SARASOTA CITY CENTER
OFFICE LEASE AGREEMENT
BETWEEN
OSPREY, S.A., LTD., a Florida limited partnership
("LANDLORD")
AND
RDC INTERNATIONAL, INC., a Florida corporation and
RETRIEVAL DYNAMICS CORPORATION, a Florida corporation
(Jointly and Severally as "TENANT")
November 1, 2000
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TABLE OF CONTENTS
I. Basic Lease Information; Definitions.........................1
II. Lease Grant..................................................3
III. Adjustment of Commencement Date/Possession...................4
IV. Rent.........................................................5
V. Use..........................................................9
VI. Security Deposit.............................................9
VII. Services to be Furnished by Landlord........................10
VIII. Leasehold Improvements......................................10
IX. Graphics....................................................11
X. Repairs and Alterations.....................................11
XI. Use of Electrical Services by Tenant........................12
XII. Entry by Landlord...........................................12
XIII. Assignment and Subletting...................................13
XIV. Liens.......................................................14
XV. Indemnity and Waiver of Claims..............................14
XVI. Tenant's Insurance..........................................15
XVII. Subrogation.................................................16
XVIII. Landlord's Insurance.........................................16
XIX. Casualty Damage.............................................16
XX. Demolition..................................................17
XXI. Condemnation................................................17
XXII. Events of Default...........................................17
XXIII. Remedies.....................................................18
XXIV. Limitation of Liability.......................................20
XXV. No Waiver...................................................20
XXVI. Event of Bankruptcy...........................................20
XXVII. Waiver of Jury Trial.........................................21
XXVIII. Relocation..................................................21
XXIX. Holding Over..................................................21
XXX. Subordination to Mortgages; Estoppel Certificate............22
XXXI. Attorneys Fees................................................22
XXXII. Notice.......................................................22
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XXXIII. Landlord's Lien.............................................23
XXXIV. Excepted Rights..............................................23
XXXV. Surrender of Premises.........................................23
XXXVI. Miscellaneous................................................24
XXXVII. Entire Agreement.............................................25
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as of
the 1st day of November, 2000, by and between OSPREY, S.A., LTD., a Florida
limited partnership ("Landlord") and RDC INTERNATIONAL, INC., a Florida
corporation and RETRIEVAL DYNAMICS CORPORATION, a Florida corporation (jointly
and severally as "Tenant").
I. Basic Lease Information; Definitions.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share
of Basic Costs and any other sums (exclusive of Base Rental) that are required
to be paid by Tenant to Landlord hereunder, which sums are deemed to be
additional rent under this Lease. Additional Base Rental and Base Rental are
sometimes collectively referred to herein as "Rent".
2. "Base Rental" shall mean the sum of Seven Hundred
Sixty-Eight Thousand Seven Hundred Sixty-Eight and 00/100 Dollars ($768,768.00),
plus applicable State of Florida sales tax, payable by Tenant to Landlord in
sixty (60) monthly installments as follows:
a. Twelve (12) equal installments of Eight Thousand Eight
and 00/100 Dollars ($8,008.00), plus applicable State
of Florida sales tax, each payable on or before the
first day of each month during the period beginning
November 1, 2000 and ending October 31, 2001 provided
that the installment of Base Rental for the first full
calendar month of the Lease Term shall be payable upon
the execution of this Lease by Tenant.
b. Twelve (12) equal installments of Thirteen Thousand One
Hundred Fifty-Six and 00/100 Dollars ($13,156.00), plus
applicable State of Florida sales tax, each payable on
or before the first day of each month during the period
beginning November 1, 2001 and ending October 31, 2002.
c. Twelve (12) equal installments of Thirteen Thousand
Seven Hundred Twenty-Eight and 00/100 Dollars
($13,728.00), plus applicable State of Florida sales
tax, each payable on or before the first day of each
month during the period beginning November 1, 2002 and
ending October 31, 2003.
d. Twelve (12) equal installments of Fourteen Thousand
Three Hundred and 00/100 Dollars ($14,300.00), plus
applicable State of Florida sales tax, each payable on
or before the first day of each month during the period
beginning November 1, 2003 and ending October 31, 2004.
e. Twelve (12) equal installments of Fourteen Thousand
Eight Hundred Seventy-Two and 00/100 Dollars
($14,872.00), plus applicable State of Florida sales
tax, each payable on or before the first day of each
month during the period beginning November 1, 2004 and
ending October 31, 2005.
Base Rental was calculated based upon the Rentable Area of the Premises (as
defined below) being six thousand eight hundred sixty-four (6,864) square feet.
3. "Building" shall mean the office building located at 1819
Main Street, County of Sarasota, State of Florida, commonly known as Sarasota
City Center.
4. The "Commencement Date" "Lease Term" and "Termination Date"
shall have the meanings set forth in subsection l.A. 4.a. or I.A. 4.b. as
appropriate:
a. [Intentionally deleted.]
b. The "Lease Term" shall mean a period of sixty (60)
months commencing on the later to occur of (1) November
1, 2000 (the "Target Commencement Date"); and (2) the
date upon which
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Landlord Work in the Premises has been substantially
completed, as such date is determined pursuant to Section
III.A hereof (the later to occur of such dates being defined
as the "Commencement Date"). The "Termination Date" shall,
unless sooner terminated as provided herein mean the last
day of the Lease Term. Notwithstanding the foregoing, if the
Termination Date, as determined herein, does not occur on
the last day of a calendar month, Landlord, at its option,
may extend the Lease Term by the number of days necessary to
cause the Termination Date to occur on the last day of the
last calendar month of the Lease Term. Tenant shall pay Base
Rental and Additional Base Rental for such additional days
at the same rate payable for the portion of the last
calendar month immediately preceding such extension.
Further, Landlord and Tenant acknowledge that the schedule
of Base Rental described in Section l.A.2. above is based on
the assumption that the Lease Term will commence on the
Target Commencement Date. If the Lease Term does not
commence on the Target Commencement Date, the beginning and
ending dates set forth in the above schedule with respect to
the payment of any installment(s) of Base Rental shall be
appropriately adjusted on a per diem basis and set forth in
the Commencement Letter (as defined in Section III.A.) to be
prepared by Landlord. In the event that the Base Rental rate
adjusts (up or down) on any day other than the first day of
the month Base Rental for the month on which such adjustment
occurs shall be determined based on the number of days in
such month for which each particular Base Rental rate is
applicable.
5. "Premises" shall mean the area located on the 7th floor of
the Building, as outlined on Exhibit A attached hereto and incorporated herein
and known as Suite # 's 702 and 703. Landlord and Tenant hereby stipulate and
agree that the "Rentable Area of the Premises" shall mean six thousand eight
hundred sixty four (6,864) square feet and the "Rentable Area of the Building"
shall mean Two Hundred Forty-Seven Thousand Eight Hundred Ninety-One (247,891)
square feet. If the Premises being leased to Tenant hereunder include one or
more floors within the Building in their entirety, the definition of Premises
with respect to such full floor(s) shall include all corridors, lobbies, foyers,
stairways, mechanical rooms and restrooms located on such floor(s).
6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall mean the sum of Sixteen Thousand
Sixteen and 00/100 Dollars ($16,016.00).
8. "Tenant's Pro Rata Share" shall mean two point seven six
nine zero percent (2.7690%), which is the quotient (expressed as a percentage),
derived by dividing the Rentable Area of the Premises by the Rentable Area of
the Building.
9. "Guarantor(s)" shall mean ___________________ and any other
party that agrees in writing to guarantee the Lease.
10. "Notice Addresses" shall mean the following addresses for
Tenant and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises.
Prior to the Commencement Date notices shall be sent to Tenant at the
following address:
Retrieval Dynamics Corporation
1819 Main Street, Suite 601
Sarasota, Florida 34236
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Landlord:
Osprey, S.A., Ltd.
1819 Main Street, Suite 106
Sarasota, FL 34236
Attention: Building Manager
Payments of Rent only shall be made payable to the order of:
Osprey, S.A., Ltd. at the following address:
1819 Main Street, Suite 106
Sarasota, FL 34236
B. The following are additional definitions of some of the defined
terms used in the Lease.
1. "Base Year" shall mean 2000.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining, repairing, managing and
owning the Building and the Property, as further described in Article IV hereof.
3. "Broker" means N/A.
4. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates from time to time to be
the minimum quality and/or quantity to be used in the Building.
5. "Business Day(s)" shall mean Mondays through Fridays
exclusive of the normal business holidays ("Holidays") of New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Landlord, from time to time during the Lease Term, shall have the right to
designate additional Holidays, provided that such additional Holidays are
commonly recognized by other office buildings in the area where the Building is
located.
6. "Common Areas" shall mean those areas provided for the
common use or benefit of all tenants generally and/or the public, such as
corridors, lobbies (whether at ground level or otherwise), foyers, common mail
rooms, restrooms, vending areas and other similar facilities.
7. "Landlord Work" shall mean the work, if any, that Landlord
is obligated to perform in the Premises pursuant to the Work Letter Agreement,
if any, attached hereto as Exhibit D. (If applicable)
8. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
9. "Normal Business Hours" for the Building shall mean 8:00
A.M. to 6:00 P.M. Mondays through Fridays, and 9:00 A.M. to 1:00 P.M. on
Saturdays, exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate
publicly announced by Bank One or any successor thereof from time to time
(whether or not charged in each instance) as its prime or base rate in Chicago,
Illinois.
11. "Property" shall mean the Building and the parcel(s) of
land on which it is located and, at Landlord's discretion, the Building garage,
if any, and all other improvements owned by Landlord and serving the Building
and the tenants thereof and the parcel(s) of land on which they are located.
II. Lease Grant/Renewal Option.
A. Subject to and upon the terms herein set forth, Landlord leases to
Tenant and Tenant leases from Landlord the Premises, together with the right, in
common with others, to use the Common Areas.
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B. [Intentionally deleted.]
III. Adjustment of Commencement Date/Possession.
A. If the Lease Term, Commencement Date and Termination Date are to be
determined in accordance with subsection I.A.4.b. above, the Lease Term shall
not commence until the later to occur of the Target Commencement Date and the
date that Landlord has substantially completed the Landlord Work; provided,
however, that if Landlord shall be delayed in substantially completing the
Landlord Work as a result of the occurrence of any of the following (a "Delay"):
1. Tenant's failure to furnish information in accordance with
the Work Letter Agreement or to respond to any request by Landlord for any
approval or information within any time period prescribed, or if no time period
is prescribed, then within two (2) Business Days of such request; or
2. Tenant's insistence on materials, finishes or installations
that have long lead times after having first been informed by Landlord that such
materials, finishes or installations will cause a Delay; or
3. Changes in any plans and specifications requested by
Tenant; or
4. The performance or nonperformance by a person or entity
employed by Tenant in the completion of any work in the Premises (all such work
and such persons or entities being subject to the prior written approval of
Landlord); or
5. Any request by Tenant that Landlord delay the completion
of any of the Landlord Work; or
6. Any breach or default by Tenant in the performance of
Tenant's obligations under this Lease; or
7. Any delay resulting from Tenant having taken possession of
the Premises for any reason prior to substantial completion of the Landlord
Work; or
8. Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Commencement Date, the date of substantial
completion shall be deemed to be the day that said Landlord Work would have been
substantially completed absent any such Delay(s). The Landlord Work shall be
deemed to be substantially completed on the date that Landlord reasonably
determines that all Landlord Work has been performed (or would have been
performed absent any Delays), other than any details of construction, mechanical
adjustment or any other matter, the noncompletion of which does not materially
interfere with Tenant's use of the Premises. The adjustment of the Commencement
Date and, accordingly, the postponement of Tenant's obligation to pay Rent shall
be Tenant's sole remedy and shall constitute full settlement of all claims that
Tenant might otherwise have against Landlord by reason of the Premises not being
ready for occupancy by Tenant on the Target Commencement Date. Promptly after
the determination of the Commencement Date, Landlord and Tenant shall enter into
a letter agreement (the "Commencement Letter") on the form attached hereto as
Exhibit C setting forth the Commencement Date, the Termination Date and any
other dates that are affected by the adjustment of the Commencement Date.
Tenant, within five (5) days after receipt thereof from Landlord, shall execute
the Commencement Letter and return the same to Landlord. Notwithstanding
anything herein to the contrary, Landlord may elect, by written notice to
Tenant, not to adjust the Commencement Date as provided above if such adjustment
would cause Landlord to be in violation of the expansion rights granted to any
other tenant of the Building. If Landlord elects not to adjust the Commencement
Date, the Commencement Date shall be the Target Commencement Date, provided that
Rent shall not commence until the date that Landlord Work has been substantially
completed (or would have been substantially completed absent any Delays).
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order and
satisfactory condition, with no
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representation or warranty by Landlord as to the condition of the Premises or
the Building or suitability thereof for Tenant's use.
C. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall not be obligated to tender possession of any portion of the
Premises or other space leased by Tenant from time to time hereunder that, on
the date possession is to be delivered, is occupied by a tenant or other
occupant or that is subject to the rights of any other tenant or occupant, nor
shall Landlord have any other obligations to Tenant under this Lease with
respect to such space until the date Landlord: (1) recaptures such space from
such existing tenant or occupant; and (2) regains the legal right to possession
thereof. This Lease shall not be affected by any such failure to deliver
possession and Tenant shall have no claim for damages against Landlord as a
result thereof, all of which are hereby waived and released by Tenant. The
Commencement Date and Termination Date shall be determined as provided in
Section III.A above.
D. If Tenant takes possession of the Premises prior to the Commencement
Date, such possession shall be subject to all the terms and conditions of the
Lease and Tenant shall pay Base Rental and Additional Base Rental to Landlord
for each day of occupancy prior to the Commencement Date. Notwithstanding the
foregoing, if Tenant, with Landlord's prior approval, takes possession of the
Premises prior to the Commencement Date for the sole purpose of performing any
Landlord-approved improvements therein or installing furniture, equipment or
other personal property of Tenant, such possession shall be subject to all of
the terms and conditions of the Lease, except that Tenant shall not be required
to pay Base Rental or Additional Base Rental with respect to the period of time
prior to the Commencement Date during which Tenant performs such work. Tenant
shall, however, be liable for the cost of any services (e.g. electricity, HVAC,
freight elevators) that are provided to Tenant or the Premises during the period
of Tenant's possession prior to the Commencement Date. Nothing herein shall be
construed as granting Tenant the right to take possession of the Premises prior
to the Commencement Date, whether for construction, fixturing or any other
purpose, without the prior consent of Landlord.
IV. Rent.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base Rental hereunder the
sum of: (1) Tenant's Pro Rata Share of the amount, if any, by which Taxes
(hereinafter defined) for the applicable calendar year exceed Taxes for the Base
Year plus (2) Tenant's Pro Rata Share of the amount, if any, by which Expenses
(hereinafter defined) for the applicable calendar year exceed Expenses for the
Base Year. For purposes hereof, "Expenses" shall mean all Basic Costs with the
exception of Taxes. Tenant's Pro Rata Share of increases in Taxes and Tenant's
Pro Rata Share of increases in Expenses shall be computed separate and
independent of each other prior to being added together to determine the
"Excess". In the event that Taxes and/or Expenses, as the case may be, in any
calendar year decrease below the amount of Taxes or Expenses for the Base Year,
Tenant's Pro Rata Share of Taxes and/or Expenses, as the case may be, for such
calendar year shall be deemed to be $0, it being understood that Tenant shall
not be entitled to any credit or offset if Taxes and/or Expenses decrease below
the corresponding amount for the Base Year. Prior to the Commencement Date and
prior to January 1 of each calendar year during the Lease Term, or as soon
thereafter as practical, Landlord shall make a good faith estimate of the Excess
for the applicable calendar year and Tenant's Pro Rata Share thereof. On or
before the first day of each month during such calendar year, Tenant shall pay
to Landlord, as Additional Base Rental, a monthly installment equal to
one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of the Excess.
Landlord shall have the right from time to time during any such calendar year to
revise the estimate of Basic Costs and the Excess for such year and provide
Tenant with a revised statement therefor, and thereafter the amount Tenant shall
pay each month shall be based upon such revised estimate. If Landlord does not
provide Tenant with an estimate of the Basic Costs and the Excess by January 1
of any calendar year, Tenant shall continue to pay a monthly installment based
on the previous year's estimate until such time as Landlord provides Tenant with
an estimate of Basic Costs and the Excess for the current year. Upon receipt of
such current year's estimate, an adjustment shall be made for any month during
the current year with respect to which Tenant paid monthly installments of
Additional Base Rental based on the previous year's estimate. Tenant shall pay
Landlord for any underpayment within ten (10) days after demand. Any overpayment
shall, at Landlord's option, be refunded to Tenant or credited against the
installment of Additional Base Rental due for the months immediately following
the furnishing of such estimate. Any amounts paid by Tenant based on any
estimate shall be subject to adjustment pursuant to the immediately following
paragraph when actual Basic Costs are determined for such calendar year.
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As soon as is practical following the end of each calendar
year during the Lease Term, Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Costs and the actual Excess for the previous calendar
year. If the estimated Excess actually paid by Tenant for the prior year is in
excess of Tenant's actual Pro Rata Share of the Excess for such prior year, then
Landlord shall apply such overpayment against Additional Base Rental due or to
become due hereunder, provided if the Lease Term expires prior to the
determination of such overpayment, Landlord shall refund such overpayment to
Tenant after first deducting the amount of any Rent due hereunder. Likewise,
Tenant shall pay to Landlord, within ten (10) days after demand, any
underpayment with respect to the prior year, whether or not the Lease has
terminated prior to receipt by Tenant of a statement for such underpayment, it
being understood that this clause shall survive the expiration of the Lease.
B. The term "Basic Costs" shall mean all costs and expenses paid or
incurred in each calendar year in connection with operating, maintaining,
repairing, managing and owning the Building and the Property, including, but not
limited to, the following:
1. All labor costs for all persons performing services
required or utilized in connection with the operation, repair, replacement and
maintenance of and control of access to the Building and the Property, including
but not limited to amounts incurred for wages, salaries and other compensation
for services, payroll, social security, unemployment and other similar taxes,
workers' compensation insurance, uniforms, training, disability benefits,
pensions hospitalization, retirement plans, group insurance or any other similar
or like expenses or benefits.
2. All management fees, the cost of equipping and maintaining
a management office at the Building, accounting services, legal fees not
attributable to leasing and collection activity, and all other administrative
costs relating to the Building and the Property. If management services are not
provided by a third party, Landlord shall be entitled to a management fee
comparable to that due and payable to third parties provided Landlord or
management companies owned by, or management divisions of, Landlord perform
actual management services of a comparable nature and type as normally would be
performed by third parties.
3. All rental and/or purchase costs of materials, supplies,
tools and equipment used in the operation, repair, replacement and maintenance
and the control of access to the Building and the Property.
4. All amounts charged to Landlord by contractors and/or
suppliers for services, replacement parts, components, materials, equipment and
supplies furnished in connection with the operation repair, maintenance,
replacement of and control of access to any part of the Building, or the
Property generally, including the heating, air conditioning, ventilating,
plumbing, electrical, elevator and other systems and equipment. At Landlord's
option, major repair items may be amortized over a period of up to five (5)
years.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended coverage insurance,
liability and extended coverage insurance, rental loss insurance, elevator
insurance, boiler insurance and other insurance customarily carried from time to
time by landlords of comparable office buildings or required to be carried by
Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but excluding
those charges for which Landlord is otherwise reimbursed by tenants, and charges
for Electrical Costs. For purposes hereof, the term "Electrical Costs" shall
mean: (i) all charges paid by Landlord for electricity supplied to the Building,
Property and Premises, regardless of whether such charges are characterized as
distribution charges, transmission charges, generation charges, public good
charges, disconnection charges, competitive transaction charges, stranded cost
recoveries or otherwise; (ii) except to the extent otherwise included in Basic
Costs, any costs incurred in connection with the energy management program for
the Building, Property and Premises, including any costs incurred for the
replacement of lights and ballasts and the purchase and installation of sensors
and other energy saving equipment; and (iii) if and to the extent permitted by
law, a reasonable fee for the services provided by Landlord in connection with
the selection of utility companies and the negotiation and administration of
contracts for the generation of electricity. Notwithstanding the foregoing,
Electrical Costs shall be adjusted as follows: (a) any amounts received by
Landlord as reimbursement for the above standard building electrical consumption
shall be deducted from Electrical Costs, (b) the cost of electricity incurred in
providing overtime HVAC to specific tenants shall be deducted from Electrical
Costs, it being agreed that the electrical component of overtime HVAC costs
shall be calculated as a reasonable percentage of
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the total HVAC costs charged to such tenants, and (c) if Tenant is billed
directly for the cost of electricity to the Premises as a separate charge in
addition to Base Rental and Basic Costs, the cost of electricity to individual
tenant spaces in the Building shall be deducted from Electrical Costs.
7. The term "Taxes", which for purposes hereof, shall mean:
(a) all real estate taxes and assessments on the Property, the Building or the
Premises, and taxes and assessments levied in substitution or supplementation in
whole or in part of such taxes, (b) all personal property taxes for the
Building's personal property, including license expenses, (c) all taxes imposed
on services of Landlord's agents and employees, (d) all other taxes, fees or
assessments now or hereafter levied by any governmental authority on the
Property, the Building or its contents or on the operation and use thereof
except as relate to specific tenants, and (e) all costs and fees incurred in
connection with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax valuation of the
Building, but excluding income taxes. For the purpose of determining real estate
taxes and assessments for any given calendar year, the amount to be included in
Taxes for such year shall be as follows: (1) with respect to any special
assessment that is payable in installments Taxes for such year shall include the
amount of the installment (and any interest) due and payable during such year;
and (2) with respect to all other real estate taxes, Taxes for such year shall,
at Landlord's election, include either the amount accrued, assessed or otherwise
imposed for such year or the amount due and payable for such year, provided that
Landlord's election shall be applied consistently throughout the Lease Term. If
a reduction in Taxes is obtained for any year of the Lease Term during which
Tenant paid its Pro Rata Share of Basic Costs, then Basic Costs for such year
will be retroactively adjusted and Landlord shall provide Tenant with a credit,
if any, based on such adjustment. Likewise if a reduction is subsequently
obtained for Taxes for the Base Year (if Tenant's Pro Rata Share is based upon
increases in Basic Costs over a Base Year), Basic Costs for the Base Year shall
be restated and the Excess for all subsequent years recomputed. Tenant shall pay
to Landlord Tenant's Pro Rata Share of any such increase in the Excess within
thirty (30) days after Tenant's receipt of a statement therefor from Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas and garages of the Property, if
any.
9. Cost of all maintenance service agreements, including those
for equipment, alarm service, window cleaning, drapery or venetian blind
cleaning, janitorial services, pest control, uniform supply, plant maintenance,
landscaping, and any parking equipment.
10. Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified above nor directly
billed to tenants.
11. The amortized cost of capital improvements made to the
Building or the Property which are: (a) primarily for the purpose of reducing
operating expense costs or otherwise improving the operating efficiency of the
Property or Building; or (b) required to comply with any laws, rules or
regulations of any governmental authority or a requirement of Landlord's
insurance carrier. The cost of such capital improvements shall be amortized over
a period of five (5) years and shall, at Landlord's option, include interest at
a rate that is reasonably equivalent to the interest rate that Landlord would be
required to pay to finance the cost of the capital improvement in question as of
the date such capital improvement is performed, provided if the payback period
for any capital improvement is less than five (5) years, Landlord may amortize
the cost of such capital improvement over the payback period.
12. Any other expense or charge of any nature whatsoever
which, in accordance with general industry practice with respect to the
operation of a first-class office building, would be construed as an operating
expense.
In addition if Landlord incurs any costs and expenses in
connection with the operation, maintenance, repair, management or ownership of
the Building and one or more other buildings, such costs and expenses shall be
equitably prorated between the Building and such other buildings and the
Building's equitable share thereof shall be included in Basic Costs. Basic Costs
shall not include the cost of capital improvements (except as set forth above
and as distinguished from replacement parts or components purchased and
installed in the ordinary course), depreciation, interest (except as provided
above with respect to the amortization of capital improvements), lease
commissions, and principal payments on mortgage and other non-operating debts of
Landlord. If the Building is not at least ninety-five percent (95%) occupied
during any calendar year of the Lease Term or if Landlord is not supplying
services to at least ninety-five percent (95%) of the total Rentable Area of the
Building at any time during any calendar year of
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the Lease Term, actual Basic Costs for purposes hereof shall, at Landlord's
option, be determined as if the Building had been ninety-five percent (95%)
occupied and Landlord had been supplying services to ninety-five percent (95%)
of the Rentable Area of the Building during such year. If Tenant pays for its
Pro Rata Share of Basic Costs based on increases over a Base Year and Basic
Costs for any calendar year during the Lease Term are determined as provided in
the foregoing sentence, Basic Costs for such Base Year shall also be determined
as if the Building had been ninety-five percent (95%) occupied and Landlord had
been supplying services to ninety-five percent (95%) of the Rentable Area of the
Building. Any necessary extrapolation of Basic Costs under this Article shall be
performed by adjusting the cost of those components of Basic Costs that are
impacted by changes in the occupancy of the Building (including, at Landlord's
option, Taxes) to the cost that would have been incurred if the Building had
been ninety-five percent (95%) occupied and Landlord had been supplying services
to ninety-five percent (95%) of the Rentable Area of the Building. In addition,
if Tenant's Pro Rata Share of Basic Costs is determined based upon increases
over a Base Year and Basic Costs for the Base Year include exit and
disconnection fees, standard cost charges and/or competitive transaction
charges, such fees and charges may, at Landlord's option, be imputed as a Basic
Cost for subsequent years in which such fees and charges are not incurred. In no
event, however, shall the amount of such imputed fees and charges exceed the
actual amount of exit and disconnection fees, stranded cost charges and/or
competitive transaction charges that were actually included in Basic Costs for
the Base Year.
