LEASE AGREEMENT
TAMPA MEDICAL TOWER
TAMPA, FLORIDA
LANDLORD: MLK-TAMPA ASSOCIATES, LLC
TENANT: NANOBACLABS, LLC
BUILDING: TAMPA MEDICAL TOWER
SUITE: 850
SQ. FT: 5,593 RENTABLE SQUARE FEET
TERM: SIXTY (60) MONTHS
TABLE OF CONTENTS
Item Page
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1. PREMISES AND TERM 1
2. RENT 2
3. REIMBURSEMENT FOR INCREASES IN OPERATING EXPENSES AND TAXES 3
4. DELIVERY OF THE PREMISES 6
5. ACCEPTANCE OF THE PREMISES 6
6. USE 6
7. CARE OF THE PREMISES 6
8. SERVICES 8
9. DESTRUCTION OR DAMAGE TO PREMISES` 9
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES 10
11. ASSIGNMENT AND SUBLETTING 12
12. CONDEMNATION 14
13. INSPECTIONS 14
14. SUBORDINATION 15
15. INDEMNIFICATION AND HOLD HARMLESS 16
16. TENANT'S INSURANCE 16
17. REMEDIES CUMULATIVE 17
18. ENTIRE AGREEMENT - NO WAIVER 17
19. HOLDING OVER 17
20. NOTICES 17
21. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES 17
22. ATTORNEY'S FEES 18
23. TIME OF THE XXXXXXX 00
00. XX XXXXXX XX XXXX- 00
00. SECURITY DEPOSIT 18
26. COMPLETION OF THE PREMISES 19
27. PARKING AND XXXXXX XXXXX 00
00. RULES AND REGULATIONS 19
29. RIGHT TO RELOCATE 19
30. LATE PAYMENTS - ACCORD AND SATISFACTION 20
31. ESTOPPEL CERTIFICATE 20
32. SEVERABILITY AND INTERPRETATION 20
33. MULTIPLE TENANTS 20
34. FORCE MAJEURE 20
35. QUIETENJOYMENT 21
36. BROKERAGE COMMISSION; INDEMNITY 21
37. EXCULPATION OF LANDLORD 21
38. ORIGINAL INSTRUMENT 21
39. APPLICABLE LAW 21
40. NO RECORDATION OF LEASE 21
41. HAZARDOUS WASTES 21
42. BANKRUPTCY 22
43. SIGNS 25
44. CONTROL OF COMMON AREAS AND PARKING FACILITIES 25
45. NO SMOKING 25
46. PRIOR OCCUPANCY 26
47. INTENTIONALLY DELETED 26
48. LEASE BINDING UPON DELIVERY 26
49. SPECIAL STIPULATIONS 26
50. HEADINGS 26
51. SURRENDER OF LEASE NOT MERGER 26
52. MORTGAGEE PROTECTION 26
53. INTERFERENCE 26
54. NO PARTNERSHIPS 27
55. ADA 27
56. USE OF PRONOUN, RELATIONSHIP 27
57. SURRENDER 27
58. WAIVER OF JURY TRIAL 27
59. NO THIRD PARTY BENEFICIARY 27
60. FLORIDA SALES TAX 27
61. RADON GAS 27
63. TENANT SHALL DISCHARGE ALL LIENS 28
63. REPRESENTATIONS OF TENANT 28
64. RIGHT OF FIRST OFFER 28
Exhibit "A" - Space Plan of Premises
Exhibit ".B" - Legal Description of Land
Exhibit "C" - Rules and Regulations
Exhibit "D" - Work Agreement
Exhibit "E" - Prohibited Use of Premises
Exhibit "F" o Special Stipulations
Exhibit "G" - Building Standard Services
Exhibit "H" - Parking Regulations for Property
Exhibit "I" - First Offer Space
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DEFINITIONS
Term Paragraph
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ADA 54
Additional Rental Exhibit "D"
Adjusted Monthly Rental 2(b)
Allowance Exhibit "D"
Bankruptcy Code 2
Base Rent 2
Building 1(b)
Building Operating Hours Exhibit "G"
Building Standard Services Exhibit "G"
Commencement Date 1(c)
Common Areas 44
Expiration Date 1(c)
Hazardous Substances or Materials 41
Holidays Exhibit "G"
Initial Calendar Year 3(a)
Initial Monthly Rental 2(a)
Initial Operating Costs 3(a)
Insolvency Laws 42
Landlord Caption
Lease Caption
Lease Year 1(d)
Monthly Rental 2
Mortgagee 14(a)
Operating Costs 3(b)
Premises 1(a)
Property 1(e)
Rent 2
Rentable Square Foot (Feet) 1(b)
Rules 6 and Exhibit "F"
Scheduled Commencement Date 4
Services 37
Tenant Caption
Tenant's Share 3(c)
Term (c)
Work Agreement 4
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LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease"), made this _____ day of_____________, 2002,
by and between MLK-TAMPA ASSOCIATES, LLC ("Landlord") a limited liability
company created under the laws of the State of Delaware which has as its address
for all purposes hereunder as follows:
MLK-Tampa Associates, LLC
c/o Alliance Commercial Partners, LLC
000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX S0228
Attn: Xxxxxxx XxXxxxxxx
and NANOBACLABS, LLC ("Tenant"), which has as its address:
00000 X. Xxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
WITNESSETH:
1. PREMISES AND TERM
(a) Landlord hereby rents and leases to Tenant, and Tenant hereby rents
and leases from Landlord, the following described space (the "Premises"):
Floor: Eighth (8)
Suite: 850
Square Feet: 5,593 rentable square feet
Tenant's Share: 5.43%
(subject to re-calculation pursuant to Section 3(c))
(b) The Premises are more particularly shown and outlined on the space
plans attached hereto as Exhibit "A", and made a part hereof, designated as
Suite 850 in the building (the "Building") known as the Tampa Medical Tower
having an address of 2727 X. Xxxxxx Xxxxxx Xxxx Xx. Boulevard. Tampa, Florida.
For all purposes under this Lease, Landlord and Tenant have agreed that the
Premises shall be deemed to include 5,593 rentable square feet of area
(including both Tenant's exclusive usable area contained in the Premises and
common areas in the Building attributable to Tenant's usable area). Landlord and
Tenant acknowledge to each other that each party has had the opportunity to
measure the square footage contained in the Premises and waive any claims after
the date of this Lease to adjust the rental or amounts due under this Lease
resulting from any error in the measurement of the square footage of the
Premises or the Building.
(c) The term of this Lease (the "Term") shall commence (the
"Commencement Date"), subject to the provisions of Paragraph 4 herein, on the
earlier of (i) June 1, 2002 (the "Scheduled Commencement Date") or (ii) the date
on which Tenant occupies the Premises for the purposes of conducting it's
business, and end at midnight on the last day of the month in which the fifth
(5th) anniversary of the Commencement Date occurs (the "Expiration Date") or on
such earlier date as the Term may expire or be terminated pursuant to the
provisions of this Lease or pursuant to law. This Lease shall be effective and
enforceable between Landlord and Tenant upon its execution and delivery, whether
such execution and delivery occurs on, prior to, or after me Commencement Date,
(d) "Lease Year" as used herein shall mean (i) each and every twelve
(12) month period during the Term of this Lease, or (ii) in the event of Lease
expiration or termination, the period between the end of the then most recently
completed twelve (12) month period and said expiration or termination. The first
such twelve (12) month period shall commence on the Commencement Date.
