LEASE BY AND BETWEEN PROSPECT PARK REALTY LLC AND INFORMATION ARCHITECTS CORPORATION DATED: June 8, 2005
LEASE
BY
AND BETWEEN
PROSPECT
PARK REALTY LLC
AND
INFORMATION
ARCHITECTS CORPORATION
DATED:
June 8, 2005
PROPERTY:
PROSPECT PARK I, 0000 XX 00XX
XXXXXX,
XXXX XXXXXXXXXX, XXXXXXX
Xxxxxx
& Xxxxxx PC Draft 5.31.05
LEASE
THIS
LEASE is made this 8th day of June, 2005 between Prospect Park
Realty
LLC., a Delaware limited liability company (“Landlord”) and the Tenant named
below.
ARTICLE
I
BASIC
TERMS
|
TENANT:
|
Information
Architects Corporation
|
|
TENANT’S
NOTICE ADDRESS:
|
|
|
LANDLORD’S
NOTICE ADDRESS:
|
c/o
Great Point Investors LLC
00
Xxxxx Xxxxxxxxxx Xxxxxx, 0xx
xxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxx
with
a copy to:
Xxxxx
& Xxxxx Management Services, Inc.
0000
XX Xxxxxxxxx Xxxxxx Xx.
Xxxxx
000
Xxxx
Xxxxx, XX 00000-0000
Attn:
Prospect Park Property Manager
Rent
payments to be sent to:
Prospect
Park Realty LLC
X.X.
Xxx 000000
Xxxxx,
XX 00000-0000
|
|
PROPERTY:
|
Xxxxxxxx
Xxxx X, Xxxx Xxxxxxxxxx, Xxxxxxx, together with the parking areas,
landscaping, walkways and other improvements related to the Property,
as
described on Exhibit
A
|
|
PREMISES:
|
Agreed
to be 2,171 rentable square feet located 0000 XX 00xx
Xxxxxx,
Xxxxxxxx #0 at the Property (the “Building”),
as shown on Exhibit
B.
Landlord and Tenant stipulate to the rentable area of the Premises.
|
|
PROPERTY
RENTABLE AREA:
|
Agreed
to be 63,773 rentable square feet. Landlord and Tenant stipulate
to the
Property Rentable Area.
|
|
TENANT'S
PRO RATA SHARE:
|
3.4%
|
|
LEASE
TERM:
|
Thirty-seven
(37) months beginning on the Commencement Date and ending on the
last day
of the 37th
full
calendar month thereafter
|
|
COMMENCEMENT
DATE:
|
June
15, 2005
|
|
BASE
RENT:
|
6/15/05
- 7/14/05 $0.00
7/15/05
- 7/14/06 $21,710.00/annum; $1,809.17
7/15/06
- 7/14/07 $22,578.40/annum; $1,881.53/month
7/15/07
- 7/14/08 $23,490.22; $1,957.52/month
plus
Florida State Sales Tax
|
|
SECURITY
DEPOSIT:
|
Two
months’ rent
|
|
PERMITTED
USES:
|
General
office use, and for no other purpose.
|
|
BROKERS:
|
Xxxxx
& Xxxxx Company
|
|
PARKING
SPACES:
|
8
unreserved spaces
|
-1-
ARTICLE
II
LEASE
TERM
2.1
LEASE
OF PREMISES FOR LEASE TERM.
Landlord
hereby leases the Premises to Tenant and Tenant leases the Premises from
Landlord for the Lease Term. Any occupancy of the Premises by Tenant prior
to
the Commencement Date will be subject to all of Tenant’s obligations under this
Lease (except that Tenant will not be obligated to pay Base Rent during such
early occupancy until it commences operations at the Premises).
2.2
DELAY
IN COMMENCEMENT.
If
Landlord is unable to deliver the Premises on the Commencement Date, such date
will be postponed to the date possession of the Premises is delivered to Tenant.
At Landlord’s request, Landlord and Tenant will execute a Memorandum of
Acceptance of Lease, in Landlord's customary form, setting forth the
Commencement Date and expiration date of this Lease.
ARTICLE
III
RENT
3.1
BASE
RENT.
On
the
first day of each calendar month during the Lease Term, Tenant will pay to
Landlord the Base Rent in equal monthly installments, in lawful money of the
United States, in advance and without offset, deduction prior notice or demand.
The Base Rent is payable at Landlord's Rent Payment Address or at such other
place or to such other person as Landlord may designate in writing from time
to
time. Payments of Base Rent for any partial calendar month will be prorated.
3.2
ADDITIONAL RENT.
All
sums payable by Tenant under this Lease other than Base Rent are "Additional
Rent"; the term "Rent" includes both Base Rent and Additional Rent. Landlord
will estimate in advance and charge to Tenant the following costs (“Total
Operating Costs”), which Tenant will pay with the Base Rent on a monthly basis
throughout the Occupancy Period: (i) all Real Property Taxes for which Tenant
is
liable under Article 4, (ii) all utility costs (to the extent utilities are
not
separately metered) for which Tenant is liable under Article 5, (iii) all
insurance premiums for which Tenant is liable under Article 6 and (iv) all
Operating Expenses for which Tenant is liable under Article 7 of this Lease.
Landlord may adjust its estimates of Total Operating Costs at any time based
upon Landlord's experience and reasonable anticipation of costs. Such
adjustments will be effective as of the next Rent payment date after notice
to
Tenant. “Occupancy Period” means the period from the time Tenant first enters
the Premises, throughout the Lease Term and thereafter as long as Tenant remains
in the Premises.
After
the
end of each fiscal year during the Term, Landlord will deliver to Tenant a
statement setting forth, in reasonable detail, the Total Operating Costs paid
or
incurred by Landlord during the preceding fiscal year and Tenant's Pro Rata
Share of such expenses. Within 30 days after Tenant's receipt of such statement,
there will be an adjustment between Landlord and Tenant, with payment to or
credit given by Landlord (as the case may be).
3.3
FLORIDA SALES TAX.
All
payments due hereunder (whether Base Rent, Additional Rent or other charges)
are
subject to any and all governmental authority having jurisdiction thereover
and
Tenant agrees to pay all applicable sales, use or other taxes, including,
without limitation, Florida sales tax, as and when due without delinquency,
together with each payment to Landlord.
3.4
INTEREST AND LATE CHARGES.
Any
Rent
or other amount due to Landlord, if not paid when due, will bear interest from
the date due until paid at the rate of 15% per year, but not to exceed the
highest rate legally permitted. In addition, If any installment of Rent or
any
other sums due from Tenant is not received by Landlord within 5 days following
the due date, Tenant will pay to Landlord a late charge equal to 5% of such
overdue amount. The parties hereby agree that such late charge represents a
fair
and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant.
-2-
ARTICLE
IV
PROPERTY
TAXES
4.1
REAL
PROPERTY TAXES.
Tenant
will pay Tenant's Pro Rata Share of Real Property Taxes allocable to the
Occupancy Period. If Landlord receives a refund of any Real Property Taxes
with
respect to which Tenant has paid Tenant's Pro Rata Share, Landlord will refund
to Tenant Tenant's Pro Rata Share of such refund after deducting therefrom
all
related costs and expenses. "Real Property Taxes" means taxes, assessments
(special, betterment, or otherwise), levies, fees, rent taxes, excises,
impositions, charges, water and sewer rents and charges, and all other
government levies and charges, general and special, ordinary and extraordinary,
foreseen and unforeseen, which are imposed or levied upon or assessed against
the Property or any Rent or other sums payable by any tenants or occupants
thereof. Real Property Taxes include Landlord's costs and expenses of review
and
contesting any Real Property Tax. If at any time during the Lease Term the
present system of ad valorem taxation of real property is changed so that in
lieu of the whole or any part of the ad valorem tax on real property, or in
lieu
of increases therein, Landlord is assessed a capital levy or other tax on the
gross rents received with respect to the Property or a federal, state, county,
municipal, or other local income, franchise, excise or similar tax, assessment,
levy, or charge (distinct from any now in effect) measured by or based, in
whole
or in part, upon gross rents or any similar substitute tax or levy, then all
of
such taxes, assessments, levies or charges, to the extent so measured or based,
will be deemed to be a Real Property Tax.