C. If Basic Costs for any calendar year increase by more than five
percent (5%) over Basic Costs for the immediately preceding calendar year,
Tenant, within ninety (90) days after receiving Landlord's statement of actual
Basic Costs for a particular calendar year, shall have the right to provide
Landlord with written notice (the "Review Notice") of its intent to review
Landlord's books and records relating to the Basic Costs for such calendar year.
Within a reasonable time after receipt of a timely Review Notice, Landlord shall
make such books and records available to Tenant or Tenant's agent for its review
at either Landlord's home office or at the office of the Building, provided that
if Tenant retains an agent to review Landlord's books and records for any
calendar year, such agent must be CPA firm licensed to do business in the state
in which the Building is located. Tenant shall be solely responsible for any and
all costs, expenses and fees incurred by Tenant or Tenant's agent in connection
with such review. If Tenant elects to review Landlord's books and records,
within thirty (30) days after such books and records are made available to
Tenant, Tenant shall have the right to give Landlord written notice stating in
reasonable detail any objection to Landlord's statement of actual Basic Costs
for such calendar year. If Tenant fails to give Landlord written notice of
objection within such thirty (30) day period or fails to provide Landlord with a
Review Notice within the ninety (90) day period provided above, Tenant shall be
deemed to have approved Landlord's statement of Basic Costs in all respects and
shall thereafter be barred from raising any claims with respect thereto. Upon
Landlord's receipt of a timely objection notice from Tenant, Landlord and Tenant
shall work together in good faith to resolve the discrepancy between Landlord's
statement and Tenant's review. If Landlord and Tenant determine that Basic Costs
for the calendar year in question are less than reported, Landlord shall provide
Tenant with a credit against future Additional Base Rental in the amount of any
overpayment by Tenant. Likewise, if Landlord and Tenant determine that Basic
Costs for the calendar year in question are greater than reported, Tenant shall
forthwith pay to Landlord the amount of underpayment by Tenant. Any information
obtained by Tenant pursuant to the provisions of this Section shall be treated
as confidential. Notwithstanding anything herein to the contrary, Tenant shall
not be permitted to examine Landlord's books and records or to dispute any
statement of Basic Costs unless Tenant has paid to Landlord the amount due as
shown on Landlord's statement of actual Basic Costs, said payment being a
condition precedent to Tenant's right to examine Landlord's books and records.
D. Tenant covenants and agrees to pay to Landlord during the Lease
Term, without any setoff or deduction whatsoever, the full amount of all Base
Rental and Additional Base Rental due hereunder. In addition, Tenant shall pay
and be liable for, as additional rent, all rental, sales and use taxes or other
similar taxes, if any, levied or imposed by any city, state, county or other
governmental body having authority, such payments to be in addition to all other
payments required to be paid to Landlord by Tenant under the terms and
conditions of this Lease. Any such payments shall be paid concurrently with the
payments of the Rent on which the tax is based. The Base Rental, Tenant's Pro
Rata Share of Basic Costs and any recurring monthly charges due hereunder shall
be due and payable in advance on the first day of each calendar month during the
Lease Term without demand, provided that the installment of Base Rental for the
first full calendar month of the Lease Term shall be payable upon the execution
of this Lease by Tenant. All other items of Rent shall be due and payable by
Tenant on or before ten (10) days after billing by Landlord. If the Lease Term
commences on a day other than the first day of a calendar month or terminates on
a day other than the last day of a calendar month, then the monthly Base Rental
and
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Tenant's Pro Rata Share of Basic Costs for such month shall be prorated for the
number of days in such month occurring within the Lease Term based on a
fraction, the numerator of which is the number of days of the Lease Term that
fell within such calendar month and the denominator of which is thirty (30). All
such payments shall be by a good and sufficient check. No payment by Tenant or
receipt or acceptance by Landlord of a lesser amount than the correct amount of
Rent due under this Lease shall be deemed to be other than a payment on account
of the earliest Rent due hereunder, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other
available remedy. The acceptance by Landlord of any Rent on a date after the due
date of such payment shall not be construed to be a waiver of Landlord's right
to declare a default for any other late payment. Tenant's covenant to pay Rent
shall be independent of every other covenant set forth in this Lease.
E. All Rent not paid when due and payable shall bear interest from the
date due until paid at the lesser of: (1) eighteen percent (18%) per annum; or
(2) the Maximum Rate. In addition, if Tenant fails to pay any installment of
Rent when due and payable hereunder, a service fee equal to five percent (5%) of
such unpaid amount will be due and payable immediately by Tenant to Landlord.
F. In lieu of requiring Tenant to pay Rent by good and sufficient check
in the manner described in Section IV.D. above, Landlord shall have the right in
its sole and absolute discretion to require Tenant to pay Rent by means of an
automated debit system (the "Automatic Debit System") whereby any or all
payments of Rent shall be debited from Tenant's account in a bank or financial
institution designated by Tenant and credited to Landlord's account in a bank or
financial institution designated by Landlord. In the event Landlord elects to
have Tenant pay all or any portion of Rent by means of the Automatic Debit
System, Tenant, within thirty (30) days after written request by Landlord, shall
execute and deliver to Landlord any authorizations, certificates or other
documentation as may be required to establish and give effect to the Automatic
Debit System. If Landlord elects to have less than all items of Rent paid by the
Automatic Debit System, Landlord shall advise Tenant in writing as to those
items of Rent that will be paid by the Automatic Debit System (e.g. Base Rental
only or Base Rental and Tenant's Pro Rata Share of Basic Costs only). Either
party shall have the right to change its bank or financial institution from time
to time, provided that Tenant, no less than thirty (30) days prior to the
effective date of any such change, shall provide Landlord with written notice of
such change and any and all authorizations, certificates or other documentation
as may be required to establish and give effect to the Automatic Debit System at
Tenant's new bank or financial institution. Tenant shall promptly pay all
service fees and other charges imposed upon Landlord or Tenant in connection
with the Automatic Debit System, including, without limitation, any charges
resulting from insufficient funds in Tenant's bank account. In the event that
any Rent is not paid on time as a result of insufficient funds in Tenant's
account, Tenant shall be liable for any interest and/or service fee in
accordance with Section IV.E. above. Tenant shall remain liable to Landlord for
all payments of Rent due hereunder regardless of whether Tenant's account is
incorrectly debited in any given month, it being agreed that a debit of less
than the full amount of Rent due shall not be construed as a waiver by Landlord
of its right to receive any unpaid balance of Rent.
V. Use.
The Premises shall be used for the Permitted Use and for no other
purpose. Tenant agrees not to use or permit the use of the Premises for any
purpose which is illegal, dangerous to life, limb or property or which, in
Landlord's reasonable opinion, creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building. Tenant shall conduct
its business and control its agents, servants, contractors, employees,
customers, licensees, and invitees in such a manner as not to interfere with,
annoy or disturb other tenants, or in any way interfere with Landlord in the
management and operation of the Building. Tenant will maintain the Premises in a
clean and healthful condition, and comply with all laws, ordinances, orders,
rules and regulations of any governmental entity with reference to the operation
of Tenant's business and to the use, condition, configuration or occupancy of
the Premises, including without limitation, the Americans with Disabilities Act
(collectively referred to as "Laws"). Tenant, within ten (10) days after receipt
thereof, shall provide Landlord with copies of any notices it receives with
respect to a violation or alleged violation of any Laws. Tenant will comply with
the rules and regulations of the Building attached hereto as Exhibit B and such
other rules and regulations adopted and altered by Landlord from time to time
and will cause all of its agents, servants, contractors, employees, customers,
licensees and invitees to do so. All changes to such rules and regulations will
be reasonable and shall be sent by Landlord to Tenant in writing.
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VI. Security Deposit
The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be held by Landlord without liability for
interest (except as required by law) and as security for the performance of
Tenant's obligations under this Lease. The Security Deposit shall not be
considered an advance payment of Rent or a measure of Tenant's liability for
damages. Landlord may, from time to time, without prejudice to any other remedy,
use all or a portion of the Security Deposit to make good any arrearage of Rent,
to repair damages to the Premises, to clean the Premises upon termination of
this Lease or otherwise to satisfy any other covenant or obligation of Tenant
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the termination
of this Lease, after Tenant surrenders the Premises to Landlord in accordance
with this Lease and all amounts due Landlord from Tenant are finally determined
and paid by Tenant or through application of the Security Deposit, the balance
of the Security Deposit remaining after any such application shall be returned
to Tenant. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of such Security Deposit. Tenant
agrees to look solely to such transferee or assignee for the return of the
Security Deposit. Landlord and its successors and assigns shall not be bound by
any actual or attempted assignment or encumbrance of the Security Deposit by
Tenant, provided, however, if Tenant's interest in this Lease has been assigned,
Landlord shall, provided that Landlord has been furnished with a fully executed
copy of the agreement assigning such Security Deposit, return the Security
Deposit to such assignee in accordance with the terms and conditions hereof. If
Landlord returns the Security Deposit to Tenant's assignee as aforesaid,
Landlord will have no further obligation to any party with respect thereto.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
VII. Services to be Furnished by Landlord.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
1. Water for use in the lavatories on the floor(s) on which
the Premises is located. If Tenant desires water in the Premises for any
approved reason, including a private lavatory or kitchen, cold water shall be
supplied, at Tenants sole cost and expense, from the Building water main through
a line and fixtures installed at Tenant's sole cost and expense with the prior
reasonable consent of Landlord. If Tenant desires hot water in the Premises,
Tenant, at its sole cost and expense and subject to the prior reasonable consent
of Landlord, may install a hot water heater in the Premises. Tenant shall be
solely responsible for maintenance and repair of any such hot water heater.
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as are considered by
Landlord, in its reasonable judgment, to be standard for buildings of similar
class, size, age and location, or as required by governmental authority. In the
event that Tenant requires central heat, ventilation or air conditioning at
hours other than Normal Business Hours, such central heat, ventilation or air
conditioning shall be furnished only upon the written request of Tenant
delivered to Landlord at the office of the Building prior to 3:00 P.M. at least
one Business Day in advance of the date for which such usage is requested.
Tenant shall pay Landlord, as Additional Base Rental, the entire cost of
additional service as such costs are determined by Landlord from time to time.
3. Maintenance and repair of all Common Areas in the manner
and to the extent reasonably deemed by Landlord to be standard for buildings of
similar class, size, age and location.
4. Janitor service on Business Days; provided, however, if
Tenant's use, floor covering or other improvements, require special services,
Tenant shall pay the additional cost reasonably attributable thereto as
Additional Base Rental.
5. Passenger elevator service in common with other tenants of
the Building.
6. Electricity to the Premises for general office use,
in accordance with and subject to the terms and conditions set forth in Article
XI of this Lease.
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B. The failure by Landlord to any extent to furnish, or the
interruption or termination of, any services in whole or in part, resulting from
adherence to laws, regulations and administrative orders, wear, use, repairs,
improvements, alterations or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor be construed as a
constructive eviction of Tenant, nor give rise to an abatement of Rent, nor
relieve Tenant from the obligation to fulfill any covenant or agreement hereof.
Should any of the equipment or machinery used in the provision of such services
for any cause cease to function properly, Landlord shall use reasonable
diligence to repair such equipment or machinery.
C. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services, Landlord shall not be deemed to have
warranted the efficiency of any security personnel, service, procedures or
equipment and Landlord shall not be liable in any manner for the failure of any
such security personnel, services, procedures or equipment to prevent or control
or apprehend anyone suspected of personal injury property damage or any criminal
conduct in, on or around the Property.
VIII. Leasehold Improvements.
Any trade fixtures, unattached and movable equipment or furniture, or
other personalty brought into the Premises by Tenant ("Tenant's Property") shall
be owned and insured by Tenant. Tenant shall remove all such Tenant's Property
from the Premises in accordance with the terms of Article XXXV hereof. Any and
all alterations. additions and improvements to the Premises, including any
built-in furniture (collectively "Leasehold Improvements") shall be owned and
insured by Landlord and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. Landlord may, nonetheless, at any
time prior to, or within six (6) months after, the expiration or earlier
termination of this Lease or Tenant's right to possession, require Tenant to
remove any Leasehold Improvements performed by or for the benefit of Tenant and
all electronic, phone and data cabling as are designated by Landlord (the
"Required Removables") at Tenant's sole cost. In the event that Landlord so
elects, Tenant shall remove such Required Removables within ten (10) days after
notice from Landlord, provided that in no event shall Tenant be required to
remove such Required Removables prior to the expiration or earlier termination
of this Lease or Tenant's right to possession. In addition to Tenant's
obligation to remove the Required Removables, Tenant shall repair any damage
caused by such removal and perform such other work as is reasonably necessary to
restore the Premises to a "move in" condition. If Tenant fails to remove any
specified Required Removables or to perform any required repairs and restoration
within the time period specified above, Landlord, at Tenant's sole cost and
expense, may remove, store, sell and/or dispose of the Required Removables and
perform such required repairs and restoration work. Tenant, within five (5) days
after demand from Landlord, shall reimburse Landlord for any and all reasonable
costs incurred by Landlord in connection with the Required Removables.
IX. Graphics.
Landlord shall provide and install at Tenant's sole cost and expense,
any suite numbers and Tenant identification on the exterior of the Premises
using the standard graphics for the Building. Tenant shall not be permitted to
install any signs or other identification without Landlord's prior written
consent.