(e) The Building and land upon which said Building is located, described
on Exhibit "B". attached hereto and by reference incorporated herein, is
referred to as the "Property". Other than for that driveway shown on "Exhibit
X-x", all drives, parking areas, parking lots, parking facilities, walkways,
terraces and landscaped areas that shall be used and maintained in connection
with the Building that are contiguous to the Property whether in fact located
within the boundaries of the Land for purposes of this Lease shall be included
in the definition of "Property".
(f) Subject to the terms herein provided, the Premises shall include the
appurtenant right to use, in common with others, on a non-exclusive basis,
public lobbies, entrances, stairs, corridors, elevators, all drives, parking
areas, parking lots and other public portions of the Property, All the windows
and outside walls of the Premises, and any space in the Premises used for
shafts, pipes, conduits, ducts, telephone ducts and equipment, electric or other
utilities, sinks or other Building facilities, and the use thereof and access
thereto through the Premises for the purposes of operation, maintenance,
inspection, display and repairs are hereby reserved to .Landlord. No easement
for light, air or view, is granted or implied hereunder, and the reduction or
elimination of Tenant's light, air or view will not affect Tenant's liability
under this Lease.
2. RENT
Rent Commencement shall occur on June 1, 2002. Tenant shall pay to the
order of Landlord at Landlord's address as set forth above or at such other
place as Landlord may designate in writing, without demand, deduction or set
off, an annual rental for each year of the Term in the amounts set forth
hereinbelow (the "Base Rent"):
LEASE YEAR BASE ANNUAL RENT BASE MONTHLY RENT
---------------------------------- ----------------------------------- -------------------
Months one (I) through twelve (12) $103.470.05 (i.e. $18.50 $8,622.54 per month
following the Commencement Date: per rentable square foot per annum)
Months thirteen (13) through $106,267.00 (i.e. $19.00 $8,855.83 per month
twenty-four (24) following the per rentable square foot per annum)
Commencement Xxxx;
Months twenty- five (25) thirty-six $109,063.50 (i.e. $19.50 $9,088.63 per month
(36) following the Commencement Date: per rentable square foot per annum)
through the original
Expiration Date:
Months thirty-seven (37) through $111,860.00 (i.e. $20.00 $9,321.67 per month
forty-eight (48) following the per rentable square foot per annum)
Commencement Date:
Months forty-nine (49) through the $114,656.50 (i.e. $20.50 $9,554.71 per month
original Expiration Date: per rentable square foot per annum)
Base Rent shall be due and payable in equal monthly installments (the
"Monthly Rental") in advance on the first (1st) day of each calendar month
during the Term, except that the first (1st) month payment of Base Rent shall be
payable at the Tenant executes this Lease. The term "Rent" as used herein shall
mean the Monthly Rental, "Additional Rent" (as that term is herein defined) and
any additional amounts or charges due from Tenant hereunder. Together with each
payment of Rent, Tenant shall pay directly to Landlord all applicable state and
local sales and use taxes thereon.
Should this Lease commence at any time other than the first day of a
calendar month, or terminate at any time other than the last day of a calendar
month, the amount of Rent due from Tenant shall be proportionately adjusted
based on that portion of the month that this Lease is in effect,
At all times that Landlord shall direct Tenant to pay Monthly Rental or
Additional Rental to a "lockbox" or other depository whereby checks issued in
payment of Rent are initially cashed or deposited by a person or entity other
than Landlord (albeit on Landlord's authority), then, for any and all purposes
under this Lease: (I) Landlord shall not be deemed to have accepted such payment
until ten (10) days after the date on which Landlord shall have actually
received such funds, and (ii) Landlord shall be deemed to have accepted such
payment if (and only if) within said ten (10) day period. Landlord shall not
have refunded (or attempted to refund) such payment lo Tenant. Nothing contained
in the immediately preceding sentence shall be construed to place Tenant in
default of Tenant's obligation to pay Rent if and for so long as Tenant shall
timely pay the rent required pursuant to this Lease in the manner designated by
Landlord.
3. REIMBURSEMENT FOR INCREASES IN OPERATING EXPENSES AND TAXES
(a) The Monthly Rental provided for herein is based, in part, upon
Landlord's estimate of "Operating Costs," as hereinafter defined. The "Initial
Operating Costs" arc stipulated to be the Operating Costs for the calendar year
2002 (the "Initial Calendar Year").
(b) The Term "Operating Costs" shall mean all reasonable and customary
operating expenses of the Building and of the common areas of the Property (
consistant with other comparible medical office buildings in the metro Tampa
area), all of which shall be computed on a modified cash basis and which shall
include all expenses, costs, and disbursements of every kind and nature, which
Landlord (i) shall pay; or (ii) become obligated to pay in connection with the
ownership, operation, management, maintenance, repair, replacement and security
of the Building, including but not limited to the following:
(i) Wages and salaries of all employees engaged in the operation
and maintenance of the Building and the common areas, including, but not limited
to, taxes, insurance and benefits relating thereto;
(ii) All supplies and materials used in the operation and
maintenance of the Building and the common areas;
(iii) Cost of water, sewage, trash removal, janitorial services,
electricity and other utilities furnished in connection with the operation of
the Building and the common areas;
(iv) Cost of all service agreements and maintenance for the
Building, the common areas and/or the Property and/or the equipment therein,
including, but not limited to, trash removal, security services, alarm services,
window cleaning, janitorial service, HVAC maintenance, elevator maintenance, and
grounds maintenance;
(v) Cost of all insurance relating to the Property including, but
not limited to, the cost of casualty and liability insurance applicable to the
Property and Landlord's personal property used in connection therewith;
(vi) All taxes (ad valorem and otherwise), assessments, and
governmental charges whether federal, state, county, or municipal, and whether
by taxing districts or authorities presently taxing the Building or by others,
subsequently created or otherwise, and any other taxes (other than federal and
state income taxes) and assessments attributable to any portion of the Building
or its operation or any Rent or any personal property in connection with the
operation of the Building, and any reasonable consultants and legal fees
incurred with respect to issues, concerns or appeals involving the taxes or the
Building;
(vii) Cost of repairs and general maintenance of the interior and
exterior of the Building (including, but not limited to, glass breakage).
(viii)Cost of management fees for general operation and management
of the Building, which service may be provided by an affiliated company or
subsidiary of Landlord, provided that such management fee shall not exceed the
management fee paid for the management of comparable office buildings in the
area of the Property for comparable services negotiated at arms length; and
(ix) A reasonable amortization cost due to any capital expenditures
incurred (i) which are incurred to have the effect of reducing or limiting
Operating Costs of the Building, or improving the operating efficiency of the
Building and the Properly, if such reduction or limitation would inure to
Tenant's benefit, or (ii) which may be required by governmental authority or by
Landlord's insurance carrier, or (iii) which are designed to protect or enhance
the health, safety or welfare of the tenants in the Building or their invitees.
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(x) Cost of repairs, replacements, damages in respect to the
Building incurred due to casualties or other causes to the extent uninsured
including any deductible amounts.
