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EXHIBIT 10.24
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT made as of the 2nd day of August, 1999
by and between X. X. Xxxxx & Co.-Xxxx., a Connecticut corporation (having an
office at 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Landlord"), and Xxxxxx Technologies, Inc., a Florida corporation, having an
office at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord is the tenant under a Lease Agreement dated
as of June 1, 1998 between ADT Title Holding Company 1, a Delaware corporation,
as prime landlord (the "Prime Landlord"), and X. X. Xxxxx & Co.-Xxxx., as prime
tenant (said lease, as amended, modified, assigned and/or transferred to date
being hereinafter referred to as the "Prime Lease"), a correct and complete copy
of which is attached hereto and incorporated herein as Exhibit "A"; and
WHEREAS, the Prime Lease demises the parcel of land legally
described on Schedule "A" to the Prime Lease (the "Land"), which has a street
address of 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, and all
improvements erected upon the Land, including a three (3) story office building
(the "Building") and parking areas (the "Parking Areas") (the Building, Parking
Areas and other improvements are collectively referred to hereinafter as the
"Improvements" and the Land and Improvements are hereinafter collectively
referred to as the "Demised Premises"); and
WHEREAS, Landlord and Tenant have agreed to enter into this
Sublease Agreement (this "Sublease") upon the terms and conditions set forth
herein;
NOW, THEREFORE, Landlord hereby sublets to Tenant, and Tenant
hereby hires and takes from Landlord, the Demised Premises, together with all
easements and appurtenances thereto, to be used and occupied by Tenant solely
for general office purposes and related uses incident thereto as shall be
reasonably required by Tenant in the operation of its business and as are
consistent with a first class office building in Boca Raton, Florida for a term
commencing October 1, 1999, as may be adjusted per Section 4(a) below (the
"Commencement Date") and terminating at midnight on the day preceding the last
day of the fixed term under the Prime Lease, i.e., May 30, 2008 (the "Expiration
Date"), unless extended or terminated pursuant to the provisions of this
Sublease (as the case may be, the "Term"). Tenant shall not have the benefit of
Landlord's option to renew set forth in Article 28 of the Prime Lease; however,
provided Tenant is not in default, Landlord agrees to use reasonable efforts to
assist Tenant in obtaining from Prime Landlord the right to remain in the
Demised Premises after the Expiration Date under a direct lease between Tenant
and Prime Landlord, with the obligation to exercise such efforts being
conditioned upon the release of Landlord from all liability arising after the
Expiration Date. Tenant has two options to prematurely terminate this Sublease,
as set forth in Paragraph 9 hereof.
1. Sublease Subordinate.
(a) This Sublease is expressly subject and subordinate
to the Prime Lease. Except as expressly set forth herein, all terms, covenants,
provisions and conditions of the Prime Lease are incorporated herein by this
reference with the same force and effect as if fully set forth herein and the
same shall be binding upon both parties hereto. This Paragraph shall be
self-operative and no further instrument of subordination shall be required.
(b) The following provisions of the Prime Lease, to the
extent the Prime Lease contains the same, are not incorporated by the reference
in Paragraph l(a) above: Section 17.01 regarding assignment and subletting;
initial build-out obligations of the Prime Landlord or pre-approved alterations
of the prime tenant; contingencies relating to the commencement of the Prime
Lease; provisions relating to delivery of possession by
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Prime Landlord to prime tenant; Section 4.01 regarding basic rent; procedures in
Section 22.01 for giving notice and in other Sections of the Lease, to the
extent they are in conflict with the provisions of this Sublease;
representations of the Prime Landlord; indemnification by the prime tenant;
Article 23 regarding subordination, provisions regarding holding over; waiver of
landlord's lien; Section 32.01 regarding real estate brokerage commission; all
rights of first offer; all options to renew or extend the term; all rights to
expand the Demised Premises; the right to terminate set forth in Article 38;
Article 34 regarding confidentiality; Article 39 regarding the commencement
date; and Article 40 (guaranty).
(c) As a condition to entering into this Sublease,
Landlord shall provide Tenant with a non-disturbance/consent agreement from
Prime Landlord.
2. Tenant Subrogated.
Anything contained in Paragraph 1 hereof to the contrary
notwithstanding, Landlord shall have no obligation to perform the obligations of
the Prime Landlord (or its successors or assigns) as the landlord under the
Prime Lease and, in lieu thereof, Tenant shall be subrogated to all of
Landlord's rights, as tenant under the Prime Lease, to enforce the performance
of such obligations by the Prime Landlord. In the event the Prime Landlord
refuses to recognize that Tenant is subrogated to Landlord's rights as
aforesaid, upon Tenant's request, Landlord agrees to use best efforts to enforce
its rights under the Prime Lease for Tenant's benefit including, but not limited
to, the giving of all notices, claims and demands to and on the Prime Landlord,
and Tenant agrees to reimburse Landlord for Landlord's reasonable costs incurred
in connection with the enforcement of such rights. It is understood that
Landlord shall have no obligation to commence any action at law or in equity to
obtain any relief sought by Tenant by reason of the Prime Landlord's breach of
its obligations under the Prime Lease. Landlord agrees to sign, to the extent
Landlord's signature is legally required or required under the provisions of the
Prime Lease, such demands, pleadings, and/or other papers that may be reasonably
required, and otherwise to enable Tenant to proceed in Landlord's name to
enforce the Prime Landlord's obligations under the Prime Lease, provided that
Tenant shall indemnify Landlord against, and hold Landlord harmless from, any
and all loss, cost, damage, expense or liability (including, but not limited to,
reasonable attorneys' fees and disbursements) incurred by Landlord by reason of
the prosecution by Tenant of any such proceeding or action. Tenant's obligations
herein shall survive the expiration or earlier termination of this Sublease.
Tenant hereby agrees not to make any claim against Landlord for any damage which
may arise, nor shall Tenant's obligations hereunder be impaired, by reason of
(a) the failure of the Prime Landlord to keep, observe or perform any obligation
or covenant pursuant to the prime Lease, or (b) the acts or omissions of the
Prime Landlord, its agents, employees, invitees, guests, licensees or
contractors, in either case, as long as Landlord is not contributorily
responsible for those failures, acts or omissions listed in subsections (a) or
(b) above.
3. Performance of Prime Lease Obligations.
(a) Tenant shall render the prompt performance to the
Prime Landlord, when due, of all of the terms, covenants, provisions, and
conditions of the Prime Lease that are incorporated herein by reference. Tenant
shall supply Landlord with evidence of (i) Tenant's making of each payment
required to be made by Tenant (other than rental payments and other payments
which Tenant is required to make directly to Landlord) and (ii) Tenant's
performance of all material actions required to be taken by Tenant; which
evidence and/or notice must be given in the manner hereinafter provided for the
giving of notices within five (5) business days after the event giving rise to
the need for delivery of such notice. Tenant shall not take or suffer any action
in connection with its use and enjoyment of the Demised Premises which would
constitute a default under, or be a violation of, the Prime Lease. Tenant hereby
agrees to indemnify and save Landlord harmless from any and all obligations
under the Prime Lease to be performed by the tenant thereunder, accruing from
and after the date hereof, provided Landlord is not contributorily responsible
therefor. This indemnity shall survive the expiration or sooner termination of
this Sublease. In the event of any inconsistency between the terms of the Prime
Lease incorporated herein by reference and any of the other terms, conditions or
provisions of this Sublease, other than the negotiated business terms specific
to this Sublease, the provisions of the Prime Lease shall control. Moreover, in
the event that any term and/or condition of this Sublease shall conflict or be
inconsistent with any term and/or condition of the Prime
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Lease or, if exercised hereunder, would constitute a default under or breach of
the Prime Lease, then this Sublease shall be deemed amended to comply or be
consistent with the Prime Lease.
(b) Landlord covenants that it shall not, by its act or
omission, cause a breach or default under the Prime Lease. If Landlord were to
cause such breach or default, Landlord agrees to immediately notify Tenant in
writing thereof, citing the provision of the Prime Lease for which Landlord is
in breach or default. If Landlord is not actively curing or seeking to cure said
breach or default within the applicable time period, Landlord agrees to permit
Tenant to cure said matter in Landlord's place and stead. Any and all reasonable
fees and expenses incurred by Tenant in curing or attempting to cure said breach
or default shall be paid by Landlord to Tenant within fifteen (15) days of
Landlord's receipt of an invoice reflecting same. Landlord shall indemnify
Tenant from and against any loss, cost, claim or liability, including reasonable
attorneys' fees, resulting from or related to Landlord's breach or default of
its obligations under the Prime Lease.
(c) Provided that Tenant is not in default of any of its
obligations under this Sublease beyond any applicable cure period, Landlord will
not exercise its right under Article 38 of the Prime Lease to terminate the
Prime Lease.
4. Basic Rent and Additional Charges.
(a) Except as otherwise provided herein, Tenant shall
pay Landlord, on the first day of each month during the Term, rental ("Basic
Rent") in the amount of Sixty One Thousand Thirty One Dollars and 25/100
($61,031,25) per month, representing Basic Rent due for such month in advance
(based on 46,500 s.f. at $15.75 p.s.f.). Notwithstanding the foregoing, Basic
Rent will be abated one hundred percent (100%) for the initial two months of the
Term and fifty percent (50%) for the third and fourth months of the Term.
Additionally, if Landlord fails to vacate and deliver the Demised Premises to
Tenant by October 1, 1999, the Commencement Date will be delayed for each day of
such delay in delivery, during which time of delay no Basic Rent or Additional
Charges (and related Impositions) shall be due. Landlord and Tenant each agree
to deliver the Demised Premises to the other in "broom clean" condition on the
Commencement Date (in the case of delivery to Tenant) and on the Expiration Date
or earlier Termination Date (in the case of delivery to Landlord).
(b) Tenant shall also pay, as additional rent, all
Impositions (as defined in Section 5.01 of the Prime Lease, which section has
been incorporated herein), and all sums, costs, expenses and other payments
which Tenant under any of the provisions of this Sublease or the Prime Lease
assumes and is obligated to pay (which Impositions and all sums, costs, expenses
and other payments are herein collectively called the "Additional Charges"),
and, in the event of any nonpayment of any item of Additional Charges, Landlord
shall have, in addition to all other rights and remedies, all the rights and
remedies provided herein to the extent permitted by applicable law in the case
of nonpayment of the Basic Rent. Basic Rent and Additional Charges for any
partial calendar month shall be prorated on a per-diem basis. During the term
hereof, Landlord shall forward to Tenant promptly any and all invoices or
notices relative to Additional Charges which are Tenant's responsibility
hereunder. The parties agree that Landlord's delay or failure to provide said
invoices and/or notices shall not be deemed a default of Tenant hereunder. In
addition, Landlord will cooperate with Tenant in connection with furnishing
copies of invoices, contracts, and other information on Impositions and
Additional Charges, and upon mutual consent of Landlord and Tenant assigning
contracts related to Impositions and Additional Charges to Tenant.
(c) Commencing June 1, 2001, so long as this Sublease
remains in effect, the Basic Rent set forth above shall be increased on an
annual basis; and Tenant thereafter covenants and agrees to pay to Landlord,
during each ensuing Lease Year (as defined in the Prime Lease), such new
adjusted Basic Rent in an amount which, in each Lease Year, shall be equal to
one hundred and three percent (103%) of the Basic Rent payable at the end of the
preceding Lease Year. The resulting adjusted Base Rent shall be payable in
twelve equal monthly installments, each in advance, on the first day of each
month of the applicable Lease Year.
5. Consents.
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Anything contained in this Sublease to the contrary
notwithstanding, whenever the consent or approval of Prime Landlord shall be
required under the Prime Lease, Tenant shall seek such consent or approval from
Landlord instead of contacting Prime Landlord directly, and Landlord's refusal
to grant such consent or approval shall be deemed reasonable if Landlord, as
tenant under Prime Lease, is required to obtain such consent or approval of the
Prime Landlord and Prime Landlord shall refuse or fail to grant such consent or
approval under the terms of the Prime Lease. All the periods set forth in the
Prime Lease applicable to the granting or denial of such approvals shall be
appropriately expanded in this Sublease to permit the processing of all requests
for the same through both Landlord and Prime Landlord. Landlord shall use its
best efforts to obtain Prime Landlord's consents and approvals when reasonably
requested by Tenant during the term hereof; however Landlord shall not be
obligated to incur expenses or additional liabilities in this regard.
6. Covenant of Quiet Enjoyment and Tenant's Indemnification.
(a) As long as Tenant shall not be in default hereunder
beyond any applicable Cure Period, Landlord covenants that Tenant shall
peaceably and quietly have, hold and enjoy the Demised Premises, subject to the
terms and conditions of this Sublease.
(b) Tenant shall indemnify Landlord against, and shall
hold Landlord harmless from, any and all losses, costs, damages, expenses,
charges or liabilities (including, but not limited to, reasonable attorneys'
fees and disbursements) incurred by Landlord by reason of, and shall defend
Landlord against all damages, claims, actions, proceedings and suits relating
to, (i) any work or thing done in, on or about the Demised premises or any part
thereof by Tenant or any agent, contractor, employee, servants, licensee,
invitee or visitor of Tenant; (ii) any use, nonuse, possession, occupation,
condition, operation, maintenance or management of the Demised Premises or any
part thereof; (iii) any negligence of Tenant or any agent, contractor, employee,
licensee (other than Landlord) or invitee of Tenant; (iv) any incident, injury
(including death at any time resulting therefrom) or damage to any person or
property occurring in, on or about the Demised Premises or any part thereof, (v)
any breach or default by Tenant in the observance or performance of the
covenants and agreements contained herein, or in the Prime Lease, as
incorporated herein, or (vi) not in limitation of the foregoing, any damages
relating to the presence or release of Hazardous Materials (as such term is
defined in the Prime Lease or the conduct of Environmental Activities (as such
term is defined in the Prime Lease) in, on or about the Demised Premises (other
than those found in typical office supplies in reasonable quantities, provided
that the same are handled properly) during the Term of this Sublease. In the
event that any action or proceeding shall be brought against Landlord by reason
of any matter covered by this Section, Tenant, upon prompt written notice from
Landlord, will at Tenant's sole cost and expense resist or defend the same.
Landlord will provide reasonable assistance to Tenant in connection therewith,
upon Tenant's reasonable request. To the extent of the proceeds received by
Landlord under any insurance furnished or supplied to Landlord by Tenant,
Tenant's obligation to indemnify and save harmless Landlord against the hazard
which is the subject of such insurance shall be deemed to have been satisfied.
(c) Landlord represents that it has complied with the
provisions of Section 13.05 of the Prime Lease, that Landlord has not conducted
any Environmental Activities at the Demised Premises, and has not provided Prime
Landlord with any notices required thereunder. Landlord agrees to comply with
said Section 13.05 up to the Commencement Date and shall copy Tenant on any
notifications due to Prime Landlord thereunder up to the Commencement Date.
Landlord agrees to indemnify and save harmless Tenant from and against any and
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees, resulting from Landlord's breach
of the provisions of said Section 13.05.
(d) Landlord will, to the extent not covered by the
proceeds of any insurance paid, indemnify and save harmless Tenant from and
against any and all liabilities, obligations, losses, damages, penalties,
claims, costs, charges and expenses, including reasonable attorneys' fees,
resulting from or relating to death or personal injury or damage to property,
which may be imposed upon or incurred by or asserted against Tenant (except to
the extent the same arises from any act, omission or negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees or visitors, the
breach by Tenant of its representations or the breach by Tenant of its
obligations under this Sublease) resulting, directly or indirectly, from the
negligence, willful misconduct or reckless acts of Landlord, its contractors,
licensees, agents, servants, employees, invitees or visitors,
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by reason of any of the following occurring during the term of this Sublease:
any use, nonuse, possession, occupation, condition, operation, maintenance or
management of the Demised Premises or any part thereof.
In the event that any action or proceeding shall be brought
against Tenant by reason of any matter covered by this clause (d), Landlord,
upon written notice from Tenant, will at Landlord's sole cost and expense resist
or defend same. To the extent of the proceeds received by Tenant under any
insurance furnished or supplied to Tenant by Landlord, Landlord's obligation to
indemnify and save harmless Tenant against the hazard which is the subject of
such insurance shall be deemed to be satisfied.
(e) To the extent an indemnification event were to occur
under Section 19.02 of the Prime Lease resulting in liabilities, obligations,
damages, penalties, claims, costs, charges and expenses to Tenant and Landlord
were to receive the benefits of the indemnification under said Section 19.02 of
the Prime Lease, Landlord shall allocate said benefits to Tenant. To the extent
of the proceeds received by Tenant under any insurance furnished or supplied to
Tenant by Landlord and/or Prime Landlord, Landlord's obligation to indemnify and
save harmless Tenant against the hazard which is the subject of such insurance
shall be deemed to be satisfied.
7. Condition of Demised Premises.
Prior to its execution of this Sublease, Tenant will have
completed its inspections of the Demised Premises. The Demised Premises will be
delivered to Tenant on the Commencement Date in the same condition as of the
date of this Sublease, less normal wear and tear. Accordingly, Tenant agrees to
accept the Demised Premises in "as is" condition, except that Landlord warrants
that all building systems will be in good working order and condition upon
Landlord's delivery of possession of the Demised Premises to Tenant at inception
of this Sublease. Notwithstanding the foregoing, Landlord will (i) repair or
replace the damaged lightening rods on the top of the Building and (ii) modify
the slope of the ground outside the door to the pump room to redirect the flow
of storm water drainage so that it does not flow on to the pump room floor.
Tenant may assume any of Landlord's existing building service/maintenance
agreements that are capable of being assigned and assumed, copies of which will
be provided to Tenant on or about the date hereof. Landlord hereby assigns to
Tenant all rights under Section 11.04(e) of the Prime Lease. Except as otherwise
agreed to in Section 11 (c) hereof, Landlord agrees, at its expense, prior to
delivering possession of the Demised Premises to Tenant, to remove all existing
movable furniture, partitions and its personal property from the Building and
all signage identifying the Building as the "Grace Building." Following the
Commencement Date, Tenant shall perform any alteration, fixturing, repair, or
modification ("Alteration") necessary for Tenant to use the Demised Premises.
All Alterations shall be made in accordance with the requirements of the Prime
Lease and at the sole cost and expense of Tenant, except for those alterations,
repairs or modifications which are the obligation of the Prime Landlord under
the Prime Lease, the cost and expense of which shall be the responsibility of
the Prime Landlord. Landlord shall assist Tenant to obtain Prime Landlord's
approval of Tenant's proposed Alterations when such approval is required.
8. Insurance.
Tenant agrees to name Landlord and Prime Landlord as
additional insureds under all insurance policies which Tenant is required to
carry and maintain pursuant to the provisions of the Prime Lease incorporated
herein. Tenant shall renew each of said policies not less than ten (10) days
prior to the date provided in the Prime Lease on which the tenant thereunder is
required to renew the same, and shall supply Landlord with evidence of the
coverage and payment of the premiums therefor.
9. Options to Terminate Sublease.
Subject to the terms and conditions contained herein and
provided that Tenant is not then in default under this Sublease, Tenant may
terminate this Sublease on September 11, 2006, by giving Landlord at least one
(1) year prior written notice of Tenant's intent to terminate this Sublease (the
"Termination Notice"). In the event that Tenant gives said Termination Notice,
then upon payment by Tenant of an amount equal to three (3) times the monthly
Basic Rent, as adjusted to the date of termination (9/11/06), this Sublease
shall be deemed terminated as if the Expiration Date was September 11, 2006. In
addition, subject to the terms and conditions
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contained herein and provided that Tenant is not then in default under this
Sublease, Tenant may terminate this Sublease effective at the end of the 60th
month after Tenant commences paying full Basic Rent with no abatement, by giving
Landlord at least one (1) year Termination Notice. In the event Tenant gives
said Termination Notice, then upon payment by Tenant of an amount equal to four
(4) times the monthly Basic Rent, as adjusted to the date of termination, this
Sublease shall be deemed terminated as if the Expiration Date was the end of
said 60th month. Any such termination payment shall be deemed a termination fee
and not rent. Landlord shall have the right, upon receipt of a Termination
Notice, to commence marketing and showing the Demised Premises to prospective
tenants upon reasonable prior notice thereof to Tenant and subject to Tenant's
security regulations.
10. Assignment and Subletting.
Tenant shall not assign its interest in this Sublease and/or
the leasehold created hereby ("Tenant's Interest") and/or sublet all or any
portion of the Demised Premises, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Tenant shall not pledge,
mortgage or hypothecate Tenant's Interest without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant shall be
deemed to have assigned its interest in this Sublease if:
(a) there is any sale, lease, transfer, conveyance or
other disposition in one or a series of related transactions,
of all or substantially all of the assets of the Tenant and
its subsidiaries taken as a whole, to any entity, or
(b) Tenant consolidates with, or merges with or into,
another entity, in a transaction or series of related
transactions in which the voting stock of the Tenant is
converted into or exchanged for cash, securities or other
property, other than any transaction where (A) the outstanding
voting stock of the Tenant is converted into or exchanged for
voting stock of the surviving or transferee corporation and
(B) the beneficial owners of the outstanding voting stock of
the Tenant immediately prior to such transaction own
beneficially, directly or indirectly through one or more
subsidiaries, not less than a majority of the total
outstanding voting stock of the surviving or transferee
corporation immediately after such transaction; or
(c) the consummation of any transaction or series of any
related transactions (including, without limitation, by way of
merger or consolidation) the result of which is that any
entity becomes the beneficial owner of more than fifty percent
(50%) of the voting power of the voting stock of Tenant.