X. Repairs and Alterations.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform all maintenance
and repairs to the Premises as are necessary to keep the same in good condition
and repair throughout the entire Lease Term reasonable wear and tear excepted.
Tenant's repair and maintenance obligations with respect to the Premises shall
include, without limitation, any necessary repairs with respect to: (1) any
carpet or other floor covering, (2) any interior partitions, (3) any doors, (4)
the interior sides of any demising walls, (5) any telephone and computer cabling
that serves Tenant's equipment exclusively, (6) any supplemental air
conditioning units, private showers and kitchens, including any plumbing in
connection therewith, and similar facilities serving Tenant exclusively, and (7)
any alterations, additions or improvements performed by contractors retained by
Tenant. All such work shall be performed in accordance with section X.B. below
and the rules, policies and procedures reasonably enacted by Landlord from time
to time for the performance of work in the Building. If Tenant fails to make any
necessary repairs to the Premises, Landlord may, at its option, make such
repairs, and Tenant shall pay the cost thereof to the Landlord on demand as
Additional Base Rental, together with an administrative charge in an amount
equal to ten percent (10%) of the cost of such repairs. Landlord shall, at its
expense (except as included in Basic Costs), keep and
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maintain in good repair and working order and make all repairs to and perform
necessary maintenance upon: (a) all structural elements of the Building; and (b)
all mechanical, electrical and plumbing systems that serve the Building in
general; and (c) the Building facilities common to all tenants including, but
not limited to, the ceilings, walls and floors in the Common Areas.
B. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises without first obtaining the prior written
consent of Landlord in each such instance. Prior to commencing any such work and
as a condition to obtaining Landlord's consent, Tenant must furnish Landlord
with plans and specifications reasonably acceptable to Landlord; names and
addresses of contractors reasonably acceptable to Landlord; copies of contracts;
necessary permits and approvals; evidence of contractor's and subcontractor's
insurance in accordance with Article XVI section B. hereof; and payment bond or
other security, all in form and amount satisfactory to Landlord. All such
improvements, alterations or additions shall be constructed in a good and
workmanlike manner using Building Standard materials or other new materials of
equal or greater quality. Landlord, to the extent reasonably necessary to avoid
any disruption to the tenants and occupants of the Building, shall have the
right to designate the time when any such alterations, additions and
improvements may be performed and to otherwise designate reasonable rules,
regulations and procedures for the performance of work in the Building.
Upon completion, Tenant shall furnish "as-built" plans, contractor's affidavits
and full and final waivers of lien and receipted bills covering all labor and
materials. All improvements, alterations and additions shall comply with all
insurance requirements, codes, ordinances, laws and regulations, including
without limitation, the Americans with Disabilities Act. Tenant shall reimburse
Landlord upon demand as Additional Base Rental for all sums, if any, expended by
Landlord for third party examination of the architectural, mechanical, electric
and plumbing plans for any alterations, additions or improvements. In addition,
if Landlord so requests, Landlord shall be entitled to oversee the construction
of any alterations, additions or improvements that may affect the structure of
the Building or any of the mechanical, electrical, plumbing or life safety
systems of the Building. In the event Landlord elects to oversee such work,
Landlord shall be entitled to receive a fee for such oversight in an amount
equal to fifteen percent (15%) of the cost of such alterations, additions or
improvements. Landlord's approval of Tenant's plans and specifications for any
work performed for or on behalf of Tenant shall not be deemed to be a
representation by Landlord that such plans and specifications comply with
applicable insurance requirements, building codes, ordinances, laws or
regulations or that the alterations, additions and improvements constructed in
accordance with such plans and specifications will be adequate for Tenant's use.
XI. Use of Electrical Services by Tenant.
A. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base Rental and
Basic Costs (except as provided in Section XI.B. below with respect to excess
usage); or (2) by a separate charge billed directly to Tenant by Landlord and
payable by Tenant as Additional Base Rental within ten (10) days after billing;
or (3) by a separate charge or charges billed by the utility company(ies)
providing electrical service and payable by Tenant directly to such utility
company(ies). It is understood that electrical service to the Premises may be
furnished by one or more companies providing electrical generation, transmission
and/or distribution services and that the cost of electricity may be billed as a
single charge or divided into and billed in a variety of categories such as
distribution charges, transmission charges, generation charges, public good
charges or other similar categories. Landlord shall have the exclusive right to
select the company(ies) providing electrical service to the Building, Premises
and Property to aggregate the electrical service for the Building, Premises and
Property with other buildings, to purchase electricity for the Building,
Premises and Property through a broker and/or buyers group and to change the
providers and/or manner of purchasing electricity from time to time. Landlord
shall be entitled to receive a reasonable fee (if permitted by law) for the
services provided by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts for the generation
of electricity. In addition, if Landlord bills Tenant directly for the cost of
electricity as Additional Base Rental, the cost of electricity may include (if
permitted by law) an administrative fee to reimburse Landlord for the cost of
reading meters, preparing invoices and related costs.
B. Tenant's use of electrical service in the Premises shall not exceed
either in voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building. In the event
Tenant shall consume (or request that it be allowed to consume) electrical
service in excess of that deemed by Landlord to be standard for the Building,
Landlord may refuse to consent to such excess usage or may condition its consent
to such excess usage upon such conditions as Landlord reasonably elects
(including the installation of utility service upgrades, submeters, air handlers
or cooling units), and all such additional usage (to the
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extent permitted by law), installation and maintenance thereof shall be paid for
by Tenant as Additional Base Rental. Landlord, at any time during the Lease
Term, shall have the right to separately meter electrical usage for the Premises
or to measure electrical usage by survey or any other method that Landlord, in
its reasonable judgment, deems to be appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord
permits Tenant to purchase electrical power for the Premises from a provider
other than Landlord's designated company(ies), such provider shall be considered
to be a contractor of Tenant and Tenant shall indemnify and hold Landlord
harmless from such provider's acts and omissions while in, or in connection with
their services to, the Building or Premises in accordance with the terms and
conditions of Article XV. In addition, at the request of Landlord, Tenant shall
allow Landlord to purchase electricity from Tenant's provider at Tenant's rate
or at such lower rate as can be negotiated by the aggregation of Landlord's and
Tenant's requirements for electricity power.
XII. Entry by Landlord.
Landlord and its agents or representatives shall have the right to
enter the Premises to inspect the same, or to show the Premises to prospective
purchasers, mortgagees, tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or insurers, or to clean
or make repairs, alterations or additions thereto, including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. If
reasonably necessary for the protection and safety of Tenant and its employees,
Landlord shall have the right to temporarily close the Premises to perform
repairs, alterations or additions in the Premises, provided that Landlord shall
use reasonable efforts to perform all such work on weekends and after Normal
Business Hours. Entry by Landlord hereunder shall not constitute a constructive
eviction or entitle Tenant to any abatement or reduction of Rent by reason
thereof.
XIII. Assignment and Subletting.
A. Tenant shall not assign, sublease, transfer or encumber this Lease
or any interest therein or grant any license, concession or other right of
occupancy of the Premises or any portion thereof or otherwise permit the use of
the Premises or any portion thereof by any party other than Tenant (any of which
events is hereinafter called a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld with respect to any
proposed assignment or subletting. Landlord's consent shall not be considered
unreasonably withheld if: (1) the proposed transferee's financial responsibility
does not meet the same criteria Landlord uses to select Building tenants; (2)
the proposed transferee's business is not suitable for the Building considering
the business of the other tenants and the Building's prestige or would result in
a violation of an exclusive right granted to another tenant in the Building; (3)
the proposed use is different than the Permitted Use: (4) the proposed
transferee is a government agency or occupant of the Building; (5) Tenant is in
default; or (6) any portion of the Building or Premises would become subject to
additional or different governmental laws or regulations as a consequence of the
proposed Transfer and/or the proposed transferee's use and occupancy of the
Premises. Tenant acknowledges that the foregoing is not intended to be an
exclusive list of the reasons for which Landlord may reasonably withhold its
consent to a proposed Transfer. Any attempted Transfer in violation of the terms
of this Article shall, at Landlord's sole and absolute option, be void. Consent
by Landlord to one or more Transfers shall not operate as a waiver of Landlord's
rights as to any subsequent Transfers. In addition Tenant shall not, without
Landlord's prior written consent, publicly advertise the proposed rental rate
for any Transfer.
B. If Tenant requests Landlord's consent to a Transfer, Tenant,
together with such request for consent, shall provide Landlord with the name of
the proposed transferee and the nature of the business of the proposed
transferee, the term, use, rental rate and all other material terms and
conditions of the proposed Transfer, including, without limitation, a copy of
the proposed assignment, sublease or other contractual documents and evidence
satisfactory to Landlord that the proposed transferee is financially
responsible. Notwithstanding Landlord's agreement to act reasonably under
Section XIII.A. above, Landlord may, within forty-five (45) days after its
receipt of all information and documentation required herein, either: (1)
consent to or reasonably refuse to consent to such Transfer in writing; or (2)
negotiate directly with the proposed transferee and in the event Landlord is
able to reach an agreement with such proposed transferee, terminate this Lease
(in part or in whole, as appropriate) upon thirty (30) days' notice; or (3)
cancel and terminate
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this Lease, in whole or in part as appropriate, upon thirty (30) days' notice.
In the event Landlord consents to any such Transfer, the Transfer and consent
thereto shall be in a form approved by Landlord, and Tenant shall bear all costs
and expenses incurred by Landlord in connection with the review and approval of
such documentation, which costs and expenses shall be deemed to be at least
Seven Hundred Fifty Dollars ($750.00).
C. All cash or other proceeds (the "Transfer Consideration") of any
Transfer of Tenant's interest in this Lease and/or the Premises, whether
consented to by Landlord or not, shall be paid to Landlord and Tenant hereby
assigns all rights it might have or ever acquire in any such proceeds to
Landlord. In addition to the Rent hereunder, Tenant hereby covenants and agrees
to pay to Landlord all rent and other consideration which it receives which is
in excess of the Rent payable hereunder within ten (10) days following receipt
thereof by Tenant. In addition to any other rights Landlord may have, Landlord
shall have the right to contact any transferee and require that all payments
made pursuant to the Transfer shall be made directly to Landlord.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or entities who own
the voting shares at the time of the execution of this Lease cease for any
reason (including but not limited to merger, consolidation or other
reorganization involving another corporation) to own a majority of such shares,
or if Tenant is a partnership and if at any time during the Lease Term the
general partner or partners who own the general partnership interests in the
partnership at the time of the execution of this Lease, cease for any reason to
own a majority of such interests (except as the result of transfers by gift,
bequest or inheritance to or for the benefit of members of the immediate family
of such original shareholder(s) or partner(s)), such an event shall be deemed to
be a Transfer. The preceding sentence shall not apply whenever Tenant is a
corporation, the outstanding stock of which is listed on a recognized security
exchange, or if at least eighty percent (80%) of its voting stock is owned by
another corporation the voting stock of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this
Article XIII shall be only for the Permitted Use and for no other purpose. In no
event shall any Transfer release or relieve Tenant or any Guarantors from any
obligations under this Lease.
XIV. Liens.
The interest of Landlord in the Premises shall not be subject in any
way to any liens including construction liens, for improvements to or other work
performed with respect to the Premises by or on behalf of Tenant. The Tenant
shall have no power or authority to create any lien or permit any lien to attach
to the present estate, reversion, or other estate of Landlord in the Premises or
in the Property and all mechanics, materialmen, contractors, artisans, and other
parties contracting with Tenant or its representatives or privies with respect
to the Premises or any part of the Premises are hereby charged with notice that
they must look to the Tenant to secure payment of any bill for work done or
material furnished or for any other purpose during the term of this Lease.
Without limiting the generality of the foregoing, Tenant agrees to obtain and
deliver to Landlord written and unconditional waivers of construction liens upon
the Premises and the Property, for all work or materials to be furnished to the
Premises at the request or direction of Tenant signed by all architects,
engineers, designers, contractors, subcontractors, materialmen, and laborers who
become involved in such work. Notwithstanding the foregoing, Tenant, at its
expense, shall cause any lien filed against the Premises or the Property, for
work or materials claimed to have been furnished to Tenant, to be discharged of
record or properly transferred to a bond pursuant to Section 713.24, Florida
Statutes (1991), within ten (10) days after notice thereof to Tenant. If Tenant
shall fail to so discharge such lien or transfer it to a bond as required above,
then, in addition to any other right or remedy of Landlord, Landlord may but
shall not be obligated to discharge or transfer the same to a bond. Any amount
paid by Landlord for any of the aforesaid purposes, including reasonable
attorneys fees (and to the extent permitted by law) shall be paid by Tenant to
Landlord on demand as Additional Base Rental. Landlord shall have the right to
post and keep posted on the Premises any notices that may be provided by law or
which Landlord may deem to be proper for the protection of Landlord, the
Premises and the Building from such liens. Tenant shall notify every contractor
making improvements to the Premises that the interest of the Landlord in the
Premises shall not be subject to liens for improvements to the Premises or for
other work performed with respect to the Premises by or on behalf of Tenant.