4.2
PERSONAL PROPERTY TAXES.
Tenant
will pay directly all taxes charged against trade fixtures, furnishings,
equipment, inventory or any other personal property belonging to Tenant. Tenant
will use its best efforts to have personal property taxed separately from the
Property. If any of Tenant's personal property is taxed with the Property,
Tenant will pay Landlord the taxes for such personal property within 15 days
after Tenant receives a written statement from Landlord for such personal
property taxes.
ARTICLE
V
UTILITIES
5.1
UTILITIES.
Tenant
will promptly pay, directly to the appropriate supplier, the cost of all natural
gas, heat, cooling, energy, light, power, sewer service, telephone, water,
refuse disposal and other utilities and services supplied to the Premises,
together with any related installation or connection charges or deposits
(collectively, "Utility Costs") incurred during the Occupancy Period. If any
services or utilities are jointly metered with other premises, Landlord will
make a reasonable determination of Tenant's proportionate share of such Utility
Costs and Tenant will pay such share to Landlord. Landlord reserves the right
to
participate in wholesale energy purchase programs and to provide energy to
the
Premises through such programs so long as the cost to Tenant is competitive.
-3-
ARTICLE
SIX
INSURANCE
6.1.
TENANT’S INSURANCE.
Tenant,
at its expense, will maintain the following insurance coverages during the
Occupancy Period:
(a)
Liability
Insurance.
Commercial general liability insurance insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury at the Premises, including contractual liability. Such insurance will
name Landlord, its property manager, any mortgagee, Great Point Investors LLC,
and such other parties as Landlord may designate, as additional insureds. The
initial amount of such insurance will be Three Million Dollars ($3,000,000)
per
occurrence and will be subject to periodic increases reasonably specified by
Landlord based upon inflation, increased liability awards, recommendations
of
Landlord's professional insurance advisers, and other relevant factors. The
liability insurance obtained by Tenant under this Section 6.1 will (i) be
primary and (ii) insure Tenant's obligations to Landlord under Section 6.4.
The
amount and coverage of such insurance will not limit Tenant's liability nor
relieve Tenant of any other obligation under this Lease.
(b)
Worker's
Compensation Insurance.
Worker's Compensation Insurance in the statutory amount (and Employers'
Liability Insurance) covering all employees of Tenant employed or performing
services at the Premises, in order to provide the statutory benefits required
by
the laws of the state in which the Premises are located.
(c)
Automobile
Liability Insurance.
Automobile Liability Insurance, including but not limited to, passenger
liability, on all owned, non-owned, and hired vehicles used in connection with
the Premises, with a combined single limit per occurrence of not less than
One
Million Dollars ($1,000,000) for injuries or death of one or more persons or
loss or damage to property.
(d)
Personal
Property Insurance.
Personal Property Insurance covering leasehold improvements paid for by Tenant
and Tenant's personal property and fixtures from time to time in, on, or at
the
Premises, in an amount not less than 100% of the full replacement cost, without
deduction for depreciation, providing protection against events protected under
"All Risk Coverage," as well as against sprinkler damage, vandalism, and
malicious mischief. Any proceeds from the Personal Property Insurance will
be
used for the repair or replacement of the property damaged or destroyed, unless
the Lease Term is terminated under an applicable provision herein. If the
Premises are not repaired or restored in accordance with this Lease, Landlord
will receive any proceeds from the personal property insurance allocable to
Tenant's leasehold improvements.
(e)
Business
Interruption Insurance.
Business Interruption Insurance providing in the event of damage or destruction
of the Premises an amount sufficient to sustain Tenant for a period of not
less
than one year for: (i) the net profit that would have been realized has Tenant’s
business continued; and (ii) such fixed charges and expenses as must necessarily
continue during a total or partial suspension of business to the extent to
which
they would have been incurred had no business interruption occurred, including,
but not limited to, interest on indebtedness of Tenant, salaries of executives,
foremen and other employees under contract, charges under noncancelable
contracts, charges for advertising, legal or other professional services, taxes
and rents that may still continue and insurance premiums.
6.2
LANDLORD’S INSURANCE.
During
the Lease Term, Landlord will maintain in effect all risk insurance covering
loss of or damage to the Property in the amount of its replacement value with
such endorsements and deductibles as Landlord determines from time to time.
Landlord will have the right to obtain flood, earthquake, and such other
insurance as Landlord determines from time to time or is required by any
mortgagee of the Property. Landlord will not insure Tenant's fixtures or
equipment or building improvements installed or paid by Tenant. Landlord may
obtain commercial general liability insurance in an amount and with coverage
determined by Landlord insuring Landlord against liability with respect to
the
Premises and the Property. The policy obtained by Landlord will not provide
primary insurance, will not be contributory and will be excess over any
liability insurance maintained by Tenant. Landlord will also maintain a rental
income insurance policy, with loss payable to Landlord. Tenant will pay Landlord
Tenant’s Pro Rata Share of premiums for the insurance policies maintained by
Landlord. Any increase in the cost of Landlord’s insurance due to Tenant’s use
or activities at the Premises will be paid by Tenant to Landlord as Additional
Rent.
-4-
6.3
GENERAL INSURANCE PROVISIONS.
(a)
Any
insurance which Tenant is required to maintain under this Lease will include
a
provision which requires the insurance carrier to give Landlord not less than
30
days' written notice prior to any cancellation or modification of such coverage.
(b)
Prior
to the earlier of Tenant's entry into the Premises or the Commencement Date,
Tenant will deliver to Landlord an insurance company certificate that Tenant
maintains the insurance required by Section 6.1 and not less than 30 days prior
to the expiration or termination of any such insurance, Tenant will deliver
to
Landlord renewal certificates therefor. Tenant will provide Landlord with copies
of the policies promptly upon request from time to time.
(c)
All
insurance policies required under this Lease will be with companies having
a
"General Policy Rating" of A -; X or better, as set forth in the most current
issue of the Best Key Rating Guide.
(d)
Without limiting the provisions of Section 6.4, Landlord and Tenant, on behalf
of themselves and their insurers, each hereby waives any and all rights of
recovery against the other, the agents, advisors, employees, members, officers,
directors, partners, trustees, beneficiaries and shareholders of the other
and
the agents, advisors, employees, members, officers, directors, partners,
trustees, beneficiaries and shareholders of each of the foregoing (collectively,
“Representatives”), for loss of or damage to its property or the property of
others under its control, to the extent that such loss or damage is covered
by
any insurance policy in force (whether or not described in this Lease) at the
time of such loss or damage, or required to be carried under this Article 6.
All
property insurance carried by either party will contain a waiver of subrogation
against the other party to the extent such right was waived by the insured
party
prior to the occurrence of loss or injury.
6.4
INDEMNITY.
To
the
fullest extent permitted by law, Tenant hereby waives all claims against
Landlord and its Representatives (collectively, the "Indemnitees") for damage
to
any property or injury to or death of any person in, upon or about the Premises
or the Property arising at any time and from any cause. Tenant shall hold
Indemnitees harmless from and defend Indemnitees from and against all claims,
liabilities, judgments, demands, causes of action, losses, damages, costs and
expenses, including reasonable attorney's fees, for damage to any property
or
injury to or death of any person arising from (i) the use or occupancy of the
Premises by Tenant or persons claiming under Tenant, except such as is caused
by
the sole negligence or willful misconduct of Landlord, its agents, employees
or
contractors, (ii) the negligence or willful misconduct of Tenant in, upon or
about the Property, or (iii) any breach or default by Tenant under this Lease.
-5-
ARTICLE
VII
OPERATING
EXPENSES
7.1
OPERATING EXPENSES.