Notwithstanding the foregoing, the parties agree that the
following events shall not be deemed to constitute a change of control or an
assignment of Tenant's interests hereunder. First, the Tenant may establish a
holding company structure in which many of its operating assets, employees and
intellectual properties would be dropped into an operating company, which would
be a wholly owned subsidiary of Tenant. Second Tenant, may offer and sell
securities pursuant to a firm commitment underwritten public offering or
secondary offering(s) pursuant to effective registration statement(s) under the
Securities Act of 1933, as amended. Third, Tenant may reincorporate in Delaware
within the first ninety (90) days after the date hereof, provided that such
reincorporation does not change the relative ownership interests of Tenant's
shareholders.
Notwithstanding any assignment by Tenant of the Tenant's
Interest or Tenant's subletting of all or any portion of the Demised Premises,
Tenant shall remain primarily liable for all of the obligations required to be
performed by the tenant under this Sublease. Any rent received (net of costs
incurred in subletting, e.g. brokerage, upfitting, legal) as a result of a
sublease in excess of the rent and Tenant's other costs/expenses otherwise due
and payable hereunder shall be shared by Landlord and Tenant on a 50/0 basis. No
sublease shall be made if it results in an occupancy of more than six (6)
tenants (including Tenant) in the Demised Premises (this restriction is imposed
by the Prime Lease).
11. End of Term.
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(a) Upon the expiration or other termination of the Term
(including exercise of either of Tenant's early termination options), Tenant
shall quit and surrender the Demised Premises, with time being of the essence as
to the expiration date of the Term, in the condition and state of repair
required by the Prime Lease, free and clear of any and all lettings and rights
to occupy or use the Demised Premises or any part thereof created by Tenant or
by anyone claiming under Tenant and free and clear of liens and encumbrances
created by any act or omission on the part of the Tenant or of anyone claiming
by, through or under Tenant. Any and all installations made by Tenant which have
become part of the realty shall be surrendered by Tenant as part of the Demised
Premises upon said expiration or sooner termination of the Term, provided,
however, that Tenant may remove (and shall remove if so provided in the Prime
Lease) all of its trade fixtures, furnishings, machinery, equipment, signs and
other personalty belonging solely to Tenant and not to Landlord upon such
expiration or sooner termination and shall repair at Tenant's expense all damage
to the Demised Premises caused by such removal. Any property of Tenant not so
removed shall become the property of Landlord, which may thereafter cause such
property to be removed from the Demised Premises and disposed of, but the cost
of any such removal and disposition as well as the cost of repairing any damage
caused by such removal shall be borne by Tenant.
(b) The UPS system (serial number P23950; model name
Liebert) present at the Demised Premises on the Commencement Date belongs to
Landlord. Landlord has agreed to lease it to Tenant during the Term at no
additional charge to Tenant (as part of the Basic Rent).
(c) Landlord will leave the following furniture and
furniture systems at the Demised Premises on the Commencement Date, which
belongs to Landlord. Landlord has agreed to lease said furniture and furniture
systems to Tenant during the Term at no additional charge (as part of the Basic
Rent). Said furniture and systems includes conference room table and AV
equipment located in the third floor board room, the built-in furniture in the
executive offices area including the reception desks and work stations, as well
as all other fixtures, window treatments, and such other items as the parties
may mutually agree upon. The parties agree that for the purposes hereof, the
furniture and furniture systems does not include any office cubes located at the
Demised Premises.
(d) If this Sublease remains in effect through May 30,
2008, and Tenant is not then in default beyond any Cure Period (hereinafter
defined), Landlord will convey the UPS system described in clause (b) above and
the furniture and furniture systems described in clause (c) above to Tenant, to
the extent that said assets do not become owned by Prime Landlord pursuant to
the terms of the Prime Lease, effective May 30, 2008, and shall execute a Xxxx
of Sale or other instrument to confirm such conveyance. If, however, this
Sublease is terminated prior to May 30, 2008 for any reason (including exercise
of either of Tenant's options to terminate), or if Tenant is in default on May
30, 2008 beyond any applicable Cure Periods, then the UPS system and the
furniture and furniture systems shall remain the property of Landlord and shall
remain in the Demised Premises and Tenant shall tender said assets back to
Landlord in good working condition (less normal wear and tear) upon Tenant's
surrender of the Demised Premises. Tenant shall be responsible for maintaining
the UPS system and the furniture and furniture systems in a good condition and
repair, at Tenant's expense, throughout the Term.
12. Landlord's Remedies.
Landlord shall have all of the rights and remedies of landlord
specified in the Prime Lease and all of the rights and remedies by law or in
equity provided, if Tenant shall default in the payment of the Basic Rent or
Additional Charges due and payable pursuant to the terms of this Sublease by
failing to make the same before the expiration of the Cure Period, if Tenant
shall fail to perform or observe any of Tenant's obligations hereunder before
the expiration of the Cure Period, or if any other Event of Default (as defined
in the Prime Lease) shall occur as a result of Tenant's breach of its
obligations under this Sublease. The term "Cure Period" shall mean the period of
time specified in the Prime Lease, including grace periods, within which the
tenant thereunder may cure a default, less two (2) days.
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13. Modification or Termination of Prime Lease.
(a) Landlord agrees that it will not modify or amend the
Prime Lease without the prior written consent of Tenant.
(b) If for any reason whatsoever the Prime Lease should
terminate prior to the expiration of the Term hereof, then this Sublease shall
simultaneously terminate, and, except for the termination of the Prime Lease
because of a default of Landlord as tenant thereunder (as a result of Landlord's
affirmative action or inaction and not as a result of Tenant's failure to
perform the obligations of tenant under the Prime Lease which Tenant is
obligated to perform under the terms of this Sublease), Tenant shall acquire no
right or cause of action against Landlord by reason of such termination.
Landlord hereby agrees that, as long as Tenant shall not be in default under the
Sublease beyond any applicable Cure Period, Landlord will not, without the prior
written consent of Tenant, voluntarily cancel or terminate the Prime Lease or
otherwise modify or amend the same.
14. Condemnation.
Anything in this Sublease or the Prime Lease to the contrary
notwithstanding, in the event all or a portion of the Demised Premises shall be
taken by any public or quasi-public authority, Tenant shall have no right to an
abatement of rent unless Landlord is entitled to a corresponding abatement with
respect to its corresponding obligation under the Prime Lease as it relates to
the Demised Premises (and the dollar amount of such abatement shall be limited
to the amount of the abatement to which Landlord is entitled under the Prime
Lease). If, by reason of a taking, the Prime Landlord elects to terminate the
Prime Lease in accordance with the provisions of the Prime Lease then, upon such
termination of the Prime Lease, this Sublease shall be automatically terminated
as if such date of termination were the Expiration Date. In the event all or a
portion of the Demised Premises shall be taken by any public or quasi-public
authority, or upon any termination of the Prime Lease because of such taking,
Tenant shall have the right to claim and recover from the condemning authority,
but not from the Prime Landlord or Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account of
any and all damage to Tenant's business by reason of the condemnation and for or
on account of any cost or loss to which Tenant might be put in removing Tenant's
merchandise, furniture, fixtures, leasehold improvements and equipment. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or interference
or injury to the business of Tenant resulting from any such taking. In addition
to the foregoing, Tenant shall be entitled to participate in any condemnation or
eminent domain Proceeding to the extent Landlord is so permitted in accordance
with Section 8.01 of the Prime Lease. Landlord agrees to provide Tenant with any
and all notices related to any such actions or Proceedings.
15. Casualty.
Anything in this Sublease or the provisions of the Prime Lease
to the contrary notwithstanding: (a) in the event the Demised Premises shall be
damaged or destroyed as a result of any fire or other casualty, or in the event
the Demised Premises are rendered untenantable as described in Section 15.06 of
the Prime Lease, Tenant shall have the same right to terminate this Sublease as
Landlord, as tenant under the Prime Lease, has to terminate or otherwise cause
the term of the Prime Lease to expire or be forfeited, except that any time
period in the Prime Lease within which Landlord as tenant under the Prime Lease
shall be required to give a notice or to act, shall, for purposes of Tenant's
rights and obligations hereunder, be reduced by ten (10) days in the case of
casualty or in the case of an untenantable condition described in Section 15.06
of the Prime Lease, Tenant's right to terminate will be upon twenty-five (25)
days prior notice to Landlord; and (b) Tenant shall have no right to an
abatement of rent unless Landlord is entitled to a corresponding abatement with
respect to its corresponding obligation under the Prime Lease as it relates to
the Demised Premises (and the dollar amount of such abatement shall be limited
to the amount of the abatement to which Landlord is entitled under the Prime
Lease). If, by reason of such occurrence, the Prime Landlord elects to terminate
the Prime Lease in accordance with the provisions of the Prime Lease then, upon
such termination of the Prime Lease, this Sublease shall automatically terminate
as if such date of termination were the Expiration Date; provided, however, that
if Landlord has the option to terminate the Prime Lease as to part, but not all,
of the Demised Premises, Landlord will not, provided that Tenant is not in
default hereunder beyond any applicable Cure Period, terminate the Prime Lease
as to the Demised Premises
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without the prior written consent of Tenant. Landlord shall not be liable for
any inconvenience or annoyance to Tenant or interference or injury to the
business of Tenant resulting from any damage by fire or other casualty or the
repair of such damage unless Landlord was responsible therefor. Landlord shall
not be required to carry insurance of any kind covering Tenant's property.
Landlord shall not be required to repair or replace any of Tenant's improvements
or Tenant's property unless Landlord was responsible for the casualty resulting
in such damage.
16. Security Deposit.
To secure the faithful performance of all of Tenant's
obligations and agreements set forth in this Sublease, Tenant shall deposit with
Landlord, on or before the Commencement Date, a security deposit in the amount
of $61,031.25 (the "Security Deposit"). Landlord may apply the Security Deposit
to cure any default that may from time to time exist hereunder, without
prejudice to any other remedy or remedies which Landlord may have on account
thereof and at such time, Landlord will provide Tenant with written notice
thereof indicating the amount so applied. Upon such application, Tenant shall
pay Landlord on demand the amount so applied, which shall be added to the
Security Deposit so the same may be restored to its original amount. If Landlord
assigns its interest under this Sublease to an assignee who assumes in writing
Landlord's obligations hereunder and Landlord delivers the Security Deposit to
its assignee (at which time Landlord will provide Tenant with written notice
thereof), Tenant hereby releases Landlord from any and all further liability
with respect to the Security Deposit and/or its application or return. Landlord
or its successor shall hold the Security Deposit as a separate fund in a
separate, interest-bearing account in Landlord's name at a Federally-insured
banking institution. If Tenant faithfully fulfills, keeps, performs and observes
all of the covenants, conditions and agreements set forth in this Sublease, the
Security Deposit shall be returned to Tenant with accrued interest promptly
after the expiration of the Term, provided Tenant has vacated the Premises and
surrendered possession thereof to Landlord in the condition required by this
Sublease.
In the event Landlord terminates this Sublease or Tenant's
right to possession by reason of an Event of Default by Tenant, Landlord may
apply the Security Deposit against damages suffered to the date of such
termination to the extent thereof, all pursuant to applicable law. In the event
any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Tenant, or its successors or assigns, and not
dismissed within sixty (60) days thereafter, the Security Deposit shall be
deemed to be applied first to the payment of any Basic Rent or Additional
Charges due Landlord for all periods prior to the institution of such
proceedings, and the balance, if any, of the Security Deposit may be retained or
paid to Landlord in partial liquidation of Landlord's damages.
17. Notices.
All notices given herein shall be in writing, shall be
addressed to the party to be notified at the address set forth below or at such
other address as the party may designate for itself from time to time by notice
hereunder, and shall be deemed to have been validly served, given or delivered:
(i) if mailed, on the date shown as received on the certified return receipt or
on the date on which the post office deems delivery is impossible on such return
receipt, or (ii) the date delivered by a courier service providing for overnight
delivery unless such delivery was not a business day or was after 5:00 p.m. on a
business day in which case delivery shall be deemed to have been rendered or
given on the next business day, or (iii) upon receipt of notice given by
telecopy, mailgram, telegram, telex, or personal delivery:
To Landlord:
X. X. Xxxxx & Co.-Xxxx.
0000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: W. Xxxxx XxXxxxx,
Senior Vice President
To Tenant:
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Prior to the Commencement Date
Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Legal Department
After the Commencement Date, notices to Tenant shall be delivered
address of the Demised Premises.
Landlord and Tenant each hereby agrees to promptly forward to
the other all notices which each from time to time may receive from the Prime
Landlord. Landlord shall ask the Prime Landlord to give Tenant a copy of all
notices given to the tenant under the Prime Lease at the address set forth
above, in the same manner and at the same time as such notices are given to
Landlord.
17. Miscellaneous.
(a) The term "Landlord," as used in this Sublease, shall
mean X. X. Xxxxx & Co.-Conn. and any successor in interest thereto. If this
Sublease is sold or transferred by Landlord (at which time Landlord agrees to
provide Tenant with prompt written notice thereof together with a copy of a duly
executed assignment or transfer document binding said third party to Landlord's
obligations hereunder), the seller or assignor shall be relieved of all
covenants and obligations under this Sublease thereafter occurring and it shall
be deemed without further agreement between the parties hereto and their
successors, that the purchaser or assignee has assumed and agreed to carry out
all covenants and obligations of Landlord hereunder.
(b) In the event Tenant shall remain in occupancy of the
Demised Premises for any period beyond expiration or earlier termination of the
Term (except under a direct lease with or by permission of, Landlord), Tenant
shall pay to Landlord, as and for liquidated damages, an amount per them equal
to one hundred and fifty percent (150%) of the Basic Rent per them for the last
Lease Year of the Term. Notwithstanding the foregoing, Tenant shall not be
deemed to be authorized to remain in occupancy beyond any expiration or earlier
termination of the Term.
(c) All rights and liabilities given to or imposed upon
either of the parties by this Sublease shall benefit and bind said party and its
successors and permitted assigns.
(d) The parties covenant and acknowledge that they intend
to create by this instrument, and that the legal effect of this instrument is
and shall be, a subletting of the Demised Premises by Landlord to Tenant and not
that of an assignment of the Prime Lease or any portion of thereof.
(e) Each of the parties represents and warrants to the
other that it has not dealt with any broker or finder in connection with this
Lease other than Xxxxxxx & Xxxxxxxxx of Florida, Inc., representing Landlord,
and Merin, Hunter and Codman, Inc., representing Tenant. Each of the parties
indemnifies and holds the other harmless from any and all losses, liability,
costs or expenses (including reasonable attorney's fees) incurred as a result of
any alleged breach of the foregoing warranty. Landlord represents and agrees
that it shall pay the commissions due the aforesaid brokers pursuant to a
separate agreement. The execution and delivery of this Sublease by each party
shall be conclusive evidence that such party has relied upon the foregoing
representation and warranty.
(f) Any representations made by the Prime Landlord under
the Prime Lease are deemed to be the representations of the Prime Landlord and
shall in no manner be deemed the representations of Landlord.
(g) This Sublease contains all of the agreements and
conditions made between the parties hereto and may not be modified orally, or in
any manner other than by an agreement, in writing, signed by the parties hereto
or their respective successors in interest.
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(h) This Sublease may be executed in counterpart
originals.
(i) If the Prime Lease should terminate for any reason,
this Sublease shall terminate simultaneously and, except for termination of the
Prime Lease because of Landlord's default under this Sublease or a default of
Landlord as tenant thereunder in connection with a matter that Tenant has not
assumed responsibility for under this Sublease, Tenant shall acquire no right or
cause of action against Landlord by reason of such termination. As long as
Tenant shall not be in default under this Sublease beyond any applicable Cure
Period, Landlord shall not voluntarily cancel or terminate the Prime Lease
without the prior written consent of Tenant.
(j) Tenant represents that it is a corporation duly
organized and validly existing in good standing under the laws of the State of
Florida. This Sublease has been duly authorized by all necessary action on the
part of Tenant and constitutes a legal, valid and binding obligation of Tenant.
The execution and delivery of this Sublease and the consummation of the
transactions contemplated hereby do not and will not (i) violate or conflict
with the Articles of Incorporation of Tenant, (ii) violate or conflict with any
judgment, decree or order of any court applicable to or affecting Tenant, or
(iii) breach any contract, agreement, instrument or obligation to which Tenant
is a party or by which Tenant is bound.
Landlord represents that it is a corporation duly organized
and validly existing in good standing under the laws of the State of
Connecticut. This Sublease has been duly authorized by all necessary action on
the part of Landlord and constitutes a legal, valid and binding obligation of
Landlord. The execution and delivery of this Sublease and the consummation of
the transactions contemplated hereby do not and will not (i) violate or conflict
with the Articles of Incorporation of Landlord, (ii) violate or conflict with
any judgment, decree or order of any court applicable to or affecting Landlord,
or (iii) breach any contract, agreement, instrument or obligation to which
Landlord is a party or by which Landlord is bound.
Landlord further represents that: (u) the Prime Lease
(attached hereto as Exhibit A) is a correct and complete copy of the Prime Lease
and includes any and all agreements, amendments and modifications thereto
governing the use and occupancy of the Demised Premises, (v) Landlord is not
responsible for any liens and/or encumbrances on the Demised Premises which
would impact Tenant's use thereof, nor has Landlord received notice of any such
liens and/or encumbrances imposed as a result of the action or inaction of any
other party, (w) the Prime Lease is, as of the date hereof, in full force and
effect, (x) no event of default has occurred under the Prime Lease and to the
best of Landlord's knowledge and belief, no event has occurred and is continuing
which would constitute an event of default but for the requirement of giving
notice and/or expiration of the period of time to cure, (y) Landlord has
satisfied its notice requirements to Prime Landlord with respect to this
Sublease, as set forth in subsections 17.01 (a) and (b) of the Prime Lease and
the Prime Landlord elected not to exercise its rights thereunder, and (z) that
the 46,500 square feet of rentable space at the Demised Premises is correct
based upon the measurements of Prime Landlord's predecessor.
(k) If any action or proceeding arising out of this
Sublease is commenced, the prevailing party shall be entitled to recover its
reasonable attorneys' fees and disbursements in addition to any other relief to
which it may be entitled.
(l) Landlord leases the Meridian phone system (commonly
known as Option 61) that is currently installed at the Demised Premises.
Landlord shall assign the Meridian phone lease (a copy of which has been
previously forwarded to Tenant in its entirety) to Tenant on the Commencement
Date and Tenant shall assume landlord's obligations thereunder and make all
future lease payments directly to the lessor. Landlord represents that the
Meridian phone system is currently in working order. As long as this Sublease
remains in effect and Tenant is not in default hereunder beyond any Cure Period,
Landlord shall reimburse Tenant, on a monthly basis, the sum of $3,000 per month
for each month remaining on the current phone lease term (through June 30,
2003). Tenant shall have no right to extend the term of the phone lease, or to
increase the rental or any other obligation of the lessee thereunder, unless the
lessor expressly releases Landlord from all obligations thereunder.
(m) Following August 1, 1999, and upon Tenant's
reasonable requests, Landlord will permit Tenant access to the Demised Premises
during normal business hours, provided that such access does not interfere
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with Landlord's ability to conduct normal business operations from the Demised
Premises. Any and all damages attributable to Tenant's access rights hereunder
will be borne exclusively by Tenant.
(n) Landlord agrees to permit Tenant to have the rights
and obligations of the "Tenant" as set forth in Article 30 of the Prime Lease,
which rights and obligations Tenant hereby accepts.
(o) The validity of this Sublease, and the rights,
obligations and relations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Florida. If any provision
of this Sublease is determined by a court of competent jurisdiction to be in
violation of any applicable law or otherwise invalid or unenforceable, such
provision shall to such extent as it shall be determined to be illegal, invalid
or unenforceable under such law be deemed null and void, but this Sublease shall
otherwise remain in full force. Except as otherwise expressly provided in the
Prime Lease, suit to enforce any provision of this Sublease, or any right,
remedy or other matter arising therefrom, will be brought exclusively in the
state or federal courts located in Palm Beach County, Florida. Landlord and
Tenant agree and consent to venue in Palm Beach County, Florida and to the in
personal jurisdiction of the aforementioned courts.
IN WITNESS WHEREOF, the parties hereto have executed this
Sublease, as a sealed instrument, as of the date first written above.
Tenant: Landlord:
Xxxxxx Technologies, Inc. X. X. Xxxxx & Co.-Conn.
a Florida corporation a Connecticut corporation
By: /s/ Xxxxx Xxxxxx By: /s/ X. X. XxXxxxx
--------------------------------- -------------------------
Name: Xxxxx Xxxxxx Name: W. Xxxxx XxXxxxx
Title: CEO Title: Senior Vice President
Witnessed: Witnessed:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------- -------------------
/s/ Xxxxxxxxx Xxxxx /s/ Xxxxxxxxx Xxxxx
------------------- -------------------
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EXHIBIT A
LEASE AGREEMENT
THIS AGREEMENT (herein referred to as "this Lease"), dated as
of June 1, 1998, between ADT TITLE HOLDING COMPANY I, a Delaware corporation,
having an address at Xxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000-0000
(hereinafter called "Landlord"), and X. X. XXXXX & CO.-XXXX., a Connecticut
corporation, having a present address at Xxx Xxxx Xxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000-0000 (hereinafter called "Tenant").