Upon request from Landlord, Tenant shall execute, acknowledge and deliver
without charge a memorandum of lease or notice in recordable form containing a
confirmation that the interest of the Landlord in the Premises and Property
shall not be subject to liens for improvements to the Premises or for other work
performed with respect to the Premises by or on behalf of Tenant.
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XV. Indemnity and Waiver of Claims.
A. Tenant shall indemnify, defend and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) and agents, and the respective principals and members of any such
agents (collectively the "Landlord Related Parties") harmless against and from
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by law), which may be imposed
upon, incurred by, or asserted against Landlord or any of the Landlord Related
Parties and arising, directly or indirectly, out of or in connection with the
use, occupancy or maintenance of the Premises by, through or under Tenant
including, without limitation, any of the following: (1) any work or thing done
in, on or about the Premises or any part thereof by Tenant or any of its
transferees, agents, servants, contractors, employees, customers, licensees or
invitees; (2) any use, non-use, possession, occupation, condition, operation or
maintenance of the Premises or any part thereof; (3) any act or omission of
Tenant or any of its transferees, agents, servants, contractors, employees,
customers licensees or invitees, regardless of whether such act or omission
occurred within the Premises; (4) any injury or damage to any person or property
occurring in, on or about the Premises or any part thereof; or (5) any failure
on the part of Tenant to perform or comply with any of the covenants,
agreements, terms or conditions contained in this Lease with which Tenant must
comply or perform. In case any action or proceeding is brought against Landlord
or any of the Landlord Related Parties by reason of any of the foregoing, Tenant
shall, at Tenant's sole cost and expense, resist and defend such action or
proceeding with counsel approved by Landlord or, at Landlord's option, reimburse
Landlord for the cost of any counsel retained directly by Landlord to defend and
resist such action or proceeding.
B. Landlord and the Landlord Related Parties shall not be liable for,
and Tenant hereby waives, all claims for loss or damage to Tenant's business or
damage to person or property sustained by Tenant or any person claiming by,
through or under Tenant, including Tenant's principals, agents and employees
(collectively, the "Tenant Related Parties") resulting from any accident or
occurrence in, on or about the Premises, the Building or the Property,
including, without limitation, claims for loss, theft or damage resulting from:
(1) the Premises, Building, or Property or any equipment or appurtenances
becoming out of repair; (2) wind or weather; (3) any defect in or failure to
operate, for whatever reason, any sprinkler, heating or air-conditioning
equipment, electric wiring, gas, water or steam pipes; (4) broken glass; (5) the
backing up of any sewer pipe or downspout; (6) the bursting, leaking or running
of any tank, water closet, drain or other pipe; (7) the escape of steam or
water; (8) water, snow or ice being upon or coming through the roof, skylight,
stairs, doorways, windows, walks or any other place upon or near the Building;
(9) the falling of any fixture, plaster, tile or other material; (10) any act,
omission or negligence of other tenants, licensees or any other persons or
occupants of the Building or of adjoining or contiguous buildings, or owners of
adjacent or contiguous property or the public, or by construction of any
private, public or quasi-public work; or (11) any other cause of any nature
except, as to items 1-9, where such loss or damage is due to Landlord's willful
failure to make repairs required to be made pursuant to other provisions of this
Lease, after the expiration of a reasonable time after written notice to
Landlord of the need for such repairs. To the maximum extent permitted by law,
Tenant agrees to use and occupy the Premises, and to use such other portions of
the Building as Tenant is herein given the right to use, at Tenant's own risk.
XVI. Tenant's Insurance.
A. At all times commencing on and after the earlier of the Commencement
Date and the date Tenant or its agents, employees or contractors enters the
Premises for any purpose, Tenant shall carry and maintain, at its sole cost and
expense:
1. Commercial General Liability Insurance applicable to the
Premises and its appurtenances providing, on an occurrence basis, a minimum
combined single limit of Two Million Dollars ($2,000,000.00), with a contractual
liability endorsement covering Tenant's indemnity obligations under this Lease.
2. All Risks of Physical Loss Insurance written at replacement
cost value and with a replacement cost endorsement covering all of Tenant's
Property in the Premises.
3. Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by applicable
statute, and Employers Liability Coverage of One Million Dollars ($1,000,000.00)
per occurrence.
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4. Whenever good business practice, in Landlord's reasonable
judgment, indicates the need of additional insurance coverage or different types
of insurance in connection with the Premises or Tenant's use and occupancy
thereof, Tenant shall, upon request, obtain such insurance at Tenant's expense
and provide Landlord with evidence thereof.
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions, improvements, or
construction are undertaken by or on behalf of Tenant, Tenant shall carry and
maintain, at its expense, or Tenant shall require any contractor performing work
on the Premises to carry and maintain, at no expense to Landlord, in addition to
Workers' Compensation Insurance as required by the jurisdiction in which the
Building is located, All Risk Builder's Risk Insurance in the amount of the
replacement cost of any alterations, additions or improvements (or such other
amount reasonably required by Landlord) and Commercial General Liability
Insurance (including, without limitation, Contractor's Liability coverage,
Contractual Liability coverage and Completed Operations coverage) written on an
occurrence basis with a minimum combined single limit of Two Million Dollars
($2,000,000.00) and adding "the named Landlord hereunder (or any successor
thereto), Osprey S.A. Ltd., a Florida limited partnership, and their respective
members, principals, beneficiaries, partners, officers, directors, employees,
agents and any Mortgagee(s)", and other designees of Landlord as the interest of
such designees shall appear, as additional insureds (collectively referred to as
the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to
maintain or cause to be maintained pursuant to the terms of this Lease (all such
insurance as well as any other insurance pertaining to the Premises or the
operation of Tenant's business therein being referred to as "Tenant's
Insurance"), as well as the form of such insurance, shall at all times be
subject to Landlord's reasonable approval, and each such insurance company shall
have an A Best rating of "A"or better and shall be licensed and qualified to do
business in the state in which the Premises is located. All policies evidencing
Tenant's Insurance (except for Workers' Compensation Insurance) shall specify
Tenant as named insured and the Additional Insureds as additional insureds.
Provided that the coverage afforded Landlord and any designees of Landlord shall
not be reduced or otherwise adversely affected all of Tenant's Insurance may be
carried under a blanket policy covering the Premises and any other of Tenant's
locations. All policies of Tenants Insurance shall contain endorsements that the
insurer(s) will give to Landlord and its designees at least thirty (30) days'
advance written notice of any change, cancellation, termination or lapse of said
insurance. Tenant shall be solely responsible for payment of premiums for all of
Tenant's Insurance. Tenant shall deliver to Landlord at least fifteen (15) days
prior to the time Tenant's Insurance is first required to be carried by Tenant,
and upon renewals at least fifteen (15) days prior to the expiration of any such
insurance coverage, a certificate of insurance of all policies procured by
Tenant in compliance with its obligations under this Lease. The limits of
Tenant's Insurance shall in no event limit Tenant's liability under this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: (1) violate the terms of any of Landlord's insurance
policies; (2) prevent Landlord from obtaining policies of insurance acceptable
to Landlord or any Mortgagees; or (3) result in an increase in the rate of any
insurance on the Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any of the events
set forth in this Section, Tenant shall pay Landlord upon demand, as Additional
Base Rental, the cost of the amount of any increase in any such insurance
premium, provided that the acceptance by Landlord of such payment shall not be
construed to be a waiver of any rights by Landlord in connection with a default
by Tenant under the Lease. If Tenant fails to obtain the insurance coverage
required by this Lease, Landlord may, at its option, obtain such insurance for
Tenant, and Tenant shall pay, as Additional Base Rental, the cost of all
premiums thereon and all of Landlord's costs associated therewith.
XVII. Subrogation.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby waive any and all right of recovery, claim, action
or cause of action against the other, their respective principals,
beneficiaries, partners, officers, directors, agents, and employees, and, with
respect to Landlord, its Mortgagee(s), for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to their respective property, the
Building, the Property or the Premises or any addition or improvements thereto,
or any contents therein, by reason of fire, the elements, or any other cause,
regardless of cause or origin, including the negligence of Landlord or Tenant,
or their respective principals, beneficiaries, partners, officers directors,
agents and employees and, with respect to Landlord, its Mortgagee(s), which loss
or damage is (or would have been, had the insurance
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required by this Lease been carried) covered by insurance. Since this mutual
waiver will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant
each agree to give each insurance company which has issued, or in the future may
issue, policies of insurance, with respect to the items covered by this waiver,
written notice of the terms of this mutual waiver, and to have such insurance
policies properly endorsed, if necessary, to prevent the invalidation of any of
the coverage provided by such insurance policies by reason of such mutual
waiver. For the purpose of the foregoing waiver, the amount of any deductible
applicable to any loss or damage shall be deemed covered by, and recoverable by
the insured under the insurance policy to which such deductible relates. In the
event that Tenant is permitted to and self-insures any risk which would have
been covered by the insurance required to be carried by Tenant pursuant to
Article XVI of the Lease, or if Tenant fails to carry any insurance required to
be carried by Tenant pursuant to Article XVI of this Lease, then all loss or
damage to Tenant, its leasehold interest, its business, its property, the
Premises or any additions or improvements thereto or contents thereof shall be
deemed covered by and recoverable by Tenant under valid and collectible policies
of insurance.
XVIII. Landlord's Insurance.
Landlord shall maintain property insurance on the Building in such
amounts as Landlord reasonably elects. The cost of such insurance shall be
included as a part of the Basic Costs, and payments for losses and recoveries
thereunder shall be made solely to Landlord or the Mortgagees of Landlord as
their interests shall appear.
XIX. Casualty Damage.
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged that in Landlord's reasonable judgment,
substantial alteration or reconstruction of the Building shall be required
(whether or not the Premises has been damaged by such casualty) or in the event
Landlord will not be permitted by applicable law to rebuild the Building in
substantially the same form as existed prior to the fire or casualty or in the
event the Premises has been materially damaged and there is less than two (2)
years of the Lease Term remaining on the date of such casualty or in the event
any Mortgagee should require that the insurance proceeds payable as a result of
a casualty be applied to the payment of the mortgage debt or in the event of any
material uninsured loss to the Building, Landlord may, at its option, terminate
this Lease by notifying Tenant in writing of such termination within ninety (90)
days after the date of such casualty. Such termination shall be effective as of
the date of fire or casualty, with respect to any portion of the Premises that
was rendered untenantable, and the effective date of termination specified in
Landlord's notice, with respect to any portion of the Premises that remained
tenantable. If Landlord does not elect to terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to restore the Building (provided
that Landlord shall not be required to restore any unleased premises in the
Building) and the Leasehold Improvements (but excluding any improvements,
alterations or additions made by Tenant in violation of this Lease) located
within the Premises, if any, which Landlord has insured to substantially the
same condition they were in immediately prior to the happening of the casualty.
Notwithstanding the foregoing, Landlord's obligation to restore the Building,
and the Leasehold Improvements, if any shall not require Landlord to expend for
such repair and restoration work more than the insurance proceeds actually
received by the Landlord as a result of the casualty. When repairs to the
Premises have been completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit Tenant's reoccupancy
of the Premises, and Tenant shall present Landlord with evidence satisfactory to
Landlord of Tenant's ability to pay such costs prior to Landlord's commencement
of repair and restoration of the Premises. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per diem basis during the time and to the extent
any damage to the Premises causes the Premises to be rendered untenantable and
not used by Tenant. If the Premises or any other portion of the Building is
damaged by fire or other casualty resulting from the negligence of Tenant or any
Tenant Related Parties, the Rent hereunder shall not be diminished during any
period during which the Premises, or any portion thereof, is untenantable
(except to the extent Landlord is entitled to be reimbursed by the proceeds of
any rental interruption insurance), and Tenant shall be liable to Landlord for
the cost of the repair and restoration of the Building caused thereby to the
extent such cost and expense is not covered by insurance proceeds. Landlord and
Tenant hereby waive the provisions of any law from time to time in effect during
the Lease Term relating to the effect upon leases of partial or total
destruction
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of leased property. Landlord and Tenant agree that their respective rights in
the event of any damage to or destruction of the Premises shall be those
specifically set forth herein.
XX. Demolition.
Landlord shall have the right to terminate this Lease if Landlord
proposes or is required, for any reason, to remodel, remove, or demolish the
Building or any substantial portion thereof. Such cancellation shall be
exercised by Landlord by the service of not less than ninety (90) days' written
notice of such termination. Such notice shall set forth the date upon which the
termination will be effective. No money or other consideration shall be payable
by Landlord to Tenant for Landlord's exercise of this right, and the right is
hereby reserved to Landlord and all purchasers, successors, assigns,
transferees, and ground tenants of Landlord, as the case may be, and is in
addition to all other rights of Landlord. Tenant has read the foregoing and
understands that Landlord has a right to terminate this Lease as provided above.