Tenant
will pay Tenant's Pro Rata Share of all Operating Expenses allocable to the
Occupancy Period. “Operating Expenses" means all costs and expenses incurred by
Landlord with respect to the ownership, maintenance and operation of the
Property including, but not limited to: maintenance, repair and replacement
of
the heating, ventilation, air conditioning, plumbing, electrical, mechanical,
utility and safety systems, paving and parking areas, roads and driveways;
maintenance of exterior areas such as gardening and landscaping, snow removal
and Property signage; maintenance and repair of roof membrane, flashings,
gutters, downspouts, roof drains, skylights and waterproofing; painting;
lighting; cleaning; refuse removal; security; utility services attributable
to
the Common Areas (as defined below); Property personnel costs; personal property
taxes; rentals or lease payments paid by Landlord for rented or leased personal
property used in the operation or maintenance of the Property; fees for required
licenses and permits; and a property management fee (not to exceed five percent
(5%) of the gross rents of the Property for the calendar year). Operating
Expenses do not include: (a) the cost of capital repairs, replacements or
improvements, other than annual depreciation (based on the useful life of the
item under generally accepted accounting principles) on any such capital repair,
replacement or improvement; (b) debt service under mortgages or ground rent
under ground leases; (c) costs of restoration to the extent of net insurance
proceeds received by Landlord; (d) leasing commissions and tenant improvement
costs; and (e) litigation expenses relating to disputes with tenants.
ARTICLE
VIII
USE
OF
PREMISES
8.1
MANNER OF USE; COMPLIANCE WITH LAWS.
Tenant
will use the Premises only for the Permitted Uses. Tenant will not cause or
permit the Premises to be used in any way which (i) constitutes a violation
of
any Legal Requirements (as defined below) or the rules and regulations (the
“Rules and Regulations”) established by Landlord, a copy of which is attached as
Exhibit
C,
as they
may be amended in writing by Landlord, (ii) annoys or interferes with the rights
of tenants of the Property, or (iii) constitutes a nuisance or waste or will
invalidate any insurance carried by Landlord. Tenant will obtain and pay for
all
necessary permits, including a certificate of occupancy, and will promptly
take
all actions necessary to comply with all applicable Federal, State or local
statutes, ordinances, notes, regulations, orders, recorded declarations,
covenants and requirements (collectively, "Legal Requirements") regulating
the
use by Tenant of the Premises, including, without limitation, the Occupational
Safety and Health Act and the Americans With Disabilities Act.
8.2
ENVIRONMENTAL REQUIREMENTS.
(a)
Definition
of “Hazardous Material”.
"Hazardous Material" means any flammable items, explosives, radioactive
materials, oil, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition
of
"hazardous substances", "hazardous wastes", "hazardous materials" or "toxic
substances" now or hereafter regulated under any Legal Requirements, including
without limitation petroleum-based products, paints, solvents, lead, cyanide,
DDT, printing inks, acids, pesticides, ammonia compounds and other chemical
products, asbestos, PCBs and similar compounds, and including any different
products and materials which are found to have adverse effects on the
environment or the health and safety of persons; provided, however, "Hazardous
Material" does not include any de minimis quantities of office or other cleaning
supplies commonly used in accordance with Legal Requirements.
(b)
Tenant’s
Obligations.
Tenant
will not cause or permit any Hazardous Material to be generated, produced,
brought upon, used, stored, treated or disposed of in or about the Property
by
Tenant, its agents, employees, contractors, sublessees or invitees without
(i)
the prior written consent of Landlord, and (ii) complying with all applicable
Legal Requirements pertaining to the transportation, storage, use or disposal
of
such Hazardous Material (collectively, "Environmental Laws"), including, but
not
limited to, obtaining proper permits. Landlord is entitled to take into account
such other factors or facts Landlord deems reasonably relevant in granting
or
withholding consent to Tenant's proposed activity with respect to Hazardous
Material. Landlord will not, however, be required to consent to the installation
or use of any storage tanks on the Property.
If
Tenant's transportation, storage, use or disposal of Hazardous Materials results
in the contamination of the soil or surface or ground water, release of a
Hazardous Material or loss or damage to person(s) or property or the violation
of any Environmental Law, then Tenant agrees to: (x) notify Landlord immediately
of any contamination, claim of contamination, release, loss or damage, (y)
after
consultation with Landlord, clean up the contamination in full compliance with
all Environmental Laws and (z) indemnify, defend and hold Landlord harmless
from
and against any claims, suits, causes of action, costs and fees, including,
without limitation, attorney's fees and costs, arising from or connected with
any such contamination, claim of contamination, release, loss or damage. Tenant
will fully cooperate with Landlord and provide such documents, affidavits and
information as may be requested by Landlord (A) to comply with any Environmental
Law, (B) to comply with the request of any lender, purchaser or tenant, and/or
(C) as otherwise deemed reasonably necessary by Landlord in its discretion.
Tenant will notify Landlord promptly in the event of any spill or other release
of any Hazardous Material at, in, on, under or about the Premises which is
required to be reported to a governmental authority under any Environmental
Law,
will promptly forward to Landlord copies of any notices received by Tenant
relating to alleged violations of any Environmental Law, will promptly pay
when
due any fine or assessment against Landlord, Tenant or the Property and remove
or bond any lien filed against the Property relating to any violation of
Tenant’s obligations with respect to Hazardous Material.
-6-
(c)
Landlord’s
Rights.
Landlord will have the right, but not the obligation, without in any way
limiting Landlord’s other rights and remedies under this Lease, to enter upon
the Premises, or to take such other actions as it deems necessary or advisable,
to investigate, clean up, remove or remediate any Hazardous Material or
contamination by Hazardous Material present on, in, at, under or emanating
from
the Premises or the Property in violation of Tenant’s obligations under this
Lease or under any laws regulating Hazardous Material or that Tenant is liable
under this Lease to clean up, remove or remediate. Landlord will have the right,
at its election, in its own name or as Tenant’s agent, to negotiate, defend,
approve and appeal, at Tenant’s expense, any action taken or order issued by any
governmental agency or
authority
against Tenant, Landlord or the Premises or the Property relating to any
Hazardous Material or under any related law or the occurrence of any event
or
existence of any condition that would cause a breach of any of the covenants
set
forth in this Section 8.2.
If
Landlord determines in good faith that a release or other environmental
condition may have occurred during the Occupancy Period, at Tenant’s cost,
Landlord may require an environmental audit of the Premises by a qualified
environmental consultant. Tenant will, at it sole cost and expense, take all
actions recommended in such audit to remediate any environmental conditions
for
which it is responsible under this Lease.
8.3
LANDLORD'S ACCESS.
Landlord
or its agents may enter the Premises, upon reasonable advance notice to Tenant
(except in the case of an emergency), to show the Premises to potential buyers,
investors or tenants or other parties, for routine property inspections and
maintenance or for any other purpose Landlord deems reasonably necessary. During
the last 9 months of the Lease Term, Landlord may place customary "For Lease"
signs on the Premises.
8.4
COMMON AREAS.
(a)
Common
Areas.
“Common
Areas" means all areas within the Property which are available for the common
use of tenants of the Property and which are not leased or held for the
exclusive use of Tenant or other tenants, including, but not limited to, parking
areas, driveways, sidewalks, access roads, landscaping, and planted areas.
Landlord, from time to time, may change the size, location, nature, and use
of
any of the Common Areas, convert Common Areas into leaseable areas, construct
additional parking facilities in the Common Areas, and increase or decrease
Common Area land or facilities so long as Tenant's use of the Premises is not
materially affected.
(b)
Use
of
Common Areas.
Tenant
will have the non-exclusive right (in common with other tenants and all others
to whom Landlord has granted or may grant such rights) to use the Common Areas,
including the Parking Spaces, for the purposes intended, subject to such
reasonable rules and regulations as Landlord may establish or modify from time
to time. Tenant agrees to abide by all such rules and regulations and to use
its
best efforts to cause others who use the Common Areas with Tenant's express
or
implied permission to abide by the Rules and Regulations. At any time, Landlord
may close any Common Areas to perform any acts as, in Landlord's reasonable
judgment, are desirable to maintain or improve the Property. Tenant will not
interfere with the rights of Landlord, other tenants, or any other person
entitled to use the Common Areas.
-7-
(c)
Parking.
Tenant
shall be entitled to park in common with other tenants of Landlord, and receive
3.9 nonreserved, unassigned parking spaces for every 1,000 square feet of
rentable area of the Premises (i.e., eight (8) spaces as of the date hereof).
