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Exhibit 10.13
SUBLEASE
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THIS AGREEMENT (this "Sublease") made the 18/th/ day of June, 1999, between
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BELLSOUTH MOBILITY INC having an office at 1101 Greenwood Blvd., Lake Mary,
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Florida, hereinafter referred to as "Sublessor", and SEAGATE SOFTWARE, INC, a
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Delaware corporation, having an office at 4575 Scotts Valley Drive, Scotts
Valley, California 95066, hereinafter referred to as "Sublessee".
Any capitalized terms not defined herein retain the definitions given them
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in the Prime Lease
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W I T N E S E T H:
WHEREAS, Sublessor, is the Sublessee of certain office space located at
1101 Greenwood Blvd., Suite 150, Lake Mary, Florida, (the "Premises") pursuant
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to that certain Lease Agreement with Hurstbourne Green Venture Orlando, LLC, as
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Lessor, dated June 24, 1996, as amended by that certain n/a dated n/a; the
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"Prime Lease") and
WHEREAS, the parties hereto have agreed that Sublessor shall sublet
approximately 11,063 square feet of such space to Sublessee;
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NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
1. Sublessor hereby leases to Sublessee the 11,063 square feet, more or
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less, of the space at said Premises, shown on Exhibit A attached hereto and made
a part hereof, for a term of five year beginning the earlier of July 1, 1999 or
fifteen (15) business days from Sublessor's approval of the sublease document
and receipt of a certificate of occupancy, and ending June 30, 2004, unless
sooner terminated in accordance herewith, yielding and paying to Sublessor a
rent at the rate of Two hundred fifteen thousand seven hundred twenty-eight and
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50/100 ($215,728.50) Dollars per annum, plus sales tax and any additional rent
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mentioned in paragraph 4. First months rent shall be due upon lease execution.
The lease rate shall increase by 3% each year on the anniversary date of the
sublease.
Sublessee shall pay the rent and additional rent provided for hereunder in
equal monthly installments in advance and without demand on the first day of
each and every month during the term.
2. The Premises under this Sublease are to be used by Sublessee as space
primarily for the conduct of the business of operating a software company.
Sublessee shall not use the Premises for any illegal, immoral or hazardous
activity or in contradiction of any City, County or State ordinance of law,
whether within or outside the scope of business of Sublessee.
3. Sublessee shall not have the right to assign this Sublease or further
sublease the Premises in whole or in party without first obtaining the written
consent of the Sublessor and the
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Landlord, which consent shall not be unreasonably withheld or delayed. Such
permitted assignment or subletting shall not release Sublessee from its
obligations and liabilities under the terms and conditions of this Sublease.
However, Sublessee shall not be required to obtain the consent of either
the Sublessor or Landlord for any assignments of this Sublease or any part of
this Sublease to any affiliate, any subsidiary, principal, subsidiary of its
principal, or to any company with which Sublessee is merged or consolidated.
Such permitted assignment but not sublease shall release Sublessee from its
obligations and liabilities under the terms and conditions of this Sublease, and
replace Assignee with all obligations and liabilities under the terms and
conditions of this Sublease.
4. If Sublessor shall be charged for additional rent or other sums
pursuant to the provision of the Prime Lease, Sublessee shall be liable for 100%
of such additional rent or sums over the 1999 base year estimated by Sublessor
to be $6.54/SF, such additional rent shall not increase by more than three
percent (3%). If any such rent or sums shall be due as a result of Sublessee's
use, such excess shall be paid in entirety by Sublessee. If Sublessee shall
procure any additional services Sublessee shall pay for same at the rates
charged therefor by the Prime Landlord and shall make such payment to the
Sublessor or Prime Landlord, as Sublessor shall direct. Any rent or other sums
payable by Sublessee under this Paragraph 4 shall be additional rent and
collectable as such. Such additional rent due pursuant to this Paragraph 4 shall
be paid monthly if Sublessor is required to make such payments monthly.
5. This Sublease is subject to and subordinate to the Prime Lease. Except
as may be inconsistent with the terms hereof, all the terms, covenants, and
conditions in the Prime Lease shall be applicable to this Agreement with the
same force and effect as if Sublessor were the lessor under the Prime Lease and
Sublessee were the lessee thereunder; and in case of any breach hereof by
Sublessee, Sublessor shall have all the rights against Sublessee as would be
available to the lessor against the lessee under the Prime Lease if such breach
were by the lessee thereunder.
6. Notwithstanding anything herein contained, the only services or rights
to which Sublessee is entitled hereunder are those to which Sublessor is
entitled under the Prime Lease and that for all such services and rights
Sublessee will look to the lessor under the Prime Lease.
7. Neither Sublessor nor Sublessee shall neither do nor permit anything to
be done which would cause the Prime Lease to be terminated or forfeited by
reason of any right of termination or forfeiture reserved or vested in the
lessor under the Prime Lease, and both parties shall indemnify and hold the
other harmless from and against all claims of any kind whatsoever by reason of
any breach or default on the part of Sublessee by reason of which the Prime
Lease may be terminated or forfeited.
8 Sublessee shall not be required to submit a security deposit.
9. Sublessee is and shall be in exclusive control and possession of the
Premises except for areas in common usage as provided herein, and excepting the
common use areas, in no
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event shall the Sublessor be liable for any injury or damage to any property or
to any person happening on or about the Premises, nor to any property of
Sublessee or of any other person contained therein. Sublessee agrees to
indemnify Sublessor against any claim (including costs and reasonable attorneys'
fees) made against Sublessor for any such liability excepting however those
claims or damages as may be due to or caused by the Sublessor, its servants,
employees, agents or contractors. Sublessor shall indemnify and hold Sublessee
harmless against any claim of liability or loss from personal injury or property
damages resulting from or arising out of the use and occupancy of the common
areas by the Sublessor, its servants, employees, agents or contractors,
excepting however those claims or damages as may be due to or caused by the
Sublessee, its servants, employees, agents or contractors. The indemnifications
contained in this Paragraph shall survive the termination or expiration of this
Sublease.