XXI. Condemnation.
If (a) the whole or any substantial part of the Premises or (b) any
portion of the Building or Property which would leave the remainder of the
Building unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord may, at its
option, terminate this Lease effective as of the date the physical taking of
said Premises or said portion of the Building or Property shall occur. In the
event this Lease is not terminated, the Rentable Area of the Building, the
Rentable Area of the Premises and Tenant's Pro Rata Share shall be appropriately
adjusted. In addition, Rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto the same being hereby expressly waived by Tenant except for any portions
of such award or proceeds which are specifically allocated by the condemning or
purchasing party for the taking of or damage to trade fixtures of Tenant, which
Tenant specifically reserves to itself.
XXII. Events of Default.
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay when due, without notice or demand, any
Base Rental, Additional Base Rental or other Rent under this Lease (hereinafter
sometimes referred to as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, including, without limitation,
the rules and regulations, which failure is not cured within ten (10) days after
delivery to Tenant of notice of the occurrence of such failure, provided that if
any such failure creates a hazardous condition, such failure must be cured
immediately. Notwithstanding the foregoing, if Tenant fails to comply with any
particular provision or covenant of this Lease, including, without limitation,
Tenant's obligation to pay Rent when due, on three (3) occasions during any
twelve (12) month period, any subsequent violation of such provision or covenant
shall be considered to be an incurable default by Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall commit an act of bankruptcy or shall
make an assignment for the benefit of creditors, or Tenant or any Guarantor
shall admit in writing its inability to pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended, pertaining to
bankruptcy, or under any similar law or statute of the United States or any
State thereof, or Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant or any Guarantor thereunder, or a
petition or answer proposing the adjudication of Tenant or any Guarantor as a
debtor or its reorganization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such petition or
answer shall not be discharged or denied within sixty (60) days after the filing
thereof.
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E. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any Guarantor or of the Premises or of any of
Tenant's Property located thereon in any proceeding brought by Tenant or any
Guarantor or any such receiver or trustee shall be appointed in any proceeding
brought against Tenant or any Guarantor and shall not be discharged within sixty
(60) days after such appointment or Tenant or such Guarantor shall consent to or
acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or other
process of law or equity in any action against Tenant.
G. Tenant shall abandon or vacate any substantial portion of the
Premises without the prior written consent of Landlord.
H. Tenant shall fail to take possession of and occupy the Premises
within thirty (30) days following the Commencement Date.
I. The liquidation, termination, dissolution, forfeiture of right to do
business, or death of Tenant or any Guarantor.
J. Tenant is in default beyond any notice and cure period under
any other lease with Landlord.
XXIII. Remedies.
A. Upon the occurrence of any event or events of default under this
Lease Landlord shall have the option to pursue any one or more of the following
remedies without any notice (except as expressly prescribed in Article XXII
above) or demand whatsoever (and without limiting the generality of the
foregoing, Tenant hereby specifically waives notice and demand for payment of
Rent or other obligations due (except as expressly prescribed in Article XXII
above) and waives any and all other notices or demand requirements imposed by
applicable law):
1. Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant fails to surrender the
Premises upon termination of the Lease hereunder, Landlord may without prejudice
to any other remedy which it may have enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be occupying
said Premises, or any part thereof, and Tenant hereby agrees to pay to Landlord
on demand the amount of all loss and damage, including consequential damage,
which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise specifically
including but not limited to all Costs of Reletting (hereinafter defined) and
any deficiency that may arise by reason of any reletting or failure to relet,
including the payment of any past due rents.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said Premises, or any
part thereof, without having any civil or criminal liability therefor and
without terminating this Lease. Landlord may (but shall be under no obligation
to) relet the Premises or any part thereof for the account of Tenant in the name
of Tenant or Landlord or otherwise without notice to Tenant for such term or
terms which may be greater or less than the period which would otherwise have
constituted the balance of the Lease Term and on such conditions (which may
include concessions, free rent and alterations of the Premises) and for such
uses as Landlord in its sole and absolute discretion may determine, and Landlord
may collect and receive any rents payable by reason of such reletting. Tenant
agrees to pay Landlord on demand all past due rents, all Costs of Reletting and
any deficiency that may arise by reason of such reletting or failure to relet.
Landlord shall not be under any obligation to and shall not be responsible or
liable for any failure to relet the Premises or any part thereof or for any
failure to collect any Rent due upon any such reletting. No such re-entry or
taking of possession of the Premises by Landlord shall be construed as an
election on Landlord's part to terminate this Lease unless a written notice of
such termination is given to Tenant.
3. Enter upon the Premises without having any civil or
criminal liability therefor, and do whatever Tenant is obligated to do under the
terms of this Lease, and Tenant agrees to reimburse Landlord on demand for any
expense which Landlord may incur in thus affecting compliance with Tenants
obligations under this Lease together with interest at the lesser of a per annum
rate equal to (a) the Maximum Rate, or (b) the Prime Rate plus five percent
(5%).
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4. In order to regain possession of the Premises and to deny
Tenant access thereto in any instance in which Landlord has terminated this
Lease or Tenant's right to possession, or to limit access to the Premises in
accordance with local law in the event of a default by Tenant, Landlord or its
agent may, at the expense and liability of the Tenant, alter or change any or
all locks or other security devices controlling access to the Premises without
posting or giving notice of any kind to Tenant. Landlord shall have no
obligation to provide Tenant a key or grant Tenant access to the Premises so
long as Tenant is in default under this Lease. Tenant shall not be entitled to
recover possession of the Premises, terminate this Lease, or recover any actual,
incidental, consequential, punitive, statutory or other damages or award of
attorneys' fees, by reason of Landlord's alteration or change of any lock or
other security device. Landlord may, without notice, remove and either dispose
of or store, at Tenant's expense, any property belonging to Tenant that remains
in the Premises after Landlord has regained possession thereof.
5. In addition to any other Remedies provided for in this
Lease or under Florida law, accelerate the Rent due under this Lease, in which
event, Tenant shall immediately pay to Landlord the sum of: (a) all Rent accrued
hereunder through the date of default, and, upon Landlord's determination
thereof, (b) all Rent accrued hereunder from the date of default through the
date of an award or judgment by any court, (c) an amount equal to the total Rent
that Tenant would have been required to pay for the remainder of the Lease Term
discounted to present value at five percent per annum. Landlord shall be under
no obligation to relet the premises or any part thereof.
B. For purposes of this Lease, the term "Costs of Reletting" shall mean
all costs and expenses incurred by Landlord in connection with the reletting of
the Premises, including without limitation, the cost of cleaning, renovation,
repairs, decoration and alteration of the Premises for a new tenant or tenants,
advertisement, marketing, brokerage and legal fees (if and to the extent
permitted by law), the cost of protecting or caring for the Premises while
vacant, the cost of removing and storing any property located on the Premises,
any increase in insurance premiums caused by the vacancy of the Premises and any
other out-of-pocket expenses incurred by Landlord including tenant incentives,
allowances and inducements.
C. Except as otherwise herein provided, no repossession or re-entering
of the Premises or any part thereof pursuant to Article XXIII hereof or
otherwise shall relieve Tenant or any Guarantor of its liabilities and
obligations hereunder, all of which shall survive such repossession or
reentering. Notwithstanding any such repossession or re-entering by reason of
the occurrence of an event of default. Tenant will pay to Landlord the Rent
required to be paid by Tenant pursuant to this Lease.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing by agreement, applicable law or in
equity. In addition to other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive relief, or to
a decree compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to Landlord at law
or in equity. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
E. This Article XXIII shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the unenforceability of any
portion thereof shall not thereby render unenforceable any other portion.
XXIV. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO
LOOK SOLELY TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD
NOR ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT PRIOR TO THE FILING OF ANY SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL MORTGAGEES
WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS ON THE
PROPERTY, BUILDING OR PREMISES WRITTEN NOTICE AND REASONABLE TIME TO CURE SUCH
ALLEGED DEFAULT BY LANDLORD.
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XXV. No Waiver.
Failure of Landlord to declare any default immediately upon its
occurrence, or delay in taking any action in connection with an event of default
shall not constitute a waiver of such default, nor shall it constitute an
estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default. Receipt by Landlord of Tenant's keys to the Premises shall not
constitute an acceptance or surrender of the Premises.
XXVI. Event of Bankruptcy.
In addition to, and in no way limiting the other remedies set forth
herein, Landlord and Tenant agree that if Tenant ever becomes the subject of a
voluntary or involuntary bankruptcy. reorganization, composition, or other
similar type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
A. "Adequate protection" of Landlord's interest in the Premises
pursuant to the provisions of Section 361 and 363 (or their successor sections)
of the Bankruptcy Code, 11 U.S.C. Section 101 et seq., (such Bankruptcy Code as
amended from time to time being herein referred to as the "Bankruptcy Code"),
prior to assumption and/or assignment of the Lease by Tenant shall include, but
not be limited to all (or any part) of the following:
1. the continued payment by Tenant of the Base Rental and all other
Rent due and owing hereunder and the performance of all other
covenants and obligations hereunder by Tenant; and
2. the furnishing of an additional/new security deposit by Tenant in
the amount of three (3) times the then current monthly Base
Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 (or successor
section) will include (but not be limited to) payment of an additional/new
Security Deposit in the amount of three (3) times the then current monthly Base
Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed without further act or deed
to have assumed all of the obligations of Tenant arising under this Lease on and
after the effective date of such assignment. Any such assignee shall, upon
demand by Landlord, execute and deliver to Landlord an instrument confirming
such assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of the Landlord under this Lease, whether or
not expressly denominated as "Rent," shall constitute "rent" for the purposes of
Section 502(b) (6) of the Bankruptcy Code (or successor section).
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord (including Base Rentals and
other Rent hereunder), shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord shall be
held in trust by Tenant or Tenants bankruptcy estate for the benefit of Landlord
and shall be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to the Tenant, then notice of such proposed offer/assignment setting
forth: (1) the name and address of such person or entity, (2) all of the terms
and conditions of such offer and (3) the adequate assurance to be provided
Landlord to assure such person's or entity's future performance under the Lease,
shall be given to Landlord
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by Tenant no later than twenty (20) days after receipt by Tenant, but in any
event no later than ten (10) days prior to the date that Tenant shall make
application to a court of competent jurisdiction for authority and approval to
enter into such assumption and assignment, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept an assignment
of this Lease upon the same terms and conditions and for the same consideration,
if any, as the bona fide offer made by such persons or entity, less any
brokerage commission which may be payable out of the consideration to be paid by
such person for the assignment of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that this
Lease is a contract under which applicable law excuses Landlord from accepting
performance from (or rendering performance to) any person or entity other than
Tenant within the meaning of Sections 365(c) and 365(e) (2) of the Bankruptcy
Code (or their successor sections).
XXVII. Waiver of Jury Trial.
Landlord and Tenant hereby waive any right to a trial by jury in any
action or proceeding based upon, or related to, the subject matter of this
Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant,
and Tenant acknowledges that neither Landlord nor any person acting on behalf of
Landlord has made any representations of fact to induce this waiver of trial by
jury or in any way to modify or nullify its effect. Tenant further acknowledges
that it has been represented (or has had the opportunity to be represented) in
the signing of this Lease and in the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
XXVIII. Relocation.
Landlord, at its expense at any time before or during the Lease Term,
shall be entitled to cause Tenant to relocate from the Premises to space
containing approximately the same Rentable Area as the Premises (the "Relocation
Space") within the Building or adjacent buildings within the same project at any
time upon sixty (60) days' prior written notice to Tenant. Such a relocation
shall not affect this Lease except that from and after the date of such
relocation, "Premises" shall refer to the Relocation Space into which Tenant has
been moved, rather than the original Premises as herein defined, and the Base
Rental shall be adjusted so that immediately following such relocation the Base
Rental for the Relocation Space per annum on a per square foot of Rentable Area
basis shall be the same as the Base Rental per annum immediately prior to such
relocation for the original Premises on a per square foot of Rentable Area
basis. Tenants Pro Rata Share shall also be adjusted in accordance with the
formula set forth in this Lease.