Tenant agrees not to overburden the parking facilities, agrees to cooperate
with
Landlord and other tenants in the use of parking facilities, and to abide by
all
rules and regulations regarding the use of such parking facilities as may now
exist, or as may hereinafter be promulgated by Landlord. Said parking spaces
shall be used for parking by vehicles no larger than full-size passenger
automobiles or pick-up trucks, herein called "Permitted Size Vehicles." Vehicles
other than Permitted Size Vehicles shall be parked and loaded or unloaded as
directed by Landlord. Tenant shall not permit any vehicles to park overnight
in
the Property’s parking areas without Landlord’s prior written approval. Landlord
reserves the right, in its absolute discretion, to determine whether parking
facilities are becoming overcrowded, and in such event, to allocate parking
spaces among tenants or to designate areas within which Tenant must park.
Landlord further reserves the right to modify, restripe, and otherwise change
the location of drives and parking spaces. Tenant and Tenant’s employees,
visitors and customers assume all responsibility for damage and theft to
vehicles. Tenant shall repair or cause to be repaired, at Tenant's sole cost
and
expense, any and all damage to the buildings on the Property caused by Tenant's,
or Tenant's employees', visitors' or customers' use of such parking areas
thereon.
ARTICLE
IX
CONDITION
AND MAINTENANCE OF PREMISES
9.1
EXISTING CONDITIONS.
Except
for the work set forth on Exhibit
D attached
hereto, Tenant hereby accepts the Property and the Premises in their present
condition, subject to all Legal Requirements. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation as to the
condition of the Property or the suitability of the Property for Tenant's
intended use. Tenant represents and warrants that Tenant has made its own
inspection of and inquiry regarding the condition of the Property and is not
relying on any representations of Landlord or any broker with respect thereto.
9.2
LANDLORD'S OBLIGATIONS.
Subject
to the provisions of Article 10 (Casualty and Condemnation) and Tenant’s
obligation to pay Additional Rent pursuant to Section 3.2, and except for damage
caused by any act or omission of Tenant or Tenant's employees, agents,
contractors or invitees, Landlord will maintain the Common Areas in good order,
condition and repair and will keep the foundation, roof, building systems (other
than the heating, ventilating and air conditioning system), structural supports
and exterior walls of the improvements on the Property in good order, condition
and repair. Landlord will not be obligated to maintain or repair windows, doors
or plate glass. Tenant will promptly report in writing to Landlord any defective
condition known to it which Landlord is required to repair. Landlord will
repair, at Tenant's expense, any damage to the Property caused by Tenant’s acts
or omissions which is Landlord’s maintenance responsibility.
9.3
TENANT'S OBLIGATIONS.
Subject
to the provisions of Article 10 (Casualty and Condemnation), at its sole cost
and expense, Tenant will keep all portions of the Premises (including without
limitation, all systems and equipment, i.e., HVAC systems, plumbing, plate
glass
and doors, electrical systems, dock levelers, bumpers, doors and floors
including slabs and slab repairs, crack filling and joint repairs) in good
order, condition and repair (including repainting and refinishing, as needed).
If any portion of the Premises or any system or equipment in the Premises which
Tenant is obligated to repair can not be fully repaired or restored, Tenant
will
promptly replace such portion of the Premises or system or equipment except
for
the HVAC system which will be passed through as an operating expense as defined
in section 7.1 of the Lease. Tenant will maintain a preventive maintenance
contract providing for the regular inspection and maintenance of the heating
and
air conditioning system by a heating and air conditioning contractor, such
contract and contractor to be reasonably approved by Landlord. At Landlord’s
option, Landlord will perform Tenant’s maintenance and repair obligations under
this Section 9.03 and Tenant will reimburse Landlord for all costs incurred
in
doing so promptly upon receipt of an invoice from Landlord.
-8-
9.4
ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a)
Tenant's
Work.
Tenant
may not make any installations, alterations, additions, or improvements or
major
repairs in or to the Premises without obtaining Landlord’s prior written
consent. All work will be performed in accordance with plans and specifications
approved by Landlord. Tenant will procure all necessary permits and licenses
before undertaking any work on the Premises and will perform all work in a
good
and workmanlike manner employing materials of good quality and in conformity
with all applicable Legal Requirements and insurance requirements. Tenant will
(i) employ only contractors reasonably approved by Landlord, (ii) require all
contractors employed by Tenant to carry worker's compensation insurance in
accordance with statutory requirements and commercial general liability
insurance covering such contractors on or about the Premises with a combined
single limit not less than $3,000,000 and (iii) submit certificates evidencing
such coverage to Landlord prior to the commencement of any work. Landlord may
inspect Tenant's work at reasonable times. Tenant will prosecute and complete
such work with reasonable diligence and will provide Landlord with "as built"
plans, copies of all construction contracts and proof of payment for all labor
and materials.
(b)
No
Liens.
Tenant
will pay when due all claims for labor and material furnished to the Premises
and keep the Property at all times free from liens for labor and materials.
Tenant will give Landlord at least 20 days' prior written notice of the
commencement of any work on the Premises, regardless of whether Landlord's
consent to such work is required. Landlord may record and post notices of
non-responsibility on the Premises.
9.5
CONDITION UPON TERMINATION.
Upon
the
expiration or termination of the Lease Term, Tenant will surrender the Premises
to Landlord broom clean and in the condition which Tenant is required to
maintain the Premises under this Lease. Tenant will not be obligated to repair
any damage which Landlord is required to repair under Article 10 (Casualty
and
Condemnation). Landlord may require Tenant, at its expense, to remove any
alterations, additions or improvements prior to the expiration of the Lease
and
to restore the Premises to their prior condition. With respect to any
alterations, additions or improvements which require Landlord's approval,
Landlord will specify if Tenant will be required to remove the same at the
time
of such approval. Additionally, prior to the expiration or earlier termination
of the Lease Term or Tenant’s right to possession of the Premises, Tenant shall
remove its furniture, equipment, trade fixtures, other items of personal
property, and any and all wiring and cabling (including but not limited to
telephone, fiber optic, computer, communications, and fire alarm wires and
cables) from the Premises, as well as any and all risers, plenums and conduits
installed and used exclusively by Tenant in the Building. If Tenant does not
remove any such alterations, additions, improvements, or items as set forth
herein, Tenant shall be conclusively presumed to have conveyed the same to
Landlord free and clear of any and all liens and security interests without
further payment or credit by Landlord to Tenant; or at Landlord’s sole option,
such items shall be deemed abandoned, in which event Landlord may cause such
items to be removed and disposed of at Tenant’s expense, without notice to
Tenant and without obligation to compensate Tenant, and Landlord shall, prior
to
returning the Security Deposit to Tenant pursuant to Section 14.4 hereof, deduct
the cost of such removal and disposal from the Security Deposit, with any costs
thereof in excess of the Security Deposit to be paid by Tenant to Landlord
upon
demand.
-9-
9.6
EXEMPTION OF LANDLORD FROM LIABILITY.
Landlord
will not be liable for any damage or injury to the person, business (or any
loss
of income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person or about the
Property, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising
in
or about the Property, or from other sources or places; (d) any curtailment
or
interruption in utility services or (e) any act or omission of any other tenant
of the Property. Tenant will give Landlord prompt notice upon the occurrence
of
any accident or casualty at the Premises. The provisions of this Section will
not exempt Landlord from liability for its gross negligence or willful
misconduct; provided, however, Landlord will not be liable for any consequential
damages.
9.7
SIGNAGE
Tenant
shall have the right to install, at Tenant’s sole cost and expense, signage
bearing Tenant’s company name (a) on or beside the entrance to the door of the
Premises, (b) on all Building monument signs, and (c) on the roof line of the
Building above the Premises (the “Signs”).
All
attributes of the Signs, including without limitation the location, dimensions,
design, materials and color, shall be subject to Landlord’s prior written
approval. Prior to installing any Signs, Tenant shall submit to Landlord for
its
approval a drawing of the Signs, which drawing shall specify the dimensions,
materials, color and other attributes of the Signs which Tenant desires to
install. Tenant’s right to install the Signs shall be subject to Tenant’s
receipt of all necessary permits and governmental approvals for such
installation. The exact placement of the Signs on the roof line of the Building
shall be subject to Landlord’s approval regarding structural support issues.