10. Sublessor shall be allowed to enter upon and into the Premises at any
and all times if due to an emergency. In all other instances, the Sublessee
shall permit, upon forty-eight (48) hours advance notice to Sublessee, the
Sublessor to enter and inspect the Premises for the purpose of enabling the
Sublessor to be informed as to whether Sublessee is complying with the terms and
conditions of the lease and any modifications thereof which are made a part
hereof and to do the acts that Sublessee shall fail to do, or for the purpose of
showing the premises to any prospective sublessees within 6 months of
termination. Sublessor shall be allowed to enter the premises
11. Sublessee represents that it has read and is familiar with the terms
of the Prime Lease which is attached as Exhibit "B" and made part of this
Sublease document.
12. All prior understandings and agreements between the parties are merged
within this Agreement, which alone fully and completely sets forth the
understanding of the parties; and this Sublease may not be changed or terminated
orally or in any manner other than by an agreement in writing and signed by the
party against whom enforcement of the change or termination is sought.
13. Any notices or demands which are required by law or under the terms of
this Agreement shall be given or made by Sublessor or Sublessee in writing and
shall be given by hand delivery, telegram or other similar communication or sent
via facsimile followed by an original hard copy or by certified or registered
mail, or by a national overnight receipted delivery services which provides
signed acknowledgments of receipt (including Federal Express, UPS, Emery,
Purolator, DHL, Airborne and other similar courier delivery services) and
addressed to the respective parties set forth below. Such notices shall be
deemed to have been given in the case of telegrams or similar communications
when sent; in the case of certified or registered mail when deposited in the
United States mail with postage prepaid, and in the case of overnight receipted
delivery service the day the notice is deposited with the overnight delivery
service. Every notice, demand, or request hereunder shall be sent to the
addresses listed below:
If to Sublessor: BellSouth Mobility
1101 Greenwood Blvd.
Lake Mary, FL 32746
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With a copy for
legal notices only: BellSouth Mobility Inc
1100 Peachtree Street NE, Suite 910
Atlanta, GA 30309
Attention: Legal Department
If to Sublessee,
as follows: Seagate Software, Inc.
4575 Scotts Valley Drive
Scotts Valley, California 05066
Attention: Denise Trudeau
Either party may, upon thirty (30) days written notice, direct that future
notices or demands be sent to a different address.
14. Sublessor represents and warrants to the best of its knowledge to
Sublessee that the Premises are in good working condition and that the Sublessor
knows of no material structural defect, defect of the utility facilities or
defect in the conditions of the Premises or the building which would materially
adversely affect Sublessee use of the Premises. Sublessee agrees to accept
Premises in `as-is' condition, provided that the Sublessee shall have sixty (60)
days from the commencement date to advise Sublessor of any defects in the
Premises and Sublessor shall promptly correct such defects at Sublessor's sole
expense, unless such defects are due to the negligence or willful misconduct of
Sublessee. Sublessor shall provide an improvement allowance of up to $55,325.00
for improvements to the Premises. Improvements shall be coordinated through the
building property manager ("CRM") and all improvements are subject to the
approval of Sublessor and Landlord. All improvements shall be coordinated and
managed by CRM. Sublessee shall submit to CRM a list of contractors that they
wish to have bid requests submitted to for the improvement work. Sublessor and
CRM shall approve the contractors which Sublessee has submitted, such approval
shall not be unreasonably withheld. Sublessee shall submit to CRM and Sublessor
for approval, Sublessor's proposed plans and specifications to CRM and
Sublessor, CRM and Sublessor shall not unreasonably withhold approval thereof.
CRM and Sublessor will notify Sublessee within fifteen (15) days of receipt of
proposed plans for approval or denial, if Sublessee does not receive approval,
Sublessee shall consider non-notification as approval.
Sublessee at Sublessee's expense may make alterations/improvements to the
Premises without Sublessor's or CRM's approval provided they do not involve the
structural integrity of the Premises or Sublessor's ability to sublease the
Premises in the future.
15. Provided Sublessee is not in default, Sublessee shall have one (1)
two-year option to renew the Sublease at terms consistent with comparable
buildings in the Lake Mary market. Sublessee must provide written notice of its
intent to renew six months prior to the expiration of the Sublease.
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16. Provided Sublessee is not in default, Sublessee shall have a one-time
option to terminate sublease effective June 30, 2002 (the "Early Termination
Date"), as though such date were the original expiration date set forth in this
Sublease, but only by complying strictly with the following conditions: (I)
Sublessee shall deliver to Sublessor written notice (Sublessee's Exercise
Notice") exercising such option no later than January 31, 2002 (the "Latest
Exercise Date"), (ii) such notice shall include a check in good funds payable to
Sublessor in an amount equal to unamortized leasing commissions, unamortized
Sublessee improvements and an amount equal to five months rent (the
"Cancellation Payment"), as a cancellation fee and not as liquidated damages or
a penalty, and (iii) Sublessee shall continue to timely pay all rentals and
other charges under the Sublease and comply with each and every terms and
provision hereof accruing through the Early Termination Date. The Cancellation
Payment shall be calculated using straight-line amortization with an interest
rate of 10% per annum. Sublessee shall pay such amount with fifteen days prior
to the effective termination date. Under no circumstances whatsoever shall the
assignee under a complete or partial assignment of the Sublease or a sublessee
under a sublease of the Premises, have any right to exercise the option herein.
If Sublessee shall sublease or assign the Sublease with respect to all or any
portion of the Premises, then immediately upon such sublease or assignment the
rights herein shall concurrently terminate and become null and void.
Notwithstanding any contained herein to the contrary, should Sublessee sub-
sublet or assign all or a portion of the Premises to an affiliate, parent
company or subsidiary, this termination shall survive and remain in full force
and effect. Sublessee's option hereunder shall, at Sublessor's election,
terminate if Sublessee is in violation of the Sublease at the time Sublessee
seeks to exercise such option, or at any time thereafter and prior to the Early
Termination Date (or if Sublessee's Cancellation Payment hereunder is returned
for insufficient funds). Sublessee's exercise of such option shall not operate
to cure any violation by Sublessee of any of the terms or provisions in the
Sublease, nor to extinguish or impair any rights or remedies of Sublessor
arising by virtue of such violation.