(xi) Cost of auditing and maintaining accounting books and records
in respect to the Building. (xii) Cost of conducting any indoor air quality
testing in any portions of the Building deemed necessary or desirable by
Landlord, including regularly scheduled testing, and any costs incurred in
connection with work arising out of the results of such tests or reports or the
recommendations in such tests or reports.
(xiii)Cost of the maintenance of any conference area or other area
in the Building made available for the Tenant's use (in common with others).
Landlord shall be permitted to contract with its affiliates for supplies,
materials, and services used for the operation, maintenance, and management of
the Building and the Property and its affiliates shall be permitted to
subcontract for the acquisition of said supplies, materials, and services;
provided, however, Landlord's payments to any affiliates for such supplies,
services, and materials shall not exceed the costs normally charged by third
parties for such supplies, materials, and services.
Notwithstanding any provision herein to the contrary, to the extent that
Landlord incurs any Operating Costs which are allocable to the Building but
shall not be directly and allocable only to the Building or other building at
the Property, then Landlord shall allocate such Operating Cost to the Building
and the other buildings that such Operating Costs are allocable on a consistent
basis determined by Landlord.
Expressly excluded from the definition of the term "Operating Costs" are;
(i) Replacement of capital investment items (excepting those
expenditures referred to above)
(ii) Landlord's home office expense;
(iii) Leasing commissions;
(iv) Reimbursements paid by specific tenants or other third parties
for direct costs incurred at their request;
(v) Depreciation;
(vi) Principal, interest, and other costs directly related to
financing the Property;
(vii) The cost of any repairs or general maintenance paid by the
proceeds of insurance policies carried by Landlord on the Property;
(viii)The wages and salaries of any supervisory or management
employee of Landlord not involved in the day-to-day operation and maintenance of
the Property.
(c) The term "Tenant's Share" shall mean the portion mat the Rentable
Square Feet in the Premises bears to the "Total Building Rentable Area" (as
hereinafter defined)- Notwithstanding anything to the contrary contained herein,
in the event the Total Building Rentable Area does not have an average occupancy
of ninety-five percent (95%) during any calendar year, appropriate adjustments
shal1 be made to determine Operating Costs as though the Building had been
ninety-five percent (95%) occupied, but in no event shall Tenant ever be
required to pay more than Tenant's Share of the determined Operating Costs. The
average occupancy shall be determined by adding together the total leased space
on the last day of each month during the calendar year in question and dividing
by twelve (12), For purposes of this Lease, the Total Building Rentable Area is
103.079 square feet and the "Tenant's Share" equals 5.43%.
(d) On or about January 31st of each calendar year after the Initial
Calendar Year (or as soon thereafter as practical) Landlord shall provide Tenant
4
with a comparison of the Initial Operating Costs and the projected Operating
Costs for such current calendar year, and Tenant shall thereafter pay, as
"Additional Rent", Tenant's Share of any excess of Landlord's projected
Operating Costa in such calendar year over the Initial Operating Costs. Such
projected increase in Operating Costs shall be payable in advance on a monthly
basis by paying one-twelfth (l/12th) of such projected increase during each
month of such respective calendar year. If Landlord has not furnished Tenant
such comparison by January 1 of a calendar year after the calendar year
immediately following the Initial Calendar Year, Tenant shall continue to pay on
the basis of the prior year's estimate until the month after such comparison is
given. Landlord shall, within a period of one hundred twenty (120) days (or as
soon thereafter as practical) after the close of each such respective calendar
year following the Initial Calendar Year provide Tenant an unaudited statement
of such year's actual Operating Costs compared to the Initial Operating Costs
(such unaudited statement shall be herein referred to as the "Final Annual
Statement of Operating Costs"). If the actual Operating Costs are greater than
the projected Operating Costs as shown on the Final Annual Statement of
Operating Costs, Tenant shall pay Landlord, within thirty (30) days of such
statement's receipt. Tenant's Share of the difference thereof. If such year's
projected Operating Costs are greater than the actual Operating Costs as shown
on the Final Annual Statement of Operating Costs, Landlord shall credit Tenant,
within thirty (30) days of such statement issuance. Tenant's Share of the
difference between (he projected Operating Costs and the greater of actual
Operating Costs or Initial Operating Costs. In no event, however, shall Tenant
pay as Operating Costs an amount which is less than the Initial Operating Costs
for the Initial Calendar Year.
(c) Anything herein to the contrary notwithstanding, in no event shall
the Monthly Rental as set forth in Paragraph 2(a) ever be reduced on account of
Operating Costs.
(f) Should this Lease commence at any time other than the first day of a
calendar year, or terminate at any time other than the last day of a calendar
year, the amount of Additional Rent due from Tenant shall be proportionately
adjusted based on that portion of the year that this Lease was in effect.
(g) Tenant shall have the right for a period of thirty (30) calendar
days after receipt of the Final Annual Statement of Operating Costs to review
Landlord's books and records with respect to actual annual Operating Costs for
the period covered by the Final Annual Statement of Operating Costs. Such review
shall take place in Landlord's manager's office in the Building or at such other
place as designated by Landlord. Tenant shall give Landlord not less than five
(5) business days nor more than fifteen (15) business days written notice of the
date on which Tenant intends to conduct such review. In the event Tenant either
fails to give written notice or thereafter fails to complete such inspection
within five (5) business days after the date for the inspection set forth in
Tenant's written notice, then Tenant's right to review Landlord's books and
records shall terminate on such 5th business day and the Final Statement of
Operating Costs in question shall be binding on both Landlord and Tenant. The
results of such review shall be for the benefit of Landlord and Tenant only,
shall be maintained in confidence by Tenant, and shall not be disseminated or
furnished to any other person or entity. Tenant may use certified public
accountants familiar with office building operating expense billing procedures
to aid Tenant in conducting the audit, but Tenant may not use any auditing
services or similar consultants that are paid on a contingent fee basis or are
owned by, affiliated with, employed by or related to any office building
landlords or office building management companies or services.
If, as a result of Tenant's review, Tenant claims that any particular
items were incorrectly included as an Operating Costs under this Lease or Tenant
claims any mathematical errors exist in the Final Statement of Operating Costs,
Tenant may give written notice to Landlord within five (5) business days after
the date of review.. Said notice may only contest Landlord's Final Statement of
Operating Costs for the two (2) reasons included in this subparagraph (g) and
said notice shall clearly reflect the reasons for the disagreement and the
amount claimed by Tenant as owed from Landlord. Tenant and Landlord shall then
meet in an effort to resolve the differences in their respective findings.
If a resolution is not reached within thirty (30) business days of
Tenant's written notice, then Landlord shall designate an independent certified
public accountant to audit the actual annual Operating Expenses for the period
in question. The findings of said accountant shall be binding on both the
Landlord and Tenant.
5
To the extent that the accountant's determination of Operating Expenses is
less than ninety percent (90%) of the amount reflected on the Landlord's final
statement, then Landlord shall bear the cost of the audit. Conversely, to the
extent that the accountant's determination of the amount reflected on the
Landlord's final statement is equal to or within ninety percent (90%) of said
statement, then Tenant shall bear the cost of the audit.