Tenant shall be solely responsible for obtaining and maintaining all permits
and
governmental approvals necessary for the installation and operation of the
Signs. Tenant shall be responsible for repairing and maintaining the Signs
installed by Tenant in a first-class condition throughout the Lease Term. The
Signs shall be installed by a licensed contractor reasonably acceptable to
Landlord using a mounting procedure approved by Landlord in its sole discretion.
Tenant shall cause its insurance carrier to include the Signs in the coverage
required to be obtained by Tenant pursuant to this Lease. The right to install
the Signs shall be personal to Tenant, or any approved assignee of Tenant or
subtenant of the entire Premises. Tenant agrees to indemnify Landlord and hold
it harmless from and against all claims, damage or liability (including
reasonable attorneys’ fees) sustained or suffered by Landlord arising out of or
related to the installation, maintenance or removal of the Signs. Tenant shall
remove the Signs at the end of the Lease Term and shall restore the portions
of
the Building affected by such removal to its condition immediately prior to
the
installation of the Signs, reasonable wear and tear and casualty excepted.
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ARTICLE
X
CASUALTY
AND CONDEMNATION
10.1
DAMAGE TO PREMISES.
(a)
If
the Premises are destroyed or rendered untenantable, either wholly or in part,
by fire or other casualty ("Casualty"), Tenant will immediately notify Landlord
in writing upon the occurrence of such Casualty. Landlord may elect either
to
(i) repair the damage caused by such casualty as soon as reasonably possible,
in
which case this Lease will remain in full force and effect, or (ii) terminate
the Lease Term as of the date the Casualty occurred. Landlord will notify Tenant
within 30 days after receipt of notice of the Casualty whether Landlord elects
to repair the damage or terminate the Lease Term. If Landlord elects to repair
the damage, Tenant will pay Landlord the portion of the deductible amount (which
deductible shall not exceed $25,000) under Landlord's insurance allocable to
the
damage to the Premises and, if the damage was due to an act or omission of
Tenant or its employees, agents, contractors or invitees, the difference between
the actual cost of repair and any insurance proceeds received by Landlord.
(b)
If
(i) based on the estimate of Landlord’s architect or contractor, it will take
Landlord more than 9 months to rebuild the Premises or (ii) the Casualty occurs
during the last 6 months of the Lease Term and the damage is estimated by
Landlord to require more than 30 days to repair, Tenant may elect to terminate
the Lease Term as of the date the Casualty occurred, which must be exercised
by
written notification to Landlord within 10 days after the occurrence of the
Casualty.
(c)
If
the Property is destroyed or damaged by Casualty and Landlord elects to repair
or restore the Property pursuant to the provisions of this Article 10, any
Rent
payable during the period of such damage, repair and/or restoration will be
reduced according to the degree, if any, to which Tenant's use of the Premises
is impaired.
(d)
The
provisions of this Article 10 will govern the rights and obligations of Landlord
and Tenant in the event of any damage or destruction of or to the Property.
Tenant waives the protection of any statute, code or judicial decision which
grants a tenant the right to terminate a lease in the event of the damage or
destruction of the leased property
10.2
CONDEMNATION.
If
more
than 20% of the floor area of the Premises or more than 25% of the parking
on
the Property is taken by eminent domain, either Landlord or Tenant may terminate
the Lease Term as of the date the condemning authority takes title or
possession, by delivering notice to the other within 10 days after receipt
of
written notice of such taking (or in the absence of such notice, within 10
days
after the condemning authority takes title or possession). If neither party
terminates the Lease Term, this Lease will remain in effect as to the portion
of
the Premises not taken, except that the Base Rent will be reduced in proportion
to the reduction in the floor area of the Premises. Any condemnation award
or
payment will be paid to Landlord. Tenant will have no claim against Landlord
for
the value of the unexpired lease term or otherwise; provided, however, Tenant
may make a separate claim with the condemning authority for its personal
property and/or moving costs so long as Landlord’s award is not reduced thereby.
ARTICLE
XI
ASSIGNMENT
AND SUBLETTING
11.1
LANDLORD'S CONSENT REQUIRED.
Tenant
will not assign or transfer this Lease or sublease the Premises or any part
thereof or interest therein, or mortgage, pledge or hypothecate its leasehold
interest, without Landlord's prior written consent, which will not be
unreasonably withheld. Unless Tenant is a publicly traded company, a transfer
of
a controlling interest in Tenant will be deemed an assignment of this Lease.
Any
attempted transfer without consent will be void and constitute a non-curable
Event of Default under this Lease (as defined below). Tenant's request for
consent will include the details of the proposed sublease or assignment,
including the name, business and financial condition of the prospective
transferee, financial details of the proposed transaction (e.g., the term of
and
the rent and security deposit payable under any proposed assignment or
sublease), and any other information Landlord deems relevant. Landlord will
have
the right to withhold consent, in its reasonable business judgment, or to grant
consent, based on the following factors: (i) the business of the proposed
assignee or subtenant and the proposed use of the Premises; (ii) the net worth
and financial condition of the proposed assignee or subtenant; (iii) Tenant's
compliance with all of its obligations under this Lease; and (iv) such other
factors as Landlord may reasonably deem relevant. Tenant will promptly furnish
to Landlord copies of all transaction documentation.
-11-
11.2
OFFER TO TERMINATE.
If
Tenant
desires to assign this Lease or sublease all of any part of the Premises, Tenant
will notify Landlord and Landlord for a period of 30 days will have the right
to
terminate the Lease Term. If Tenant desires to sublease only a portion of the
Premises, and such portion is subdividable (with any costs paid by Tenant),
then
the right to terminate may be exercised with respect to only that portion of
the
Premises to be subleased. If Landlord elects not to terminate the Lease Term
as
provided in this Section 11.2, Tenant shall pay to Landlord 100% of any net
profits received by Tenant from any assignment of this Lease or sublet of the
Premises.
11.3
NO
RELEASE OF TENANT.
Notwithstanding
any assignment or subletting, Tenant will at all times remain fully responsible
and primarily liable for the payment of Rent and compliance with all of Tenant’s
obligations under this Lease. Consent to one transfer will not be deemed a
consent to any subsequent transfer or a waiver of the obligation to obtain
consent on subsequent occasions. If Tenant's assignee or transferee defaults
under this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the assignee or transferee.
ARTICLE
XII
DEFAULTS
AND REMEDIES
12.1
COVENANTS AND CONDITIONS.
Tenant's
performance of each of Tenant's obligations under this Lease is a condition
as
well as a covenant. Tenant's right to continue in possession of the Premises
is
conditioned upon such performance. Time is of the essence in the performance
by
Tenant of all covenants and conditions.
12.2
DEFAULTS.
Each
of
the following constitutes an "Event of Default" under this Lease:
(a) Tenant fails to pay Rent or any other sum payable under this Lease within
5
days after it is due;
(b)
Tenant fails to perform any of Tenant's other obligations under this Lease
and
such failure continues for a period of 30 days after notice from Landlord;
provided that if more than 30 days are reasonably required to complete such
performance, Tenant will not be in default if Tenant commences such performance
within the 30 day period and thereafter diligently pursues its completion;
(c)
Tenant abandons the Premises; or
(d) Tenant (or Guarantor) becomes insolvent or bankrupt, has a receiver or
trustee appointed for any part of its property, makes an assignment for the
benefit of its creditors, or any proceeding is commenced either by Tenant or
against it under any bankruptcy or insolvency laws, which proceeding is not
dismissed within 60 days; provided, however, if a court of competent
jurisdiction determines that any of the acts described in this subsection (d)
is
not an Event of Default under this Lease, and a trustee is appointed to take
possession (or if Tenant remains a debtor in possession) and such trustee or
Tenant assigns, subleases, or transfers Tenant's interest hereunder, then
Landlord will receive, as Additional Rent, the excess, if any, of the rent
(or
any other consideration) paid in connection with such assignment, transfer
or
sublease over the rent payable by Tenant under this Lease.
