work has
not been substantially completed on said date by reason of any delay
attributable to Tenant, including without limitation:
(i) the failure of Tenant to furnish Tenant's Plans or the other
information required under Paragraph l above on or before the date stated in
Paragraph l;
(ii) the failure of Tenant to comply with the requirements of Paragraph
4 above;
(iii) Tenant's requirements for special work or materials, finishes, or
installations other than the Building Standards;
(iv) changes requested by Tenant in the Working Drawings either during
the preparation or subsequent to the completion of same;
(v) the performance of any other work in the Premises by any person,
firm, or corporation employed by or on behalf of Tenant, or any failure to
complete or delay in completion of such work; or
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(vi) any other act or omission of Tenant.
7. Tenant's Access: Landlord grants to Tenant and Tenant's agents a
license to enter the Premises prior to the date that the Work is substantially
completed so that Tenant may perform other work required by Tenant to make the
Premises ready for Tenant's initial use and occupancy. It shall be a condition
precedent to the right to exercise such license that Tenant give to Landlord not
less than five (5) days' prior written notice of its intention to enter the
Premises and that such access will not interfere with the performance of the
Work. Such early access shall be subject to scheduling by Landlord. Tenant's
agent's, contractors, workmen, mechanics, and suppliers shall work in harmony
and not interfere with Landlord and Landlord's agents in the performance of the
Work in the Premises, Landlord's work in other premises and in the Common Areas,
or the general operation of the Building or the Property. If at any time such
entry shall cause or threaten to cause disharmony or interference, including
labor disharmony, Landlord may withdraw such license upon notice to Tenant. Any
such entry into the Demised Premises by Tenant shall be deemed to be under all
of the terms, covenants, conditions, and provisions of the Lease, excluding only
the covenant to pay Rent and specifically including the provisions of Articles
l5 and 22 of the Lease. Landlord shall not be liable for any injury, loss, or
damage which may occur to any of Tenant's work or installations made in the
Demised Premises or to property placed therein prior to the Commencement Date
and Tenant shall bear the risk of all such injury, loss or damage. Tenant shall
pay for any damage to the Demised Premises or Building, or to any portion of the
Work caused by Tenant or any of Tenant's employees, agents, contractors,
workmen, or suppliers. In the event the performance of any work by Tenant, its
agents, employees, or contractors results in Landlord incurring costs (including
without limitation costs for the use or movement of labor or material) in excess
of the customary costs incurred by Landlord therefor under normal operation and
Tenant "move-in" procedures established for the Property by Landlord, Tenant
shall reimburse Landlord for such excess costs.
8. Tenant Finish Allowance: Tenant shall pay any cost created by
changes made by Tenant after Tenant's Plans have been approved by both Landlord
and Tenant. After completion of the improvements (construction of which Landlord
will monitor and control) Tenant shall pay within ten (l0) days of Tenant's
receipt of invoice for any cost overages resulting from changes made by Tenant
in approved Tenant's Plans. Landlord will provide a Tenant Improvement Allowance
of $356,818.00 (the "Allowance") toward the completion of the Work shown in
Tenant's Plans. All labor and materials under this Exhibit "D:" shall be priced
competitively.
9. Space Design: Landlord shall also provide an amount not to exceed
$25,487.00 (the "Design Allowance") for space evaluation, design, planning and
construction documents created by Tenant's architectural contractor. Such Design
Allowance shall be paid unto Tenant, or Tenant's architectural contractor, upon
delivery of the Premises and presentation of invoice.
10. Tenant Standards:
Suite Entry Doors: Suite entry doors will be solid core wood doors with
wood veneer and lever hardware.
Interior Doors: Interior doors will be 3'0" x 7'0" solid core wood doors
with wood veneer and knob hardware.
Floor Covering: Tenant will choose carpet from building standard
collection.
Ceilings: Ceilings will be 8'0" high in Tenant space and in
corridors. Building standard ceiling tiles will be used.
Partitions: Partitions will be constructed of metal studs with
gypsum wall board on both sides and rubber base trim.
Wall Finishes: Walls will be painted with two coats of latex paint
selected from the building standard collection.
Light Fixtures: Light fixtures will be 2'0" x 4'0" three tube
fluorescent fixtures with parabolic lens.