If as a result of such audit it is determined that the amount of
Additional Rent due from Tenant shall be less than that shown due on the
Landlord's statement. Landlord shall make such adjustments as necessary to
correct such statement and Landlord shall refund to Tenant any over payments of
Additional Rent made by Tenant.
(h) Tenant's payments of Additional Rent shall not be deemed payments of
base rental as that term is construed relative to governmental wage and price
controls or analogous governmental actions affecting the amount of rent which
Landlord may charge Tenant for the Premises.
4. DELIVERY OF THE PREMISES
Landlord shall deliver possession of the Premises to Tenant in "as is"
condition on April 18, 2002. Upon delivery of possession of the Premises by
Landlord, Tenant will commence any Tenant Work, in accordance to the terms of
the Lease. Upon completion of Tenant's Work, and Tenant's occupancy, Tenant
shall execute and deliver an agreement confirming the Commencement Date and
Expiration Date, which Agreement shall be in the form of Exhibit D Schedule 2.
Notwithstanding the preceding, if no Work Agreement attached to this Lease, then
Tenant shall be accepting the Premises "as-is", with Landlord not being required
to do anything to the Premises prior to Tenant's occupancy other than to provide
the same in a broom-clean condition.
5. ACCEPTANCE OF THE PREMISES
The taking of possession of any portion of the Premises by Tenant shall be
conclusive evidence that Tenant has inspected the Premises and accepts the same
"as is" and that said portion of the Premises and the Building are in good and
satisfactory condition for the use intended at the time such possession was
taken. Landlord represents to Tenant that the Premises are in compliance with
all local codes and ordinances and all mechanical systems and other base
operating systems are in good and satisfactory condition.
6. USE
Tenant shall use the Premises only as a general office and for performing such
examinations or procedures as are ordinarily and customarily performed in a
general office but not for such examinations or procedures as are ordinarily and
customarily performed in a hospital or clinic rather than a medical office, and
for no other purpose. The foregoing notwithstanding, the Premises shall not be
used for any of the purposes or uses described in Exhibit "E"; any illegal
purposes; nor in any manner to create any nuisance or trespass; nor in any
manner to vitiate the insurance or increase the rate of insurance on the
Premises; nor for any invasive surgery or procedures. Tenant's use of the
Premises shall not violate any ordinance, law or regulation of any governmental
body or the "Rules and Regulations" of Landlord (the "Rules") as set forth in
Exhibit "C" attached hereto and made a part hereof, or cause an unreasonable
amount of use of any of the services provided in the Building. Tenant agrees, at
its own expense, to promptly comply with any and all municipal, county, state
and federal statutes, regulations, or requirements applicable or in any way
relating to the use and occupancy of the Premises. Tenant agrees to conduct its
business in the manner and according to the generally accepted business
principles of the business or profession in which Tenant is engaged.
7. CARE OF THE PREMISES
(a) Landlord's Repairs
(i) Tenant agrees that no representations respecting the Premises or the
Building, or the condition thereof, and that no promises to decorate, alter,
repair or improve the Premises, either before or after the execution hereof,
have been made by Landlord or its agents to Tenant, unless the same are
expressly contained in this Lease (including the Work Agreement, if any).
(h) Landlord shall maintain and repair (as an i tern of Operating
Expense) only the common hallways and corridors, common rest rooms, main lobby
area, heating, ventilating and air-conditioning systems, driveways and parking
areas located on the Land, if any, the roof, foundation, floors and exterior
walls and glass of the Building. Tenant shall immediately give Landlord written
6
notice of any defect or need for repairs, after which Landlord shall have a
reasonable time within which to repair same or cure such defect. Landlord's
liability hereunder shall be limited only to the cost of correcting such defects
or making such repairs. Notwithstanding Landlord's obligation to maintain and
repair under this Section 7(a), Tenant shall reimburse Landlord for the repair
of any damage caused by Tenant, or Tenant's employees, agents, contractors,
invitees or licensees, or caused by Tenant's default hereunder.
(iii) Notwithstanding any other pro visions herein. Landlord shall
be responsible Lo Tenant for any damage occasioned by plumbing, electrical, gas,
water, steam or other utility pipes, systems or facilities or by the bursting,
stopping, leaking or running of any tank, sprinkler, washstand, water closet or
pipes in the Building occasioned by water being upon or coming through or around
the roof or any flashing, window, skylight, vent, door provided Tenant provides
Landlord reasonable notice of such an event as soon as Tenant become aware of
such problem. Landlord shall not be liable for any damage arising out of any
acts or neglect of co-tenants, other occupants of the Building, occupants of
adjacent property or the public.
(b) Tenant's Repairs. Tenant will, at its sole cost and expense,
maintain the Premises and the fixtures and appurtenances therein in good order,
condition and repair, and will neither commit nor suffer any active or
permissive waste or injury thereof. At all times. Tenant shall maintain the
Premises in accordance with all laws, rules and regulations governing its
occupancy of the Premises. Tenant's responsibilities in conjunction therewith
shall include, but not be limited to maintain the Premises in a satisfactory
condition and state of repair. All such repair work, maintenance and any
alterations permitted by Landlord (I) shall be done at Tenant's sole cost and
expense; (ii) shall be done by Landlord's employees or agents or, with
Landlord's express written consent, by persons requested by Tenant; and (iii)
shall first be consented to in writing by Landlord. Tenant shall, at Tenant's
expense, with Landlord's express written consent, by persons requested by Tenant
and consented to in writing by Landlord, promptly repair any injury or damage to
the Premises or Building caused by the misuse or neglect thereof by Tenant, by
Tenant's contractors, subcontractors, customers, employees, licensees, agents,
or invitees permitted or invited (whether by express or implied invitation) on
the Premises by Tenant, or by Tenant moving in or out of the Premises. In the
event any repairs are required to be made in or to the Premises as a result of
the actions or inactions of Tenant, its agents, contractors, servants,
employees, subtenant, concessionaires, licensees, invitees Or guests. Tenant
shall be responsible for payment of all such repairs, which shall be made by
Landlord or its contractors. If Tenant does not make repairs promptly and
adequately. Landlord may, but need not, make repairs, and Tenant shall promptly
pay the cost thereof as Rent in addition to the Base Rental and Additional Rent.
Tenant shall pay Landlord as Rent in addition to the Base Rental and Additional
Rent for overtime and for any other expense incurred in the event repairs,
alterations, decorating or other work in the Premises are not made, at Tenant's
request, during ordinary business hours. Upon expiration or other termination of
me Term, Tenant shall quit and surrender to Landlord the Premises, broom clean,
in good order and condition as provided in this Lease, ordinary wear and tear
excepted, and Tenant shall remove all of its property.