-12-
12.3
REMEDIES.
On
the
occurrence of an Event of Default, Landlord may, at any time thereafter, with
or
without notice or demand, and without limiting Landlord in the exercise of
any
right or remedy which Landlord may have:
(a)
Terminate the Lease Term by written notice to Tenant. Tenant will then
immediately quit and surrender the Premises to Landlord, but Tenant will remain
liable as hereinafter provided. Following termination, without prejudice to
other remedies Landlord may have by reason of Tenant's default or of such
termination, Landlord may (i) peaceably reenter the Premises upon voluntary
surrender by Tenant or remove Tenant therefrom and any other persons occupying
the Premises, using such legal proceedings as may be available; (ii) repossess
the Premises or relet the Premises or any part thereof for such term (which
may
be for a term extending beyond the Lease Term), at such rental and upon such
other terms and conditions as Landlord in Landlord's sole discretion determines,
with the right to make alterations and repairs to the Premises; and (iii) remove
all personal property therefrom.
The
amount of damages Tenant will pay to Landlord following termination will include
all Rent unpaid up to the termination of the Lease Term, the value of any free
or reduced rent provided for in this Lease, costs and expenses incurred by
Landlord due to such Event of Default and, in addition, Tenant will pay to
Landlord as damages, at the election of Landlord (if Landlord shall elect
subsection (y) below, it may cease such election at any time), either (x) the
amount, discounted to present value (at the then Federal Reserve Bank discount
rate) by which, at the time of the termination of the Lease Term or of Tenant's
right to possession (or at any time thereafter if Landlord initially elects
damages under subsection (y) below), (i) the aggregate of the Rent and other
charges projected over the period commencing with such termination and ending
on
the expiration date of this Lease exceeds (ii) the aggregate projected rental
value of the Premises for such period; or (y) amounts equal to the Rent and
other charges which would have been payable by Tenant had the Lease Term or
Tenant's right to possession not been so terminated, payable upon the due dates
therefor specified herein following such termination and until the expiration
date of this Lease, provided, however, that if Landlord re-lets the Premises
during such period, Landlord will credit Tenant with the net rents received
by
Landlord from such re-letting, such net rents to be determined by first
deducting from the gross rents received from such re-letting the expenses
incurred or paid by Landlord in terminating this Lease, and the reasonable
expenses of re-letting, including, without limitation, altering and preparing
the Premises for new tenants, brokers' commissions and legal fees, it being
understood that any such reletting may be for a period equal to or shorter
or
longer than the remaining Lease Term; and provided, further, that in no event
(i) will Tenant be entitled to receive any excess of such net rents over the
sums payable by Tenant to Landlord hereunder or (ii) will Tenant be entitled
in
any suit for the collection of damages pursuant to this subsection (y) to a
credit in respect of any net rents from a re-letting except to the extent that
such net rents are actually received by Landlord prior to the commencement
of
such suit.
If
the
Premises or any part thereof are re-let in combination with other space, then
proper apportionment on a square foot area basis will be made of the rent
received from such re-letting and of the expenses of re-letting. In calculating
the Rent and other charges under subsection (x) above, there will be included,
in addition to the Rent, other considerations agreed to be paid or performed
by
Tenant, on the assumption that all such considerations would have remained
constant for the balance of the full Lease Term hereby granted. Landlord may
re-let the Premises or any part thereof for such rent and on such terms as
it
determines (including the right to re-let the Premises for a greater or lesser
term than the Lease Term, the right to re-let the Premises as part of a larger
area and the right to change the character or use made of the Premises).
Landlord will use reasonable efforts to relet the Premises and otherwise to
mitigate Tenant’s damages upon redelivery of the Premises to Landlord. Suit or
suits for the recovery of damages, or any installments thereof, may be brought
by Landlord from time to time at its election, and nothing contained herein
will
be deemed to require Landlord to postpone suit until the date when the Lease
Term would have expired if it had not been terminated hereunder.
(b)
Maintain Tenant's right to possession, in which case this Lease will continue
in
effect whether or not Tenant has abandoned the Premises. In such event, Landlord
will be entitled to enforce all of Landlord's rights and remedies under this
Lease, including the right to recover the Rent as it becomes due.
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(c)
Pursue any other remedy now or hereafter available to Landlord under the laws
or
judicial decisions of the state in which the Property is located.
12.4
DAMAGES.
On
any
termination, Landlord's damages will include all costs and fees, including
reasonable attorneys' fees that Landlord incurs in connection with any
bankruptcy court or other court proceeding with respect to the Lease, the
obtaining of relief from any stay in bankruptcy restraining any action to evict
Tenant, or the pursuing of any action with respect to Landlord's right to
possession of the Premises. All such damages suffered (apart from Rent payable
hereunder) will constitute pecuniary damages which will be paid to Landlord
prior to assumption of the Lease by Tenant or any successor to Tenant in any
bankruptcy or other proceedings.
12.5
CUMULATIVE REMEDIES.
Except
as
otherwise expressly provided herein, any and all rights and remedies which
Landlord may have under this Lease and at law and equity are cumulative and
will
not be deemed inconsistent with each other, and any two or more of all such
rights and remedies may be exercised at the same time to the greatest extent
permitted by law.
ARTICLE
XIII
PROTECTION
OF LENDERS
13.1
SUBORDINATION.
This
Lease shall be automatically subordinated to any Mortgage encumbering the
Property. Landlord shall provide to Tenant an instrument in commercially
reasonable form providing that the ground lessor, mortgagor or beneficiary
of
such Mortgage agrees that in the event of the foreclosure or termination of
such
Mortgage, this Lease and the rights of Tenant hereunder will continue in full
force and effect so long as Tenant continues to comply with all its obligations
hereunder. "Mortgage" includes any mortgage, deed of trust or ground lease,
together with any amendments, additional advances, restatements, modifications
or consolidations of such instrument. If any ground lessor, beneficiary or
mortgagee elects to have this Lease prior to the lien of its Mortgage and gives
written notice thereof to Tenant, this Lease will be deemed prior to such
Mortgage whether this Lease is dated prior or subsequent to the date of said
Mortgage or the date of recording thereof.
13.2
ATTORNMENT.
If
Landlord's interest in the Property is acquired by any ground lessor,
beneficiary, mortgagee, or purchaser at a foreclosure sale, Tenant will attorn
to the transferee of or successor to Landlord's interest in the Property and
recognize such transferee or successor as successor Landlord under this Lease.
Tenant waives the protection of any statute or rule of law which gives Tenant
any right to terminate this Lease or surrender possession of the Premises upon
the transfer of Landlord's interest.
13.3
ESTOPPEL CERTIFICATES.
Within
10
days after Landlord's request, Tenant will execute, acknowledge and deliver
to
Landlord a written statement certifying: (i) that none of the terms or
provisions of this Lease have been changed (or if they have been changed,
stating how they have been changed); (ii) that this Lease has not been canceled
or terminated; (iii) the last date of payment of the Base Rent and other charges
and the time period covered by such payment; (iv) that Landlord is not in
default under this Lease (or if Landlord is claimed to be in default, setting
forth such default in reasonable detail); and (v) such other information with
respect to Tenant or this Lease as Landlord may reasonably request or which
any
prospective purchaser or encumbrancer of the Property may require. Landlord
may
deliver any such statement by Tenant to any prospective purchaser or
encumbrancer of the Property, and such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct. If Tenant does not deliver
such statement to Landlord within such 10 day period, Landlord, and any
prospective purchaser or encumbrancer, may conclusively presume and rely upon
(and Tenant will be estopped from denying): (i) that the terms and provisions
of
this Lease have not been changed except as otherwise represented by Landlord;
(ii) that this Lease has not been canceled or terminated except as otherwise
represented by Landlord; (iii) that not more than one month's Base Rent or
other
charges have been paid in advance; and (iv) that Landlord is not in default
under this Lease.
-14-
13.4
TENANT'S FINANCIAL CONDITION.