XXIX. Holding Over.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to- month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to twice the
sum of the Base Rental and Additional Base Rental due for the period immediately
preceding such holding over, provided that in no event shall Base Rental and
Additional Base Rental during the holdover period be less than the fair market
rental for the Premises. No holding over by Tenant or payments of money by
Tenant to Landlord after the expiration of the term of this Lease shall be
construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. In
addition to the obligation to pay the amounts set forth above during any such
holdover period, Tenant also shall be liable to Landlord for all damage,
including any consequential damage, which Landlord may suffer by reason of any
holding over by Tenant, and Tenant shall indemnify Landlord against any and all
claims made by any other tenant or prospective tenant against Landlord for delay
by Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
XXX. Subordination to Mortgages; Estoppel Certificate.
Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust, ground lease or other lien presently existing or hereafter arising
upon the Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any
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such mortgage. deed of trust, lease or other lien being hereinafter referred to
as a "Mortgage", and the person or entity having the benefit of same being
referred to hereinafter as a "Mortgagee"), but Tenant agrees that any such
Mortgagee shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may deem
appropriate in its discretion. This clause shall be self-operative and no
further instrument of subordination shall be required. However, Landlord is
hereby irrevocably vested with full power and authority to subordinate this
Lease to any Mortgage, and Tenant agrees upon demand to execute such further
instruments subordinating this Lease, acknowledging the subordination of this
Lease or attorning to the holder of any such Mortgage as Landlord may request
The terms of this Lease are subject to approval by the Landlord's existing
lender(s) and any lender(s) who, at the time of the execution of this Lease,
have committed or are considering committing to Landlord to make a loan secured
by all or any portion of the Property, and such approval is a condition
precedent to Landlord's obligations hereunder. In the event that Tenant should
fail to execute any subordination or other agreement required by this Article
promptly as requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest in Landlord and
is accordingly irrevocable. If any person shall succeed to all or part of
Landlord's interests in the Premises whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease or otherwise, and if
and as so requested or required by such successor-in-interest, Tenant shall,
without charge, attorn to such successor-in-interest. Tenant agrees that it will
from time to time upon request by Landlord and, within five (5) days of the date
of such request, execute and deliver to such persons as Landlord shall request
an estoppel certificate or other similar statement in recordable form certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as so modified),
stating the dates to which Rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
XXXI. Attorneys Fees.
In the event that Landlord should retain counsel and/or institute any
action or suit against Tenant for violation of or to enforce any of the
covenants or conditions of this Lease, or should Landlord intervene in any suit
in which the Tenant is a party to enforce or protect Landlord's interest or
rights hereunder, if Landlord is a prevailing party in any such action or suit
Landlord shall be entitled to all of its costs, expenses and reasonable fees of
its attorney(s) in connection therewith.
XXXII. Notice.
Except as otherwise provided in this Lease, whenever any demand,
request, approval, consent or notice ("Notice") shall or may be given to either
of the parties by the other, each such Notice shall be in writing and shall be
sent by registered or certified mail with return receipt requested, or sent by
overnight courier service (such as Federal Express) at the respective addresses
of the parties for notices as set forth in Section I.A.10. of this Lease,
provided that if Tenant has vacated the Premises or is in default of this Lease
Landlord may serve Notice by any manner permitted by law. Any Notice under this
Lease delivered by registered or certified mail shall be deemed to have been
given, delivered, received and effective on the earlier of (a) the third day
following the day on which the same shall have been mailed with sufficient
postage prepaid or (b) the delivery date indicated on the return receipt. Notice
sent by overnight courier service shall be deemed given, delivered, received and
effective upon the day after such notice is delivered to or picked up by the
overnight courier service. Either party may, at any time, change its Notice
Address by giving the other party Notice stating the change and setting forth
the new address.
XXXIII. Landlord's Lien.
In addition to any statutory lien for rent in Landlord's favor,
Landlord (the secured party for purposes hereof) shall have and Tenant (the
debtor for purposes hereof) hereby grants to Landlord, an express contract lien
and a continuing security interest to secure the payment of all Rent due
hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture,
inventory, accounts, contract rights, chattel paper and other personal property
of Tenant (and any transferees or other occupants of the Premises) presently or
hereafter situated on the Premises and upon all proceeds of any insurance which
may accrue to Tenant by reason of damage or destruction of any such property. In
the event of a default under this Lease, Landlord shall have, in addition to any
other remedies provided herein or by law, all rights and remedies under the
Uniform Commercial Code of the state in which the Premises is located, including
without limitation the right to sell the
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property described in this paragraph at public or private sale upon ten (10)
days' notice to Tenant, which notice Tenant hereby agrees is adequate and
reasonable. Tenant hereby agrees to execute such other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
Landlord and Tenant agree that this Lease and the security interest granted
herein serve as a financing statement, and a copy or photographic or other
reproduction of this Paragraph of this Lease may be filed of record by Landlord
and have the same force and effect as the original. Tenant warrants and
represents that the collateral subject to the security interest granted herein
is not purchased or used by Tenant for personal, family or household purposes.
Tenant further warrants and represents to Landlord that the lien granted herein
constitutes a first and superior lien and that Tenant will not allow the placing
of any other lien upon any of the property described in this Article without the
prior written consent of Landlord.
XXXIV. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord specifically excepts and reserves to itself the use of any
roofs, the exterior portions of the Premises, all rights to the land and
improvements below the improved floor level of the Premises, the improvements
and air rights above the Premises and the improvements and air rights located
outside the demising walls of the Premises, and such areas within the Premises
as are required for installation of utility lines and other installations
required to serve any occupants of the Building and the right to maintain and
repair the same, and no rights with respect thereto are conferred upon Tenant
unless otherwise specifically provided herein. Landlord further reserves to
itself the right from time to time: (a) to change the Building's name or street
address; (b) to install, fix and maintain signs on the exterior and interior of
the Building; (c) to designate and approve window coverings; (d) to make any
decorations, alterations, additions, improvements to the Building, or any part
thereof (including the Premises) which Landlord shall desire, or deem necessary
for the safety, protection, preservation or improvement of the Building, or as
Landlord may be required to do by law; (e) to have access to the Premises to
perform its duties and obligations and to exercise its rights under this Lease;
(f) to retain at all times and to use pass-keys to all locks within and into the
Premises; (g) to approve the weight, size, or location of heavy equipment, or
articles in and about the Premises; (h) to close or restrict access to the
Building at all times other than Normal Business Hours subject to Tenant's right
to admittance at all times under such regulations as Landlord may prescribe from
time to time, or to close (temporarily or permanently) any of the entrances to
the Building; (i) to change the arrangement and/or location of entrances of
passageways, doors and doorways, corridors elevators stairs toilets and public
parts of the Building; (j) if Tenant has vacated the Premises during the last
six (6) months of the Lease Term, to perform additions alterations and
improvements to the Premises in connection with a reletting or anticipated
reletting thereof without being responsible or liable for the value or
preservation of any then existing improvements to the Premises; and (k) to grant
to anyone the exclusive right to conduct any business or undertaking in the
Building. Landlord, in accordance with Article XII hereof, shall have the right
to enter the Premises in connection with the exercise of any of the rights set
forth herein and such entry into the Premises and the performance of any work
therein shall not constitute a constructive eviction or entitle Tenant to any
abatement or reduction of Rent by reason thereof.
XXXV. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's
right of possession hereunder, Tenant shall remove all Tenant's Property from
the Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear excepted. If Tenant fails to remove any of
Tenant's Property within one (1) day after the termination of this Lease or
Tenant's right to possession hereunder, Landlord, at Tenant's sole cost and
expense, shall be entitled to remove and/or store such Tenant's Property and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay Landlord, upon demand any and all expenses
caused by such removal and all storage charges against such property so long as
the same shall be in the possession of Landlord or under the control of
Landlord. In addition, if Tenant fails to remove any Tenants Property from the
Premises or storage, as the case may be, within ten (10) days after written
notice from Landlord, Landlord, at its option, may deem all or any part of such
Tenant's Property to have been abandoned by Tenant and title thereof shall
immediately pass to Landlord.
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XXXVI. Miscellaneous.
A. Severability/Construction. If any term or provision of this Lease,
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law. This Lease represents the result of negotiations
between Landlord and Tenant, each of which has been (or has had opportunity to
be) represented by counsel of its own selection, and neither of which has acted
under duress or compulsion, whether legal, economic or otherwise. Consequently,
Landlord and Tenant agree that the language in all parts of the Lease shall in
all cases be construed as a whole according to its fair meaning and neither
strictly for nor against Landlord or Tenant.
B. Recording Documents. Tenant agrees not to record this Lease or any
memorandum hereof without Landlord's prior written consent.
C. Governing Law. This Lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.
D. Force Majeure. Events of "Force Majeure" shall include strikes,
riots, acts of God, shortages of labor or materials, war, governmental law,
regulations or restrictions and any other cause whatsoever that is beyond the
control of Landlord. Whenever a period of time is herein prescribed for the
taking of any action by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation of such period of time,
any delays due to events of Force Majeure.
E. Assignment by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all of its rights and obligations hereunder and
in the Building and Property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations.
F. Brokers. Tenant hereby represents to Landlord that it has dealt
directly with and only with the Broker as a broker in connection with this
Lease. Tenant agrees to indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers claiming to have represented
Tenant in connection with this Lease. Landlord agrees to indemnify and hold
Tenant and the Tenant Related Parties harmless from all claims of any brokers
claiming to have represented Landlord in connection with this Lease.
G. Joint and Several Obligations. If there is more than one Tenant, or
if the Tenant is comprised of more than one person or entity, the obligations
hereunder imposed upon Tenant shall be joint and several obligations of all such
parties. All notices, payments, and agreements given or made by, with or to any
one of such persons or entities shall be deemed to have been given or made by,
with or to all of them.
H. Organizational Form of Tenant. In the event Tenant is a corporation
including any form of professional association) partnership (general or
limited), or other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational Entity"), then
Tenant hereby covenants, warrants and represents: (1) that such individual is
duly authorized to execute or attest and deliver this Lease on behalf of Tenant
in accordance with the organizational documents of Tenant; (2) that this Lease
is binding upon Tenant; (3) that Tenant is duly organized and legally existing
in the state of its organization, and is qualified to do business in the state
in which the Premises is located; and (4) that the execution and delivery of
this Lease by Tenant will not result in any breach of, or constitute a default
under any mortgage, deed of trust, lease, loan, credit agreement, partnership
agreement or other contract or instrument to which Tenant is a party or by which
Tenant may be bound. If Tenant is an Organizational Entity, upon request, Tenant
will, prior to the Commencement Date, deliver to Landlord true and correct
copies of all organizational documents of Tenant, including, without limitation,
copies of an appropriate resolution or consent of Tenant's board of directors or
other appropriate governing body of Tenant authorizing or ratifying the
execution and delivery of this Lease, which resolution or consent will be duly
certified to Landlord's satisfaction by an appropriate individual with authority
to certify such documents, such as the secretary or assistant secretary or the
managing general partner of Tenant.
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I. Tenant Financial Statement(s). Tenant acknowledges that the
financial capability of Tenant to perform its obligations hereunder is material
to Landlord and that Landlord would not enter into this Lease but for its
belief, based on its review of Tenant's financial statements, that Tenant is
capable of performing such financial obligations. Tenant hereby represents,
warrants and certifies to Landlord that its financial statements previously
furnished to Landlord were at the time given true and correct in all material
respects and that there have been no material subsequent changes thereto as of
the date of this Lease. During the Lease Term, Tenant shall maintain a financial
condition which, in Landlord's reasonable discretion is sufficient to satisfy
Landlord of Tenant's ability to perform its obligation under this Lease. At any
time during the Lease Term, Tenant shall provide Landlord, upon ten (10) days'
prior written notice from Landlord, with a current financial statement and
financial statements of the two (2) years prior to the current financial
statement year and such other information as Landlord or its Mortgagee may
request in order to create a "business profile" of Tenant and determine Tenant's
ability to fulfill its obligations under this Lease. Such statement shall be
prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Tenant, shall be audited by an independent
certified public accountant.
J. Time is of Essence. Except as expressly otherwise herein provided,
with respect to all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and Tenant between
the parties hereto.
K. Benefit. This Lease and the covenants and conditions herein
contained shall inure to the benefit of and be binding upon Landlord and Tenant
and their respective permitted successors and assigns.
L. Expiration of the Lease Term. Notwithstanding anything to the
contrary contained in this Lease, the expiration of the Lease Term, whether by
lapse of time or otherwise, shall not relieve Tenant from Tenant's obligations
accruing prior to the expiration of the Lease Term and such obligations shall
survive any such expiration or other termination of the Lease Term.
M. Headings. The headings and titles to the paragraphs of this Lease
are for convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
N. Quiet Enjoyment. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms of this Lease (including, without
limitation, Article XXX hereof), provided that Tenant pays the Rent herein
recited to be paid by Tenant and performs all of Tenant's covenants and
agreements herein contained. This covenant and any and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Landlord's interest hereunder.
O. Radon Gas. Pursuant to Florida Statute 404.056 (subsection 8),
Tenant is hereby notified that radon is naturally occurring radioactive gas
that, when 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.
XXXVII. Entire Agreement.
This Lease Agreement, including the following Exhibits:
Exhibit A - Outline and Location of Premises Exhibit B - Rules
and Regulations Exhibit C - Commencement Letter Exhibit D -
Work Letter Agreement (if required) Exhibit E - Additional
Provisions (if required)
constitutes the entire agreement between the parties hereto with respect to the
subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all lease
proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT THAT
THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE
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MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF
THE PARTIES, NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT
EMBODIED IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT
SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY TENANT AND THAT THERE ARE NO
WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
WITNESS/ATTEST: "LANDLORD"
OSPREY, S.A., LTD,
a Florida limited partnership
/s/ Brian J Kennedy
Name (print): By: /s/ Terrance J. Manning
Its: ______________________________
Name (print:)
"TENANT"
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Name (print:)
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Name (print:)
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EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease dated November
1, 2000, by and between OSPREY, S.A., LTD, a Florida limited partnership
("Landlord") and RDC INTERNATIONAL, INC., a Florida corporation and RETRIEVAL
DYNAMICS CORPORATION, a Florida corporation (jointly and severally as "Tenant")
for space in the Building located at 1819 Main Street, Sarasota, Florida.