(c) Alterations. Tenant will not, without Landlord's prior written
consent, (which consent shall not be unreasonably withheld, make alterations,
additions or improvements (including, but not limited to, structural
alterations, additions or improvements) in or about the Premises and will not do
anything to or on the Premises which will increase the rate of fire or other
insurance on the Building or the Property All alterations, additions or
improvements of a permanent nature made or installed by Tenant to the Premises
shall become the property of Landlord at the expiration or earlier termination
of this Lease. Landlord reserves the right to require Tenant, at Tenant's sole
cost and expense, to remove any improvements or additions made to the Premises
by Tenant and to repair and restore the Premises to their condition prior to
such alteration, addition or improvement, reasonable wear and tear, unrepaired
casualty not caused by Tenant (or by Tenant's contractors, subcontractors,
customers, employees, licensees, agents or invitees permitted or invited
[whether by express or implied invitation]) and condemnation excepted, unless
Landlord has agreed in writing, at or prior to the time Tenant requests the
right to make such alteration, addition or improvement, that such item need not
be removed by Tenant at the expiration or earlier termination of the Term
(d) Condition of Premises on Surrender of Premises. Prior to the
Expiration Date or upon any earlier termination of this Lease, Tenant, at
Tenant's sole cost and expense, will remove all Tenant's personal property and
repair all injury done by or in connection with installation or removal of said
property and surrender the Premises (together with all keys, access cards or
entrance passes to the Premises or the Building) in as good a condition as they
were when delivered to Tenant at the beginning of the Term, reasonable wear and
tear, insured casualty not caused by Tenant (by Tenant's contractors,
7
subcontractors, customers, employees, licensees, agents or invitees permitted or
invited [whether by express or implied invitation]) and condemnation excepted.
All property of Tenant remaining in the Premises after expiration of the Term or
earlier termination of this Lease shall be conclusively deemed to be abandoned,
shall thereupon at the election of Landlord, become the property of Landlord and
Landlord may remove and dispose of such property in any way Landlord sees fit
without liability to Tenant. Tenant shall reimburse Landlord for the cost of
removing and storing such abandoned property. The foregoing notwithstanding,
Landlord shall continue to have the right (which shall survive termination or
expiration of the Lease) to require Tenant to remove any improvements or
additions made to the Premises by Tenant pursuant to (b) above.
(e) Contractors Doing Work. In doing any work related to the
installation of Tenant's furnishings, fixtures, or equipment in the Premises,
Tenant will use only contractors or workers consented to by Landlord in writing
prior to the time such work is commenced- Landlord may condition its consent
upon its receipt from such contractors or workers of acceptable (I) lien
waivers; and (ii) evidence that such contractors have contractor's liability
insurance with at least $1,000,000 coverage; automobile liability insurance with
at least $1,000,000 coverage; and worker's compensation insurance in the
statutory amounts required by the State of Florida which coverage shall be
obtained from carriers satisfactory to Landlord. Landlord shall have the right
to periodically review and modify the coverages required hereunder. Landlord and
Landlord's property manager shall be named additional insureds on the policies
required hereunder. Tenant shall within ten (10) days of filing promptly remove
any lien or claim of lien for material or labor claimed against the Premises,
the Building, or both, by such contractors or workers if such claim should
arise, and Tenant shall and does hereby indemnify and hold harmless Landlord
from and against any and all claims, loss, cost, damage, expense or liabilities
including, but not limited to, reasonable attorney's fees, incurred by Landlord,
as a result of or in any way related to such claims or such liens.
(f) Personal Property at Risk. All personal property brought into the
Premises by Tenant, its employees, licensees and invitees shall be at the sole
risk of Tenant. Landlord shall not be liable for theft thereof or of money
deposited therein or for any damages thereto, such theft or damage being the
sole responsibility of Tenant.
(g) Landlord's Right to do Work. Landlord shall also have the right, at
anytime, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefore, to reasonably change the
arrangement and/or location of entrances or passageways, doors and doorways,
corridors, elevators, toilets or other public parts of the Property, and to
reasonably close entrances, doors, corridors, elevators or other facilities.
8. SERVICES
Provided Tenant is in compliance with the terms and conditions of this
Lease, Landlord shall furnish the services described in Exhibit "G". attached
hereto and by reference made a part hereof (certain costs of which services
shall be reimbursed to Landlord in accordance with Section 3 herein). Landlord
will provide to Tenant heating or air conditioning service after the Building
operating hours (defined in "Exhibit "G" provided Tenant gives Landlord notice
of the desire for such service by 4:00 p.m. on the business day on which Tenant
desires the service, and by 4:00 p.m. on the Thursday prior to any Saturday,
Sunday or holiday on which Tenant desires such service. Such service will be
provided by Landlord at such rates as shall be established by Landlord from time
to time. As of the date of this Lease, such rates are $35/hour
___________________,provided such rates are subject to increase in connection
with increased costs of administrative services, labor, equipment and utilities.
There may be available in the Building a shared or several different
communications systems (the "Shared Service") the services, terms and conditions
for which may be negotiated and agreed to by Tenant and the party providing such
Shared Service. Neither Landlord nor Landlord's asset manager or property
manager shall be liable to Tenant for damages if the furnishing of any such
Shared Service is disrupted, terminated or diminished in any manner, nor shall
any disruption, diminution, or cessation relieve Tenant from the performance of
any of Tenant's covenants, conditions and agreements under this Lease, nor shall
any disruption, diminution or cessation constitute constructive eviction or
entitle Tenant to an abatement of Rent. Tenant holds Landlord, Landlord's asset
manager and property manager harmless from and against any claims Tenant may
have arising out of or connected with such cessation or interruption. If Tenant
elects not to use the Shared Service and Tenant has telephone or other such
equipment installed at Tenant's direction, such system shall not (1) cause the
Building to violate any municipal safety code or ordinances, including, but not
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limited to, fire safety codes; (ii) cause damage to the Building; (iii) require
an amount of electrical or other services unreasonably in excess of the
requirements for customary business telephone systems; or (iv) impact upon the
normal use, function and operation of the Shared Service. If Tenant elects not
to use or be a part of the Shared Service, Tenant shall not use any wiring or
other equipment which is a part of the Shared Service without the prior written
consent of the provider of such Shared Service. If Tenant uses any wiring or
equipment without such consent, Tenant shall be liable for and shall pay to the
provider of such services, on demand, (1) the cost of such use; (11) the cost of
repairing or replacing any wiring or equipment damaged or altered by such use;
and (iii) any other damages caused by such use.
9. DESTRUCTION OR DAMAGE TO PREMISES
(a) If the Premises, the Building or any building at thy Property or the
parking for the Building are totally destroyed (or so substantially damaged as
to be wholly untenantable or not usable or not repairable within one hundred
eighty (180) days in the determination of Landlord's architect or engineer) by
storm, fire, earthquake or other casualty, Landlord shall have the option to:
(i) Terminate this Lease as of the date of the occurrence of the
storm, earthquake, fire or other casualty by giving written notice to Tenant
within ninety (90) days from the date of such damage or destruction; or
(ii) Commence the process of restoration of the Premises to a
tenantable condition within thirty (60) days from the date of receipt by
Landlord of all of the insurance proceeds paid with respect to such casualty,
and proceed with due diligence to complete said restoration of the Premises.
Provided, however, that Landlord shall not be obligated to expend for such
repair an amount in excess of the net insurance proceeds actually received as a
result of such damage and in no event shall Landlord be required to repair or
replace any alteration or improvement made by or for the Tenant, including but
not limited to Tenant's Work (as defined in the Work Agreement), nor any trade
fixtures, furniture, equipment or other property belonging to the Tenant. If
Landlord chooses to restore the Premises, Rent shall xxxxx with respect to the
untenantable portion of the Premises from the date of such casualty until the
date of substantial restoration thereof.