WITNESSETH:
ARTICLE 1
Demise of Premises
Landlord, for and in consideration of the rents to be paid and
of the covenants and agreements hereinafter contained to be kept and performed
by Tenant, hereby demises and leases to Tenant and Tenant hereby hires and takes
from Landlord, for the term hereinafter set forth the piece or parcel of land
with a street address of 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, and
more particularly described in Schedule A annexed hereto (the "Land");
TOGETHER WITH the appurtenances, buildings and improvements
erected upon Land and any replacements thereof including the three (3) story
office building (the "Building"), and the entire parking space area (the
"Parking Area" and together with the Building, the "Improvements");
TOGETHER WITH all right, title and interest of Landlord, if
any, in and to any land lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining such Land and in and to the easements,
franchises, rights, appendages and appurtenances belonging or appertaining to
such real property (the Land and other interests therein and the Improvements
being hereinafter called the "Demised Premises");
SUBJECT, HOWEVER, to the following:
(1) the state of title existing as of the date hereof and
described in Schedule B annexed hereto; and
(2) zoning regulations, restrictions, resolutions,
ordinances and requirements, building restrictions and other laws and
regulations, now in effect to the extent not violated by the Demised Premises.
Landlord, to the best of its knowledge and belief, represents and warrants to
Tenant:
(1) on the Commencement Date, the Demised Premises will
comply in all material respects with all applicable zoning regulations,
restrictions, resolutions, ordinances and requirements, budding restrictions and
other laws so as to permit the use of the Building for general office uses and
the Parking Area for parking purposes;
(2) on the Commencement Date, the Demised Premises will
comply in all material respects with all Legal Requirements existing on the
Commencement Date; and
(3) the Demised Premises shall on the Commencement Date
be free and clear of all tenancies.
And Landlord and Tenant covenant and agree as follows:
14
ARTICLE 2
Certain Definitions
Unless the context otherwise requires, the terms defined below
shall have the respective meanings set forth below:
(a) "Additional Charges" shall have the meaning given to
it in Section 4.04 of this Lease;
(b) "Arbitration Procedure" shall have the meaning given
to it in Section 8.06 of this Lease;
(c) "Affiliate" shall mean any person who or which,
directly or indirectly, controls, is controlled by, or is under common control
with, (A) Landlord (or Tenant, as the case may be), or (B) any person
comprising, directly or indirectly, Landlord (or Tenant, as the case may be), or
(C) any person having a controlling equity interest, directly or indirectly, in
Landlord (or Tenant, as the case may be). Control, as used in this definition
shall mean ownership of more than 50% of the outstanding voting stock of a
corporation or, the direct power to direct the affairs of such corporation or
other entity by reason of ownership of voting stocks or other equitable
interest, by contract or otherwise.
(d) "Base Rate" shall mean the annual interest rate which
is publicly announced from time to time by The Wall Street Journal "Money Rates
Table" as the prime rate based upon corporate loans posted by 75% of the
nation's 30 largest banks;
(e) "Basic Rent" shall have the meaning given to it in
Section 4.01 of this Lease;
(f) "Business Day" shall mean all days, excluding Sundays
and holidays;
(g) "Condemnation Restoration" shall have the meaning
given to it in Section 8.04 of this Lease;
(h) "Default" shall mean any event which would constitute
an Event of Default if any requirement in connection therewith for the giving of
notice, or the lapse of time or the happening of any further condition, event or
action, had been satisfied:
(i) "Default Rate" shall mean a fluctuating annual
interest rate which is the lesser of the rate which is 250 basis points higher
than the Base Rate and the highest rate permitted by applicable usury law;
(j) "Event of Default" shall mean any event specified as
such in Section 20.01 and which shall continue for the period of time, if any,
therein designated;
(k) "First Lease Year" means the period commencing on the
Commencement Date, as defined in Section 3.01 hereof, being for a term of (a)
twelve (12) full calendar months if the Commencement Date is the first day of a
calendar month, or (b) twelve (12) full calendar months plus the portion of the
calendar month (during which the Commencement Date, not being the first day of a
calendar month, occurs) that follows after the Commencement Date;
(l) "Imposition" and "Impositions" shall have the meaning
given to them in Section 5.01 of this Lease;
(m) "Institutional Mortgagee" shall mean any national
bank, or any commercial or savings bank, trust company, insurance company or
pension plan which shall be authorized to make loans secured by real property in
the State of Florida:
(n) "Landlord" shall, at any time, in addition to
Landlord herein named, mean any person
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who shall succeed to any of the interests of Landlord under this Lease;
(o) "Lease Year" shall mean the First Lease Year and each
successive period of twelve calendar months during the Term. The first, second,
third and fourth quarters of each Lease Year shall mean, respectively, the
periods of three calendar months commencing on the first day of the Lease Year
and on the first day of the fourth, seventh and tenth calendar months of the
Lease Year;
(p) "Legal Requirements" shall mean all Federal state,
county, municipal and other governmental statutes, laws, rules, orders, permits,
licenses, regulations, ordinances, judgments, decrees, directions and
injunctions affecting the Demised Premises or the use or occupancy thereof,
whether now or hereafter enacted or in force, ordinary or extraordinary,
foreseen or unforeseen;
(q) "Permitted Mortgage" shall mean any mortgage
hereafter made in compliance with all of the provisions and conditions of
Section 17.02 of this Lease. The term "Permitted Mortgagee" shall mean the
holder at the time in question of any Permitted Mortgage;
(r) "Proceeding" shall mean the taking of the whole or of
a part of the Demised Premises by virtue of eminent domain or for any public or
quasi-public improvement;
(s) "Restoration" shall have the meaning given to it in
Section 7.04 of this Lease;
(t) "Term" shall have the meaning given to it in Section
3.01 of this Lease; and
(u) "unavoidable delays" or words of similar import shall
mean delays due to strikes, lockouts, labor disputes, acts of God, inability to
obtain labor or materials, government restrictions, enemy action, civil
commotion, fire, unavoidable casualty or other causes beyond the reasonable
control of the party, provided that financial inability to perform shall not be
deemed an unavoidable delay and that the party affected shall use all reasonable
efforts to overcome the effect of such events.
ARTICLE 3
Term of Lease
Section 3.01. The term of this Lease shall commence on the
Commencement Date, as hereinafter defined, and shall expire at 11:59 p.m. on the
last day of the calendar month in which the tenth anniversary of the
Commencement Date occurs (the "Expiration Date") (unless this Lease shall sooner
terminate or be canceled as hereinafter provided and subject to Tenant's renewal
rights and including any Renewal Term as hereinafter provided), upon and subject
to the covenants, agreements, terms, provisions and limitations hereinafter set
forth (which term is hereinafter called the "Term"). As used herein, the
Commencement Date shall mean June 1, 1998.
ARTICLE 4
Basic Rent, Adjusted Basic Rent, and Additional Charges
Section 4.01. (a) Tenant shall pay to Landlord during the
Term, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, a net
basic rental (hereinafter called the "Basic Rent"), together with applicable
Florida sales tax, if any, and over and above the other additional payments to
be made by Tenant as elsewhere provided in this Lease, in twelve (12) equal
monthly installments, in advance, on the first day of each and every calendar
month during the Term. Except as hereinafter provided, the Basic Rent shall be
Seven Hundred Thirty-Two Thousand Three Hundred Seventy-Five Dollars
($732,375.00) per annum with monthly payments of Sixty One Thousand Thirty One
and 25/100 Dollars ($61.031.25) [based on 46,500 square feet at $15.75] for the
period commencing on the Commencement Date and ending on the Expiration Date.
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(b) Tenant shall pay Basic Rent and all Additional
Charges (as hereinafter defined) which is herein provided to be paid to Landlord
by good and sufficient check (subject to collection), at such place as shall be
designated by Landlord from time to time. Basic Rent and Additional Charges, if
applicable, for any partial calendar month shall be prorated on a per-diem
basis.
(c) Effective on the third anniversary of the
Commencement Date, so long as this Lease remains in effect, the Basic Rent set
forth above shall be increased on an annual basis; and Tenant thereafter
covenants and agrees to pay to Landlord, during each ensuing Lease Year, such
new adjusted Basic Rent in an amount which, in each Lease Year, shall be equal
to one hundred and three percent (103.0%) of the Basic Rent payable at the end
of the preceding Lease Year. The resulting Base Rent shall be payable in equal
monthly installments, each in advance, on the first day of each month of the
applicable Lease Year.
Section 4.02. Except as otherwise expressly provided in this
Lease, Tenant shall pay the Basic Rent and Additional Charges without notice,
demand, set-off counterclaim deduction, abatement, suspension, deferment,
diminution or reduction and, except as otherwise expressly provided in this
Lease, Tenant shall have no right to terminate this Lease or to be released,
relieved or discharged from any obligations or liabilities hereunder for any
reason whatsoever, including, without limitation: (a) any loss, damage to or
destruction or deterioration of the Demised Premises or any part thereof by fire
or other casualty, acts of God or enemy action or restriction of the use or
occupancy of the Demised Premises or any part thereof on account of any other
cause except due to a material breach of Landlord's representations; (b) any
limitation, restriction, deprivation or prevention of, or any interference with,
any use of the Demised Premises or any part thereof, (c) any taking of the
Demised Premises or any part thereof by condemnation or otherwise; or (d) any
claim as a result of any other business dealings of Landlord and Tenant. Except
as otherwise expressly provided in this Lease, Tenant will take no action to
terminate, rescind or avoid this Lease and waives all rights now or hereafter
conferred by law (i) to quit, terminate or surrender this Lease or the Demised
Premises or any part thereof, or (ii) to any abatement, suspension, deferment,
diminution or reduction of the Basic Rent on account of any such occurrence. If
any Basic Rent or Additional Charges shall be or become uncollectible, reduced,
required to be refunded or prohibited from increasing because of any Legal
Requirement applicable to both Landlord and Tenant, Tenant agrees to enter into
such agreements and take such other actions as Landlord may reasonably request
and as are legally permissible to permit Landlord, during the continuance of
such Legal Requirement, to collect the maximum rents which are legally
collectible by Landlord and to pay the maximum other Additional Charges as
Tenant may be legally required to pay (but never in excess of the amounts
reserved under this Lease). Upon the termination of such Legal Requirement, (A)
the Basic Rent and Additional Charges shall become and thereafter be payable in
accordance with this Lease and (B) Tenant shall pay to Landlord within thirty
(30) days following demand, to the fullest extent legally permitted, an amount
equal to (i) the Basic Rent and Additional Charges which would have been paid
pursuant to this Lease but for such Legal Requirement less (ii) the Basic Rent,
Additional Charges and payments in lieu of rent paid by Tenant during the period
such requirement of law was in effect.
Section 4.03. This Lease is a net lease and the Basic Rent
shall be absolutely net to Landlord, so that this Lease shall Yield, net, to
Landlord, the Basic Rent during the Term, and all costs, expenses and
obligations of every kind and nature whatsoever relating to the Demised Premises
which may arise and be attributable to the ownership, maintenance, repair,
restoration, use or occupancy of the Demised Premises during the Term, except as
otherwise expressly provided in this Lease, shall be paid by Tenant.
Section 4.04. Tenant shall also pay, as additional rent, all
Impositions, and all sums, costs, expenses and other payments which Tenant under
any of the provisions of this Lease assumes or agrees to pay (which Impositions
and all sums, costs, expenses and other payments are herein collectively called
the "Additional Charges"), and, in the event of any nonpayment of any item of
Additional Charges which is payable to Landlord, Landlord shall have (in
addition to all other rights and remedies) all the rights and remedies provided
herein or by law in the case of nonpayment of the Basic Rent.
ARTICLE 5
Payment of Taxes, Assessments, Etc.
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Section 5.01. Tenant will pay directly to the appropriate
party, before any fine, penalty, interest or cost may be added thereto for the
nonpayment thereof (except as hereinafter provided in Section 5.04) all taxes,
assessments, water and sewer rents, rates and charges, charges for public
utilities, excises, levies, license and permit fees and other governmental
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever which at any time during the Term
may be assessed, levied, confirmed, imposed upon, or grow or become due and
payable out of or in respect of, or become a lien on, the Demised Premises
thereof or any appurtenances thereto, or any use or occupation of the Demised
Premises, including any Florida sales tax due on any portion of the Additional
Charges, if applicable (which taxes, assessments, water and sewer rents, rates
and charges, charges for public utilities, excises, levies, licenses and permit
fees and other governmental charges and any other amounts which Tenant is
obliged to pay under this Section are herein referred to as "Impositions" and
any of the same is herein referred to as an "Imposition"), together with any
penalty, interest or cost which may be added for late payment thereof.
Impositions for any period falling partly within and partly outside the Term,
shall be prorated on a per diem basis.
Section 5.02. Nothing herein contained shall require Tenant to
pay any of the following assessed or levied against, imposed upon or incurred by
Landlord or any subsequent owner of the Demised Premises; income and/or excess
profits taxes, capital levy, estate, succession, inheritance, transfer,
corporate or franchise taxes levied or assessed by any governmental authority;
provided, however that, if at any time during the Term the methods of taxation
prevailing at the commencement of the Term shall be altered so that, in lieu of
the taxes, assessments, levies, impositions or charges now levied, or hereafter
assessed or imposed on, real estate and the improvements thereon, there shall be
levied, assessed and imposed wholly or partially as a capital levy, or
otherwise, on the rents received therefrom, or if as the result of the
alteration of such method, any tax, assessment, levy, imposition or charge, or
any part thereof, there shall be measured by or based, in whole or in part, upon
the Demised Premises, the Basic Rent or the Additional Charges and imposed upon
Landlord, then all such taxes, assessments, levies, impositions or charges or
the part thereof so measured or based shall be deemed to be included within the
term "Impositions" for the purposes hereof except that the amount so included
shall in no event exceed the amount which would have been so levied, assessed or
imposed if the Demised Premises were the only asset of Landlord and the interest
in Landlord of any corporation which is a partner or shareholder of Landlord
were the only asset of that corporation.
Section 5.03. Prior to delinquency of an Imposition payable by
Tenant as in this Article provided, Tenant shall furnish to Landlord for its
inspection official receipts or duplicate copies thereof of the appropriate
taxing authority, or other proof reasonably satisfactory to Landlord. Landlord
shall promptly send to Tenant all bills which it may receive for Impositions.
Section 5.04. Tenant shall have the right to contest the
amount or validity of any Imposition by appropriate proceedings. If Tenant
determines not to so contest any such Imposition, Landlord shall have the right
so to do. If Tenant shall contest the amount or validity of any such Imposition,
Tenant shall nevertheless promptly pay the Imposition in accordance with the
terms and provisions of this Lease, and nothing herein shall imply any right on
the part of Tenant to postpone or defer such payment for any such purpose,
unless such proceedings shall operate to prevent or stay the collection of the
Imposition so contested and the sale of the Demised Premises, or any part
thereof to satisfy the same. Upon the termination of such proceedings, Tenant
shall pay the amount of the Imposition, or part thereof as finally determined to
be due in such proceedings, the payment of which may have been deferred during
the prosecution of such proceedings, together with any costs, fees, interest,
penalties or other liabilities in connection therewith. Landlord shall not be
required to join in any such proceedings, except that if any Legal Requirement
hereafter in effect shall require that such proceedings be brought by or in the
name of Landlord or any owner of the Demised Premises, Landlord shall not
withhold its consent to joining in any such proceedings, or permitting the same
to be brought in its name, and shall execute any and all documents required in
connection therewith, provided the same shall be approved as to both form and
substance by Landlord's counsel, which approval Landlord agrees shall not be
unreasonably withheld, delayed or conditioned. Landlord shall not be subjected
to any liability for the payment of any costs or expenses in connection with any
such proceeding, including, but not limited to, Landlord's reasonable counsel
fees, and Tenant shall indemnify and save harmless Landlord from any such costs
or expenses. Tenant shall be entitled to any refund of the Imposition and
penalties
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or interest thereon which shall have been paid by Tenant, or, if paid by
Landlord, for which Landlord shall have been fully reimbursed by Tenant.
ARTICLE 6
Insurance
Section 6.01. Throughout the Term, Tenant shall, at Tenant's
sole cost and expense, keep the Demised Premises insured against loss or damage
by fire, lightning, windstorm, had, explosion, riot, riot attending a strike,
civil commotion, vandalism, malicious mischief damage from aircraft, vehicles
and smoke and also for such other perils as are covered by an "all risk policy"
substantially similar to the coverage provided by the "Causes of Loss - Special
Form" No. CP 1030 1185 issued by ISO Commercial Risk Services, Inc., in amounts
at all times equal to the then Full Insurable Value of the Improvements and with
such deductibles as may be reasonably adopted by Tenant as such amounts and such
deductibles may be approved by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned. The term "Full Insurable Value,"
as used herein, when applied to the Improvements, shall mean the actual
replacement cost without depreciation (excluding land, excavation costs and that
part of the foundation and footing cost which is customarily not insurable under
casualty policies), and shall be determined from time to time at reasonable
intervals at the request of Landlord by one of the insurers, or, at the option
of Tenant or Landlord, an independent appraiser or contractor selected and paid
by Tenant and reasonably acceptable to Landlord. All insurance required to be
carried by Tenant pursuant to the terms of this Lease shall be effected under
valid and enforceable policies issued by reputable and independent insurers
permitted to do business in the State of Florida, and rated in Best's Insurance
Guide, or any successor thereto (or if there be none, an organization having a
national reputation) as having a "Best's Rating" of "B" and a "Financial Size
Category" of at least "X" or if such ratings are not then in effect, the
equivalent thereof.
Section 6.02. Throughout the Term, Tenant shall, at Tenant's
sole cost and expense, maintain or cause to be maintained commercial general
liability insurance on an occurrence basis against claims for personal injury or
death and for damage to property suffered by others occurring upon, in or about
the Demised Premises, such liability insurance to afford protection to the limit
of not less than $5,000,000 combined in respect of bodily injury or death to any
one person and for property damage, and not less than $10,000,000 in respect of
bodily injury or death to any number of persons in any one occurrence. Tenant
shall also provide Workers' Compensation insurance in statutory amounts and
employees liability insurance with a per claim limit of $2,000,000.00.
Section 6.03. Throughout the Term, Tenant shall, at Tenant's
sole cost and expense, maintain for the benefit of Landlord or cause to be
maintained for the benefit of Landlord, rent, or use and occupancy or rental
value insurance in an amount at least sufficient to meet the payments for one
year of the Basic Rent and the Additional Charges, which insurance shall be
payable to Landlord in the event that the Building or any substantial portion
thereof shall be destroyed or seriously damaged. Tenant hereby assigns to
Landlord any interest of Tenant in said policies and all proceeds thereunder.
Section 6.04. Throughout the Term, Tenant shall, at Tenant's
sole cost and expense, maintain or cause to be maintained under a comprehensive
form of boiler and machinery insurance policy including repair and replacement
endorsement, covering all insurable equipment in the Building including but not
limited to, boilers, pressure vessels, air tanks, pressure piping, major air
conditioning equipment, turbines, and nonrotating electrical equipment (provided
the Building contains equipment of the nature ordinarily covered by such
insurance) with a limit of liability of $5,000,000 or such larger amount as
Landlord may reasonably require and a deductible limit of not more than $20,000.
Section 6.05. All insurance provided for in this Article shall
be effected under a valid and enforceable policy or policies issued by insurers
of recognized financial standing, licensed or authorized to do business in
Florida and reasonably satisfactory to Landlord. Certified copies of all
certificates evidencing such policies shall be deposited with Landlord by Tenant
prior to the Commencement Date. Not less than fifteen (15) days prior to the
expiration date of the expiring policies, Tenant shall deliver to Landlord
certificates of the insurers evidencing renewal thereof with insurance policies
available at Tenant's Demised Premises for review by Landlord or Landlord's
first mortgagee as soon thereafter as the same shall be obtained by Tenant.
Within ten (10)
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days after the premium on each such policy shall become due and payable and the
amount thereof shall be determined, such premium shall be paid by Tenant and
Landlord shall be furnished with evidence reasonably satisfactory to it of such
payment.
Section 6.06. Landlord shall not be required to prosecute any
claim against any insurer or to contest any settlement proposed by any insurer
but in the event of Landlord's failure to do so, Tenant shall have the right to
do so in Landlord's name at Tenant's sole cost and expense.
Section 6.07. Insurance claims by reason of damage or
destruction to any portion of the Demised Premises may be adjusted by Landlord,
but Tenant shall have the right to join with Landlord in adjusting any such
loss; provided, however, Tenant's consent in any such adjustment shall not be
unreasonably withheld, conditioned or delayed.