17. Subject to the terms of the Prime Lease, if permitted thereby and as
outlined below Sublessor hereby grants to Sublessee a right of first refusal
(the "Refusal Right") with respect to the remaining 9,994 square feet on the
first floor, as outlined in Exhibit A attached hereto (the "Refusal Space").
Provided Sublessee is in possession of entire original premises and is
not in default on the sublease, Sublessee shall have the right to lease the
Refusal Space (9,994 SF) on the then-current terms and conditions outlined in
the original sublease, except for any improvement allowance. Sublessee shall
accept the space in as-is condition.
With respect to the Refusal Space, Sublessor shall notify Sublessee in
writing of its intent to sublease all or part of the Refusal Space.
Sublessee shall have a period of five (5) business days from the date
of Sublessor's notification to elect whether it shall exercise its Refusal
Right. If Sublessee wishes to exercise its Refusal Right and so notifies
Sublessor within the aforesaid five (5) business days period, then Sublessor and
Sublessee shall execute an amendment to this Sublease with five (5)
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business days thereafter setting forth all relevant terms pertaining to the
Refusal Space and terms for the Sublease Renewal, including base rent,
commencement, and expiration date.
If Sublessee no longer has the Refusal Right pursuant to other
provisions of the Sublease, or fails to exercise within the five (5) business
days exercise period or fails to enter into an amendment with the five (5)
business days execution period, then the Refusal Right shall thereupon and
thereafter be null, void and of no further force or effect.
Sublessor grants to Sublessee this Refusal Right specifically due to
the character and nature of Sublessee. As such, if Sublessee shall, during the
Sublease Term, or any extension thereof, assign or sublet any or all of the
Premises, this right shall not pass to any assignee or subSublessee by or
through an assignment or sublease and shall terminate as of the date of
execution of any assignment or sublease.
18. Sublessee and Sublessor each represent and warrant to the other that
it has had no dealings with any real estate broker or agent in connection with
this Sublease, other than CB Richard Ellis, Inc. which, as disclosed to each
party, represents the Sublessor and Grubb & Ellis and Equis co-representing the
Sublessee, and that neither party knows of no other real estate broker or agent
who is or might be entitled to a commission in connection with this Sublease.
Sublessee and Sublessor each agree to indemnify, defend and hold the other
harmless from all costs and liabilities, including reasonable attorneys fees and
costs arising out of or in connection with claims made by any other broker or
individual who alleges that it is entitled to commissions or fees with regard to
this Sublease as a result of dealing it had with the indemnifying party.
Sublessor is paying the brokerage fee by separate agreement.
19. The covenants and agreements herein contained shall bind and inure to
the benefit of Sublessor, the Sublessee, and their respective executors,
administrators, successors and assigns.
20. Sublessor at its sole cost and expense shall provide Sublessee with a
Telephone Demark suitable for terminating T1 and analog phone lines on the 1/st/
floor (adjacent to premises) of the building prior to the commencement date of
this Sublease. Sublessee will have 7 x 24 access to the Telephone Demark point.
21. Sublessor will allow Sublessee to utilize its UPS interconnects
through its system located on the 4/th/ floor, however Sublessee shall not have
physical access to the 4/th/ floor. Sublessee will pay for any costs associated
with the utilization of the UPS system.
22. Sublessee may use Sublessor's security system, without modification or
change to the actual system, however Sublessee shall be allowed to modify and
regulate its access to the Premises to meet its needs. Sublessee shall be
required to obtain badges from CRM for all employees, agents or contractors who
have access to the Premises. Sublessee shall look to CRM for maintenance and
repair of the security system.
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23. Sublessor, at its sole cost and expense, will clear the low voltage
conduits from the Premises within 7 days of Sublessee's execution of this
Sublease document.
24. Sublessor shall provide a minimum of 45 KVA power to the Premises for
Sublessee. Any KVA power required and used by the Sublessee shall be at the sole
cost and expense of Sublessee. Any other utilities and services provided to
Sublessor in Section 5.1 of the Prime Lease shall also be provided to Sublessee.
25. Sublessor agrees that if Sublessee is not in material default of any
of the obligations contained in this Sublease herein, Sublessee shall at all
times during the existence of this Sublease, renewals or extensions thereof,
shall peaceably and quietly, have hold, and enjoy the Premises, without suit,
trouble or hindrance form the Sublessor, or to any persona claiming under
Sublessor.
26. Sublessor shall provide to Sublessee space for Sublessee's
identification on all building directories and shall identify Sublessee and its
location at the Premises, if available, by signage in the lobby in the building.
The signage for the Sublessee shall be mutually acceptable to Sublessor,
Sublessee and CRM and shall be at the expense of Sublessee.
27. Sublessor shall provide to Sublessee a parking ratio of six spaces for
every one thousand (1,000) square feet leased by Sublessee under this Sublease.
28. Sublessor represents to the best of its knowledge to Sublessee by
execution and delivery of this Sublease that: (i) There are no defaults under
the Prime Lease; (ii) there are not know conditions which with the passage of
time would constitute a default under the Prime Lease; (iii) the attached lease
included as Exhibit "B" constitutes a true and correct copy of the Prime Lease;
and (iv) in the event of default under the Prime Lease, Landlord shall accept
rent from Sublessee for the premises as provided by this Sublease and shall not
disturb Sublessee's enjoyment of the Premises, unless, following written notice
and expiration of the applicable cure period, Sublessee remains in default under
this Sublease.
IN WITNESS WHEREOF, the parties hereto have caused these present to be
executed the day and year first above written.
SUBLESSOR: SUBLESSEE:
BELLSOUTH MOBILITY INC SEAGATE SOFTWARE, INC.
By: /s/ By: /s/ Ellen E. Chamberlain
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Title: CHIEF FINANCIAL OFFICER Title: Vice President
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Date: 7/10/99 Date: 6/23/99
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[FLOOR PLAN]
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[Exhibit A to be attached, showing subleased space]
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LEASE
THE PARTIES
THIS LEASE, made and entered into this 24/th/ day of June, 1996, by and
between:
HURSTBOURNE GREEN VENTURE ORLANDO, LLC
201 West Short Street, Suite 701
Lexington, Kentucky 40507
hereinafter "Landlord"; and
BELLSOUTH MOBILITY INC
5600 Glenridge Drive, Suite 201 East
Atlanta, Georgia 30342
hereinafter "Tenant".