If Landlord shall not elect to terminate this Lease, the Landlord shall
complete such restoration with reasonable diligence within one hundred eighty
(180) days of the date of receipt by Landlord of all of the insurance proceeds
paid with respect to such casualty, as described above subject to Tenant Delays.
During such period of repair, if any portion of the Premises shall be
untenantable as a result of casualty and Tenant has elected to no longer use the
Premises, Base Rental and Additional Rent shall xxxxx beginning with the date of
such casualty and ending on the date the Premises are rendered tenantable by an
amount bearing the same ratio to the total amount of Base Rental and Additional
Rent due under this Lease as the untenantable portion of the Premises bears to
the entire Premises. Notwithstanding such abatement. Tenant shall remain
obligated to perform and discharge all of its remaining covenants under this
Lease during the period of abatement.
(b) If such damage or destruction occurs within, one (1) year of the
expiration of the Term, either party may, at its option on written notice to the
other party within thirty (30) days of such destruction or damage, terminate
this Lease as of the date of such destruction or damage. Notwithstanding, Tenant
may elect to Terminate this lease if, based on Landlords determination, that the
Premises or Building are not repairable within 180 days from the date in which
Landlord notifies Tenant, which date of notification shall be not more than 90
days from the date of the damage/destruction,
(c) Rent shall not xxxxx if the damage or destruction of the Premises,
whether total or partial, is the result of the negligence of Tenant, its
contractors, subcontractors, agents, employees, guests or invitees.
9
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES
(a) The occurrence of any of the following shall constitute an event of
default hereunder by Tenant: (i) The Rent or any other sum of money due of
Tenant hereunder is not paid within five (5) days of the date when due;
(ii) The Premises are deserted or vacated, and Tenant docs not
occupy the Premises within ten (15) days after notice from Landlord to Tenant;
(iii) Tenant fails to bond off or otherwise remove (in a manner
acceptable to Landlord) any lien filed against the Premises or the Property by
reason of Tenant's actions, within ten (15) days after Tenant has notice of the
filing of such Hen;
(iv) Tenant fails to observe, perform and keep any of the other
covenants, agreements, provisions, stipulations, conditions and Rules herein
contained to be observed, performed and kept by Tenant and persists in such
failure after ten (15) days written notice by Landlord requiring that Tenant
remedy, correct, desist or comply (or if any such failure to comply on the part
of Tenant would reasonably require more than ten (15) days to cure, unless
Tenant commences curing within the ten (15) day notice period and thereafter
promptly, effectively and continuously proceeds with the curing of the failure
to comply on the part of Tenant and, in all such events, cures such failure to
comply on the part of Tenant no later than forty-five (45) days after such
notice).
(b) Upon the occurrence of an event of default, Landlord , in addition
to all other remedies available to Landlord at law or in equity, shall have the
option to do and perform any one or more of the following:
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do so. Landlord may,
as permitted by law and without further notice and without prejudice to any
other remedy Landlord may have, enter upon the Premises without the requirement
of resorting to the dispossessory procedures set forth by applicable law, if
any, and expel or remove Tenant and Tenant's effects without being liable for
any claim for trespass or damages therefor. Upon any such termination. Tenant
shall remain liable to Landlord for damages, due and payable monthly on the day
Rent would have been payable hereunder, in an amount equal to the Rent and any
other amounts which would have been owing by Tenant for the balance of the Term,
had this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Premises by Landlord, plus the aggregate amount of ail of
Landlord's costs and expenses (including, without limitation, advertising
expenses and professional fees) incurred in connection with or in any way
related to the termination of this Lease, eviction of Tenant and such reletting;
or
(ii) Re-enter and retake possession of the Premises without
terminating this Lease and in connection therewith, re-key the Premises, remove
Tenant's effects therefrom and store the same at Tenant's expense, without being
liable for any damage thereto, and relet the Premises as the agent of Tenant,
without advertisement, by private negotiations, for any term Landlord deems
proper, and receive the rent therefor. Upon such reletting, all rentals received
by The Landlord from such re-letting shall be applied first, to the payment of
any indebtedness other than the Rent due hereunder from Tenant to Landlord;
secondly, to the payment of any costs and expenses of such re-letting,
including, without limitation, brokerage fees and attorneys' fees and the costs
of such alterations and repairs as may be necessary relative to such re-letting;
third, to the payment of the Rents then due and unpaid under the Lease; and the
residue, if any, shall be held by the Landlord and applied in payment of future
Rents as same may become due and payable hereunder. Tenant shall pay Landlord on
demand any deficiency that may arise by reason of such reletting, but Tenant
shall not be entitled to any surplus so arising. Tenant shall reimburse Landlord
for all costs' and expenses (including, without limitation, advertising expenses
and professional fees) incurred in connection with or in any way related to the
eviction of Tenant and reletting the Premises, and for the amount of any other
Rent which would have been due of Tenant to Landlord hereunder if not for
certain concessions granted by Landlord to Tenant. Landlord, in addition to but
not in lieu of or in limitation of any other right or remedy provided to
Landlord under the terms of this Lease or otherwise (but only to the extent such
sum is not reimbursed to Landlord in conjunction with any other payment made by
Tenant to Landlord), shall have the right to be immediately repaid by Tenant the
10
amount of all sums expended by Landlord and not repaid by Tenant in connection
with preparing or improving the Premises to Tenant's specifications and any and
all costs and expenses incurred in renovating or altering the Premises to make
it suitable for reletting. Notwithstanding any such re-letting without
termination. Landlord may at any time thereafter elect to terminate this Lease
for such previous breach; or
(iii) Landlord, in addition to but not in lieu ofor in limitation of
any other right or remedy provided to Landlord under the terms of this Lease or
otherwise (but only to die extent such sum is not reimbursed to Landlord in
conjunction with any other payment made by Tenant to Landlord), shall have the
right to be immediately repaid by Tenant the amount of all sums expended by
Landlord and not repaid by Tenant in connection with preparing or improving the
Premises to Tenant's specifications and any and all costs and expenses incurred
in renovating or altering the Premises to make it suitable for reletting; or
(iv) As agent of Tenant, do whatever Tenant is obligated to do by
the provisions of this Lease, including, but not limited to, entering the
Premises, without being liable to prosecution or any claims for damages, in
order to accomplish this purpose. Tenant agrees to reimburse Landlord
immediately upon demand for any expenses which Landlord may incur in thus
effecting compliance with this Lease on behalf of Tenant, and Tenant further
agrees that Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by the negligence of Landlord or otherwise.