Within
10
days after request from Landlord from time to time, Tenant will deliver to
Landlord Tenant's financial statements (audited, if available) for the most
recent two fiscal years. Such financial statements may be delivered to
Landlord's mortgagees and lenders and prospective mortgagees, lenders and
purchasers. Landlord shall exercise commercially reasonable efforts to keep
all
non-public financial statements confidential to Landlord and such mortgagees
or
prospective purchasers and their respective attorneys, accountants and
representatives, and Landlord will use them only in connection with the Property
and this Lease.
ARTICLE
XIV
MISCELLANEOUS
PROVISIONS
14.1
COVENANT OF QUIET ENJOYMENT.
Tenant
on
paying the Rent and performing its obligations hereunder will peacefully and
quietly have, hold and enjoy the Premises throughout the Lease Term without
any
manner of hindrance from Landlord, subject however to all the terms and
provisions hereof.
14.2
LANDLORD'S LIABILITY AND INDEMNITY.
The
obligations of this Lease run with the land, and this Lease will be binding
upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. No owner of the Property will be liable under this Lease except
for
breaches of Landlord's obligations occurring while it is owner of the Property.
The obligations of Landlord will be binding upon the assets of Landlord which
comprise the Property but not upon other assets of Landlord. No individual
Representative will be personally liable under this Lease or any other
instrument, transaction or undertaking contemplated hereby.
To
the
fullest extent permitted by law, Landlord will indemnify and hold harmless
Tenant from any liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments arising from any act of negligence of Landlord, except
to
the extent arising out of Tenant's negligence or willful misconduct or breach
of
this Lease. This indemnity does not cover claims arising from the presence
or
release of Hazardous Materials.
14.3
NOTICE TO LANDLORD.
Tenant
will give written notice of any failure by Landlord to perform any of its
obligations under this Lease to Landlord and to any ground lessor, mortgagee
or
beneficiary under any Mortgage encumbering the Property whose name and address
have been furnished to Tenant. Landlord will not be in default under this Lease
unless Landlord (or such ground lessor, mortgagee or beneficiary) fails to
cure
such non-performance within 30 days after receipt of Tenant's notice or such
longer period as may be required to diligently complete such matter. If Landlord
(or such ground lessor, mortgagee or beneficiary) can not perform any of its
obligations due to events beyond its reasonable control, the time provided
for
performing such obligations will be extended by a period of time equal to the
duration of such events. Events beyond Landlord's reasonable control include,
but are not limited to, acts of God, war, civil commotion, labor disputes,
strikes, fire, flood or other casualty or weather conditions, shortages of
labor
or material, and Legal Requirements.
14.4
HOLDING OVER.
If
Tenant
does not vacate the Premises upon the expiration or earlier termination of
this
Lease, (i) Tenant will indemnify Landlord against all damages, costs,
liabilities and expenses, including attorneys' fees, which Landlord incurs
on
account of Tenant's failure to vacate and (ii) the Base Rent will increase
to
200% of the Base Rent then in effect and Tenant's obligation to pay Additional
Rent will continue. Any holdover by Tenant does not constitute an extension
of
the Lease or recognition by Landlord of any right of Tenant to remain in the
Premises.
-15-
14.5
LANDLORD'S CONSENT.
Tenant
will pay Landlord its reasonable fees and expenses incurred in connection with
any act by Tenant which requires Landlord's consent or approval under this
Lease.
14.6
LANDLORD’S RIGHT TO CURE.
If
Tenant
defaults in the performance of any obligation under this Lease, Landlord will
have the right (but is not required) to perform such obligation and, if
necessary, to enter upon the Premises. All costs incurred by Landlord (together
with interest at the rate of 15% per year but not to exceed the highest legal
rate) will be deemed to be Additional Rent under this Lease and will be payable
to Landlord immediately on demand. Landlord may exercise the foregoing rights
without waiving any of its other rights or releasing Tenant from any of its
obligations under this Lease.
14.7
INTERPRETATION.
The
captions of the Articles or Sections of this Lease are not a part of the terms
or provisions of this Lease. Whenever required by the context of this Lease,
the
singular includes the plural and the plural includes the singular. The
masculine, feminine and neuter genders each include the other. In any provision
relating to the conduct, acts or omissions of Tenant, the term "Tenant" includes
Tenant's agents, employees, contractors, invitees, successors or others using
the Premises with Tenant's express or implied permission. This Lease does not,
and nothing contained herein, will create a partnership or other joint venture
between Landlord and Tenant. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal
or
unenforceable will not invalidate the remainder of such provision, which will
remain in full force and effect.
14.8
INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS.
This
Lease is the only agreement between the parties pertaining to the lease of
the
Premises. All amendments to this Lease must be in writing and signed by all
parties. Any other attempted amendment will be void.
14.9
NOTICES.
All
notices, requests and other communications required or permitted under this
Lease will be in writing and personally delivered or sent by a national
overnight delivery service which maintains delivery records. Notices will be
delivered to Tenant's Notice Address or to Landlord’s Notice Address, as
appropriate. All notices will be effective upon delivery (or refusal to accept
delivery). Either party may change its notice address upon written notice to
the
other party.
14.10
WAIVERS.
All
waivers will be in writing and signed by the waiving party. Landlord's failure
to enforce any provision of this Lease or its acceptance of Rent is not a waiver
and will not prevent Landlord from enforcing that provision or any other
provision of this Lease in the future. No statement on a payment check from
Tenant or in a letter accompanying a payment check will be binding on Landlord.
Landlord may, with or without notice to Tenant, negotiate such check without
being bound by to the conditions of such statement.
14.11
BINDING EFFECT; CHOICE OF LAW.
This
Lease will bind any party who legally acquires any rights or interest in this
Lease from Landlord or Tenant, provided that Landlord will have no obligation
to
Tenant's successor unless the rights or interests of Tenant's successor are
acquired in accordance with the terms of this Lease. The laws of the state
in
which the Property is located govern this Lease. The parties hereto waive trial
by jury in any action, proceeding or counterclaim brought by any party(ies)
against any other party(ies) on any matter arising out of or in any way
connected with this Lease or the relationship of the parties hereunder.
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14.12
EXECUTION OF LEASE.
This
Lease may be executed in counterparts and, when all counterpart documents are
executed, the counterparts will constitute a single binding instrument.
Landlord's delivery of this Lease to Tenant is not be deemed to be an offer
to
lease and will not be binding upon either party until executed and delivered
by
both parties.
14.13
SURVIVAL.
All
representations and warranties of Landlord and Tenant, Tenant’s indemnity under
Section 6.4, the provisions of Section 8.2 and all obligations of Tenant to
pay
Additional Rent hereunder, shall survive the termination of this Lease.
14.14
SECURITY DEPOSIT.
Upon
the
execution of this Lease, Tenant will deposit with Landlord the Security Deposit.
Landlord may, at its option, apply all or part of the Security Deposit to any
unpaid Rent or other charges due from Tenant, cure any other defaults of Tenant,
or compensate Landlord for any loss or damage which Landlord may suffer due
to
Tenant's default. If Landlord uses any part of the Security Deposit, Tenant
will
restore the Security Deposit to its full amount within 10 days after Landlord's
request. No interest will be paid on the Security Deposit, no trust relationship
is created herein between Landlord and Tenant with respect to the Security
Deposit, and the Security Deposit may be commingled with other funds of
Landlord. Upon expiration or termination of this Lease not resulting from
Tenant's default and after Tenant has vacated the Premises in the manner
required by this Lease, Landlord will pay to Tenant any balance of the Security
Deposit not applied pursuant to this Section. If the Security Deposit is in
the
form of an unconditional, irrevocable letter of credit, such letter of credit
will be issued by a financial institution and in a form acceptable to Landlord.
14.15
ACTS OF GOD.
In
any
case where either party hereto is required to do any act, delays caused by
or
resulting from Acts of God, war, civil commotion, fire, floor or other casualty,
labor difficulties, shortages of labor, materials or equipment, government
regulations, unusually severe weather, or other causes beyond such party’s
reasonable control, shall not be counted in determining the time during which
work shall be completed, whether such time be designated by a fixed date, a
fixed time or a “reasonable time”, and such time shall be deemed to be extended
by the period of such delay.
14.16
INTENTIONALLY OMITTED.