W I T N E S S E T H:
A. PREMISES
That for and in consideration of the mutual covenants contained herein, and
other good and valuable consideration, Landlord does hereby let and demise
unto Tenant, and Tenant does hereby lease and rent from Landlord, the
Leased Premises generally described as:
Being a five (5) story office building with 157,358 square feet located in
the North Point Park of Commerce, Lake Mary, Seminole County, Florida (the
"Building"), and the surrounding improvements located on the real property,
being hereinafter shown and described as Exhibit "A" of this Lease (the
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"Leased Premises").
B. BUILDING STANDARDS
In regard to these Leased Premises, the parties acknowledge that any and
all improvements made, now or in the future, within the Building shall
conform to Landlord's design and construction criteria referenced in the
Request for Proposal attached as Exhibit "B".
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C. BUILDING SHELL
The office building shell, which shall be constructed by Landlord or
Landlord's contractors under Landlord's supervision and shall include the
items referenced on Exhibit "C" (hereinafter the "Building Shell").
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D. TENANT IMPROVEMENTS
The improvements to the Leased Premises in addition to the Building Shell
(hereinafter the "Tenant Improvement") will be constructed by the Landlord,
or Landlord's contractor under the Landlord's supervision, in accordance
with the plans submitted to the Landlord by Tenant pursuant to Paragraph
4.2. All costs incurred in connection with such construction, to the extent
of $18.00 per square foot for a total of $2,832,444.00, shall be paid by
Landlord. The costs of any Tenant Improvements, change orders and Lessee
authorized "extras" made to the Leased Premises in excess of $2,832,444.00
shall be at the expense of the Tenant and shall be payable within ten (10)
days from billing.
ARTICLE I
TERM
1.1 INITIAL TERM
The term of the Lease shall be one hundred eighty (180) months. The
commencement date of this Lease will be fifteen (15) days after the date
Landlord's contractor turns the Leased Premises over to Tenant for
occupancy (the "Commencement Date") which is projected to be May 31, 1997.
1.2 EXTENSION OF TERM
Tenant shall have four (4) options to extend this Lease for periods of
sixty (60) months each, said options to be subject to all the terms and
conditions of this Lease and provided that (a) written notice of Tenant's
desire to exercise same is provided to Landlord at least one hundred eighty
(180) days prior to the expiration date of the then existing term; (b)
there are no defaults of the covenants and conditions on the part of Tenant
to be performed at the time of such exercise; (c) all Rents and Additional
Rent which have accrued up to that time have been paid in full, and (d) the
Rents during the extended terms are adjusted pursuant to Paragraph 2.2.
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ARTICLE II
RENT
2.1 DURING INITIAL TERM
The Tenant covenants and agrees to pay to Landlord as base rent (the
"Rent") for the Leased Premises per the Rent schedule listed below:
YEARS ANNUAL MONTHLY
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1 $1,981,137.22 $165,094.77
2 $2,000,948.59 $166,745.72
3 $2,020,958.08 $168,413.17
4 $2,041,167.66 $170,097.31
5 $2,061,579.34 $171,798.28
6 $2,092,503.03 $174,375.25
7 $2,123,890.57 $176,990.88
8 $2,155,748.93 $179,645.74
9 $2,188,085.16 $182,340.43
10 $2,220,906.44 $185,075.54
11 $2,254,220.04 $187,851.67
12 $2,288,033.34 $190,669.45
13 $2,322,353.84 $193,529.49
14 $2,357,189.15 $196,432.43
15 $2,392,546.98 $199,378.92
The Rent is payable in advance, along with any sales, use or excise tax on
the Rent, and without notice, on the first day of each month for the entire
term of this Lease, said Rent to begin on the Commencement Date. In the
event any Rent is unpaid after the tenth day of any calendar month, at
Landlord's option, a service charge of two percent (2%) for each month that
such Rent remains unpaid shall be paid.
2.2 RENT DURING EXTENDED TERMS
In the event that the term of this Lease is timely extended pursuant to
Paragraph 1.2, the Rent payable by the Tenant during the extended terms(s)
shall be increased annually at a rate of 2.25% of the anniversary date of
the Commencement Date.
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2.3 ADDITIONAL RENT
Tenant agrees to pay to Landlord, as "Additional Rent" the Operating
Expenses as defined in Exhibit "D", payable in monthly installments on the
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first day of each month for the entire term of this Lease, said Additional
Rent to begin on the Commencement Date.
2.4 PLACE OF PAYMENT
All Rent, Additional Rent and other charges shall be made at the
Landlord's address stated in the notice provisions of this Lease, or at
such other place as Landlord may designate, and all above payments shall be
made without any set-off or counterclaim whatsoever and shall not be
withheld for any reason.
ARTICLE III
3.1 USE OF PREMISES
The Leased Premises may be used and occupied by the Tenant for any lawful
purpose. Tenant shall at all times and at its own expense comply with all
rules, orders, regulations or requirements of all governmental authorities
or agencies with respect to Tenant's use of the Leased Premises, but
Landlord shall as an Operating Expense keep the structure and common areas
in compliance therewith.
ARTICLE IV
4.1 PARKING
Tenant will be given the use of all parking spaces adjacent to the Building
on Landlord's property.
4.2 IMPROVEMENTS
Ninety (90) days after the execution of this Lease, Landlord will have
plans and specifications prepared for the Building Shell (the "Plans").
Such Plans must be completed and approved by Tenant no later than fourteen
(14) days after receipt of the Plans so that Landlord can begin
construction. Tenant will accept the Building Shell so long as they are
constructed in substantial accordance with the Plans. The Tenant shall
deliver to Landlord its final Tenant Improvement layout and space plan on
or before one hundred (100) days after the execution of this Lease. Any
changes to the Tenant Improvements requested by Tenant shall be at the sole
expense of the Tenant, and may, at Landlord's option, delay the
Commencement Date for a period commensurate with the time required because
of such changes. The ownership of all changes to the Tenant Improvements
shall revert to the Landlord upon the expiration or termination of this
Lease.