(v) Landlord may declare the entire amount of Base Rental,
Additional Rent and other sums which would have become due and payable during
the remainder of the Term of this Lease to be due and payable immediately
without notice to Tenant,
(vi) Landlord may terminate this Lease and recover from Tenant, as
full liquidated damages, all damages Landlord may incur by reason of Tenant's
default, which damages shall be limited to (a) the amounts due and owing prior
to such termination, plus (b) the cost of recovering the Premises, plus (c)
reasonable attorney's fees and costs, plus (d) a sum which, at the date of such
termination, equals the present value [discounted at ten percent (10%) per
annum] of(i) the Base Rental, Additional Rent and all other sums which would
have been due and payable by Tenant hereunder for the remainder of the Term
(including any Extended Term, if the Term of the Lease has been extended) less
(ii) the aggregate reasonable rental value of the Premises for the same period,
accounting for me cost, time and other factors necessary to relet the Premises,
all of which amounts shall be immediately due and payable; provided, however, if
Landlord elects to pursue this remedy. Landlord shall do so exclusively and
shall not thereafter pursue any of the other remedies set forth in section
10(b)(i)-(iv) to collect Base Rental and Additional Rent due from Tenant. The
foregoing limitation of remedies is without prejudice to Landlord's right to
enforce Tenant's indemnity obligation with respect to claims, damages and
liabilities (other than Base Rental and Additional Rent) resulting to Landlord
by or through Tenant's use and occupancy of the Premises. Landlord and Tenant
agree that such amounts constitute a good faith reasonable estimate of the
damages which might be suffered by Landlord upon the occurrence of a Default and
that it is impossible to estimate more precisely such damages. Landlord's
receipt of the aforesaid amount is intended not as a penalty but as full
liquidated damages.
(c) Pursuit by Landlord of any of the foregoing remedies shall not
preclude the pursuit of general or special damages incurred, or of any of the
other remedies provided herein, at law or in equity; provided, however,
Landlord's election to pursue the remedy in Section 10 (b) (v) shall be
exclusive of any other remedies available to Landlord except as provided in said
Section 10 (b) (v).
(d) No act or thing done by Landlord or Landlord's employees or agents
during the Term shall be deemed an acceptance of a surrender of the Premises.
Neither the mention in this Lease of any particular remedy, nor the exercise by
Landlord of any particular remedy hereunder, at law or in equity, shall preclude
Landlord from any other remedy Landlord might have under this Lease, at law or
in equity. Any waiver of or redress of or any violation of any covenant or
condition contained in this Lease or any of the Rules now or hereafter adopted
by Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by Landlord of Rent with knowledge of the breach of any
covenant in this Lease shall not be deemed a waiver of such breach.
(e) Landlord's reentry, demand for possession, notice that the tenancy
hereby created will be terminated on the date therein named, institution of an
action of unlawful detainer or ejectment or the entering of a judgment for
possession in such action or any other act or acts resulting in the termination
of Tenant's right to possession of the Premises shall not relieve Tenant from
Tenant's
12
obligation to pay all sums due hereunder during the balance of the Term, except
as herein expressly provided. Landlord may collect and receive any Base Rental,
Additional Rent, or charges due from Tenant, and the payment (.hereof shall not
constitute a waiver of or affect any notice or demand given, suit instituted or
judgment obtained by Landlord, or be held to waive, affect, change, modify or
alter the rights or remedies which Landlord has in equity or at law by virtue of
this Lease.
(f) The Base Rental is calculated for the Term of this Lease and a
substantial portion of the Base Rental includes reimbursement to Landlord of
direct out-of-pocket investment costs and expenses with respect to leasing the
Premises to the Tenant that Landlord has incurred or will incur during the Term
for tenant improvements, leasing commissions and other costs, various tenant
concessions, and other similar direct costs and expenses relating to Landlord's
investment in the Premises, the aggregate amount of which Landlord has spread
over the entire Term. Tenant acknowledges that Landlord will suffer damages,
including, but not limited to, such unreimbursed direct out-of-pocket costs and
expenses unless Tenant pays to Landlord all the Base Rental due to Landlord for
the entire Term.
(g) In the event Landlord commences any proceedings for nonpayment of
Base Rental, Additional Rent or other sums due hereunder. Tenant will not
interpose any counterclaim of whatever nature or description, except for any
compulsory counterclaim which may only be brought in any such proceeding. This
shall not, however, be construed as a waiver of the Tenant's right to assert
such claims in any separate action or actions brought by the Tenant.
(h) Except as expressly provided in this Lease, Tenant hereby waives any
and every form of demand and notice prescribed by statute or other law,
including without limitation the notice of any election of remedies made by
Landlord under this Section, demand for payment of any rent, or demand for
possession.
(i) All rights and remedies of Landlord created or otherwise existing at
law or in equity are cumulative and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to exercise any other.
(j) Tenant shall and hereby agrees to pay all costs and expenses
incurred by Landlord, including, but not limited to, reasonable attorneys' fees
Incurred at the trial and all appellate levels and in connection with any
administrative proceedings m enforcing any of the covenants and agreements of
this Lease or as a result of any action brought by Landlord against Tenant for
an unlawful detainer of the Premises, and all such costs, expenses and
attorneys' fees shall be paid by Tenant to Landlord within ten (10) days after
Landlord's written demand therefor.
(k) Notwithstanding anything in this Lease to the contrary. Tenant shall
have no claim, and hereby waives the right to any claim, against Landlord for
money damages by reason of any refusal, withholding or delaying by Landlord of
any consent, approval or statement of satisfaction, and in such event. Tenant's
only remedies therefor shall be an action for specific performance or injunction
to enforce any such requirements. If the result of any such action or
arbitration shall be adverse to Landlord, Landlord shall be liable to Tenant for
Tenant's reasonable expenses and attorney's fees thereby incurred.
11. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublet any part of the Premises, nor assign tins
Lease or any interest herein, without the prior written consent of Landlord
which consent shall not be unreasonably withheld. Any sublease or assignment
made without Landlord's consent shall be void. For illustration only, without
limiting in any respect the reasons Landlord may withhold its consent to an
assignment or subletting, the following are examples of reasons Landlord may
withhold its consent: (I) the proposed subtenant or assignee may, in Landlord's
judgment unreasonably burden the Building, its amenities or services (ii) if the
rate of compensation, including, but not limited to, all rent requested by
Tenant for the portion of the Premises to be subleased or subject to an
assignment of the Lease, impacts upon or impairs Landlord's ability to rent
space in the Building at the then market rate as offered by Landlord, (iii) the
financial statements or the business experience of the proposed assignee are
unsatisfactory to Landlord, (iv) the proposed use of the Premises conflicts with
other uses within the Building, (v) the pro$pective assignee or sublessee is an
existing tenant of the Building and in Landlord's judgment such sublease or
assignment may affuct Landlord's lease relationship with such tenant, or (vi)
Tenant's proposed subletting or assignment will in Landlord's judgment compete
with landlord's ability to lease other vacant space in the Building, Consent by
12
Landlord to one assignment or sublease shall not destroy or waive this
provision, and all later assignments and subleases shall likewise be made only
upon prior written consent of Landlord. If a sublease or assignment is consented
to by Landlord, any sublessees or assignees shall become liable directly to
Landlord for all obligations of Tenant hereunder without relieving or in any way
modifying Tenant's liability hereunder.
If Tenant desires to assign this Lease or sublet the Premises or any part
thereof. Tenant shall give Landlord written notice at least sixty (60) days in
advance of the date on which Tenant desires to make such assignment or sublease,
which notice shall specify: (a) the name and business of the proposed assignee
or sublessee; (b) the amount and location of the space in the Premises affected;
(c) the proposed effective date of the subletting or assignment; and (d) the
proposed rental to be paid to Tenant by such sublessee or assignee.