Section 6.08. Every insurance policy required under this
Article 6 (other than liability and workers' and employers' compensation
insurance policies) shall name Landlord and Tenant as the insureds, as their
interests may appear, and bear a standard first mortgage endorsement in favor of
a first mortgagee of Landlord, if any, whose name shall have been provided to
Tenant, and loss under any such policy shall be made payable to such first
mortgagee, but any proceeds under which policies received by such first
mortgagee shall be applied as provided in Article 7. Each such policy shall be,
if available, for a term of not less than one (1) year with all premiums paid in
advance. Every such policy shall contain an agreement by the insurer that it
will not cancel such policy except after thirty (30) days prior written notice
to Landlord and Landlord's first mortgagee, if any, and that any loss thereunder
shall be payable notwithstanding any act or negligence of Tenant or Landlord and
notwithstanding any change in title or ownership of the Demised Premises. Should
Tenant fail to effect, maintain or renew any insurance provided for in this
Article 6, or to pay the premium therefor, or to deliver to Landlord any such
certificate, if requested by Landlord, Landlord at its option may upon ten (10)
days' notice to Tenant of its intention to do so procure such insurance and any
sums expended by it to procure such insurance shall be payable as Additional
Charges hereunder and shall be repaid by Tenant within ten (10) days following
demand therefor by Landlord with interest at the Default Rate.
Section 6.09. Tenant shall not obtain or carry separate
insurance concurrent in form or contributing in the event of loss with that
required in this Article 6 to be furnished by Tenant unless Landlord is named as
an insured, with loss payable as in this Lease provided. Tenant shall
immediately notify Landlord whenever any such separate insurance is obtained and
shall deliver the certificates evidencing the same to Landlord.
Section 6.10. Landlord and Tenant hereby release each other
from any and all liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or damage
of property caused by fire or any of the extended coverage or supplementary
contract casualties, even if such fire or other casualty shall have been caused
by the fault or negligence of the other party, or anyone for whom such party may
be responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releasors' policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair said policies or
prejudice the right of the releasor to recover thereunder. Landlord and Tenant
each agree to request its insurance carrier to include such a clause or
endorsement in its policies.
Section 6.11. Tenant assumes the risk of damage to any
fixtures which remain the property of Tenant or as to which Tenant retains the
right of removal from the Premises.
Section 6.12. If Tenant fails to maintain any insurance
required pursuant hereto, Tenant shall be liable for any loss, damages or costs
incurred by Landlord as a result thereof. This paragraph shall not be deemed to
be a waiver of any of Landlord's rights and remedies under any other paragraph
hereof Tenant and Landlord agree that the insurance required pursuant to this
Article 6 may be revised, subject to availability of such insurance at
commercially reasonable rates, so long as the insurance coverage and limitations
may be approved by Landlord, which approval shall not be unreasonably withheld,
delayed or conditioned.
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ARTICLE 7
Casualty and Restoration
Section 7.01. If during the Term all or any part of the
Demised Premises shall be damaged or destroyed by fire or other casualty, Tenant
shall promptly give notice thereof to Landlord and Landlord shall, at Landlord's
sole cost and expense subject to availability and receipt from Tenant's
insurance company(ies) of the insurance proceeds and the receipt from Tenant of
the deductible amount of such insurance, if any, [except as provided in Section
7.02 of this Lease] repair, restore, or replace the same as nearly as possible
to its value, condition and character immediately prior to such damage or
destruction. Landlord shall within thirty (30) days following notice from Tenant
of the casualty advise Tenant the amount of time such repairs are reasonably
estimated to require.
Section 7.02. If during the Term the Demised Premises shall be
substantially damaged or destroyed in any single casualty in such a manner that
such damage cannot, in Landlord's reasonable judgment, be repaired within twelve
(12) months from the date of such casualty, Landlord shall so notify Tenant
within sixty (60) days after Landlord's receipt of the notice required pursuant
to Section 7. 01 hereof and Landlord may by such notice terminate this Lease. If
Landlord shall give such notice of termination, this Lease shall terminate on
the 30th day following the date Tenant receives notice of termination from
Landlord in accordance with the provisions of this Section provided that the
Basic Rent and Additional Charges, if any, payable by Tenant hereunder shall be
abated as of the date of such casualty in proportion to the area of the Demised
Premises that Tenant is unable to occupy.
Section 7.03. If during the Term the Demised Premises shall be
damaged or destroyed in any single casualty and Landlord (if permitted to do so)
does not give notice of its intention to terminates this Lease, as provided in
Section 7.02, this Lease shall continue in force and effect, and Landlord shall
repair, restore or replace the same as provided in Section 7.01; provided,
however, if the estimated time period for repair exceeds nine (9) months or if
such statement estimating the repair time is not delivered to Tenant, Tenant may
elect to terminate this Lease by notice to Landlord not later than thirty (30)
days following receipt of such statement or, if no statement has been delivered,
not later than thirty (30) days after the expiration of the time period such
statement should have been delivered to Tenant. If Tenant makes such election,
the Term shall expire upon the thirtieth (30th) day after notice of such
election is given by Tenant to Landlord; provided, however, that Landlord shall
not be required to proceed with such repairs if (A) the repair estimate exceeds
nine (9) months if the casualty occurs within the period from the first day of
the ninth (9th) Lease Year to the last day of the tenth (10th) Lease Year, and
(B) an "Event of Default" has occurred pursuant to such mortgage which is
continuing, unless such mortgagee can reasonably approve the contractor, and
payments with respect thereto, reasonably approve the receiver for the Demised
Premises, if any, and if permitted by law, and so long as Tenant agrees to renew
the Lease for Extended Term One without the right to terminate the Lease if the
"prevailing market rate" as determined by the parties or arbitration is
unsatisfactory.
Section 7.04. All insurance proceeds received by Landlord on
account of such damage or destruction (in excess of a casualty loss where
proceeds are less than $75,000, then the proceeds are not required to be placed
in an escrow account), less the actual cost, fees and expenses, if any, incurred
in connection with adjustment of the loss, shall be retained in escrow in an
interest earning account and held by the first mortgagee of Landlord, if any,
provided such mortgagee shall be an Institutional Mortgagee or, if there be none
or if the same is not a bank, in such bank as shall be selected by Landlord and
approved by Tenant, such approval not to be unreasonably withheld, conditioned
or delayed, under the name of Landlord and Tenant and shall be paid either to
reimburse Landlord for expenditures made to repair, restore or replace any part
of the Demised Premises so damaged or destroyed (which expenditures shall
include expenditures made for temporary repairs or for the protection of
property pending the completion of permanent repairs, restorations or
replacements to the Demised Premises, or to prevent interference with the
business operated thereon, and repairs, restorations or replacements thereto
then in process insofar as actually made or constructed) or to pay contractors,
subcontractors, materialmen, engineers, architects or other persons who have
rendered services or furnished materials for said repairs, restorations or
replacements (herein called the "Restoration"), and shall be withdrawn from the
account as
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hereinafter provided from time to time as the Restoration progresses upon the
written request of Landlord to Tenant, which shall be accompanied by the
following:
(a) A certificate of the architect or engineer in charge
of the Restoration (who shall be selected by Landlord and be reasonably
satisfactory to Tenant) dated not more than thirty (30) days prior to such
request, setting forth in substance as follows:
that the sum then requested to be withdrawn either
has been paid by Landlord, or is justly due to contractors,
subcontractors, materialmen, engineers, architects or other
persons who shall have rendered services or furnished
materials for the Restoration therein specified; the names of
such persons; a brief description of such services and
materials and the several amounts so paid or due to each of
such persons and a statement that none of the cost of the
services and materials described in the certificate has been
or is being made the basis, in any previous or then pending
request, for a payment under this Section or Section 8.04, and
that the sum then requested does not exceed the value of the
services and materials described in the certificate;
that, except for the amount, if any, stated pursuant
to the foregoing paragraph (1) of subsection (a) in such
certificate to be due for services or materials, there is not
outstanding any indebtedness known to the persons signing such
certificates which is then due for labor, wages, materials,
supplies or services in connection with the Restoration which,
if unpaid, might become the basis of a vendors, mechanic's,
laborer's or materialman's lien upon the Demised Premises or
any part thereof except for the following claims and disputes:
(list same); and
that the cost and any amounts due and under dispute
under paragraph (2) of subsection (a) above, as estimated by
the persons signing such certificate, of the Restoration
required to be done subsequent to the date of such certificate
in order to complete the Restoration does not exceed the
insurance proceeds remaining in the bank account after payment
of the sum requested in such certificate.
Upon compliance with the foregoing provisions of this Section,
the first mortgagee or Landlord shall be authorized by Tenant, whose approval
shall not be unreasonably delayed, withheld or conditioned but whose approval
shall be deemed approved five (5) days after delivery of any such request, out
of such insurance proceeds to pay or cause to be paid to Landlord or to the
persons named (pursuant to paragraph (1) of subsection (a) of this Section) in
such certificate the respective amounts stated therein to have been paid by
Landlord or to be due to them, as the case may be.
Section 7.05. Subject to the provisions of Section 6.03 hereof
and the receipt by Landlord of the proceeds of the insurance required to be
provided thereunder, if the Improvements shall be partially damaged or partially
destroyed by a casualty, the Basic Rent and Additional Charges payable hereunder
shall be abated to the extent that the Improvements shall have been rendered
untenantable for the period from the date of such damage or destruction to the
date the damage shall be repaired or restored. Subject to the provisions of
Section 6.03 hereof and the receipt by Landlord of the proceeds of the insurance
required to be provided thereunder, if the Improvements or a major part thereof
shall be damaged or destroyed that it is rendered untenantable on account of a
casualty, the Basic Rent and Additional Charges shall xxxxx as of the date of
the damage or destruction and until Landlord shall repair, restore and rebuild
the Improvements, provided, however, that should Tenant reoccupy for the conduct
of its business a portion of the Improvements during the period the Restoration
work is taking place and prior to the date that the same are made completely
tenantable, Basic Rent and Additional Charges allocable to such portion shall be
payable by Tenant from the date of such occupancy.
ARTICLE 8
Condemnation
Section 8.01. Any award, payment or compensation relating to
the Land or the Landlord's fee
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estate in the Demised Premises to which it may be or become entitled during the
Term by reason of any taking of the Demised Premises or a part thereof, in or by
condemnation or other eminent domain Proceeding pursuant to any law, general or
special, or by reason of the temporary requisition of the use or occupancy of
the Demised Premises or a part thereof, by any governmental authority, civil or
military, whether the same shall be paid or payable in respect of Tenant's
leasehold interest hereunder or otherwise (except to the extent that same is
compensation for use of or damage to Tenant's equipment or machines not demised
hereunder, leasehold improvements, moving and relocation expenses or
compensation for loss of business), provided that such award, payment or
compensation and any interest or income earned thereon shall be applied as
hereinafter provided in this Article 8. Tenant shall be entitled to participate
in any such proceedings at Tenant's cost and expense.
Section 8.02. If during the Term (A) the Demised Premises
shall be taken in its entirety in or by condemnation or other eminent domain
Proceeding pursuant to any law, general or special, or (B) a substantial portion
of the Demised Premises, which shall be sufficient in the reasonable judgment of
Landlord to make the restoration or reconstruction of the remaining portion
thereof uneconomic, shall be taken in or by any such Proceeding Landlord shall
notify Tenant of either (A) or (B), as the case may be, within sixty (60) days
of such taking and either Landlord or Tenant may terminate this Lease by giving
the other party written notice of its intention to do so at that time. If
Landlord shall give such notice of termination, this Lease shall terminate on
the thirtieth (30th) day following the date Landlord gives such notice. If
Tenant shall give such notice of termination, this Lease shall terminate on the
date set forth in Tenant's termination notice, which date shall not be less than
thirty (30) or more than ninety (90) days after the date of such notice. If
however, neither Landlord nor Tenant elects to terminate the Lease, Landlord
shall repair, restore and rebuild the Demised Premises as nearly as possible to
its value, condition and character immediately prior to such taking and in
conformity with the provision of Section 8.04 hereof.
Section 8.03. If during the Term (A) a portion of the Demised
Premises shall be taken in or by condemnation or other eminent domain Proceeding
pursuant to any law, general or special, which taking does not affect the
Building, or more than ten percent (10%) of the Parking Area (provided, however,
if a greater portion of the Parking Area is so taken and Landlord builds
substitute space in another area of the Demised Premises to Tenant's reasonable
satisfaction, this provision shall not apply), (B) the use or occupancy of the
Demised Premises or a part thereof shall be temporarily requisitioned by any
governmental authority, civil or military, or (C) in any other case where
Landlord or Tenant, having a right so to do, fails to terminate this Lease as
herein provided, then this Lease shall continue in full force and effect, and
Landlord shall, within a reasonable time after any such taking and at its cost
and expense, provided any award payable in connection with such taking shall
then have been received by Landlord for deposit as hereinafter provided, repair,
restore and rebuild the Demised Premises as nearly as possible to its value,
condition and character immediately prior to such taking, and in conformity with
the requirements of Section 8.04 of this Lease. In all other cases (including if
the Building or more than 10% of the Parking Area shall be taken such that
Tenant cannot conduct its business), Tenant shall have the right to terminate
this Lease on written notice to Landlord given within thirty (30) days after
receipt from Landlord of notice of a taking. If Tenant shall give such notice of
termination, this Lease shall terminate on the date set forth in Tenant's
termination notice, which date shall not be less than thirty (30) or more than
ninety (90) days after the date of such notice. If, however, Tenant does not
elect to terminate the Lease, Landlord shall repair, restore and rebuild the
Demised Premises as nearly as possible to its value, condition and character
immediately prior to such taking and in conformity with the Provision of Section
8.04 hereof.
Section 8.04. Any award received by Landlord on account of
such taking, less the actual cost, fees and expenses, if any, incurred in
connection with obtaining the award, shall be held in escrow in an interest
bearing account by the first mortgagee of Landlord, if any, provided such
mortgagee shall be an Institutional Mortgagee or, if there be none or if the
same is not a bank, in such bank as shall be selected by Landlord and approved
by Tenant, such approval not to be unreasonably withheld, conditioned or
delayed, under the name of Landlord and Tenant and shall be paid either to
reimburse Landlord for expenditures made to repair, restore or rebuild any part
of the Demised Premises remaining after such taking (which expenditures shall
include expenditures made for temporary repairs or for the protection of
property pending the completion of permanent repairs, restorations or rebuilding
to the Demised Premises, or to prevent interference with the business operated
thereon, and repairs, restorations or rebuilding thereto then in process insofar
as actually made or constructed) or
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to pay contractors, subcontractors, materialmen, engineers, architects or other
persons who have rendered services or furnished materials for said repairs,
restorations or rebuilding (herein called the "Condemnation Restoration"), or to
pay any other expenses or costs for which an award may be made. Payment for the
Condemnation Restoration shall be withdrawn from the account from time to time
as the Condemnation Restoration progresses upon the written request of Landlord
to Tenant, which shall be accompanied by the following:
(a) A certificate of the architect or engineer in charge
of the Condemnation Restoration (who shall be selected by Landlord and be
reasonably satisfactory to Tenant) dated not more than thirty (30) days prior to
such request, setting forth in substance as follows:
that the sum then requested to be withdrawn either
has been paid by Landlord, or is justly due to contractors,
subcontractors, materialmen, engineers, architects or other
persons who shall have rendered services or furnished
materials for the Condemnation Restoration therein specified;
the names of such persons; a brief description of such
services and materials and the several amounts to be paid or
due to each of such persons; and a statement that none of the
cost of the services and material described in the certificate
has been or is being made the basis, in any previous or then
pending request, for a payment under this Section, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate:
that, except for the amount, if any, stated (pursuant
to the foregoing paragraph (1) of subsection (a)) in such
certificate to be due for services or materials, there is not
outstanding any indebtedness known to the person signing such
certificate which is then due for labor, wages, materials,
supplies or services in connection with the Condemnation
Restoration which, if unpaid, might become the basis of a
vendor's, mechanic's, laborer's or materialmen's lien upon the
Demised Premises or any part thereof except for the following
claims and disputes: (list same); and
that the cost and any amounts due and under dispute
under paragraph (2) of subsection (a) above, as estimated by
the persons signing such certificate, of the Condemnation
Restoration, does not exceed the insurance proceeds remaining
in the bank account after payment of the sum requested in such
certificate.
Upon compliance with the foregoing provisions of this Section,
the first mortgagee or Landlord shall be authorized by Tenant, whose approval
shall not be unreasonably delayed, withheld or conditioned but whose approval
shall be deemed approved five (5) days after delivery of any such request, out
of such award, to pay or cause to be paid to Landlord or to the persons named
(pursuant to paragraph (1) of subsection (a) of this Section) in such
certificate the respective amounts stated therein to have been paid by Landlord
or to be due to them, as the case may be. If such award shall be more than
sufficient to pay the entire cost of the Condemnation Restoration, the excess
shall be the property of Landlord.
Section 8.05. If during the Term any part of the Demised
Premises is taken, the Basic Rent payable hereunder shall be adjusted as of the
date of such taking pursuant to agreement to be reached between the parties
based upon the diminishment of the economic value of the Demised Premises as a
result of such taking. If the parties are unable to agree on such adjustment to
the Basic Rent, the matter shall be submitted to arbitration pursuant to the
Arbitration Procedure.
Section 8.06. If there shall be a condemnation of a part of
the Demised Premises and this Lease shall not be terminated and the parties are
unable to agree on an adjustment to the Basic Rent within 3 months of such
taking, or if Landlord and Tenant are unable to agree on the fair and reasonable
market value of the Demised Premises pursuant to Article 28 hereof, then the
determination of the fair and reasonable market rental value of the Demised
Premises shall be determined by arbitration in Boca Raton, Florida, in
accordance with the rules, regulations and procedures (except as herein
modified) of the American Arbitration Association or an organization which is
the successor thereto ("AAA"), as follows (the "Arbitration Procedure"):
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(a) The party invoking the arbitration procedure shall
give a notice (the "Arbitration Notice") to the other party stating that the
party sending the Arbitration Notice desires to meet within five (5) days to
attempt to agree on a single arbitrator to determine the matter in dispute (the
"Arbitrator"). If Landlord and Tenant have not agreed on the Arbitrator within
ten (10) days after the giving of the Arbitration Notice, then either Landlord
or Tenant, on behalf of both, may apply to the local office of the AAA for
appointment of the Arbitrator. If the AAA shall fail refuse or be unable to act
such that the Arbitrator is not appointed by the AAA within thirty (30) days
after application therefor, then either party may apply to the Circuit Court of
Palm Beach County, Florida (or any other court having jurisdiction and
exercising functions similar to those now exercised by said court) (the "Court")
for the appointment of the Arbitrator and the other party shall not raise any
question as to the Court's full power and jurisdiction to entertain the
application and make the appointment. The date on which the Arbitrator is
appointed, by the agreement of the parties, by appointment by the AAA or by
appointment by the Court, is referred to herein as the "Appointment Date." If
any Arbitrator appointed hereunder shall be unwilling or unable, for any reason,
to serve, or continue to serve, a replacement arbitrator shall be appointed in
the same manner as the original Arbitrator.
(b) The arbitration shall be conducted in accordance with
the then prevailing rules of the AAA, modified as follows:
To the extent that the laws of the State of Florida
impose requirements different than those of the AAA in order
for the decision of the Arbitrator to be enforceable in the
courts of the State of Florida, such requirements shaft be
complied with in the arbitration.
The Arbitrator shall be disinterested and impartial,
shall not be affiliated with Landlord or Tenant and, in the
case of an arbitration as to Extended Term Market Rental (as
defined in Section 28.01(a)(ii)), shall be an MAI appraiser
with at least ten (10) years' experience in the determination
of fair market rentals in comparable buildings in the Boca
Raton, Florida region.
Before hearing any testimony or receiving any
evidence, the Arbitrator shall, be sworn to hear and decide
the controversy faithfully and fairly by an officer authorized
to administer an oath and a written copy thereof shall be
delivered to Landlord and Tenant.
Within ten (10) days after the Appointment Date,
Landlord and Tenant shall deliver to the Arbitrator two (2)
copies of their respective written determinations of the
matter in dispute (each, a "Determination"), together with
such affidavits, appraisals, reports and other written
evidence relating thereto as the submitting party deems
appropriate. After the submission of any Determination, the
submitting party may not make any additions to or deletions
from, or otherwise change, such Determination or the
affidavits, appraisals, reports and other written evidence
delivered therewith. If either party fails to so deliver its
Determination within such time period, time being of the
essence with respect thereto, such party shall be deemed to
have irrevocably waived its right to deliver a Determination
and the Arbitrator, without holding a hearing, shall accept
the Determination of the submitting party as the matter in
dispute. If each party submits a Determination within the ten
(10) day period described above, the Arbitrator shall,
promptly after its receipt of the second Determination,
deliver a copy of each party's Determination to the other
party.
If the matter in dispute has not been determined
pursuant to clause (iv) of this subparagraph (b), then not
less than three (3) days nor more than fifteen (15) days after
the earlier to occur of (A) the expiration of the ten (10) day
period provided for in clause (iv) of this subparagraph (b) or
(B) the Arbitrator's receipt of both of the Determinations
from the parties (such earlier date is referred to herein as
the "Submission Date"), and upon not less than three (3) days'
notice to the parties, the Arbitrator shall hold at least one
(but may hold more) hearings with respect to the determination
of the matter. The hearings shall be held in Boca Raton,
Florida at such location and time as shall be specified by the
Arbitrator. Each of the parties shall be entitled to present
all relevant evidence and to cross-examine witnesses at the
hearings. The
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Arbitrator shall have the authority to adjourn any hearing to
such later date as the Arbitrator shall specify, provided that
in all events all hearings with respect to the determination
of the dispute shall be concluded not later than twenty (20)
days after the Submission Date.