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4.3 FUTURE IMPROVEMENTS
Subject to the provisions of the "Building Standards" section above, the
Tenant at its sole cost and expense, shall have the right to remodel and
improve the Leased Premises; provided, however, that (a) the plans and
specifications shall be first approved by the Landlord, and that the
remodeling and improvements shall be completed in accordance with the
plans, specifications, and the building standards of the building; (b)
Landlord may impose any such reasonable conditions and requirements on said
changes, improvements and construction as Landlord may deem reasonably
necessary including reasonable impact fees to protect it and its best
interest; (c) the Tenant must remove any such improvements which the
parties agreed in writing before construction would be removed upon
termination of the Lease, and must repair any damage caused by such
removal; and (d) all such remodeling and improvements, when completed and
placed upon the Leased Premises, shall, as of said date, immediately become
the property of the Landlord.
4.4 COMMON AREA
This Lease is for the Tenant as the only user and therefore there are
currently no common areas within the Building.
ARTICLE V
5.1 UTILITIES AND SERVICE
As long as Tenant is not in default under any of the covenants of this
Lease, Landlord shall, except as hereinafter stipulated, provide for or to
the Leased Premises, the following:
a) The cost of all Utilities, including but not limited to electricity,
water, gas, trash removal and sewer user fees, shall be included as an
Operation Expense of the Building and the grounds.
b) Janitorial service in the Building will be provided by Landlord five
(5) business days per week, excluding holidays. New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day shall
be holidays. Landlord shall also pay all costs attributable to cleaning
within the Leased Premises during the same period of time, the cost of
which shall be included as an Operating Expense of the Building.
c) Landlord reserves the right to temporarily stop services of the
heating, elevators, plumbing, air conditioning, electrical power or other
utilities or services when necessary by reason of accident or for repairs,
alterations, replacements or improvements which are necessary or desirable
for as long as may be necessary by reason of such repairs,
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alterations, replacements or improvements or by reason of strikes,
accidents, laws, orders, regulations, unavailability or other factors
beyond the control of Landlord.
ARTICLE VI
MAINTENANCE AND REPAIR
6.1 OBLIGATIONS OF LANDLORD
Landlord shall maintain, repair, and replace, if necessary, the Building's
heating, ventilating, air conditioning (excluding any special air
conditioning equipment installed by Tenant), electrical, and plumbing
systems to the Leased Premises. Any special air conditioning equipment
installed within the Leased Premises will be maintained and repaired by
Tenant. Landlord agrees to maintain the Building, its common areas, its
parking facilities and exterior, and all of the Building systems in a first
class manner, unless such repairs are due to Tenant's negligence or
misconduct. The cost of this maintenance, repair, and replacement shall be
included as an Operating Expense, which is reimbursed by Tenant to
Landlord.
6.2 OBLIGATIONS OF TENANT
Tenant agrees to at all times keep the Leased Premises clean and in good
repair, and to surrender the Leased Premises in that condition upon
expiration or termination of this Lease, reasonable wear and tear and
damage by fire or other casualty excepted.
ARTICLE VII
7.1 RULES AND REGULATIONS
The Tenant, its servants, employees, agents, visitors and licensees, shall
observe faithfully and comply strictly with the BUILDING RULES AND
REGULATIONS set forth in Exhibit "D" attached hereto and made a part
hereof. Tenant agrees to abide by any and all reasonable rules and
regulations governing the Building of which the Leased Premises are a part
and the use of any of the areas surrounding the Building, including the use
of any parking area. Tenant further agrees to be liable and responsible for
any damages or abuse to the Building by its employees and agents. Landlord
shall have the right to make reasonable changes in and additions to said
Rules and Regulations, provided such changes and additions do not
unreasonably affect the conduct of Tenant's business.
7.2 COVENANTS OF QUIET ENJOYMENT
Landlord covenants that upon payment of the Rent and Additional Rent due
hereunder, and Tenant observing all terms and conditions hereof, Tenant may
peaceably and quietly enjoy the Leased Premises.
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7.3 SIGN(S)
The Tenant will be allowed to erect a sign(s) on the Building, doors,
windows, improvements, grounds or common areas with the prior written
consent of the Landlord, which consent shall not be unreasonably withheld
or delayed. All signage must comply with all ordinances, regulations, and
restrictions.
7.4 HAZARDOUS MATERIALS
Tenant covenants and agrees not to permit any "Hazardous Material" to be
placed, held, located or disposed of upon, or released upon or at the
Leased Premises or any part thereof. For purposes of this Lease, Hazardous
Material means any hazardous, toxic or dangerous waste, substance or
material defined in or for purposes of any federal, state, or local
statute, law, ordinance, code, rule, regulation, order or decree, as now or
any time hereafter may be in effect.
ARTICLE VIII
8.1 LIABILITY INSURANCE
The Landlord and Tenant agrees to indemnify, compensate and save and hold
the other (the "indemnified Party") harmless from any and all claims,
damages and/or liability whatsoever resulting from and/or arising out of
injury to and/or death of any person and/or damage and/or destruction of
any property due solely to the fault of the Indemnifying Party. The Tenant
shall, at its sole cost and expense, carry public liability and property
damage insurance with an insurance company reasonably satisfactory to the
Landlord with combined single limits of not less than $3,000,000 bodily
injury and property damage coverage covering the Leased Premises. The
Landlord shall be named as an additional insured on said policies (without
charge to Landlord) and proof of insurance will be provided to the Landlord
upon request. Landlord shall, as an Operating Expense, carry plate glass
and casualty, vandalism and malicious mischief insurance upon Building, and
such other insurance coverage as it deems appropriate. Tenant shall
maintain "all risk" coverage on its personal property and improvements in
the Leased Premises or provide evidence of adequate self insurance.
8.2 FIRE AND CASUALTY INSURANCE
The Landlord shall obtain and procure a policy of insurance insuring the
improvements on the Leased Premises against the risks of fire and extended
coverage from an insurance company to be selected by the Landlord in an
amount to be determined by the Landlord. The cost of said insurance shall
be included as an Operating Expense.