ATTACH FLOOR PLAN
Exh. A-1
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EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith (if any),
the Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter in
common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in writing
by Landlord. No nails, hooks or screws shall be driven or inserted into any
part of the Premises or Building except by the Building maintenance
personnel. Nor shall any part of the Building be defaced by Tenant.
4. Landlord may provide and maintain in the first floor main lobby of the
Building an alphabetical directory board listing all Tenants, and no other
directory shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A reasonable
number of keys to the locks on the doors in the Premises shall be furnished
by Landlord to Tenant at the cost of Tenant, and Tenant shall not have any
duplicate keys made. All keys shall be returned to Landlord at the
expiration or earlier termination of this Lease.
6. All contractors, contractor's representatives, and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, as the same may be revised from time
to time. Tenant shall be solely responsible for complying with all
applicable laws, codes and ordinances pursuant to which said work shall be
performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to hours designated by Landlord. Tenant must seek Landlord's
prior approval by providing in writing a detailed listing of any such
activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to any persons resulting from such activity. If
any equipment, property, and/or personnel of Landlord or of any other
tenant is damaged or injured as a result of or in connection with such
activity Tenant shall be solely liable for any and all damage or loss
resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of safes
and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant
shall be repaired at the expense of Tenant.
Exh. B-1
1
<PAGE>
9. Corridor doors when not in use shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other advertising; or (3)
conduct or permit any other activities in the Building that might
constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on or
about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used or
kept by Tenant in the Premises or Building. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of within or about the Premises or any other portion of
the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or hereafter considered toxic or hazardous under the
provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect. If Landlord does
give written consent to Tenant pursuant to the foregoing sentence, Tenant
shall comply with all applicable laws, rules and regulations pertaining to
and governing such use by Tenant, and shall remain liable for all costs of
cleanup or removal in connection therewith
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building. Without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be
used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written
consent for such work to resume. Tenant shall have no claim for damages of
any nature against Landlord or any of the Landlord Related Parties in
connection therewith, nor shall the date of the commencement of the Term be
extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Except as
included in Basic Costs, Tenant shall bear the cost and expense of such
extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity for
proper, efficient and safe operation as determined by Landlord. taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not furnish any cooling
or heating to the Premises, including, without limitation, the use of any
electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines available to service the Building.
17. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's
Exh. B-2
2
<PAGE>
employees, and then only if such operation does not violate the lease of
any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or
its contents. Tenant, Tenant's agents, employees, contractors, guests and
invitees shall comply with Landlord's reasonable requirements relative
thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance, alterations,
and improvements in the Premises only during times agreed to in advance by
Landlord and in a manner which will not interfere with the rights of other
tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building
unless such common area has been declared a designated smoking area by
Landlord, or to allow any smoke from the Premises to emanate into the
common areas or any other tenant's premises. Landlord shall have the right
at any time to designate the Building as a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining standard
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance. Tenant shall ensure that to the
extent reasonably practicable, window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the Premises, visits to the Premises by tenant
service contractors, vendors and similar activities, shall be made only at
such times, in the areas and through the entrances and exits designated for
such purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises, or visits to the Premises by tenant
service contractors, vendors and similar activities, outside of said areas
or in a manner which may interfere with the use by any other tenant of its
premises or of any common areas, any pedestrian use of such area, or any
use which is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
Exh. B-3
3
<PAGE>
EXHIBIT C
COMMENCEMENT LETTER
Date
Tenant: RDC International, Inc.
Retrieval Dynamics Corporation
Address: 1819 Main Street
Suite 702
Sarasota, Florida 34236
Re: Commencement Letter with respect to that certain Office Lease Agreement
dated November 1, 2000 by and between OSPREY, S.A., LTD., a Florida limited
partnership, as Landlord, and RDC International, Inc. and Retrieval
Dynamics Corporation, jointly and severally as Tenant, for six thousand
eight hundred sixty-four (6,864) square feet of Rentable Area of the 7th
floor of the building located 1819 Main Street, Sarasota, Florida.
Dear
In accordance with the terms and conditions of the above referenced
Lease, Tenant hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is 11/01/00.
2. The Termination Date of the Lease is 10/31/05.
Please acknowledge your acceptance of possession and agreement to the
terms set forth above by signing all three (3) copies of this Commencement
Letter in the space provided and returning two (2) fully executed copies of the
same to my attention.
Sincerely,
Property Manager
Agreed and Accepted:
/s/ Terrance J. Manning
------------------------
a _____________ ____
------
By:
Its:
Date:
Exh. C-1
4
<PAGE>
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated November
1, 2000, by and between OSPREY, S.A., LTD., a Florida limited partnership
("Landlord") and RDC INTERNATIONAL, INC., a Florida corporation and RETRIEVAL
DYNAMICS CORPORATION, a Florida corporation (jointly and severally as "Tenant")
for space in the Building located at 1819 Main Street, Sarasota, Florida.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy. All
improvements described in this Work Letter to be constructed in and upon
the Premises by Landlord are hereinafter referred to as the "Landlord
Work." It is agreed that construction of the Landlord Work will be
completed at Landlord's sole cost and expense, except as modified herein.
Landlord shall enter into a direct contract for the Landlord Work with a
general contractor selected by Landlord. In addition, Landlord shall have
the right to select and/or approve of any subcontractors used in connection
with the Landlord Work.
Landlord shall paint and carpet the Premises according to Building Standard
and remove one wall of approximately ten (10) lineal feet.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Landlord Work, which plans shall be subject to
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building. Tenant shall be
responsible for all elements of the design of Tenant's Plans (including,
without limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the premises and
the placement of Tenant's furniture, appliances and equipment), and
Landlord's approval of Tenant's Plans shall in no event relieve Tenant of
the responsibility for such design. If requested by Tenant in writing,
Landlord's architect will prepare the Plans necessary for such construction
and the cost for this service shall be included in the cost of the
improvements that are the subject of this Work Letter. Whether or not the
layout and Plans are prepared with the help (in whole or in part) of
Landlord's architect, Tenant agrees to remain solely responsible for the
timely preparation and submission of the Plans and for all elements of the
design of such Plans. Tenant has assured itself by direct communication
with the architect and engineers (Landlord's or its own, as the case may
be) that the final approved Plans can be delivered to Landlord on or before
October 18, 2000 (the "Plans Due Date"). Tenant covenants and agrees to
cause said final, approved Plans to be delivered to Landlord on or before
said Plans Due Date and to devote such time as may be necessary in
consultation with said architect and engineers to enable them to complete
and submit the Plans within the required time limit. Time is of the essence
in respect of preparation and submission of Plans by Tenant. In the event
the Plans are not fully completed and approved by the Plans Due Date,
Tenant shall be responsible for one (1) day of Delay (as defined in the
Lease) for each day during the period beginning on the day following the
Plans Due Date and ending on the date completed Plans are approved. (The
word "architect" as used in this Exhibit D shall include an interior
designer or space planner.)
3. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon. Promptly upon
completion of the revisions, Landlord shall notify Tenant in writing of the
increased cost which will be chargeable to Tenant by reason of such change,
addition or deletion. Tenant, within one (1) Business Day, shall notify
Landlord in writing whether it desires to proceed with such change,
addition or deletion. In the event such revisions result in a higher
estimate of the cost of construction and/or higher actual construction
costs, such increased estimate or costs shall be deemed Rent pursuant to
the Lease hereof and Tenant shall pay such Rent, plus any applicable state
sales or use tax thereon upon demand.
4. Following approval of the Plans and the payment by Tenant of the required
portion of the excess costs, if any, Landlord shall cause the Landlord Work
to be constructed substantially
Exh. D-1
5
<PAGE>
in accordance with the approved Plans. Landlord shall notify Tenant of
substantial completion of the Landlord Work.
5. Tenant acknowledges that the Landlord Work will be performed by Landlord in
the Premises during Normal Business Hours. In the event that any portion of
the Landlord Work is performed in the Premises at the request of Tenant not
during Normal Business Hours, Tenant acknowledges that any costs incurred
due to the Landlord Work being performed not during Normal Business Hours
shall be deemed Rent pursuant to the Lease and Tenant shall pay such Rent,
plus any applicable state sales or use tax thereon upon demand. Landlord
and Tenant agree to cooperate with each other in order to enable the
Landlord Work to be performed in a timely manner and with as little
inconvenience to the operation of Tenant's business as reasonably possible.
Notwithstanding anything herein to the contrary, any delay in the
completion of the Landlord Work shall not subject Landlord to any liability
for any loss or damage resulting therefrom or entitle Tenant to any credit,
abatement or adjustment of Rent or other sums payable under the Lease.
6. This Exhibit D shall not be deemed applicable to any additional space added
to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the Premises or any
additions to the Premises in the event of a renewal or extension of the
original Lease Term, whether by any options under the Lease or otherwise,
unless expressly so provided in the Lease or any amendment or supplement to
the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Exhibit
as of the day and year first above written.
WITNESS/ATTEST: "LANDLORD"
OSPREY, S.A., LTD,
a Florida limited partnership
/s/ Brian J Kennedy
Name (print): By: /s/ Terrance J. Manning
Its: ______________________________
Name (print:)
"TENANT"
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Name (print:)
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Exh. D-2
6
<PAGE>
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated November
1, 2000, by and between OSPREY, S.A., LTD., a Florida limited partnership
("Landlord") and RDC INTERNATIONAL, INC., a Florida corporation and RETRIEVAL
DYNAMICS CORPORATION, a Florida corporation (jointly and severally as "Tenant")
for space in the Building located at 1819 Main Street, Sarasota, Florida.
1. Parking.
A. Landlord shall make available to Tenant at no charge a total of four
(4) unreserved parking spaces in the Building parking areas designated by
Landlord (the "Parking Area") during the Lease Term. Further, Landlord shall
make available to Tenant on a leased basis a total of thirteen (13) parking
spaces in the Building parking areas designated by Landlord (the "Parking Area")
at the rate of Forty and 00/100 dollars ($40.00), plus applicable State of
Florida sales tax, per month for each unreserved parking space leased, payable
on or before the first day of each month. (All unreserved parking spaces,
whether leased or provided at no charge, shall be hereinafter referred to as the
"Spaces".) Notwithstanding the foregoing, it is understood and agreed that the
above rental rate is based upon rental being charged to others for comparable
parking spaces. In the event such rental rate being charged others for
comparable parking spaces shall increase or decrease, then Landlord may increase
or decrease the monthly rental to be paid by Tenant hereunder by giving to
Tenant written notice of the increased or decreased rental. The effective date
of the change in such rental rate shall be the first day of the month next
following the giving of such notice. Except for particular spaces and areas
designated by Landlord for reserved parking, all parking in the Building Parking
Area shall be on an unreserved, first-come, first-served basis.
B. Landlord shall have the right from time to time to promulgate
reasonable rules and regulations regarding the Parking Area, the Spaces and the
use thereof, including, but not limited to, rules and regulations controlling
the flow of traffic to and from various parking areas, the angle and direction
of parking and the like. Tenant shall comply with and cause its employees to
comply with all such rules and regulations as well as all reasonable additions
and amendments thereto.
C. Tenant may use and occupy the Parking Area only for employee parking
of automobiles. Tenant shall not store or permit its employees to store any
automobiles in the Parking Area without the prior written consent of Landlord.
Except for emergency repairs, Tenant and its employees shall not perform any
work on any automobiles while located in the Parking Area or on the Property. If
it is necessary for Tenant or its employees to leave an automobile in the
Parking Area overnight, Tenant shall provide Landlord with prior notice thereof
designating the license plate number and model of such automobile.
D. Landlord shall have the right to temporarily close the Parking Area
or certain areas therein in order to perform necessary repairs, maintenance and
improvements to the Parking Area, provided that if Landlord closes the Parking
Area on business days, Landlord shall make reasonable alternative parking
arrangements.
E. Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord, unless such assignment is to a Related Party in connection
with an assignment of Lease or subletting of a portion of the Premises to such
Related Party. Except with respect to an assignment or subletting to a Related
Party, Landlord shall have the right to terminate this Parking Agreement with
respect to any Spaces that Tenant desires to sublet or assign.
F. Landlord may elect to provide parking cards or keys to control
access to the Parking Area. In such event, Landlord shall provide Tenant with
one card or key for each Space that Tenant is leasing hereunder, provided that
Landlord shall have the right to require Tenant or its employees to place a
deposit on such access cards or keys and to pay a fee for any lost or damaged
cards or keys.
G. Tenant assumes all liability for losses, damages or expenses
resulting from personal injury or property damage arising out of use of the
Spaces leased by Tenant which is caused in whole or in part by Tenant, its
agents or employees.
Exh.E-1
7
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Exhibit as of the day and year first above written.
WITNESS/ATTEST: "LANDLORD"
OSPREY, S.A., LTD,
a Florida limited partnership
/s/ Brian J Kennedy
Name (print): By: /s/ Terrance J. Manning
Its: ______________________________
Name (print:)
"TENANT"
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Name (print:)
RDC INTERNATIONAL, INC.,
a Florida corporation, jointly and severally
/s/ Brian J Kennedy
Name (print): By: /s/ Peter Voghel
Its: President
Name (print:)
Exh. E-2
8