Except as otherwise provided in clause (v) of this
subparagraph (b), where a matter in dispute involves the
determination of a liquidated amount, such as the amount of
Extended Term Market Rental, the Arbitrator shall be
instructed, and shall be empowered only, to select as the
resolution to the dispute that one of the Determinations which
the Arbitrator believes is the more accurate determination of
such amount. Without limiting the generality of the foregoing,
in rendering his or her decision, the Arbitrator shall not add
to, subtract from or otherwise modify the provisions of this
Lease or either of the Determinations.
The Arbitrator shall render his or her determination
as to the selection of a Determination in a signed and
acknowledged written instrument, original counterparts of
which shall be sent simultaneously to Landlord and Tenant,
within ten (10) days after the earlier to occur of (A) his or
her determination of the dispute pursuant to clause (iv) of
this subparagraph (b) or (B) the conclusion of the hearing(s)
required by clause (v) of this subparagraph.
(c) The arbitration decision, determined as provided in
this Article, shall be conclusive and binding on the parties, shall constitute
an "award" by the Arbitrator within the meaning of the AAA rules and applicable
law and judgment may be entered thereon in any court of competent jurisdiction.
(d) Each party shall pay its own fees and expenses
relating to the arbitration (including, without limitation, the fees and
expenses of its counsel and of experts and witnesses retained or called by it).
Each party shall pay one-half (1/2) of the fees and expenses of the AAA and of
the Arbitrator, provided that (i) the Arbitrator shall have the authority to
award such fees and expenses in favor of the prevailing party and (ii) if either
party fails to submit a Determination within the period provided therefor, such
nonsubmitting party shall pay all of such fees and expenses.
Section 8.07. In event of any temporary requisition, as
provided in (B) of Section 8.03 of this Lease, the entire net award or
compensation received by Landlord shall be paid over directly to Tenant if no
Event of Default exists under this Lease. If such taking shall be for a period
extending beyond the Term of this Lease, such award shall be allocated to the
period of taking and paid to Tenant for the part of the Term taken and the
balance paid to Landlord.
Section 8.08. All amounts paid pursuant to any agreement with
any condemning authority made in settlement of any condemnation or other eminent
domain Proceeding affecting the Demised Premises shall be deemed to constitute
an award made in such Proceeding.
ARTICLE 9
Unavoidable Delay
Section 9.01. If, by reason of unavoidable delay, Tenant shall
be unable to fit its obligations (other than its obligation to pay Basic Rent
and Additional Charges and any other monetary obligations) under this Lease or
shall be unable to supply any service or perform any act which Tenant is
obligated to supply or perform, this Lease shall in no way be affected, impaired
or excused and Tenant shall not be deemed in breach hereof except as otherwise
expressly set forth to the contrary herein.
Section 9.02. If, by reason of unavoidable delay, Landlord
shall be unable to fulfill its obligations under this Lease or shall be unable
to supply any service or perform any act which Landlord is obligated to supply
or perform, this Lease and Tenant's obligation to pay rent hereunder shall in no
way be affected, impaired or excused and Landlord shall not be deemed in breach
hereof except as otherwise expressly set forth to the contrary herein.
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ARTICLE 10
Improvements
Section 10.01. Tenant shall have no right to remove any of
the Building machinery, equipment or fixtures from the Demised Premises except
to the extent provided in Sections 10.02 and 11.05.
Section 10.02. Upon the expiration or earlier termination of
the term of this Lease, all Improvements then located on the Demised Premises
shall, with the Demised Premises, be vacated and surrendered by Tenant to
Landlord, and Tenant agrees to execute and deliver to Landlord such deeds,
assignments or other instruments of conveyance (collectively, the "Instruments
of Conveyance") as Landlord may deem reasonably necessary to evidence such
transfer of title to Landlord. The Instruments of Conveyance shall include an
assignment by Tenant of all of Tenant's right, title and interest as landlord
in and to all subleases affecting the Demised Premises. All Improvements
constructed or caused to be constructed by Tenant shall be of a quality
appropriate for first class office buildings in the Boca Raton, Florida area.
ARTICLE 11
Maintenance and Repairs, Utilities
Section 11.01. Except as otherwise expressly provided herein,
throughout the Term, Tenant shall, at its sole cost and expense, take good care
of the Demised Premises, including, without limitation, all alleyways and
passageways and the sidewalks, curbs, vaults, fences, landscaping and paved
areas constituting part of the Demised Premises, and keep the same in good
order and condition, ordinary wear and tear and obsolescence excepted, and make
all necessary repairs thereto, interior and exterior, ordinary and
extraordinary, foreseen and unforeseen. When used in this Article, the term
"repairs" shall include all necessary replacements, renewals, alterations,
additions and betterments, and any rebuilt, additional or substituted
buildings, structures, facilities and other improvements. All repairs made by
Tenant shall be equal in quality and class to the original work if an
excavation she be made upon land adjacent to or under the Improvements, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation license to enter the Demised Premises for
the purpose of performing such work as said person shall deem necessary or
desirable to preserve and protect the Improvements from injury or damage and to
support the same by proper foundations, without any claim for damages or
liability against Landlord and without reducing or otherwise affecting Tenant's
obligations under this Lease.
Section 11.02. The necessity for and adequacy of repairs to
and maintenance of the Improvements pursuant to this Article shall be measured
by the standard which is appropriate for first class office buildings in the
Boca Raton, Florida area.
Section 11.03. Except as otherwise expressly provided in the
Lease, Landlord shall not be required to furnish any services, facilities or
utilities or to make any repairs or alterations in or to the Demised Premises,
Tenant hereby assuming the full and sole responsibility for the condition,
operation, repair, replacement, maintenance and management of the Demised
Premises.
Section 11.04. With respect to repair and maintenance of the
Demised Premises, Landlord and Tenant hereby agree as follows:
(a) Subject to the provisions of Article 7 of this
Lease, Landlord at its expense shall except for such
structural repairs caused or necessitated by any act (other
than normal wear and tear) or negligence of Tenant, make all
structural repairs as and when needed in or about or to the
Improvements together with the repair of any damage to the
Improvements caused by the performance of such structural
repairs. Structural repairs shall be deemed to include,
without limitation, any and all repairs required to maintain
the roof of the Building in good condition. Tenant shall
cooperate with Landlord in keeping all unauthorized persons
from gaining access to
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the roof Tenant shall not permit any activity or work that
may, directly or indirectly, penetrate the roof and the roof
membrane of the Building.
(b) Tenant agrees that Tenant shall, at Tenant's
sole cost and expense, retain and contract with an elevator
maintenance contractor approved by Landlord (which approval
shall not be unreasonably withheld, delayed or conditioned)
to maintain all the elevators in the Demised Premises in good
working order and condition. The obligations and
responsibilities to be undertaken by such elevator contractor
shall be limited to the services set forth in Schedule D
attached hereto and made a part hereof Landlord, at its
expense, shall be responsible for making any repairs to the
elevators in the Demised Premises which are not within the
services provided by Tenant's elevator contractor in
accordance with Schedule D.
(c) Tenant shall throughout the term hereof, at
Tenant's sole cost and expense, maintain the Building
heating, ventilation and air-conditioning equipment and
system (hereafter referred to as the "HVAC System") in good
working order and repair, including, without limitation, the
retention and contracting with an HVAC maintenance contractor
approved by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned, to so maintain
the HVAC System. Tenant shall, except as hereinafter in this
subsection 11.04(c) or subsection 11.04(f) provided, at
Tenant's expense, be responsible for all repairs, maintenance
and, if required, replacements of and to the HVAC System.
Notwithstanding the foregoing, Landlord shall, unless the
need therefor results from the misuse, abuse of or failure to
properly maintain (pursuant to Schedule D) the HVAC System
(or any part thereof) by Tenant or its agents, employees,
contractors or invitees, be responsible for the replacement
if any, with new comparable equipment of any compressor,
condenser, pumps, cooling tower, dehumidifier, evaporative
coolers, roof ventilation fans, electronic air cleaners,
fans, and systems control units comprising a part of the HVAC
System. All other repairs, maintenance and replacement of the
HVAC System and all repairs, maintenance and replacement of
any supplemental HVAC equipment or system installed by Tenant
or at Tenant's expense in the Demised Premised shall be
solely the responsibility of Tenant at Tenant's sole cost and
expense.
(d) Tenant shall throughout the Term, at Tenant's
sole cost and expense, retain and contract with a boiler
maintenance and repair contractor approved by Landlord, which
approval shall not be unreasonably withheld, delayed or
conditioned, to maintain the boiler serving the Building in
good working order and condition. The obligations and
responsibilities to be undertaken by such aforesaid boiler
contractor shall include, without limitation, the services
set forth on Schedule E attached hereto and made a part
hereof. Tenant shall at Tenant's expense, be responsible for
all repairs, maintenance and, if required, replacements of
and to such boiler and the equipment relating thereto, except
for such repairs or replacements during the Term as may be
necessitated by a latent defect in (i) the boiler or (ii)
Landlord's installation of the boiler, in which event the
repairs and replacements shall be made by Landlord at
Landlord's expense.
(e) Landlord shall make available for the benefit of
Tenant all guarantees and warranties that Landlord received
in connection with the construction of the Improvements, the
equipment installed therein and Landlord's Work (as such term
is defined in the Construction Agreement), and Landlord
agrees to cooperate with Tenant, at Tenant's sole cost and
expense, to obtain the benefits of such guarantees and
warranties; provided, however, that the foregoing shall in no
way relieve Landlord of its obligations set forth in this
Section 11.0.4 or elsewhere in this Lease.
Section 11.05. Tenant will not do, permit or suffer any
waste, damages, disfigurement or injury to or upon the Demised Premises or any
part thereof with the prior written approval of the Landlord, which approval
shall not be unreasonably withheld or delayed, Tenant shall have the right at
any time and from time to time to sell or dispose of any budding machinery,
equipment or fixtures subject to this Lease which may have become obsolete or
unfit for use or which is no longer useful, necessary or profitable in the
conduct of Tenant's
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business; provided, however, that Tenant shall have substituted or shall
promptly substitute for the property so removed from the Improvements other
building machinery, equipment or fixtures not necessarily of the same character
but at least of equal quality and utility in the performance of the particular
function in question as that of the property so removed unless, in Tenant's
reasonable opinion as set forth in written notice to Landlord, the property so
removed was performing an obsolete function and replacement thereof is not
necessary or appropriate to maintain the operation or character of the Demised
Premises, its use and occupancy by subtenants or its overall value without
impairment. Without the prior written approval of Landlord, Tenant may at any
time and from time to time sell or dispose of any building machinery, equipment
or fixtures subject to this Lease which may have become obsolete or unfit for
use or which is no longer useful necessary or profitable in the conduct of
Tenant's business, which machinery, equipment or fixtures do not exceed Twenty
Thousand Dollars ($20,000.00) in cost in any one year, so long as Tenant shall
have substituted the removed and/or replaced machinery, equipment or fixtures
as hereinabove provided.
Section 11.06. Tenant shall contract directly for and be
responsible for all charges for electricity, gas, water, sewer, heat, power,
telephone or other communication devices and all other utilities or services
supplied to the Demised Premises and the cost of repair, maintenance,
replacement, and reading of any meters measuring Tenant's consumption thereof
Tenant expressly agrees that Landlord shall not be responsible for the failure
of supply to Tenant, of any of the aforesaid or any other utility services.
ARTICLE 12
Alterations and Additions
Section 12.01. Tenant shall make no alterations,
installations, additions, substitutions or improvements (hereinafter sometimes
collectively referred to as "Alterations"), whether or not the same shall
constitute waste, in or to the Demised Premises without Landlord's prior
written consent, except that Landlord's consent shall not be required for
Alterations to the interior of the Improvements, provided that (i) neither the
outside appearance nor the roof facade or structural integrity of the
Improvements shall be affected and (ii) the proper functioning or basic design
of any of the mechanical, electrical, heating, ventilating or air conditioning
and other systems of the improvements shall not be adversely affected or
adversely modified. Landlord shall not unreasonably withhold or delay its
consent to Alterations (a) physically affecting any part of the Demised
Premises exclusive of the Improvements, (b) which will not adversely affect the
structural integrity of the Improvements, or (c) which do not affect the roof
of the Improvements. Prior to the commencement of any Alterations, Tenant will
give Landlord written notice thereof together with plans and specifications for
the work (if plans and specifications are customarily prepared for such work),
and will otherwise comply with the provisions of this Article 12. Tenant shall
promptly pay all costs and expenses incurred in connection with each such
addition, alteration, removal or substitution and shall discharge any and all
liens filed against the Demised Premises arising out of each thereof Tenant
shall procure and pay for all permits and licenses required in connection with
any such addition, alteration, removal or substitution. All Alterations
constructed or caused to be constructed by Tenant shall be of a quality
appropriate for first class office buildings in the Boca Raton, Florida area.
Provided, however, notwithstanding anything contained herein
to the contrary, Tenant shall have the right, prior to occupancy of the Demised
Premises, to make the alterations described on Exhibit "B" of this Lease,
without the prior written consent of the Landlord.
ARTICLE 13
Compliance with Legal Requirements, Use
Section 13.01. (a) Tenant shall during the Term, at its sole
cost and expense, promptly comply with all Legal Requirements which may be
applicable to the Demised Premises or to the manner or use or occupancy thereof
Tenant shall likewise observe and comply with the requirements of all policies
of public liability, fire and other insurance at any time in force with respect
to the Demised Premises.
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(b) Notwithstanding any language to the contrary contained
herein, in the event that Tenant's compliance with any Legal Requirements or
any direction of any public officer shall require any capital improvement, any
material capital construction improvement or structural alteration (including
without limitation any alteration relating to the facade, roof or sprinkler
system and any such improvement or alteration is hereinafter referred to as a
"Structural Alteration") of the Improvements, unless such Structural Alteration
is required by reason of a condition other than the use of the Building for
general executive and administrative offices or, with respect to the Parking
Area, for parking purposes, or is required by reason of a breach of any of
Tenant's covenants and agreements hereunder (including Tenant's failure to
maintain the Demised Premises as provided in Article 12), Landlord shall
reimburse to Tenant all of the costs of any such Structural Alteration upon
Landlord's receipt of paid invoices therefore.
(c) Notwithstanding any language to the contrary contained in
Section 13.01 (b), any Structural Alteration required by reason of a breach by
Landlord of any of its covenants and agreements hereunder shall be made by
Landlord at Landlord's sole cost and expense.
(d) In the event that Landlord shall fail to pay to Tenant
any amounts owing to Tenant pursuant to this Section 13.01 within twenty (20)
days after the date due, Tenant may offset, after five (5) Business Days'
notice by Tenant to Landlord of its intention to do so, the amount owed,
together with interest thereon computed at the Default Rate from the due date
until the date Tenant offsets such amount against the next installments of
Basic Rent or Additional Charges due hereunder.
Section 13.02. Tenant shall have the right, after prior
written notice to Landlord, to contest by appropriate legal proceedings, in the
name of Tenant or Landlord or both, at Tenant's sole cost and expense, the
validity of any Legal Requirement of the nature referred to in Section 13.01 of
this Lease. If by the terms of any such Legal Requirement compliance therewith
may legally be held in abeyance without incurring any lien, charge or liability
of any kind against the Demised Premises, and without subjecting Tenant or
Landlord to any fines, penalties or other liability (including forfeiture of
the estate of Landlord or Tenant in the Demised Premises) for failure to comply
therewith, Tenant may postpone compliance until the final determination of any
such proceedings, provided that all proceedings shall be prosecuted with due
diligence. Landlord shall also have the right to contest the validity of any
such Legal Requirement in the event Tenant elects not to do so and so long as
the aforesaid conditions shall be met.
Section 13.03. Tenant shall not cause or maintain or permit
to be caused or maintained any nuisance in or upon the Demised Premises. Tenant
shall not suffer or permit the Demised Premises, or any portion thereof, to be
used by the public, as such, in any way as would impair Landlord's title
thereto.
Section 13.04. Tenant shall use and occupy the Demised
Premises for general office uses and related uses incidental thereto as shall
be reasonably required by Tenant in the operation of its business and as are
consistent with a first class office building in Boca Raton, Florida.
Section 13.05. (a) Throughout the Term, Tenant shall not
undertake or permit any Environmental Activity (as defined below) other than
(i) in compliance with all applicable Legal Requirements, (ii) as is customary
for general office tenants in first-class office buildings in Boca Raton,
Florida and (iii) in such a manner as shall keep the Demised Premises free from
any lien imposed pursuant to any Legal Requirement in respect of such
Environmental Activity. Tenant shall implement and maintain a program to ensure
that any Environmental Activity undertaken or permitted at the Premises is
undertaken in a manner as to provide prudent safeguards against potential risks
to human health or the environment. Tenant shall notify Landlord within 24
hours of Tenant's actual knowledge of the release of any Hazardous Materials
(as hereinafter defined) from or at the Demised Premises which could form the
basis of any claim, demand or action by any party. Landlord shall have the
right from time to time, at reasonable times and upon reasonable prior notice,
to conduct an environmental audit of the Demised Premises and Tenant shall
cooperate in the conduct of such environmental audit. If Tenant shall breach
the covenants provided in this Section 13.05, then, in addition to any other
rights and remedies which may be available to Landlord under this Lease or
otherwise at law, Landlord may require Tenant to take all actions, or to
reimburse Landlord for the costs of any and all actions taken by Landlord as
are necessary or
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reasonably appropriate, to cure such breach. Tenant agrees, to the extent not
covered by the proceeds of insurance paid to Landlord, to indemnify and save
harmless Landlord from and against any and all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including reasonable
attorneys' fees which may be imposed upon or incurred by or asserted against
Landlord with respect to any Environmental Activity of Tenant (except to the
extent the same arises from any act, omission or negligence of Landlord, its
contractors, licensees, agents, servants, employees, invitees or visitors), by
reason of any of the following occurring during the Term: (a) any work or thing
done in, on or about the Demised Premises or any part thereof by Tenant or any
agent, contractor, employee, servants, licensee, invitee or visitor of Tenant,
(b) any use, nonuse, possession, occupation, condition, operation, maintenance
or management of the Demised Premises or any part thereof; and (c) any
negligence of Tenant or any agent, contractor, employee, licensee (other than
Landlord) or invitee of Tenant. For purposes of this Section 13.05,
"Environmental Activity" means any use, storage, installation, existence,
release, threatened release, discharge, generation, abatement, remove disposal,
handling or transportation from, under, into or on the Premises of (A) any
"hazardous substance" as defined in ss. 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601(14),
as amended; (B) petroleum, crude oil or any fraction thereof natural gas or
synthetic gas used for fuel; and (C) any additional substances or materials
which at such time are classified or considered to be hazardous or toxic under
the laws of the State of Florida or any other Legal Requirements (the materials
described in clauses (A) through (C) above are collectively referred to herein
as "Hazardous Materials"). The obligations of Tenant under this Section 13.05
shall survive the expiration or sooner termination of this Lease.
(b) Landlord represents that, to the best of Landlord's
knowledge, there are no Hazardous Materials present at or in the Demised
Premises the nature, concentration or condition of which violates any Legal
Requirement. If, at any time during the term of this Lease, Landlord becomes
aware that the foregoing representation was inaccurate in any material respect,
Landlord shall take all actions necessary, at its sole cost and expense, to
correct any condition or conditions the existence of which renders such
representations inaccurate. Landlord agrees, to the extent not covered by the
proceeds of any insurance paid, to indemnify and save harmless Tenant from and
against any and all liabilities, obligations, damages, penalties, claim, costs,
charges and expenses, including reasonable attorneys' fees which may be imposed
upon or incurred by or asserted against Tenant with respect to any
Environmental Activity of Landlord (except to the extent the same arises from
any act, omission or negligence of Tenant, its contractors, licensees, agents,
servants, employees, invitees or visitors), by reason of any of the following
having occurred prior to or during the Term: (a) any work or thing done in, on
or about the Demised Premises or any part thereof by Landlord or any agent,
contractor, employee, servants, licensee, invitee or visitor of Landlord, (b)
any use, nonuse, possession, occupation, condition, operation, maintenance or
management of the Demised Premises or any part thereof, and (c) any negligence
of Landlord or any agent, contractor, employee, licensee (other than Tenant) or
invitee of Landlord.
ARTICLE 14
Discharge of Liens
Section 14.01. In the event that the Demised Premises or any
part thereof or Tenant's leasehold interest therein shall, at any time during
the Term, become subject to any vendor's, mechanic's, laborer's, materialman's
or other lien, encumbrance or charge because of the negligence of or action or
nonaction of Tenant or its representatives, Tenant shall cause the same, at its
sole cost and expense, to be discharged, by payment, bonding, deposit or
otherwise, within thirty (30) days after notice thereof. Notwithstanding the
foregoing provisions of this Section 14.01, Tenant will not be required to
discharge any mechanic's, laborer's or materialmen's lien which does not
encumber Landlord's interest in the Demised Premises if Tenant is in good faith
contesting the same and has furnished a cash deposit or a security bond or
other such security satisfactory to Landlord in an amount sufficient to pay
such lien with interest and penalties.
