SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
COMMISSION FILE NUMBER 1-13792
GLOBAL DIRECTMAIL CORP
(Exact name of registrant as specified in its charter)
Delaware 11-3262067
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
22 Harbor Park Drive
Port Washington, New York 11050
(Address of registrant's principal executive offices)
(516) 625-1555
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
[X] Yes [ ] No
The number of shares outstanding of the registrant's Common Stock as of November
12, 1998 was 36,128,090.
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
GLOBAL DIRECTMAIL CORP
Condensed Consolidated Balance Sheets
(IN THOUSANDS)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 34,420 $ 43,432
Short-term investments 7,524 9,017
Accounts receivable - net 148,996 132,741
Inventories 111,878 102,599
Prepaid expenses and other current assets 37,606 25,541
--------- ----------
Total current assets 340,424 313,330
PROPERTY, PLANT AND EQUIPMENT - net 32,852 29,401
GOODWILL - net 58,225 53,258
OTHER ASSETS 4,680 3,756
--------- ----------
$ 436,181 $ 399,745
========= ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses $ 154,883 $ 125,562
Current portion of long-term debt - 12
--------- ----------
Total current liabilities 154,883 125,574
--------- ----------
LONG-TERM DEBT 5,464 1,972
--------- ----------
SHAREHOLDERS' EQUITY:
Preferred shares - -
Common shares - par value $0.01:
38,231,990 shares issued 382 382
Additional paid-in capital 176,743 176,743
Treasury stock - 2,103,900 shares (28,604) -
Retained earnings 127,249 97,204
Cumulative translation adjustment 64 (2,130)
--------- ----------
Total shareholders' equity 275,834 272,199
--------- ----------
$ 436,181 $ 399,745
========= ===========
See notes to condensed consolidated financial statements.
</TABLE>
<PAGE>
GLOBAL DIRECTMAIL CORP
Condensed Consolidated Statements of Income
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
SEPTEMBER 30, SEPTEMBER 30,
----------------------------------- ---------------------------------
1998 1997 1998 1997
---- ---- ---- ----
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
NET SALES $ 359,771 $ 259,661 $1,048,581 $ 792,683
COST OF SALES 288,167 202,372 834,552 601,820
---------- ---------- ---------- ---------
GROSS PROFIT 71,604 57,289 214,029 190,863
SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES 56,024 54,750 166,745 151,807
-------- ---------- ---------- -----------
INCOME FROM OPERATIONS 15,580 2,539 47,284 39,056
INTEREST AND OTHER INCOME 624 878 2,227 2,366
-------- ---------- ---------- -----------
INCOME BEFORE INCOME TAXES 16,204 3,417 49,511 41,422
PROVISION FOR INCOME TAXES 6,643 1,281 19,466 15,533
--------- ---------- ---------- -----------
NET INCOME $ 9,561 $ 2,136 $ 30,045 $ 25,889
========= ========== ========== ===========
Net income per common share:
Basic $ .26 $ .06 $ .80 $ .68
========= ========== ========== ===========
Diluted $ .26 $ .06 $ .80 $ . 68
========= ========== ========== ============
Common and common equivalent shares:
Basic 36,690 37,857 37,674 37,857
========= ========== ========== ===========
Diluted 36,690 38,121 37,678 38,181
========= ========== ========== ===========
See notes to condensed consolidated financial statements.
</TABLE>
<PAGE>
GLOBAL DIRECTMAIL CORP
Condensed Statement of Consolidated Shareholders' Equity
(IN THOUSANDS) (UNAUDITED)
<TABLE>
<CAPTION>
Additional Cumulative Treasury
Common Paid-in Retained Translation Stock
SHARES CAPITAL EARNINGS ADJUSTMENT AT COST
<S> <C> <C> <C> <C> <C>
BALANCES, DECEMBER 31, 1997 $ 382 $176,743 $ 97,204 $(2,130) -
Purchase of shares for treasury (28,604)
Difference arising from translation
of foreign statements 2,194
Net income 30,045
------ -------- -------- -------- -----------
BALANCES, SEPTEMBER 30, 1998 $ 382 $176,743 $127,249 $ 64 $ (28,604)
====== ======== ======== ========= ===========
See notes to condensed consolidated financial statements.
</TABLE>
<PAGE>
GLOBAL DIRECTMAIL CORP
Condensed Statements of Consolidated Cash Flows
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE-MONTH PERIOD
ENDED SEPTEMBER 30,
1998 1997
------ -----
(UNAUDITED)
<S> <C> <C>
CASH FLOWS PROVIDED BY OPERATING ACTIVITIES:
Net income $ 30,045 $ 25,889
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization - net 5,669 3,769
Charges associated with the impairment of certain long lived assets - 8,773
Provision for returns and doubtful accounts 4,472 2,017
Changes in certain assets and liabilities:
Accounts receivable (17,435) (10,284)
Inventories (7,210) 10,431
Prepaid expenses and other current assets (12,203) (636)
Accounts payable and accrued expenses 25,518 (11,339)
--------- ---------
Net cash provided by operating activities 28,856 28,620
-------- --------
CASH FLOWS USED IN INVESTING ACTIVITIES:
Net change in short-term instruments 1,493 16,997
Acquisition of net assets of businesses acquired (5,942) (36,741)
Investment in property, plant and equipment (7,985) (7,021)
---------- ---------
Net cash (used in) provided by investing activities (12,434) (26,765)
---------- ---------
CASH FLOWS USED IN FINANCING ACTIVITIES:
Borrowings of long term debt 3,336
Net repayment of short term bank debt - (468)
Purchase of treasury shares (28,604)
Other - 2
--------- ---------
Net cash used in financing activities (25,268) (466)
--------- ----------
EFFECTS OF EXCHANGE RATES ON CASH (166) 618
--------- ----------
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (9,012) 2,007
CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD 43,432 35,211
--------- ---------
CASH AND CASH EQUIVALENTS - END OF PERIOD $ 34,420 $ 37,218
========= =========
See notes to condensed consolidated financial statements.