If Tenant shall give such notice. Tenant shall pay on demand Landlord's
reasonable costs, including attorneys' fees incurred to consider and as
necessary to document such transaction. If Tenant notifies Landlord of Tenant's
intent to sublease or assign this Lease, Landlord shall within thirty (30) days
from receipt of such notice (a) consent to such proposed assignment or
subletting; (b) deny such consent (if Landlord shall fail to notify Tenant in
writing of such election within said thirty (30) day period, Landlord shall be
deemed to have elected to deny such consent); or (c) elect to cancel this Lease,
or lo reduce the Premises by the area requested to be subleased or assigned if
the area is less than the entire Premises.
If Landlord's election is to cancel or to reduce the area of the Premises
as provided in the foregoing clause (c) (such election being referred to herein
as "Landlord's Modification Election"), Tenant shall have ten (10) days from
receipt of Landlord's Modification Election to notify Landlord of Tenant's
acceptance of such cancellation or reduction or Tenant's desire to remain in
possession o f the Premises under this Lease for the remainder of the Term. If
Tenant fails to notify Landlord of Tenant's election to accept termination or
reduction or to continue as Tenant hereunder, such failure shall be deemed an
election to terminate or have the area of the Premises reduced, as me case may
be, in accordance with Landlord's Modification Election and such termination or
reduction shall be effective at the end of the ten (10) day period provided for
above. If Landlord gives its consent to any such assignment or sublease, any
rent or other cost to the assignee or subtenant for all or any portion of the
Premises over and above the Rent payable by Tenant for such space shall be due
and payable, and shall be paid, to Landlord.
If this Lease is canceled, the area of the Premises is reduced or a
sublease or assignment is made as herein provided. Tenant shall pay Landlord a
charge equal to the actual costs incurred by Landlord, in Landlord's reasonable
judgment (including, but not limited to, the use and time of Landlord's
personnel), for all of the necessary legal, management, leasing or accounting
services required to accomplish such cancellation, reduction of area of the
Premises, assignment or subletting, as the case may be.
Any physical alterations necessary with respect to any such assignment,
subletting or reduction of the area of the Premises shall be subject to the
provisions of this Lease regarding alterations and shall be at Tenant's sole
cost and expense and subject to applicable building codes. No acceptance by
Landlord of any rent or any other sum of money from any assignee, sublessee, or
other category of transferee shall release Tenant from any of its obligations
under this Lease or be deemed to constitute Landlord's consent to such
assignment, sublease or transfer.
(b) The sale or transfer of Tenant's voting stock (if a corporation) or
a partnership interest (if a partnership) or member interest (if a limited
liability company) in Tenant resulting in the transfer of control of a majority
of such stock or interest, or the occupancy of the Premises by any successor
firm of Tenant or by any firm into which or with which Tenant may become merged
or consolidated shall be deemed an assignment of this Lease requiring the prior
written consent of Landlord.
(c) The joint and several liability of Tenant named herein and any
immediate and remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this Lease on Tenant's
part to be performed or observed, shall not in any way be discharged, released
or impaired by any (I) agreement which modifies any of the rights or obligations
of the parties under this Lease, (ii) stipulation which extends the time within
which an obligation under this Lease is to be performed, (iii) waiver of the
performance of an obligation required under this Lease, or (iv) failure to
enforce any of the obligations set forth in this Lease; provided, however, that
13
(a) in the case of any modification of this Lease made after the date of an
assignment or other transfer of this Lease by Tenant, if such modification
increases or enlarges the obligations of Tenant or reduces the rights of Tenant,
then Tenant named herein and each respective assignor or transferor shad not be
liable under or bound by any such increase, enlargement or reduction, and (b) in
the case of any waiver by Landlord of a specific obligation of an assignee or
transferee of Tenant, such waiver shall also be deemed a waiver of such
obligation with respect to the immediate and remote assignors or transferors of
such assignee or transferee.
(d) Tenant shall have no right whatsoever to encumber any of the
Tenant's rights, title or interest under this Lease, without the prior written
consent of the Landlord which consent shall not be unreasonably withheld.
(e) Nothing in this Lease shall in any way restrict Landlord's right to
assign or encumber this Lease in its sole and absolute discretion. Should the
Landlord assign this Lease as provided for above, or should Landlord encumber
all or any portion of the Building and should the holder of such encumbrance
succeed to the interest of Landlord, Tenant shall be bound to said assignee or
any such holder under all the terms, covenants and conditions of this Lease for
the balance of the Lease term remaining after such succession and Tenant shall
attorn to such succeeding party as its Landlord under this Lease promptly under
any such succession. Tenant agrees that should any party so succeeding to the
interest of Landlord require a separate agreement of attornment regarding the
matters covered by this Lease, then Tenant shall enter into such attornment
agreement, provided the same does not substantially modify any of the provisions
of this Lease and has no material adverse effect upon Tenant's continued
occupancy of the Premises.
12. CONDEMNATION
If all or a part of the Premises is taken by virtue of eminent domain or
other similar proceeding, or are conveyed in lieu of such taking, this Lease
shall expire on the date when title or right of possession shall vest, and any
Rent paid for any period beyond said date shall be repaid to Tenant. If all or a
part of the Property other than the Premises is taken by virtue of eminent
domain or other similar proceeding, or is conveyed in lieu of such taking
rendering the remaining part of the Property not subject to such condemnation
shall be substantially and adversely affected thereby, then Landlord, in its
sole discretion may terminate this Lease. If there is a partial taking where
this Lease is not terminated, the Rent shall be adjusted in proportion to the
Rentable Square Footage of the Premises taken, as determined by the Landlord's
architect or engineer. In any event. Landlord shall be entitled to, and Tenant
shali not have any right to claim, any award made in any condemnation
proceeding, action or ruling relating to the Property; provided however, in the
event of a termination of this Lease Tenant shall be entitled to make a separate
claim in any condemnation proceeding, action or ruling relating to the Property
for Tenant's moving expenses and the unamortized value of leasehold improvements
in the Premises actually paid for by Tenant without contribution by Landlord, to
the extent such claim does not in any manner impact upon or reduce Landlord's
claim or award in such eminent domain proceeding, action or ruling and Tenant
shall likewise have no claim against Landlord for the value of any unexpired
portion of tills Lease.
(a) Landlord shall have, in Landlord's sole discretion, the option of
terminating this Lease if any such condemnation, action or ruling or conveyance
in lieu thereof makes continuation of Landlord's use of the Property
economically unfeasible, and the Landlord shall be entitled to the entire award
as above provided, and in such case. Tenant shall likewise have no claim against
Landlord for the value of any unexpired portion of this Lease.
13. INSPECTIONS
Landlord, its agents, employees, contractors and subcontractors, may enter
the Premises at reasonable hours to (a) exhibit the Premises to prospective
purchasers or tenants of the Premises or the Building; (b) inspect the Premises
to see that Tenant is complying with its obligations hereunder; and (c) make
repairs or alterations (I) required of Landlord under the terms hereof; (ii) to
any adjoining space in the Building; or (ii{) to any systems serving the
Building which run through the Premises; and (d) to perform any and all of
Landlord's obligations under this Lease, or any other lease, where entry to such
Premises is reasonably required for such performance. In addition to the
foregoing. Landlord, its agents, employees, contractors and/or sub-contractors
may enter the Premises at any time if an emergency requires such entry. Any such