Section 14.02. Nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any contractor,
subcontractor, laborer or materialman for the performance of any work, labor or
services or the furnishing of any materials for any mechanic's, laborer's,
materialman's or other lien, encumbrance or charge against the Demised
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Premises or any part thereof nor as giving Tenant any right power or authority
to contract for or permit the rendering of any services or the furnishing of
materials that would give rise to the filing of any lien against the Demised
Premises or any part thereof. Notice is hereby given, and Tenant will cause all
agreements it enters into for construction to provide, that Landlord will not
be liable for any work performed or to be performed at the Demised Premises for
Tenant or any subtenant or for any materials furnished or to be furnished at
the Demised Premises for any of the foregoing, and that no mechanic's or other
lien for such work or materials will attach to or affect the estate or interest
of Landlord in and to the Demised Premises or any part thereof. Landlord shall
have the right at all reasonable times to post and keep posted on the Demised
Premises any notices that may be provided by law which Landlord may deem
necessary for the protection of Landlord and the Demised Premises from such
liens.
Section 14.03. Tenant has and will have no power to do any
act or make any contract which may create or be the foundation for any lien,
mortgage or other encumbrance upon the estate or assets of Landlord or of any
interest of it in the Premises, notwithstanding anything herein to the
contrary. Tenant shall strictly comply with the provisions of Chapter 713,
Florida Statutes, and shall give each contractor performing work or providing
materials or equipment to the Demised Premises with the notices hereof.
ARTICLE 15
Right of Performance, Abatement
Section 15.01. Landlord shall have the right at any time,
after fifteen (15) days' written notice to Tenant (or with telephonic notice in
case of emergency or in case any fine, penalty, interest or cost may otherwise
be imposed or incurred), to make any payment or perform any act required by
Tenant under this Lease, and in exercising such right, to incur necessary and
incidental costs and expenses, including reasonable attorneys' fees. Nothing
herein shall imply any obligation on the part of Landlord to make any payment
or perform any act required of Tenant, and the exercise of the right so to do
shall not constitute a release of any obligation or a waiver of any default.
Section 15.02. All payments made by Landlord and all
reasonable costs and expenses incurred by Landlord, including but not limited
to reasonable counsel fees, in connection with any exercise of such right,
together with interest at the Default Rate from the respective dates of the
making of such payments or the incurring of such costs and expenses, shall be
payable to Landlord by Tenant within ten (10) days after demand.
Section 15.03. If Landlord shall default in the observance or
performance of any term or covenant on Landlord's part to be observed or
performed under or by virtue of any of the terms or provisions of this Lease,
(a) Tenant may remedy such default for the account of Landlord, immediately and
with telephonic notice in case of emergency, or in any other case only provided
that Landlord shall fail to remedy such default after Tenant shall have
notified Landlord in writing of such default and Landlord shall not have cured
such default within fifteen (15) days after such notice or in the case of a
default which cannot with due diligence be cured within a period of fifteen
(15) days if Landlord shall not within said fifteen (15) day period have
instituted steps to remedy the situation and thereafter diligently prosecuted
the same to completion; and (b) if Tenant makes any expenditures or incurs any
obligations for the payment of money in connection with such default including,
but not limited to, reasonable attorneys' fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations incurred,
with interest at the Default Rate from the respective dates of the making of
such payments or incurring of such costs and expenses, shall be paid by
Landlord to Tenant upon rendition of a xxxx to Landlord therefor within ten
(10) days. If Landlord shall fail to pay such sums to Tenant within ten (10)
days after rendition of a xxxx therefor, then Tenant may offset such amount
against the rent payable under this Lease. Any dispute with respect to sums
Tenant claims are owed by Landlord under this Section 15.03 (whether or not
such sums have been offset against rent) shall be resolved by arbitration in
accordance with the provisions of Section 8.06 hereof and any sums which are
determined to be owing by Landlord to Tenant in such arbitration proceeding,
shall be paid to Tenant with interest thereon calculated at the Default Rate
for the period from the due date until the date of payment thereof and any sums
which are determined to be owing by Tenant to Landlord in such arbitration
proceeding, shall be paid to Landlord with interest thereon calculated at the
Default Rate for the period from the
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date due until the date of payment thereof. All the offset rights expressly
granted to Tenant pursuant to the provisions of the Lease are hereby deemed
granted to Tenant pursuant to this Article 15.
Section 15.04. No remedy to which Tenant may resort under
this Lease shall be exclusive of any other remedies or means of redress to
which Tenant may lawfully be entitled at any time and Tenant may invoke any
remedy allowed at law or in equity except as Tenant may be specifically
restricted pursuant to the provisions of this Lease.
Section 15.05. No remedy to which Landlord may resort under
this Lease shall be exclusive of any other remedies or means of redress to
which Landlord may lawfully be entitled at any time, no election by Landlord to
pursue any remedy will prevent Landlord from simultaneously or subsequently
pursuing any other remedy, except as Landlord may be specifically restricted
pursuant to the provisions of this Lease or at law or in equity, and Landlord
may invoke any remedy allowed at law or in equity except as Landlord may be
specifically restricted pursuant to the provisions of this Lease.
Section 15.06. If the Demised Premises shall be rendered
untenantable for a period of five (5) consecutive days by reason of Landlord's
failure or inability to supply any service or perform any act which it is
obligated to supply or perform under this Lease and provided that during such
period of untenantability Tenant actually discontinues its use of five (5%)
percent or more of the rentable area of the Building for the conduct of its
business, then unless such cessation of services is caused by the negligence or
intentional or wrongful act or omission of Tenant, its agents, employees,
contractors or invitees, (a) the Basic Rent and Additional Charges payable
pursuant to this Lease shall xxxxx for the remainder of any such period of
untenantability in an amount proportionate to the rentable area of the Building
which Tenant has discontinued using, and (b) if such period of untenantability
shall continue for twenty (20) consecutive days, Tenant shall have the right to
terminate this Lease upon fifteen (15) days prior notice to Landlord, which
notice shall be given during the thirty (30) days following the expiration of
such twenty (20) day period, and unless prior to the expiration of the fifteen
(15) day notice period Landlord shall restore such service or perform such act,
this Lease shall terminate upon the expiration of such fifteen (15) day notice
period and all further obligations of the parties hereunder shall end except
those obligations which expressly survive the expiration or termination of this
Lease.
ARTICLE 16
Entry by Landlord
Section 16.01. Subject to reasonable security regulations
generally applicable to the Tenant's use of the Demised Premises, at any time
during Tenant's regular business hours, Landlord, through its agents or
employees, shall have the right to enter the Demised Premises to inspect the
Demised Premises and to exhibit the same to prospective purchasers or
mortgagees.
ARTICLE 17
Assignment and Subletting
Section 17.01. Subject to the terms and conditions set forth
herein and Landlord's right of first offer, as hereinafter provided, Tenant may
assign its interest under this Lease, or sublet the Demised Premises or a part
thereof or grant easements, licenses, rights-of-way and other rights and
privileges in the nature of easements with respect to the Demised Premises
without Landlord's consent. No assignment or sublease shall affect or reduce
any obligations of Tenant or rights of Landlord hereunder (including Landlord's
rights under Article 20 in case of default), and all obligations of Tenant
hereunder shall continue in full force and effect as the obligations of a
principal and not of a guarantor or surety, to the same extent as though no
assignment or subletting had been made. Notwithstanding the preceding sentence,
Tenant shall be released from any further obligations and liabilities under the
Lease in connection with an assignment of the Lease if Tenant shall have
provided Landlord with financial statements of such assignee that show to
Landlord's reasonable satisfaction that such assignee has the financial ability
to meet its obligations under the Lease, taking into consideration the Basic
Rent, the
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Additional Charges and the Lease Years, remaining under the Term, such
assignment does not result in a less credit worthy tenant than X.X. Xxxxx &
Co.-Xxxx, based upon commercially reasonable standards, and such assignee
agrees in writing to assume all of the obligations of Tenant under the Lease.
Tenant shall within ten ( 10) days after the execution and delivery of any such
assignment, deliver a conformed copy thereof to Landlord, and within ten (10)
days after the execution and delivery of any such sublease shall give notice to
Landlord of the existence and term of such sublease and of the name and address
of the Subleases.
Provided, however, in the event that Tenant desires to assign this Lease, or
sublease all or a portion of the Premises to another party or parties, Tenant
shall first provide to Landlord thirty (30) days advance written notice of
Tenant's bona fide intent to assign the Lease or to sublet all or any part of
the Premises. Landlord shall have the right, at its option, during said thirty
(30) day period, to (a) release Tenant from this Lease or the portion thereof
to be sublet, as the case may be, or (b) sublet all or any part of the Premises
from Tenant at the same rental Tenant is paying Landlord, with the right to
further sublease such space, provided, however, so long as the Tenant remains
liable on this Lease, any rent received as a result of a sublease in excess of
the rent otherwise due and payable hereunder shall belong to the Tenant.
Provided, further, no sublease shall be made if it results in an occupancy of
more than six (6) tenants (including the Tenant) in the Premises.
Section 17.02. During the Term neither this Lease nor the
term hereby demised shall, without Landlord's prior written consent (not to be
unreasonably withheld, delayed or conditioned), be mortgaged by Tenant, nor
shall Tenant mortgage or pledge the interest of Tenant in and to any sublease
of the Demised Premises or the rentals payable thereunder, without Landlord's
prior written consent, which shall not be unreasonably withheld, delayed or
conditioned. Any such mortgage shall be made to an institutional lender and
shall be made pursuant to the terms hereof shall be a "Permitted Mortgage."
Section 17.03. Any violation of any provision of this Lease,
whether by Act or omission, by any assignee, subtenant or undertenant, shall be
deemed a violation of such provision by the Tenant, it being the intention and
meaning of the parties hereto that the Tenant shall assume and be liable to
Landlord for any and all acts and omissions of any and all assignees,
subtenants and undertenants. If this Lease be assigned, Landlord may and is
hereby empowered to collect rent from the assignee. If the Demised Premises or
any part thereof be underlet or occupied by any person or corporation other
than Tenant, Landlord, in the event of the occurrence of an Event of Default,
may, and is hereby empowered to, collect rent from the undertenant or occupant.
In either of such events, Landlord may apply the net amount received by it to
the Basic Rent and the Additional Charges, and such collection shall not be
deemed a waiver of the covenant of Tenant against mortgaging or pledging this
Lease, or the acceptance of such assignee, undertenant or occupant as Tenant
under this Lease, or a release of Tenant from the performance of the covenants
herein contained on the part of Tenant to be performed.
ARTICLE 18
Quiet Enjoyment
Section 18.01. Landlord covenants that if, and so long as,
Tenant is not in default under this Lease beyond any applicable grace period,
Tenant shall lawfully and quietly hold, occupy and enjoy the Demised Premises
during the Term, without hindrance or molestation by Landlord or by any other
person or persons claiming under or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease.
ARTICLE 19
Indemnification of Landlord; Indemnification of Tenant
Section 19.01. Tenant will to the extent not covered by the
proceeds of any insurance procured by Tenant for the benefit of Landlord paid,
indemnify and save harmless Landlord from and against any and all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, resulting from death or personal injury or damage
to property, which may be imposed upon or incurred by or asserted against
Landlord (except to the extent the same arises from any act, omission or
negligence of Landlord, its contractors, licensees, agents, servants,
employees, invitees or visitors, the breach by Landlord of its
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representations or the breach by Landlord of its obligations under this Lease)
by reason of any of the following occurring during the Term:
(a) any work or thing done in, on or about the
Demised Premises or any part thereof by Tenant or any agent,
contractor, employee, servants, licensee, invitee or visitor
of Tenant;
(b) any use, nonuse, possession, occupation,
condition, operation, maintenance or management of the
Demised Premises or any part thereof;
(c) any negligence of Tenant or any agent,
contractor, employee, licensee (other than Landlord) or
invitee of Tenant; and
(d) any incident, injury (including death at any
time resulting therefrom) or damage to any person or property
occurring in, on or about the Demised Premises or any part
thereof.
In the event that any action or proceeding shall be brought
against Landlord by reason of any matter covered by this Section, Tenant, upon
written notice from Landlord, will at Tenant's sole cost and expense resist or
defend the same. To the extent of the proceeds received by Landlord under any
insurance furnished or supplied to Landlord by Tenant, Tenant's obligation to
indemnify and save harmless Landlord against the hazard which is the subject of
such insurance shall be deemed to have been satisfied.
Section 19.02. Landlord will, to the extent not covered by
the proceeds of any insurance paid, indemnify and save harmless Tenant from and
against any and all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses, including reasonable attorneys' fees, resulting
from death or personal injury or damage to property, which may be imposed upon
or incurred by or asserted against Tenant (except to the extent the same arises
from any act, omission or negligence of Tenant, its contractors, licensees,
agents, servants, employees, invitees or visitors, the breach by Tenant of its
representations or the breach by Tenant of its obligations under this Lease)
resulting, directly or indirectly, from the negligence, willful misconduct or
reckless acts of Landlord, its contractors, licensees, agents, servants,
employees, invitees or visitors, by reason of any of the following occurring
during the Term:
(a) any work or thing done in, on or about the
Demised Premises or any part thereof by Landlord or any
agent, contractor, employee, servants, licensee, invitee or
visitor of Landlord;
(b) any use, nonuse, possession, occupation,
condition, operation, maintenance or management of the
Demised Premises or any part thereof.
In the event that any action or proceeding shall be brought
against Tenant by reason of any matter covered by this Section, Landlord, upon
written notice from Tenant, will at Landlord's sole cost and expense resist or
defend the same. To the extent of the Proceeds received by Tenant under any
insurance furnished or supplied to Tenant by Landlord, Landlord's obligation to
indemnify and save harmless Tenant against the hazard which is the subject of
such insurance shall be deemed to be satisfied.
ARTICLE 20
Remedies in Case of Default
Section 20.01. If during the Term any one or more of the
following acts or occurrences (any one of such occurrences or acts being
hereinafter called an "Event of Default") shall happen:
(a) Tenant shall default in making the payment of
any installment of the Basic
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Rent or the Additional Charges or any default curable by the
payment of money, as and when the same shall become due and
payable, and such default shall continue for a period of ten
(10) days after written notice from Landlord that such
payment is due and unpaid; or
(b) Tenant shall default in the performance of or
compliance with any of the other covenants, agreements, terms
or conditions of this Lease to be performed by Tenant (other
than any default curable by payment of money), and such
default shall continue for a period of thirty (30) days after
written notice thereof from Landlord to Tenant, or, in the
case of a default which cannot with due diligence be cured
within thirty (30) days, Tenant shall fail to proceed
promptly (except for unavoidable delays) after the giving of
such notice and with all due diligence to cure such default
and thereafter to continuously prosecute the curing thereof
with all due diligence (it being intended that as to a
default not susceptible of being cured within thirty (30)
days, the time within which such default may be cured shall
be extended for such period as may be reasonably necessary to
permit the same to be cured with all due diligence); or
(c) Tenant shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent or
shall file any petition or answer seeking any reorganization,
composition, readjustment or similar relief under any present
or future bankruptcy or other applicable law, or shall seek
or consent to or acquiesce in the appointment of any trustee,
receiver, or liquidate of Tenant or of all or any substantial
part of its properties or of all or any part of the Demised
Premises; or
(d) if a court of competent jurisdiction enters a
decree or order for relief with respect to Tenant under Title
11 of the United States Code as now constituted or hereafter
amended or under any other applicable federal or state
bankruptcy law or other similar law, or if such court enters
a decree or order appointing a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of
Tenant, or of any substantial part of its properties, or if
such court decrees or orders the winding up or liquidation of
the affairs of Tenant, or if Tenant files a petition or
answer or consent seeking relief under Title 11 of the United
States Code as now constituted or hereafter amended, or under
any other applicable federal or state bankruptcy law or other
similar law, or if Tenant consents to the institution or
proceeding thereunder or to the filing of any such petition,
or to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) of Tenant, or of any substantial part
of its respective properties, or if Tenant fails generally to
pay its respective debts as such debts become due, or if
Tenant takes any action in furtherance of any action
described in this subparagraph (d);
then, and in any such event, and during the continuance
thereof, Landlord may at its option, then and thereafter
notwithstanding the fact that Landlord may have any other
remedy hereunder or at law or in equity by notice to Tenant,
designate a date, not less than fifteen (15) days after the
giving of such written notice, on which this Lease shall
terminate; and thereupon, on such date the Term of this Lease
and the estate hereby granted shall expire and terminate upon
the date specified in such notice with the same force and
effect as if the date specified in such notice were the date
hereinbefore fixed for the expiration of the Term of this
Lease, and all rights of Tenant hereunder shall expire and
terminate, but Tenant shall remain liable as hereinafter
provided.
Section 20.02. If this Lease is terminated as provided in
Section 20.01, or as permitted by law, Tenant shall peaceably quit and
surrender the Demised Premises to Landlord, and Landlord may, without further
notice, enter upon, reenter, possess and repossess the same by summary
proceedings, ejectment or other legal proceeding, and again have, repossess and
enjoy the same as if this Lease had not been made and in any such event neither
Tenant nor any person claiming through or under Tenant by virtue of any law or
an order of any court shall be entitled to possession or to remain in
possession of the Demised Premises but shall forthwith quit and surrender the
Demised Premises, and Landlord at its option shall at any time, notwithstanding
any other provision of this lease and any other remedies available to Landlord
at law or in equity, be entitled to recover from Tenant (in lieu of all other
claims for damages on account of such termination as and for liquidated
damages) an amount equal to the excess of all rents reserved hereunder for the
unexpired portion of the Term of this Lease, less the amount
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of rents, if any, the Landlord shall receive during such period from others to
whom the Demised Premises may be rented. Nothing herein contained shall limit
or prejudice the right of Landlord, in any bankruptcy or reorganization or
insolvency proceeding, to prove for and obtain as liquidated damages by reason
of such termination an amount equal to the maximum allowed by any bankruptcy or
reorganization or insolvency proceedings, or to prove for and obtain as
liquidated damages by reason of such termination, an amount equal to the
maximum allowed by any statute or rule of law whether such amounts shall be
greater or less than the excess referred to above.
Section 20.03. Notwithstanding the foregoing provisions of
this Article, if in any bankruptcy or like proceedings, whether voluntary or
involuntary, or any other proceeding or filing of the type set forth in Section
20.01(c) hereof, no application is made and no relief is requested on behalf of
Tenant for a reformation or recasting of this Lease or for any change,
alteration, or modification of any of the agreements, terms, covenants, or
conditions of this Lease, or to relieve Tenant with respect to the payment of
Basic Rent or Additional Charges required by this Lease to be paid, or from the
performance of any of the agreements, terms, covenants and conditions of this
Lease on the part of Tenant to be performed and observed, and if any such
receiver, trustee, assignee, or other similar custodian of Tenant's property
shall pay any and all installments of Basic Rent and Additional Charges
required by this Lease to be paid, as and when due, and shall comply with and
faithfully perform all other agreements, terms, covenants, and conditions of
this Lease on the part of the Tenant to be performed, then this Lease shall not
be so terminated or otherwise affected but shall continue in full force and
effect.
Section 20.04. Anything to the contrary contained in this
Article 20 notwithstanding, in the event Tenant shall offset any moneys
(claimed to be owed to Tenant by Landlord) against the Basic Rent or Additional
Charges payable by Tenant hereunder pursuant to the provisions of this Lease,
and Landlord shall dispute Tenant's right to such offset or the amount thereof,
Tenant shall not be deemed to be in default of this Lease by reason of such
offset until such dispute is resolved and Tenant shall fail to pay any sum
determined to be payable by Tenant to Landlord in the resolution of such
dispute together with interest at the Default Rate after the expiration of ten
(10) days following such determination (whether by arbitration or otherwise).
Section 20.05. If Landlord re-enters and obtains possession
of the Demised Premises, as provided in Section 20.02 of this Lease, following
an Event of Default, Landlord shall have the right, without notice, to repair,
or alter the Demised Premises in such manner as Landlord may reasonably deem
necessary or advisable so as to put the Demised Premises in good order and to
make the same rentable and shall have the right at Landlord's option, to re-let
the Demised Premises or a part thereof, and Tenant shall pay to Landlord ten
(10) days after demand all expenses reasonably incurred by Landlord in
obtaining possession, and in altering, repairing and putting the Demised
Premises in good order and condition and in re-letting the same, including
reasonable fees of attorneys and architects, and all other reasonable expenses
or commissions, and Tenant shall pay to Landlord upon the Basic Rent payment
dates following the date of such re-entry through and including the date set
forth in Article 3 hereof for the expiration of the Term of this Lease in
effect immediately prior to such re-entry the sums of money which would have
been payable by Tenant as Basic Rent hereunder and Additional Charges on such
Basic Rent payment dates if Landlord had not re-entered and resumed possession
of the Demised Premises in addition to any past due amount of Base Rent and
Additional Charges together with interest at the Default Rate, deducting only
the net amount of rent, if any, which Landlord shall actually receive (after
deducting from the gross receipts the expenses, costs and payments of Landlord
which in accordance with the terms of this Lease would have been borne by
Tenant) in the meantime from and by any reletting of the Demised Premises, and
Tenant shall remain liable for all sums otherwise payable by Tenant under this
Lease, including but not limited to the expenses of Landlord aforesaid, as well
as for any deficiency aforesaid, and Landlord shall have the right from time to
time to begin and maintain successive actions or other legal proceedings
against Tenant for the recovery of such deficiency, expenses or damages or for
a sum equal to any installments of the Basic Rent and the Additional Charges.