14.17
NO
OTHER BROKERS.
Landlord
and Tenant each represent and warrant to the other that the Brokers are the
only
agents, brokers, finders or other parties with whom it has dealt who may be
entitled to any commission or fee with respect to this Lease or the Premises
or
the Property. Landlord and Tenant each agree to indemnify and hold the other
party harmless from any claim, demand, cost or liability, including, without
limitation, attorneys' fees and expenses, asserted by any party other than
the
Brokers based upon dealings with that party.
14.18
RELOCATION OF PREMISES.
Landlord
shall have the right from time to time during the Term to relocate the Premises
within the Property, subject to the following terms and conditions: (i) the
rentable and useable areas of the new premises must be of substantially equal
size to the existing Premises, subject to a variation of up to ten (10%) percent
(and in such event the amount of Base Rent payable under this Lease shall not
be
increased or decreased); and (ii) Landlord shall pay the expenses reasonably
incurred by Tenant in connection with such relocation, including, but not
limited to, costs of moving, door lettering, telephone relocation, and
reasonable new quantities of stationery. Landlord shall deliver to Tenant
written notice of Landlord’s election to relocate the Premises, specifying the
new location at least sixty (60) days prior to the date the relocation is to
be
effective.
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14.19
LEGAL COSTS.
In
any
enforcement proceeding brought by either party with respect to this Lease,
the
non-prevailing party will pay to the prevailing party in such proceeding all
costs, including reasonable attorneys’ fees and court costs, incurred by such
other party with respect to said proceeding and any appeals therefrom.
14.20
STATUTORY RADON GAS NOTIFICATION.
It
is a
requirement of Florida law that the following notification be included in all
lease agreements executed within the State of Florida:
“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.”
14.21
ADDITIONAL PROVISIONS.
The
exhibits, if any, attached hereto, are incorporated herein by reference.
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SIGNATURES
Signed
on
June 8, 2005
LANDLORD:
PROSPECT
PARK REALTY LLC,
a
Delaware limited liability company Name:
By:
/s/ Xxxxxxxx Xxxxxxxx III
Xxxxxxxx
Xxxxxxxx III
Signed
on
June 2, 2005
TENANT:
INFORMATION
ARCHITECTS CORPORATION
By:
/s/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
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THE
PROPERTY
A
- 1B - 1 B - 1
THE
PREMISES
B
- 1
RULES
AND
REGULATIONS
1.
No
sign, placard, picture, advertisement, name, notice or sun screening shall
be
inscribed, displayed, printed or affixed on or to any part of the outside or
inside of the Building or any portion of the Property without the written
consent of Landlord first having been obtained and in the absence thereof,
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of Tenant.
All approved signs of lettering on doors shall be printed, painted, affixed
or
inscribed at the sole risk and expense of Tenant by a licensed contractor
approved by Landlord and subject to all laws, ordinances rules, regulations
and
recommendations of all governmental and quasi-governmental authorities having
jurisdiction thereover and all insurance companies and fire rating agencies
which insure the Property. Tenant shall not place anything or allow anything
to
be placed near the glass of any window, door, partition or wall which may appear
unsightly from outside the Premises. Landlord may specify a Building standard
window covering for all exterior windows.
2.
All
parking shall be within the property boundaries of the Property and within
marked parking spaces. There should be no on-street parking and at no time
shall
any Tenant obstruct any driveways or loading areas intended for the use of
other
tenants, their employees, agents, customers and invitees. The driveways and
parking areas in the Property are for the joint and non-exclusive use of
Landlord's tenants, their employees, agents, customers and invitees, unless
specifically marked to the contrary. In the event Tenant, its agents, customers
and/or invitees use a disproportionate portion of the parking areas, Landlord
shall have the right to restrict Tenant, its agents, customers and/or invitees
to certain parking areas. Tenant shall not permit any vehicles to park overnight
in the Property’s parking areas without Landlord’s prior written approval.
3.
Unless
specifically approved by Landlord in writing, no materials, supplies or
equipment shall be stored anywhere in, on or about the Property except inside
the Premises. Trash receptacles may not be placed in the service areas except
by
Landlord. If Landlord does not supply trash receptacles, Tenant shall furnish
its own receptacles, and shall place such receptacles in a location designated
by Landlord.
4.
No
additional locks, other than Landlord approved entry systems, shall be placed
on
the doors of the Premises by Tenant nor shall any existing locks be changed
unless Landlord is immediately furnished with two keys thereto. Landlord will,
without charge, furnish Tenant with two keys for each lock on the entrance
doors
to the Premises when Tenant assumes possession, with the understanding that
at
the termination or expiration of the Term of this Lease the keys to the Premises
shall be returned to Landlord.
5.
Tenant
will refer all contractors, contractor's representatives and installation
technicians rendering any service on or to the Premises for Tenant to Landlord
for its approval and supervision before performance of any service. This
provision shall apply to all work performed in the Property, including, but
not
limited to, installation of electrical devices and attachments and installations
of any nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other portion of the Property.
6.
No
Tenant shall at any time occupy or allow any person to occupy any part of the
Premises or the Property as sleeping or lodging quarters.
7.
Tenant
shall not place, install or operate on the Premises or in any part of the
Property, any engine, stove or machinery, or conduct mechanical operations
or
xxxx thereon or therein, or place or use in or about the Premises any
explosives, gasoline, kerosene, oil, acids, caustics or any other flammable,
explosive or Hazardous Material without the prior written consent of Landlord.
The foregoing shall not prohibit the use of microwave ovens
C
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8.
Windows facing the Building exterior shall at all times be wholly clear and
uncovered (except for such blinds or curtains or other window coverings Landlord
may provide or approve) so that a full unobstructed view of the interior of
the
Premises may be had from outside the Building.
9.
The
sidewalks, parking lots and exits shall not be obstructed by Tenant, its
employees, agents, contractors, subtenants or assigns or used for any purpose
other than for ingress to and egress from the Premises.
10.
Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas
or substance in the Premises, or permit or suffer the Premises to be occupied
or
used in a manner offensive or objectionable to Landlord or other occupants
of
the Property by reason of noise, odors and vibrations, or interfere in any
way
with other Tenants or those having business in the Property, nor shall any
animals or birds be brought in or kept in or about the Premises or the Property.
11.
Landlord reserves the right to exclude or expel from the Property any person
who, in the judgment of Landlord, is intoxicated or under the influence of
liquor or drugs, or who may in any manner do any act in violation of any law
or
any rule or regulations of the Property.
12.
Landlord shall have the right, exercisable without notice and without liability
to Tenant, to change the name of the Property and street address of the Building
of which the Premises are a part.
13.
Tenant shall not disturb, solicit or canvass any occupant of the Property and
shall cooperate to prevent same.
14.
Without the prior written consent of Landlord, Tenant shall not use the name
of
the Property in connection with or in promoting or advertising the business
of
Tenant except as Tenant's address.
15.
Landlord shall have the right to control and operate the common areas of the
Property, the public facilities thereof, as well as the facilities furnished
for
the common use of all Tenants, in such manner as it deems appropriate.
16.
No
satellite dish, radio, television or other aerial or equipment of any kind
may
be placed or installed on the roof or on any exterior wall of the Premises
or on
the grounds or common areas of the Property without the prior written consent
of
Landlord in each instance. Any equipment so installed without such written
consent shall be at the sole risk of Tenant and shall be subject to removal
without notice at any time and Tenant shall pay to Landlord, on demand, as
additional rent, the cost of any damages occasioned thereby including, but
not
limited to, the cost to replace any warranty voided or diminished by such
installation and the cost of removal and repairs.
17.
Neither Tenant nor its agents, employees, contractors, guests or invitees shall
smoke or permit smoking in the Premises. Smoking shall only be permitted in
areas designated by Landlord.
18.
Landlord shall have the right from time to time to modify, add to or delete
any
of these rules and regulations at Landlord's discretion, provided that any
changes are uniformly applied to all Tenants.
C
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2
LANDLORD’S
WORK
1.
Painting interior of suite
2.
Installing building standard carpet
3.
Installing new window coverings in the front corner office
D-1