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8.3 CONTENTS LOSS
It is acknowledged and agreed by Tenant that the risk of loss for all
contents and property belonging to Tenant shall be on the Tenant and Tenant
shall purchase and maintain and pay for all property insurance coverage
required and/or desired by Tenant. Tenant and Landlord expressly waive any
and all claims against the other for loss or damage due to fire, explosion,
tornadoes, windstorms or rainstorms, or other casualty, calamity or act of
God, regardless of the cause of such damage but only to the extent that
such damage is or is supposed to be covered by property insurance as
referenced herein.
8.4 WAIVER OF SUBROGATION
Tenant and Landlord expressly waive, for themselves and their insurer, any
and all claims against the other for loss or damage due to fire, explosion,
tornadoes, windstorms or rainstorms, or other casualty, calamity or act of
God, regardless of the cause of such damage.
ARTICLE IX
9.1 TAXES
Tenant shall pay, when due in order to obtain the maximum discount, all
real property taxes and any and all other assessments for the Leased
Premises and the Building which shall not be included as an Operating
Expense.
ARTICLE X
INTENTIONALLY OMITTED
ARTICLE XI
11.1 DESTRUCTION OF PREMISES
If, during the term of this Lease, the Leased Premises shall be damaged by
fire or other cause, the damages shall be repaired by, and at the expense
of, the Landlord; and the Landlord shall repair the Leased Premises and put
them in a leasable state within a period of twelve (12) months from the
date of such damages. Landlord will notify Tenant within thirty (30) days
of damage as to the estimated length of repair. If the Landlord determines
that it will be unable to make such repairs within a twelve (12) month
period, both the Landlord and the Tenant shall have the right to terminate
this Lease. Should Tenant not be able to occupy and utilize the Leased
Premises during said period of repair, then the charges shall be abated
until the Leased Premises are restored for occupancy. In the event such
repairs are not completed within said period of repair, Tenant shall have
the right, upon written notice to Landlord, to terminate this Lease without
further
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obligation. The Landlord shall notify the Tenant within reasonable time
should premises not be subject to repair.
ARTICLE XII
12.1 CONDEMNATION
If the whole, or substantially the whole, of the Building or Leased
Premises shall be taken by virtue of eminent domain, or for any public or
quasi-public improvement, then the term of this Lease shall terminate on
the date of the vesting of title in such condemnation proceedings.
12.2 PARTIAL TAKING
In the event that less than the whole, or substantially the whole, of the
Building or Leased Premises is condemned or taken as set forth in the
paragraph above, then this Lease shall remain in force and in effect;
provided, however, that if the taking shall so substantially interfere with
the use of the Leased Premises as to render the continued operation thereof
economically unfeasible as reasonably determined by Landlord, then Landlord
may, at its option, terminate this Lease and the term and estate hereby
granted as of the date of the taking of possession for such use and purpose
by notifying the Tenant in writing of such termination.
12.3 RENTAL ADJUSTMENT
Upon any such taking or such condemnation and the continuing in force of
this Lease as to any part of the Leased Premises, all rentals shall be
diminished by any amount representing the part of the said rent properly
allocable to the portion of the Leased Premises which may be so condemned
or taken, and Landlord shall, at its expense, proceed with reasonable
diligence to repair, alter and restore the remaining part of the Building
and the Leased Premises to substantially its former condition, due
allowances being made for the impact of such taking or condemnation.
12.4 DAMAGE AWARDS
In such condemnation proceedings, Landlord shall be entitled to receive and
retain entirely any award for damages for the land, Building and Leased
Premises, and Tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease, but Tenant shall be entitled to recover
the unamortized value of its leasehold improvements.
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ARTICLE XIII
DEFAULT
13.1 LANDLORD'S RIGHTS TO CANCEL
If any monthly Rent, Additional Rent or any payment due as a result of
services provided by Landlord to Tenant pursuant to Articles V and VI, or
any part thereof, shall remain unpaid for ten (10) days (after written
notice thereof has been given to Tenant), or if Tenant shall fail to keep
and perform any of its agreements and obligations herein contained after
written notice thereof has been given to Tenant and Tenant has failed
within a reasonable time to perform; or if a petition in bankruptcy be
filed by the Tenant; or if Tenant shall make an assignment for the benefit
of creditors; or if a receiver or trustee in bankruptcy of Tenant shall be
appointed in any suit or proceeding brought by or against Tenant; or if
the leasehold interest of Tenant shall be levied upon any execution; then,
in any of said cases, Landlord may at once, at its option, terminate and
cancel this Lease.
13.2 VACATING AND SURRENDER
Upon termination of this Lease by Landlord for any of the aforesaid causes
specified, or upon the expiration of this Lease by lapse of time, Tenant
shall immediately remove all personal property belonging to Tenant from
the Leased Premises, and vacate and surrender possession of the Leased
Premises to Landlord.
13.3 FORCIBLE DETAINER
If possession of the Leased Premises is not immediately voluntarily
surrendered, Landlord may, after first obtaining the appropriate "forcible
detainer" judgment from the local court of competent jurisdiction,
forthwith re-enter the Leased Premises and remove the Tenant and remove
any personal property therefrom.
13.4 NO WAIVER
The receipt of money by the Landlord from the Tenant after the Landlord
has given notice to the Tenant of its intention to terminate the Lease or
after the termination thereof, shall not operate in any way to reinstate,
continue or extend the term of this Lease, or affect any notice given
prior thereof, it being agreed that after service of notice or the
commencement of a suit, or after final judgment for possession of said
Leased Premises, Landlord may recover and collect any rent due, and the
payment of said rent shall not waive or affect said notice, suit or
judgment.
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13.5 REMOVAL OF PERSONAL PROPERTY
If Tenant neglects or refuses to remove all personal property belongings
to Tenant from the Leased Premises immediately upon the termination or
expiration of this Lease, Landlord may, at its option, remove same or any
part thereof and store such property so removed without liability to
Landlord for the less thereof; Tenant will pay Landlord for any and all
expenses incurred in removing and storing said affects; or Landlord may at
its option and after written notice to Tenant sell said effects or any of
them for such price as Landlord deems best, and apply the proceeds of such
sale to the payment of any amounts due Landlord from Tenant under this
Lease, including the cost of removing, storing or selling said effects.