In no event shall Landlord be responsible for or liable for failure to relet
all or any portion of the Demised Premises. The obligation and liability of
Tenant to pay the Basic Rent and the Additional Charges shall survive the
commencement, prosecution, termination or completion of any action to secure
possession of the Demised Premises and the termination of this Lease. Nothing
herein contained shall be deemed to require Landlord to wait to begin such
action or other legal proceedings until the date when this Lease would have
expired
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had there not been any Event of Default. No receipt of monies by Landlord from
Tenant after the termination of this Lease (or Tenant's right to possession),
or after the giving of any notice of the termination of this Lease (unless such
receipt cures the Event of Default which was the basis for the notice), will
reinstate, continue or extend the Term or affect any notice theretofore given
to Tenant, or operate as a waiver of the right of Landlord to enforce the
payment of Rent payable by Tenant hereunder or thereafter falling due, or
operate as a waiver of the right of Landlord to recover possession of the
Premises by proper remedy, except as herein otherwise expressly provided, it
being agreed that after the service of notice to terminate this Lease or the
commencement of any suit or summary proceedings, or after a final order or
judgment for the possession of the Premises, Landlord may demand, receive and
collect any monies due or thereafter falling due without in any manner
affecting such notice, proceeding, order, suit or judgment, all such monies
collected being deemed payments on account of the use and occupation of the
Premises or, at the election of Landlord, on account of Tenant's liability
hereunder.
ARTICLE 21
Additional Rights of Landlord; Waivers
Section 2l.01. No right or remedy conferred upon or reserved
to Landlord or Tenant shall be exclusive of any other right or remedy and any
right and remedy shall be cumulative and in addition to every other right or
remedy given hereunder or now or hereafter existing at law. The failure of
Landlord or Tenant to insist at any time upon the strict performance of any
covenant or agreement or to exercise any right, power or remedy contained in
this Lease shall not be construed as a waiver or relinquishment thereof and the
future receipt by Landlord of any installment of the Basic Rent or the
Additional Charges with knowledge of the breach of any covenant or agreement
contained in this Lease shall not be deemed a waiver of such breach, and no
waiver by Landlord or Tenant of any provision of this Lease shall be deemed to
have been made unless expressed in writing and signed by Landlord or Tenant, as
applicable. Landlord and Tenant shall be entitled to the extent permitted by
applicable law to injunctive relief in case of the violation, or attempted or
threatened violation, of any covenant, agreement, condition or provision of
this Lease or to a decree compelling performance of any covenant, condition or
provision of this Lease, to or to any other remedy allowed Landlord by law.
Landlord's acceptance of any partial payment by Tenant will not constitute a
waiver to enforce collection of the additional sums due it hereunder.
Section 21.02. In the case of an Event of Default during the
Term, Tenant hereby waives and surrenders for itself and all those claiming
under it (i) any right and privilege which it or any of them may have under any
present or future constitution, statute or rule of law to redeem the Demised
Premises or to have a continuance of this Lease for the Term after termination
of Tenant's right of occupancy by order or judgment of any court or by any
legal process or writ, or under the terms of this Lease, or after the
termination of the Term of this Lease as herein provided and (ii) the benefits
of any present or future constitution, statute or rule of law which exempts
property from liability for debt or for distress for rent.
Section 21.03. (a) If Tenant does not pay any Basic Rent or
Additional Charges when the same is due upon demand by Landlord, Tenant shall
pay interest on the unpaid amount(s) at the Default Rate from the due date(s)
therefor until paid in full.
(b) If Tenant shall be in default in the performance of any
of its obligations under this Lease and an action shall be brought for the
enforcement thereof in which it shall be determined that Tenant was in default,
Tenant shall pay to Landlord the expenses reasonably incurred in connection
therewith, including reasonable attorneys' fees. Otherwise in litigation
between Landlord and Tenant, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and costs.
Section 21.04. Tenant hereby agrees that it will not, and
will not have the right to, interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises unless the failure to do so would result in a waiver thereof.
Section 21.05. Tenant acknowledges that under this Lease,
Tenant has no right to withhold or refuse the payment of Basic Rent or
Additional Charges except as may be expressly provided in this Lease. If,
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nonetheless, Tenant shall refuse to pay Basic Rent or Additional Charges based
on a claim that Tenant has a defense to the obligation to pay the same as
specified herein, Tenant agrees that in the event that either party shall
institute or maintain any action or proceeding including, without limitation,
any arbitration in which it is to be determined whether or not Tenant in fact
owes such Basic Rent or Additional Charges, Tenant shall, as a condition to its
right to commence or maintain any such action or proceeding or to interpose as
a defense to a claim by Landlord for such rent, pay the amount in dispute into
the court having jurisdiction over such action or proceeding throughout the
continuance of such action or proceeding so as to assure that if Landlord
prevails in such action or proceeding the amount claimed by Landlord will be
available to be paid to Landlord. This provision is not intended to be and
shall not be deemed to be a waiver of any other right Landlord may have under
this Lease or by law by reason of Tenant's default in the payment of Basic Rent
or Additional Charges.
Section 21.06. If Tenant is in arrears in payment of Basic
Rent or Additional Charges, Tenant waives the right, if any, to designate the
items to which any payments made by Tenant are to be credited, and Tenant
agrees that Landlord may apply any payments made by Tenant to such items as
Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such Payments shall be credited.
Section 21.07. LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER
ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF
THE DEIMISED PREMISES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INJURY OR
DAMAGE, AND ANY EMERGENCY AND OTHER STATUTORY REMEDY WITH RESPECT THERETO.
ARTICLE 22
Notices
Section 22.01. Except as otherwise expressly provided
elsewhere in this Lease, any bills, statements, consents, notices, demands,
requests or other communications given or required to be given under this Lease
(other than requests for services which may be given orally, provided such oral
notice is reasonable under the circumstances) shall be in writing and shall be
deemed sufficiently given or rendered if (a) delivered by hand (against a
signed receipt), (b) sent by registered or certified mail (return receipt
requested), (c) sent by courier service providing for overnight delivery,
provided the sender shall obtain a written receipt for such delivery, or (d)
sent by facsimile transmission with receipt acknowledged on the transmission,
addressed:
In the case of Landlord:
Tyco International (US), Inc.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx, Vice President
With copy to its General Counsel at the same address;
In the case of Tenant prior to occupancy of the Demised
Premises at the above address and thereafter at:
X.X. XXXXX & CO.-CONN.
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Secretary
With copy to its General Counsel at the same address;
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or to such other person(s) or address(es) as either Landlord or Tenant may
designate (but not to exceed three additional persons) by notice given to the
other in accordance with the provisions of this Article 22.
A copy of any notice sent by Landlord to Tenant or by Tenant
to Landlord shall also be sent to any mortgagee at the address designated by
such mortgagee by notice given by such mortgagee to Landlord and to Tenant.
Section 22.02. Any such xxxx, statement, consent, notice,
demand, request for other communication shall be deemed to have been rendered
or given (i) on the date when it shall have been hand delivered, unless such
delivery was not on a Business Day or was after 5:00 p.m. on a Business Day, in
which case delivery shall be deemed to have been rendered or given on the next
Business Day, (ii) if mailed, on the date shown as received on the certified
return receipt or on the date on which the post office deems delivery is
impossible on such return receipt, (iii) the date delivered by a courier
service providing for overnight delivery unless such delivery was not on a
Business Day or was after 5:00 p.m. on a Business Day, in which case delivery
shall be deemed to have been rendered or given on the next Business Day, or
(iv) the day transmitted by facsimile unless such transmission was not on a
Business Day or was after 5:00 p.m. on a Business Day, in which case delivery
shall be deemed to have been rendered or given on the next Business Day.
ARTICLE 23
Subordination
Section 23.01. (a) Landlord represents to Tenant that, as of
the date hereof, there are no Superior Leases nor any Superior Mortgages.
Simultaneously herewith, Landlord shall deliver to Tenant a Nondisturbance
Agreement (as hereinafter defined) containing substantially the terms set forth
in this Article 23, from the current mortgagee, and Tenant agrees to promptly
execute and deliver same.
(b) Any lease to which this Lease is, at the time referred
to, subject and subordinate is herein called a "Superior Lease" and the lessor
of a Superior Lease is herein called "Superior Lessor"; and any mortgage to
which this Lease is, at the time referred to, subject and subordinate is herein
called a "Superior Mortgage" and the holder of a Superior Mortgage is herein
called "Superior Mortgagee." Provided that (i) a mortgagee shall execute and
deliver to Tenant an agreement (any such agreement or any agreement of similar
import from a Superior Mortgagee or a Superior Lessor described in Section
23.01(b)(ii), as the case may be, a "Nondisturbance Agreement"), in recordable
form to the effect that as long as Tenant is not in default under this Lease
beyond any applicable grace period, (v) Superior Mortgagee shall not name
Tenant or any person claiming through or under Tenant as a party defendant to
any action for foreclosure or other enforcement of its Superior Mortgage
(unless required by law in which event no personal judgment will be taken
against Tenant or any person claiming through or under Tenant), (w) this Lease
shall not be terminated by Superior Mortgagee in connection with, or by reason
of foreclosure or other proceedings for the enforcement of its Superior
Mortgage, or by reason of a transfer of Landlord's interest under this Lease
pursuant to the taking of a deed or assignment in lieu of foreclosure (or
similar device), (x) except as set forth in Section 23.02, the leasehold
estate, possession and use of the Demised Premises in accordance with the terms
of this Lease and all other rights and benefits of Tenant (and any person
claiming through or under Tenant) under this Lease shall not be interfered with
or disturbed by Superior Mortgagee or by reason of the subordination of this
Lease to its Superior Mortgage or any foreclosure or other proceedings for the
enforcement of its Superior Mortgage or any transfer of Landlord's interest
under this Lease pursuant to the taking of a deed or assignment in lieu of
foreclosure (or similar device), (y) Tenant shall not be bound to perform any
covenant contained in this Lease to a standard greater than that set forth in
this Lease by virtue of the inclusion in the Superior Mortgage or other
agreements between Landlord and such Superior Mortgagee of any such greater
standard, and (z) such Superior Mortgagee shall not have any rights to approve,
prohibit or consent to the exercise by Tenant of any of its rights under this
Lease, except as expressly provided in this Lease, and (ii) a Superior Lessor
shall execute and deliver to Tenant an agreement to the effect that as long as
Tenant is not in default under this Lease beyond any applicable grace period,
(aa) Superior Lessor shall not name Tenant or any person claiming through or
under Tenant as a party defendant in any action to terminate or otherwise
enforce its Superior Lease (unless required by law in which event no personal
judgment will be taken
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against Tenant or any person claiming through or under Tenant), (bb) this Lease
shall not be terminated by Superior Lessor in connection with, or by reason of
termination or other proceedings for the enforcement of its Superior Lease, or
by reason of a transfer of Landlord's interest under this Lease pursuant to the
taking of a deed or assignment in lieu of termination (or similar device);
provided that in the event of the termination of this Lease as a matter of law
upon the termination of such Superior Lease by reason of a default by Landlord
as tenant thereunder, Tenant shall automatically become the tenant of Superior
Lessor upon all of the terms of this Lease except as set forth in Section
23.02, (cc) except as set forth in Section 23.02, the leasehold estate, the
possession and use of the Demised Premises in accordance with the terms of this
Lease and all other rights and benefits of Tenant (and any person claiming
through or under Tenant) under this Lease shall not be interfered with or
disturbed by Superior Lessor or by reason of the subordination of this Lease to
its Superior Lease or any proceedings for the termination or enforcement of its
Superior Lease or any transfer of Landlord's interest under this Lease pursuant
to the taking of a deed or assignment in lieu of termination (or similar
device), (dd) Tenant shall not be bound to perform any covenant contained in
this Lease to a standard greater than that set forth in this Lease by virtue of
the inclusion in the Superior Lease or other agreements between Landlord and
Superior Lessor of any such greater standard, and (ee) Superior Lessor shall
not have any rights to approve, prohibit or consent to the exercise by Tenant
of any of its rights under this Lease, except as expressly provided in this
Lease, this Lease shall be subject and subordinate to all such Superior
Mortgages and Superior Leases, and to all renewals, extensions, supplements,
amendments, modifications, consolidations and replacements thereof or thereto,
substitutions therefor, and advances made thereunder. This clause shall be
self-operative and, upon the execution and delivery of the applicable
Nondisturbance Agreement, no further instrument of subordination shall be
required to make the interest of any Superior Lessor or Superior Mortgagee
superior to the interest of Tenant hereunder, however, Tenant shall execute and
deliver promptly any certificate or instrument that Landlord or any Superior
Lessor or Superior Mortgagee may reasonably request in confirmation of such
subordination, which certificate or instrument shall be in recordable form,
provided such certificate or instrument is consistent with the terms of this
Lease and the Nondisturbance Agreement and not in derogation of the rights of
Tenant hereunder or thereunder. Any Superior Mortgagee may elect that this
Lease shall have priority over the Superior Mortgage that it holds and, upon
notification to Tenant by such Superior Mortgagee, this Lease shall be deemed
to have priority over such Superior Mortgage, whether this Lease is dated prior
to or subsequent to the date of such Superior Mortgage. If, in connection with
the financing of the Demised Premises, the Building, the Land, or the interest
of the lessee under any Superior Lease, any lending institution shall request
reasonable modifications of this Lease that do not increase Tenant's monetary
obligations under this Lease, increase (except to a de minimus extent) Tenant's
other obligations under this Lease or decrease (except to a de minimus extent)
Tenant's rights under this Lease, Tenant shall make such modifications.
(c) Tenant will accept any Nondisturbance Agreement which is
made, on the condition that, as long as such Superior Mortgagee or Superior
Lessor or anyone claiming by, through, or under such Superior Mortgagee or
Superior Lessor, as the case may be, including a purchaser at a foreclosure
sale, shall not be the then defaulting Landlord or a Landlord affiliate,
neither the Superior Mortgagee nor the Superior Lessor, as the case may be, nor
anyone claiming by, through or under such Superior Mortgagee or Superior
Lessor, as the case may be, including a purchaser at a foreclosure sale (all of
the foregoing persons, other than Landlord or Landlord's affiliate, being
collectively referred to herein as "Successor"), shall, upon becoming the
Landlord hereunder by reason of foreclosure or other proceeding for the
enforcement of its Superior Mortgage, or by reason of termination or other
proceedings for the enforcement of its Superior Lease, or by reason of a
transfer of Landlord's interest under this Lease pursuant to the taking of a
deed or assignment in lieu of foreclosure (in the case of a Superior Mortgagee)
or termination (in the case of a Superior Lessor) or similar device, be:
(i) liable for any act or omission of any prior
Landlord (including the then defaulting Landlord) except to
the extent, and in such case only to the extent, that such
act or omission constitutes a default which continues after
the Successor succeeds to the interest of Landlord hereunder,
or
(ii) bound by any amendment or modification of this
Lease (unless contemplated hereby) made (1) after notice to
Tenant of the existence of the Superior Lease or the Mortgage
in question, as the case may be, and (2) without the consent
of such Superior Mortgagee or Superior
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Lessor, or
(iii) except for any abatement, credit, offset,
setoff, defense or counterclaim specifically provided for in
this Lease, subject to any abatement, credit, offset, setoff,
defense or counterclaim which Tenant may have against any
prior Landlord (including the then defaulting Landlord), or
(iv) bound by any payment, unless consented to by
such Mortgagee, Superior Lessor or Successor, of Basic Rent
and Additional Charges which Tenant might have paid more than
one (1) month in advance of its due date to any prior
Landlord (including the then defaulting Landlord), unless
such payment is actually received by Successor or with
respect to Additional Charges, was placed in an escrow
account and is available to Successor, or
(v) bound by any obligation to perform any work or
to make improvements to the Demised Premises except for
repairs to the Demised Premises or any part thereof as a
result of damage by fire or other casualty pursuant to
Article 7 but only to the extent that such repairs can be
reasonably made from the net insurance proceeds made
available to such Successor and (z) repairs to the Demised
Premises as a result of a partial condemnation pursuant to
Article 8, but only to the extent that such repairs can be
reasonably made from the net proceeds of any award made
available to such Successor.
(d) if required by the Superior Mortgagee or the Superior
Lessor, Tenant promptly shall join in any Nondisturbance Agreement to indicate
its concurrence with the provisions thereof and its agreement set forth in
Section 23.02 to attorn to such Superior Mortgagee (in the event of a
foreclosure of its Superior Mortgage) or Superior Lessor (in the event of a
termination of its Superior Lease by reason of a default thereunder), as the
case may be, as Tenant's Landlord hereunder. Tenant shall promptly so accept,
execute and deliver any Nondisturbance Agreement proposed by any such Superior
Mortgagee or Superior Lessor which conforms with the provisions of this Article
23. Any such Nondisturbance Agreement may also contain other terms and
conditions as may otherwise be required by such Superior Mortgagee or Superior
Lessor, as the case may be, which are consistent with the terms of the
Nondisturbance Agreement required by this Article 23 and not in derogation of
the rights of Tenant thereunder and which do not increase Tenant's monetary
obligations, materially increase Tenant's other obligations, or materially and
adversely affect the rights of Tenant under this Lease.
Section 23.02. If at any time prior to the expiration of the
Term, any Superior Lease shall terminate, or be terminated, by reason of a
default by Landlord as tenant thereunder or any Superior Mortgagee or Successor
comes into possession of the Demised Premises or the Building or the estate
created by such Superior Lease, by receiver or otherwise, by reason of a
default by Landlord under a Superior Mortgage or under a Superior Lease, Tenant
agrees, upon demand of any Superior Lessor, or of any Superior Mortgagee in
possession of the Real Property or the Building or other Successor, to attorn,
from time to time, to any such Superior Lessor, Superior Mortgagee or other
Successor, upon the then executory terms and conditions of this Lease, for the
remainder of the Term; provided that such Superior Lessor, Superior Mortgagee
or Successor, as the case may be, or receiver caused to be appointed by any of
the foregoing, shall then be entitled to possession of the Premises and shall
have agreed to assume the obligations of Landlord (subject to the terms hereof)
or shall have entered into a Nondisturbance Agreement with Tenant (in which
event the terms of the Nondisturbance Agreement shall govern the terms of the
attornment); and provided, further, that such Superior Lessor, Superior
Mortgagee or Successor shall have agreed to accept such attornment on the
foregoing applicable terms. Notwithstanding the foregoing, this Lease shall not
terminate by reason of the termination of any Superior Lease without the prior
written consent of the Superior Mortgagee of the Superior Mortgage which is a
first mortgage on Landlords interest in the Real Property. The provisions of
this Section 23.02 shall inure to the benefit of any such Superior Lessor,
Superior Mortgagee or Successor, shall apply notwithstanding that, as a matter
of law, this Lease may terminate upon the termination of any such Superior
Lease, and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions. Tenant,
however, upon demand of any such Superior Lessor, Superior Mortgagee or
Successor, shall execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section 23.02, reasonably satisfactory to any such
Superior Lessor, Superior Mortgagee or Successor and to
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Tenant, acknowledging such attornment; provided that such Superior Lessor,
Superior Mortgagee or Successor shall join in any such instrument and the same
shall be consistent with the terms of this Lease and not in derogation of any
rights of Tenant hereunder.
Section 23.03. As long as any Superior Lease or Superior
Mortgage shall exist of which Tenant has been given notice by Landlord, Tenant
shall not seek to terminate this Lease by reason of any act or omission of
Landlord (and failure of the Landlord to cure same during any applicable grace
period, as provided herein) (a) until Tenant shall have given written notice of
such act or omission to all Superior Lessors and Superior Mortgagees at such
addresses as shall have been furnished to Tenant by such Superior Lessors and
Superior Mortgagees and (b) if any such act or omission is susceptible of cure
by a Superior Lessor or Superior Mortgagee, and any such Superior Lessor or
Superior Mortgagee, as the case may be, shall have notified Tenant within ten
(10) Business Days following receipt of such notice of its intention to remedy
such act or omission, and the Superior Lessor or Superior Mortgagee shall fail
promptly to commence such cure and diligently prosecute same.
ARTICLE 24
No Merge
Section 24.01. There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the Demised Premises
or any part thereof by reason of the fact that the same person may acquire or
hold, directly or indirectly, this Lease or the leasehold estate, as well as
the fee estate in the Demised Premises or of any interest in such fee estate.
ARTICLE 25
Surrender
Section 25.01. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall surrender the Demised Premises to Landlord
in the same condition in which the Demised Premises were originally received
from Landlord except as repaired, rebuilt, restored, altered or added to as
permitted by any provision of this Lease and except for ordinary wear and tear
and damage by fire or other casualty. Tenant shall remove from the Demised
Premises upon such expiration or earlier termination, all property situated
thereon which is owned by Tenant. Tenant, at its cost and expense, shall repair
any damage to any part of the Demised Premises caused by such removal. Any
property of Tenant not so removed shall become the property of Landlord, which
may thereafter cause such property to be removed from the Demised Premises and
disposed of but the cost of any such removal and disposition as well as the
cost of repairing any damage caused by such removal shall be borne by Tenant.
Upon the expiration or earlier termination of the Term, Tenant shall remove all
computers and computer related and peripheral equipment (other than cabling and
other related equipment that would be deemed fixtures) installed by Tenant at
the Demised Premises (collectively, "Computer Equipment Removal"), and Tenant,
at its cost and expense, shall repair any damage to any part of the Demised
Premises caused by such Computer Equipment Removal, which damage is of a nature
that exceeds that damage which would be caused by the removal of office
furniture and equipment customarily maintained by Tenant at Demised Premises.