Electrical: Electrical accommodations for tenant spaces will allow
the installation of ll0 VAC duplex outlets and telephone
outlets. Telephone equipment and back board located in
Tenant space.
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Heating/Air
Conditioning: Tenant will be responsible for installation of flex duct
and diffusers according to Tenant layout and all costs
associated with changes to the existing building
heating, air conditioning, and ventilation conditions
due to Tenant's requirements which exceed or differ from
the building standards.
Sprinkler: Tenant will be responsible for changes to the Building
Standard Layout (moving and adding heads based on Tenant
Floor Plan).
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EXHIBIT "E"
PARKING RULES AND REGULATIONS
The following rules, regulations and rights (these "Rules," collectively) apply
to the use of all portions of the Property designated from time to time by
Landlord as parking areas (the "Parking Areas"):
l. Tenant and its employees, agents, contractors, and invitees may
park their motor vehicles in those portions of the Parking Areas designated by
Landlord from time to time as unreserved tenant parking areas (the "Unreserved
Parking Areas").
2. Only Tenant and its employees, agents, invitees, and visitors of
Tenant who are physically handicapped may park their motor vehicles in those
portions of the Parking Areas designated by Landlord from time to time as
handicapped parking areas (the "Handicapped Parking Areas").
3. Parking in the Unreserved Parking Areas, the Visitor Parking
Areas, and the Handicapped Parking Areas shall be on a non-exclusive,
"as-available" basis.
4. No representation or warranty is made by Landlord as to the
number or location of parking spaces comprising the Parking Areas, or any
portion thereof, except as otherwise provided in the Lease.
5. Motor vehicles shall only be parked in striped parking spaces
located within the Parking Areas and no motor vehicles shall be parked in any
other location within the Property.
6. Not more than one motor vehicle may be parked on each parking
space and no motor vehicle may be parked on more than one parking space.
7. Parking Areas shall not be used for any purpose other than the
parking of permitted motor vehicles thereon. No commercial activity shall be
conducted from the Parking Areas.
8. No repairs (other than emergency repairs) or washing of motor
vehicles shall be permitted in the Parking Areas.
9. Tenant, its employees, agents, guests, visitors, and invitees
assume full responsibility and Landlord shall have no liability (except for the
negligence, intentional acts or omissions of Landlord) for (a) all loss, damage,
injury, or death caused to the person or property of third parties by reason of
their use of the Parking Areas; and (b) protecting their motor vehicles against
theft, vandalism, and damage and for protecting their person against injury and
assault by reason of their use of the Parking Areas.
l0. Tenant shall indemnify Landlord against all loss, damage, cost,
and expense (including attorney's fees) sustained by Landlord by reason of the
use of the Parking Areas by Tenant, its employees, agents, guests, visitors, and
invitees, or by violation of the Rules by any of said persons, other than damage
caused by the negligence, intentional acts or omissions of Landlord, or its
Agent.
ll. Tenant expressly agrees that Landlord shall have the right to
tow motor vehicles of Tenant and its employees, agents, guests, and visitors
which are parked in violation of these Rules.
12. A violation of these Rules shall entitle Landlord to revoke the
parking privileges of the offending party, in addition to other rights and
remedies available to Landlord, provided Landlord has delivered unto Tenant
notice of such violation and Tenant fails, within a reasonable time, to cure any
such violation.
Landlord reserves the right from time to time without notice to Tenant
to (a) change the location or configuration of the Parking Areas, or any portion
thereof; (b) change the number of parking spaces located within the Parking
Areas, or any portion thereof; (c) install systems to control and monitor
parking in the Parking Areas, or any portions thereof, including without
limitation, a parking gate and identification card system; (d) utilize parking
guards or attendants to supervise and control parking within the Parking Areas
and to enforce these Rules; (e) have full access to the Parking Areas (including
the right to close or alter the means of access to the Parking Areas, or
portions thereof) to make repairs and alterations thereto, to prevent a taking
by adverse possession or prescription or to comply with applicable legal and
governmental requirements; (f) modify these Rules by posting notices thereof in
the Common Areas or by other means deemed appropriate by Landlord; (g) tow motor
vehicles parked in violation of these Rules; and (h) enforce these Rules by
appropriate legal action, provided, however, that Tenant shall at all times
during the Term herein, be provided parking in accordance with the Lease.
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