13.6 HOLDOVER RENT
Tenant shall pay to Landlord, as liquidated damages and not as a penalty,
for the period of the time Tenant shall retain possession of the Leased
Premises after the expiration or termination of this Lease, by lapse of
time or otherwise, a sum equal to one and one-half the amount of Rent that
would be due for such a period at the rate specified herein; but this
provision shall not operate as a waiver by Landlord of any right of re-
entry hereinbefore provided.
13.7 ACCELERATION
In addition to holding Tenant liable for any amounts which may be due for
Rent, Additional Rent or other charges, upon a default by Tenant, Landlord
shall be entitled to accelerate all amounts to which it would be entitled
to collect in the future.
13.8 LANDLORD'S ACTS
In the event of any act or omission by Landlord which would give Tenant
the right to terminate this Lease or to claim a partial or total breach,
Tenant will not exercise any right until: (a) it has given written notice
of such act or omission to Landlord and (b) a reasonable period for
remedying such act or omission shall have elapsed following such giving of
notice.
ARTICLE XIV
INTENTIONALLY OMITTED
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ARTICLE XV
15.1 ASSIGNMENT AND SUBLETTING
The Tenant shall not have the right to assign this Lease or sublease the
Leased Premises in whole or in part without first obtaining the written
consent of the Landlord, which consent shall not be arbitrarily withheld
or delayed. Such permitted assignment or subletting shall not release the
Tenant from its obligations and liabilities under the terms and conditions
of this Lease. Notwithstanding the foregoing, or any provision to the
contrary in this lease, Tenant may, without Landlord's consent, without
penalty, and without payment of any sums other than Tenant's costs, assign
or sublet all or part of this Lease to any affiliate, any subsidiary,
principal, subsidiary of its principal, or to any company with which
Tenant is merged or consolidated, and Tenant shall thereafter only be
obligated to Landlord as a guarantor of the obligations of the new tenant
under the Lease.
ARTICLE XVI
INTENTIONALLY OMITTED
ARTICLE XVII
17.1 REMEDIES
The specified remedies to which the Landlord may resort under the terms
hereof are cumulative and are not intended to be exclusive of any other
remedy or means of redress to which the Landlord may be lawfully entitled
in case of any breach by the Tenant of any provision or provisions of this
Lease. The Landlord shall be entitled to recover its costs, including
reasonable attorney fees, in enforcing the terms of this Lease.
ARTICLE XVIII
18.1 RE-ENTRY
The Landlord and/or its agents shall have the right to enter upon and into
the Leased Premises, or any part thereof, at any and all reasonable times
after notice to Tenant (except in case of emergencies in which case no
such prior notice shall be required) for the purpose of examining same or
making repairs to this or any other portion of the Building. The Tenant
also agrees to permit the Landlord and/or its agents to show the Leased
Premises for the purpose of selling same, and to permit them to place
notices or signs on the Leased Premises offering the Leased Premises for
sale. Landlord shall also have the right to place notices or for rent
signs within six (6) months of the end of the term.
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ARTICLE XIX
19.1 NOTICES
All notices required herein shall be by Certified Mail or Registered Mail
or a nationally recognized overnight courier to the addresses shown below:
LANDLORD:
Hurstbourne Green Venture, LLC
201 West Short Street, Suite 701
Lexington, Kentucky 40507
Attn: Richard Ekhoff
COPY TO:
John P. Watz
HENRY WATZ GARDNER & SELLARS, P.S.C.
401 West Main Street, Suite 314
Lexington, Kentucky 40507
TENANT:
BellSouth Mobility Inc
[At Leased Premises address once
such mailing address is assigned.]
COPY TO:
BellSouth Mobility Inc
5600 Glenridge Drive, Suite 201 East
Atlanta, Georgia 30342
Attn: Contracts Manager
ARTICLE XX
20.1 VACATING PREMISES
At the expiration of the term specified in this Lease, or any extension
thereof, if extended pursuant to the terms of this Lease, the Tenant shall
vacate the Leased Premises and surrender the same to Landlord without
further notice or demand from Landlord and the Leased Premises shall be in
good order and condition, reasonable wear and tear, damage from the
elements, fire or act of God, excepted. Tenant shall be responsible for
any damages, extra charges, cleaning or repairs made necessary to the
Leased Premises as a result of the removal of furnishings and fixtures,
the remnants, trash or abandoned
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property of Tenant or any other extra item of expense to Landlord in
restoring the Leased Premises as a result of the business fixtures or
activities of the Tenant.
ARTICLE XXI
21.1 BINDING AGREEMENT
All of the covenants, agreements, terms, conditions, provisions and
undertakings in this Lease, or any amendments hereto, shall inure to the
benefit of, be enforceable by, and be binding upon, the respective heirs,
executors, administrators, successors and assigns of the Tenant and the
Landlord.
ARTICLE XXII
22.1 SUBORDINATION
This Lease, and all rights of Tenant hereunder, are subject and
subordinate to any Mortgage, blanket or otherwise, which does now or may
hereafter affect the real property of which the Leased Premises form a
part, and to any and all renewals, modifications, consolidations,
replacements and extensions thereof. It is the intention of the parties
that this provision be self-operative, and that no further instrument
shall be required to effect such subordination of this Lease. Tenant shall
however, within five (5) business days of demand, at any time or times,
execute, acknowledge and deliver to Landlord, without expense to the
Landlord, any and all instruments that may be necessary or proper to
subordinate this Lease, and all rights of Tenant hereunto to any such
mortgagee, or to confirm or evidence said subordination, as long as such
instruments acknowledge that Tenant's rights under this Lease shall
continue to be in effect, notwithstanding any foreclosure or conveyance of
the Building. Should Tenant arbitrarily refuse to execute the required
documents hereunder, or those required under Article XXIII hereinafter,
upon demand by Landlord, then in addition to the Tenant's being
responsible for any other damages incurred as a result thereof (including
interest), the Tenant's refusal shall constitute a default under Articles
XIII and XIV herein.
22.2 RIGHT TO CURE DEFAULT
Tenant is hereby given the right but has no obligation to make payment of
any default under such mortgage on the Leased Premises, and to receive
reimbursement for such payment by reduction and credit from and against
rentals becoming due hereunder.