In no event shall such Computer Equipment Removal require Landlord to make any
non-customary alterations or repairs to the Demised Premises in order to be
able to prepare or finish any portion of the Demised Premises for rental to
tenants for normal office purposes. Tenant shall reimburse Landlord for all
costs and expenses incurred by Landlord in connection with the Computer
Equipment Removal if Landlord shall reasonably deem such non-customary
alterations or repairs necessary or advisable. In no event shall Tenant be
required to pay for improvements to the Demised Premises that are being used to
prepare the space for a new tenant.
Section 25.02. Upon the expiration or earlier termination of
the Term of this Lease, Tenant shall deliver the Building to Landlord broom
clean, except in the event such surrender is due to a casualty or condemnation,
as provided herein. Copies of all then current maintenance and service
agreements and records, warranties in effect (all of which shall be assigned to
Landlord, if such agreements or warranties are assignable) and all plans and
specifications relating to alterations of the Improvements in Tenant's
possession shall
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be delivered to Landlord at such time. All keys or entrance passcards in
Tenant's possession shall be delivered to Landlord. In the event Tenant holds
over after the Expiration Date, Tenant shall, be deemed a Tenant in Sufferance
and Landlord shall be entitled to one and one-half (1-1/2) times the Basic Rent
in effect immediately prior to the Expiration Date during such hold-over
period.
ARTICLE 26
Assignment of Landlord's Interest
Section 26.01. Subject to Article 29, Landlord may at anytime
and from time to time assign to any person, firm or corporation (herein called
the "Assignee"), by way of pledge or otherwise, any or all of the rights (in
whole or in part) of Landlord under this Lease. The Assignee may enforce any
and all of the terms of this Lease, to the extent so assigned, as though the
Assignee had been a party hereto.
ARTICLE 27
Miscellaneous Provisions
Section 27.01. If any provision of this Lease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Lease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law.
Section 27.02. Irrespective of the place of execution or
performance, this Lease shall be governed by and construed in accordance with
the laws of the State of Florida. The parties agree that venue shall be in Palm
Beach County. This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted.
Section 27.03. This Lease may not be changed, modified or
discharged except by a writing signed by Landlord and Tenant. All covenants,
conditions and obligations contained in this Lease shall be binding upon and
inure to the benefit of the respective successors and assigns of Landlord and
Tenant to the same extent as if each such successor and assign were named as a
party to this Lease.
Section 27.04. Either party shall, at the request of the
other, execute and deliver a statutory form of memorandum of this Lease in form
reasonably satisfactory to Landlord and Tenant, for the purpose of recording,
but said memorandum of this Lease shall not in any circumstances be deemed to
modify or to change any of the provisions of this Lease. Either party shall
have the right to record such Memorandum of Lease.
Section 27.05. The headings of the Articles of this Lease and
the index preceding this Lease are for convenience and reference only and in no
way define, limit or describe the scope or intent of this Lease or in any way
modify, amend or change the express terms and provisions of this Lease.
Section 27.06. The following rules of construction shall be
applicable for all purposes of this Lease and all agreements supplemental
hereto, unless the context otherwise requires:
(a) The term "hereby," "hereof," "hereto,"
"herein," "hereunder" and any similar terms shall refer to
this Lease and the term "hereafter" shall mean after, and the
term "heretofore" shall mean before, the date of this Lease.
(b) Words of the masculine, feminine or neuter
gender shall mean and include the correlative words of the
other genders and words importing the singular number shall
mean and include the plural number and vice versa.
(c) The term "person" shall include firms,
associations, partnerships (including limited partnerships),
trusts, corporations and other legal entities, including
public bodies, as
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well as natural persons.
(d) The terms "included", "including" and
similar terms shall be construed as if followed by the phrase
"without being limited to."
(e) All references in this Lease to numbered
Articles and Sections and to lettered Schedules are
references to the Articles and Sections of this Lease and the
Schedules annexed to this Lease, unless expressly otherwise
designated in context.
Section 27.07. Notwithstanding anything herein to the
contrary, all amounts payable to or on behalf of Landlord, whether denominated
as Basic Rent, Impositions, Additional Rent or otherwise, shall constitute
"Rent" as defined in Section 502(b)(7) of the Bankruptcy Code; provided,
however, and to the extent applicable, Impositions and Additional Charges shall
not be construed as "Rent" for Florida sales tax purposes.
ARTICLE 28
Option to Renew
Section 28.01. (a) Tenant shall have the option (a "Renewal
Option") to extend the Term for three (3) five (5) year periods (individually,
the "Extended Term One," "Extended Term Two" or "Extended Term Three," or
referred to as an "Extended Term") following the Expiration Date of the
original ten (10) year Term, subject to the following conditions:
(i) Tenant shall exercise the Renewal Option by
giving written notice to Landlord at least six (6) months
prior to the then Expiration Date (the "Renewal Notice").
Tenant's failure to render to Landlord the Renewal Notice
within the stipulated time shall result in the automatic
extinguishment of the Renewal Option and any subsequent
option. Landlord shall be under no obligation to solicit such
notice or to remind Tenant of its obligations hereunder.
(ii) The Extended Term shall be under the same
terms and conditions contained herein, except, that the Basic
Rent for each Extended Term (the "Extended Term Market
Rental") shall be equal to the greater of (a) ninety-five
percent (95%) of the prevai1ing market rate for the Premises
based upon a fifteen year renewal lease; or (b) the Basic
Rent for the immediately preceding year. Provided, however,
if the Basic Rent for such Extended Term is based on sub-sub
paragraph (b) herein, then in such event, the Extended Term
Market Rental for such Extended Term shall not be subject to
the annual increases at the rate provided in Section 4.01 (c)
of this Lease for the first three (3) years of such Extended
Term. Except as otherwise provided herein, the Basic Rent for
each Extended Term shall be subject to annual increases at
the rate provided in Section 4.01(c) of this Lease.
(iii) Tenant shall not be in default beyond the
applicable notice and grace periods of any terms and/or
conditions of this Lease at the time of exercise of the
Renewal Option, provided such default is cured within the
earlier of (a) the applicable cure period or (b) prior to the
beginning of the applicable Extended Term, or otherwise the
Renewal Option will be extinguished as if no option shall
have been given.
(b) The "prevailing market rate" for the Premises
proposed by Landlord shall be set forth by Landlord in a notice (the "Market
Rental Notice") delivered to Tenant not later than the later of (x) sixty (60)
days following receipt by Landlord of the Renewal Notice for Extended Term One
and (y) nine (9) months prior to the expiration of the initial Term. If Tenant
shall dispute Landlord's determination of the prevailing market rate by notice
delivered to Landlord not later than sixty (60) days after delivery to Tenant
of the Market Rental Notice, the prevailing market rate shall be determined by
arbitration as provided in Section 8.06.
(c) Tenant may rescind in writing its Renewal Notice
within forty-five (45) days following
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the rendering of a determination in arbitration that the prevailing market rate
selected by Landlord shall be the prevailing market rent; provided that the
Expiration Date shall be deemed amended to the last day of the eighteenth
(18th) month following the month in which such notice of rescission is received
by Landlord. Failure by Tenant to respond to Landlord's determination of the
Extended Term Market Rental within sixty (60) days after receipt of the Market
Rental Notice shall constitute a waiver of renewal.
(d) If arbitration concerning the prevailing market rate
shall not be concluded prior to the commencement of the Extended Term One,
Tenant shall pay Basic Rent and Additional Charges to Landlord from and after
the commencement of Extended Term One, which shall be at the then-escalated
rental rates. If the Extended Term Market Rental as determined by arbitration
is greater than or less than that specified in the Market Rental Notice, then
an adjustment required to correct the amount previously paid shall be made by
payment by the appropriate party within thirty (30) days after the arbitration
determination.
Section 28.02. The term "Term" as used in the Lease shall
include Extended Term One, Extended Term Two or Extended Term Three, as the
case may be, if each of such options are exercised, after the renewal of the
applicable Term.
ARTICLE 29
Right of First Offer
Section 29.01. Landlord hereby grants to Tenant a right of
first offer to purchase the Demised Premises until April 8, 1998.
ARTICLE 30
Building Name
Section 30.01. Tenant may, at its sole cost and expense,
subject to all applicable Legal Requirements, place signs on the facade of the
Building and elsewhere on the Demised Premises containing the name and logo of
Tenant. In the event that any such sign is so placed on the facade of the
Building as provided herein, Tenant shall be solely responsible for the repair,
maintenance and, if necessary, the replacement of such sign, and Tenant shall,
on or before the date upon which this Lease terminates, at Tenant's sole cost
and expense, remove any such sign from the Building. Any damage to the Building
resulting from either the installation, maintenance, repair, replacement or
removal of the foregoing signs shall be Tenant's responsibility, and Tenant
shall promptly repair and restore the Building as required.
Landlord, at its expense, shall remove all signage identifying
the Building as the ADT Building.
Section 30.02. Tenant shall have the right from time to time
to name the Demised Premises.
ARTICLE 31
Estoppel Certificate
Section 31.01. The parties mutually agree that at anytime and
from time to time upon written request of the other party and at the reasonable
cost and expense to the party requesting the same, Landlord or Tenant, as the
case may be, will execute, acknowledge and deliver to the other party a
certificate evidencing whether or not:
(a) the Lease is in full force and effect;
(b) said Lease has been modified or amended in any
respect, and identifying such modifications or amendments, if any; and
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(c) there are any existing defaults thereunder to the
knowledge of the party executing the certificate, and specifying the nature of
such defaults, if any.
ARTICLE 32
Commissions
Section 32.01. Each of the parties (i) represents and
warrants to the other that it has not dealt with any broker or finder in
connection with this Lease other than Xxxxxxx & Xxxxxxxxx and Prudential
Florida Realty and (ii) indemnifies and holds the other harmless from any and
all losses, liability, costs or expenses (including reasonable attorney's fees)
incurred as a result of any alleged breach of the foregoing warranty. Landlord
represents and agrees that it shall pay the commissions due the aforesaid
brokers pursuant to a separate agreement. The execution and delivery of this
Lease by each party shall be conclusive evidence that such party has relied
upon the foregoing representation and warranty.
ARTICLE 33
Radon Disclosure
Section 33.01. In accordance with the requirements of Florida
Statutes Section 404.056(8), the following notice is hereby given to Tenant:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your County Public Health Unit.
ARTICLE 34
Confidential
Section 34.01. This Lease and its terms and the matters set
forth herein, are strictly confidential. Except as otherwise required by law or
permitted in this Lease, each party shall make and shall cause its agents,
licensees and employees to make every effort to ensure the items hereof are
not, and the information contained herein or received pursuant hereto, is not
disclosed to any outside entity (including the press) without the consent of
the other party. Each party acknowledges that attorneys, accountants and other
consultants retained by the respect parties may have knowledge of Tenant.
Further, Landlord agrees not to disclose and to cause its agents, licensees and
employees not to disclose Tenant's name or any information relating to or
describing Tenant to any outside entity (including the press) without the prior
written consent of Tenant, which consent shall be withheld in its sole
discretion until such time as Tenant shall make a press announcement concerning
the Lease.
ARTICLE 35
Due Authorization of Tenant and Landlord
Section 35.01. Landlord represents that it is a Delaware
corporation duly formed and validly existing in good standing under the laws of
the State of Delaware and is duly authorized to transact business in the State
of Florida. This Lease has been duly authorized by all necessary action on the
part of Landlord and, upon the assumption that this Lease constitutes a legal,
valid and binding obligation of Tenant, this Agreement constitutes a legal,
valid and binding obligation of Landlord. The execution and delivery of this
Lease and consummation of the transactions contemplated hereby do not and will
not (i) violate or conflict with the partnership agreement of Landlord, (ii)
violate or conflict with any judgment, decree or order of any court applicable
to or affecting Landlord, or (iii) breach the provisions of, or constitute a
default under, any mortgage, agreement, instrument or
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obligation to which Landlord is a party or by which Landlord is bound.
Section 35.02. Tenant represents that it is a corporation
duly organized and validly existing in good standing under the laws of the
State of Connecticut. This Lease has been duly authorized by all necessary
action on the part of Tenant and, upon the assumption that this Lease
constitutes a legal, valid and binding obligation of Landlord, this Lease
constitutes a legal, valid and binding obligation of Tenant. The execution and
delivery of this Lease and the consummation of the transactions contemplated
hereby do not and will not (i) violate or conflict with the Articles of
Incorporation of Tenant, (ii) violate or conflict with any judgment, decree or
order of any court applicable to or affecting Tenant, or (iii) breach contract,
agreement, instrument or obligation to which Tenant is a party or by which
Tenant is bound.
ARTICLE 36
Landlord Liability
Section 36.01. The liability of Landlord for Landlord's
obligations under this Lease shall be limited to Landlord's interest in the
Demised Premises (including casualty and title insurance proceeds, condemnation
awards, and, in the case of a transferring Landlord in any instance in which
the transferee shall not have assumed the obligations of Landlord under this
Lease ab initio the net proceeds received by Landlord from such sale,
conveyance, assignment or transfer), and Tenant shall not look to any other
property or assets of Landlord in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations.
ARTICLE 37
Financial Records
Section 37.01. Tenant shall provide Landlord within a
reasonable time after the expiration of each quarter of Tenant's fiscal year,
in any event within sixty (60) days thereafter, quarterly reports prepared
showing all income and expenses of Tenant with respect to the Demised Premises
for such quarter and the current year to date, together with a listing of all
receivables and payables in excess of $5,000 with respect to the Demised
Premises as of such date, and a current subleasing rent roll, if any.
ARTICLE 38
Right to Terminate
Section 38.01. Subject to the terms and conditions contained
herein and provided that Tenant is not then in default under this Lease, Tenant
may, at any time subsequent to September 11, 2006, terminate this Lease by
giving written notice to Landlord, at least one (1) year prior written notice
of Tenant's intent to terminate this Lease (the "Termination Notice"). In the
event that Tenant gives the Termination Notice, then upon payment by Tenant of
an amount equal to three (3) times the monthly Basic Rent, as adjusted to the
date of termination, the Lease shall be deemed terminated as if the Expiration
Date were the day one (1) year following the date of delivery of the
Termination Notice.
ARTICLE 39
Commencement Date
Section 39.01. The Tenant is currently occupying certain
premises located at Xxx Xxxx Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx (the "Grace
Building"). The Landlord is currently occupying the Demised Premises, and
intends to take by assignment the Tenant's interest, as lessee, in the Grace
Building, subject to the terms and conditions of an assignment and other
agreements to be made by and between Landlord and Tenant. Landlord and Tenant
agree to cooperate and use their best efforts to effect the exchange of
leasehold premises with minimal
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48
disruption and interference with the businesses of both Landlord and Tenant,
and their respective subsidiaries and affiliates.
Section 39.02. The Commencement Date of this Lease shall be
the date that Tenant has substantially occupied the Demised Premises and
commenced business operations therefrom, and the date that Landlord shall have
commenced business operations from the Grace Building.
ARTICLE 40
Guaranty of X.X. XXXXX & CO.
Section 40.01. X.X. XXXXX & CO., a Delaware corporation, duly
authorized to transact business in the State of Florida (the "Guarantor"), does
unconditionally and absolutely, jointly and severally, guaranty to Landlord the
prompt payment, when due, of the Basic Rent and all Additional Charges payable
under this Lease and the full and faithful performance and observance of any
and all of the terms, conditions, provisions, warranties and covenants
contained in this Lease on the part of the Tenant to be performed and observed
(the "Lease Covenants"). Guarantor unconditionally and absolutely covenants to
Landlord that, if Tenant shall default at any time in the payment of rent or
other charges stipulated in the Lease or in the performance of any of the other
Lease Covenants, Guarantor shall promptly perform such Lease Covenants, and pay
the rent and other charges or arrears thereof that may remain due thereon to
Landlord.
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49
IN WITNESS WHEREOF, Landlord and Tenant have duly executed and delivered this
Lease as of the day and year first above written.
LANDLORD:
ADT TITLE HOLDING COMPANY I
Illegible By: /s/ Xxxxxxx X. Dalet
--------- ---------------------------------------
Witness for Landlord Xxxxxxx X. Dalet, Vice President
Illegible
---------
Witness for Landlord
TENANT:
X.X. XXXXX & CO.-XXXX.
Illegible By: /s/ X. X. XxXxxxx
--------- ---------------------------------------
Witness for Tenant X. X. XxXxxxx, Senior Vice President
Illegible GUARANTOR:
---------
Witness for Tenant
Illegible By: /s/ X. X. XxXxxxx
--------- ---------------------------------------
Witness for Guarantor X. X. XxXxxxx, Senior Vice President
Illegible
---------
Witness for Guarantor
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50
SCHEDULE A
TO ADT LEASE
Legal Description
A parcel of land South of Xxxxx Xxxxx Road in Section 0, Xxxxxxxx 00 Xxxxx, 00
Xxxx, Xxxx Xxxxx Xxxxxx, Xxxxxxx, described as follows:
COMMENCING at the Northwest corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx 43
West, Palm Beach County, Florida; thence South 00(degrees) 00' 35' East (for
convenience all bearing shown herein are relative to an assumed meridian) along
the West line of said Section 1, a distance of 5905.02 feet; thence South 89'
29' 20' East along the South Right-of-Way line of Xxxxx Xxxxx Road, being
parallel with and S95 feet South of the North line of said Section 1, a
distance of 737.46 feet of the POINT OF BEGINNING of this description; thence
continue South 83' 29' 20' East, a distance of 522.62 feet; thence South a
distance of 416.75 feet; thence West a distance of 522.60 feet; thence North a
distance of 521.41 feet to the POINT OF BEGINNING.
Said lands situate, lying and being in Palm Beach County, Florida.
Tax Assessor's No. PC# 06-42-47-01-00-000-3050-001
51
SCHEDULE B
TO
ADT LEASE
Taxes for the year 1998
Covenants, restrictions, conditions, reservations, easements, liens for
assessments and other provisions set forth in restrictive covenants recorded in
Official Records Book 2873, at Page 745 and in allied instruments referred to
in said restrictions aforementioned restrictions have been amended by
instrument(s) recorded in Official Records Book 3199, Page 115, Office Records
Book 3199, Page 120, Official Records Book ___, Page 1415, Official Records
Book 3767, Page 1943, Official Records Book 3866, Page ____, Official Records
Book 3880, Page 1137 and Official Records Book 4054, Page 1768. Rights of First
Refusal has been waived.
Covenant recorded in Official Records Book(s) 2869, Page 54.
Resolution of the Lake Worth Drainage District recorded in Official Records
Book(s) 473, Page 92.
Grant of Easement recorded in Official Records Book(s) 2892. Page 1582.
Memorandum of Agreement recorded in Official Records Book(s) 2910, Page 499.
Rights of others in the enjoyment of water over that portion at the Southeast
course of the premises which is submerged as shown by survey prepared by
Caulfield & Xxxxxxx, Inc., dated August 4, 1995, as Job No. 368-01.
52
EXHIBIT"B"
TO
X.X. XXXXX-XXXX LEASE OF ADT BUILDING
The following Alterations to the Demised Premises have been approved by the
Landlord:
1. Removal of locker room and exercise room in the first floor
lobby area in order to construct a file room.
2. Construction of two (2) partition walls in the front of the
lobby from the front windows to the elevator banks in the
center of the Building. The two (2) added rooms will be used
for conference rooms.
3. Construction of two (2) wall from floor to ceiling in the
rear of the first floor lobby from the elevator banks to the
rear windows. These two (2) areas will be used as office
space.
4. The addition of a set of doors in the rear of the lobby in
the center of the Building.
53
SCHEDULE "C"
TO ADT LEASE
NONE
54
SCHEDULE D
ELEVATOR MAINTENANCE
1. Regularly examine, adjust, lubricate as required, and, if conditions
warrant, repair or replace:
a. Power Unit, Pump Motor and Controller;
b. Valve, including relief valve, pilot, lowering, leveling and
check valves, or any of the parts thereof;
c. V-belts, strainers, springs and gaskets;
d. Controller relays, solid state control components, contacts,
coils, timers, magnet frames and controller wiring, traveling
cable and components for entire operating circuit;
e. Plunger, guide bearings, packing and packing gland; and
f. Guide rails and guide shoes.
2. Furnish lubricants which are specially prepared and compounded.
3. Maintain hydraulic fluid at proper operating level.
4. Make any adjustments, repairs, and replacements which it may be
advisable to make before the next regular examination.
5. Make a hydraulic inspection and test of the pressure relief valve, at
least 4 times per year, on each elevator.
6. Examine, lubricate, adjust, and if conditions warrant, repair or
replace all accessory equipment.
55
SCHEDULE E
BOILER MAINTENANCE
YEARLY MAINTENANCE
1. Clean and adjust burner.
2. Inspect and clean flue passage and smoke pipe.
3. Inspect and seal cleanouts.
4. Check draft and adjust if necessary.
5. Lubricate all motors and bearings, including pumps.
6. Check operation of safety switches and valves.
7. Set up for peak efficiency.
BI-MONTHLY MAINTENANCE
1. Check operation of low water cutoff.
2. Check boiler feed valve and pressure.
3. Check hi and low limit for manual shutdown and proper hot water
temperature.
4. Inspect burner operation.
5. Check that hot water heating pumps are not overheating
6. Lubricate bearings.
7. Alternate operation of heating pumps.