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22.3 NON-DISTURBANCE
The Landlord agrees to use its best efforts to obtain a non-disturbance
agreement from its mortgagee for the benefit of Tenant conditioned upon
Tenant's continued performance of all terms and conditions of this Lease.
ARTICLE XXIII
23.1 ESTOPPEL CERTIFICATE
The Tenant agrees, at any time and from time to time upon not less than
five (5) business days prior written request by the Landlord, to execute,
acknowledge and delivery to the Landlord a statement in writing 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
modified, and stating the modifications), and the dates through which the
Rent, Additional Rent, other charges have been paid in advance, if any, it
being intended that any such statement delivered pursuant to this Article
XXIII may be relied upon by prospective purchaser of the fee interest of
the real estate upon which the Leased Premises are situated or any
mortgagee or assignee of any mortgagee upon such fee interest.
ARTICLE XXIV
24.1 APPLICABLE LAW
This Lease shall be construed and enforced in accordance with the laws of
the State in which the Lease Premises are located.
ARTICLE XXV
25.1 ENTIRE UNDERSTANDING
This Lease and the exhibits attached hereto contain the entire
understanding and agreement of the parties hereto, and no other
understanding, undertaking, agreement, representation or warranty shall
alter or modify this Lease or the terms hereof unless the same is in
writing and duly executed by the parties hereto.
ARTICLE XXVI
26.1 AUTHORIZATION
Tenant does hereby covenant and warrant the Tenant is a duly organized and
existing corporation in good standing in the State of Georgia; the Tenant
has and is qualified to
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do business in Florida; that the corporation has full right and authority
to enter into this Lease; that such person(s) signing on behalf of the
corporation is (are) authorized to execute and deliver this Lease on
behalf of the corporation, in accordance with a duly adopted resolution
of the board of directors of the corporation or in accordance with the
bylaws of the corporation; and that this Lease is binding upon the
corporation in accordance with its terms.
26.2 WAIVER
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or of any other term, covenant or condition hereof.
26.3 ACCORD AND SATISFACTION
No payments by Tenant or receipt by Landlord of a lesser amount than the
monthly Rent, Additional Rent, and other charges herein stipulated shall
be deemed to be other than on account of the earliest stipulated Rent, nor
shall any endorsement or statement on any check or any letter accompanying
any check or payment as Rent, Additional rent, and any other charges be
deemed an accord and satisfaction; and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of
such amounts or pursue any other remedy in this Lease provided.
26.4 AMENDMENT
No subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and
signed by them.
26.5 NO PARTNERSHIP
Landlord does not in any way for any purpose became a partner of Tenant in
the conduct of its business or otherwise, or a joint venturer, or a member
of a joint enterprise with Tenant.
26.6 PARTIAL INVALIDITY
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term, covenant or condition to persons or circumstances other than those
to which it is held invalid or unenforceable, shall not be affected
thereby; and such term, covenant or condition of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
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26.7 LANDLORD'S LIABILITY
In no event shall Landlord's liability for any breach of this Lease exceed
the lesser of: (a) the amount of Rent then remaining unpaid for the then
current term (exclusive of any extension period which has not then
actually commenced), (b) the value of the Landlord's equity in the
Building, or (c) $250,000.00. This provision is not intended to be a
measure or agreed amount of Landlord's liability with respect to any
particular breach, and shall not be utilized by any court or otherwise for
the purpose of determining any liability of Landlord's hereunder, except
only as a maximum amount not to be exceeded in any event. It is
specifically understood that Landlord shall have no personal liability in
respect of any of the covenants, conditions, or provisions of this Lease
in excess of the limitations set forth above.
26.8 INCORPORATION OF EXHIBITS
The exhibits to this Lease are an integral part hereof and by this
reference are incorporated herein as though fully set forth herein.
26.9 INTERPRETATION
The Landlord and Tenant have both participated in the drafting and
negotiations of this Lease and it shall not be interpreted against either
party by virtue of having participated in such drafting and negotiation.
26.10 INTENTIONALLY OMITTED
26.11 SPECIAL STIPULATIONS
(A) All costs associated with soil stabilization of the Leased Premises in
excess of $300,000.00 shall be paid by the Tenant within 30 days of
written demand by Landlord.
(B) Notwithstanding anything to the contrary, it is the intention of the
parties that this be an absolute triple net lease with all expenses
related to the use and operation of the Building, Leased Premises, and
surrounding Common Areas being the financial responsibility of the
Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
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LANDLORD: HURSTBOURNE GREEN VENTURE ORLANDO, LLC
BY: /s/ Rick Ekhoff
---------------------------------------
ITS: MEMBER
---------------------------------------
WITNESS: /s/
---------------------------------------
DATE: 6/25/96
---------------------------------------
TENANT: BELLSOUTH MOBILITY INC
BY: /s/ James R. Bacon
---------------------------------------
ITS: VICE PRESIDENT, REGION IV
---------------------------------------
WITNESS: /s/ Sylvia A. Parker
---------------------------------------
DATE: JUNE 24, 1996
---------------------------------------
STATE OF KENTUCKY )
)SS
COUNTY OF FAYETTE )
The foregoing Lease was acknowledged before me this the 25/th/ day of
June, 1996, by Rick Ekhoff as the duly authorized representative for HURSTBOURNE
GREEN VENTURE ORLANDO, LLC, a Kentucky limited liability company.
My Commission Expires: OCT. 15, 1996
-----------------------------------
/s/ Tracey A. Brownell
-----------------------------------
NOTARY PUBLIC, STATE AT LARGE, KY
STATE OF GEORGIA )
)SS
COUNTY OF BARTOW )
The foregoing Lease was acknowledged before me this the 24/th/ day of
June, 1996, by JAMES R. BACON as the duly authorized representative of BELLSOUTH
MOBILITY INC, a Georgia Corporation.
My Commission Expires: 8-28-98
----------------------
/s/ Sherry H. Meincke
------------------------------------
NOTARY PUBLIC
SHERRY H. MEINCKE
Notary Public, Bartow County, Georgia.
My Commission Expires August 28, 1998.
18