</TABLE>
<PAGE>
GLOBAL DIRECTMAIL CORP
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
The accompanying consolidated financial statements include the accounts of
Global DirectMail Corp and its wholly-owned subsidiaries (collectively, the
"Company" or "Global"). The Company is involved in the marketing and sale
of personal computers (PCs), notebook computers, computer related products,
office products and industrial products in North America and Europe. Global
markets these products through the distribution of mail order catalogs, a
network of major account sales relationship marketing representatives and
the Internet.
2. BASIS OF PRESENTATION
Net income per common share - basic was calculated based upon the weighted
average number of common shares outstanding during the respective periods
presented. Net income per common share - diluted was calculated based upon
the weighted average number of common shares outstanding and included the
equivalent shares for dilutive options outstanding during the respective
periods.
In the opinion of the Company, the accompanying unaudited condensed
consolidated financial statements contain all normal and recurring
adjustments necessary to present fairly the financial position of the
Company as of September 30, 1998 and the results of operations for the
three and nine months ended September 30, 1998 and 1997, cash flows for the
nine months ended September 30, 1998 and 1997 and changes in shareholders'
equity for the nine months ended September 30, 1998. The December 31, 1997
consolidated balance sheet has been extracted from the audited consolidated
financial statements included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997.
These condensed consolidated financial statements should be read in
conjunction with the Company's audited consolidated financial statements as
of December 31, 1997 and for the period then ended. The results for the
three and nine months ended September 30, 1998 are not necessarily
indicative of the results for an entire year.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 1997
Net sales for the quarter increased by $100.1 million or 39% to $359.8
million compared to $259.7 in the year ago quarter. The increase was
attributable primarily to (i) net sales of $66 million from the
Company's Midwest Micro subsidiary, acquired on September 30, 1997, (ii)
increased sales from the Company's major account relationship marketing
sales force which was responsible for a sales increase of 84% over the
year ago quarter and (iii) an increase in average order value. In
addition, prior year sales were negatively impacted by the UPS labor
action. Catalogs mailed increased by 15% to 43 million compared to 37
million in the year ago quarter. The total number of orders increased to
920,000 compared to 798,000 in the year ago quarter. Sales during the
quarter attributable to North American operations increased 43% to
$287.6 million compared to $200.8 million in the third quarter of 1997.
European sales increased 23% to $72.2 million compared to $58.9 million
in the year ago quarter. On a currency adjusted basis, European sales
for the quarter increased 19%.
Gross profit increased by $14.3 million or 25% to $71.6 million compared
to $57.3 million in the year ago quarter. Gross profit as a percentage
of net sales was 19.9% compared to 20.3% in the prior quarter and 22.1%
in the year ago quarter. The change in the gross profit percentage from
the year ago quarter was primarily due to the shift in the Company's
overall product mix. This shift was attributable to significant
increases in the sales of PCs, notebook computers and brand name
products which generally have a lower gross profit percentage.
Selling, general and administrative expenses for the quarter increased
by $1.3 million or 2.3% to $56.0 million compared to $54.8 million in
the third quarter of 1997. This increase was the result of the inclusion
of the Company's Midwest Micro subsidiary, acquired on September 30,
1997, and the Company's continuing investment in its major account
relationship marketing sales force, principally in North America. This
was partially offset by an increased level of vendor supported
advertising, the implementation of cost containment measures and the
overall leveraging of selling, general and administrative expenses over
a larger sales base. Selling, general and administrative expenses for
the third quarter of 1997 included one time charges of $9.8 million
associated with the impairment of certain long lived assets. As a
result, selling, general and administrative expenses as a percentage of
sales declined to 15.6% from 21.1% in the year ago quarter.
Income from operations for the quarter increased by $13.1 million to
$15.6 million from $2.5 million in the year ago quarter, which includes
the negative effect of the one time charge noted above. Excluding this
charge, operating income increased 27%. Income from operations as a
percentage of net sales was 4.3% compared to 1.0% in the year ago
quarter (4.7% excluding the effect of the aforementioned charge).
The effective tax rate for the third quarter of 1998 increased to 41.0%
compared to 37.5% for the second quarter of 1997. The increase in the
rate was due primarily to a higher anticipated proportion of U.S. income
compared to the prior year.
Net income for the quarter was $9.6 million, or $.26 per basic and
diluted share, compared to $2.1 million, or $.06 per basic and diluted
share in the third quarter of 1997.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED
SEPTEMBER 30, 1997
Net sales increased by $255.9 million or 32% in the first nine months of
1998 to over $1 billion compared to $793 million for the first nine
months of 1997. The increase was attributable primarily to (i)the
inclusion of $185 million of net sales from Midwest Micro (ii) increased
sales from the Company's major account relationship marketing sales
force which was responsible for a sales increase of 97% over last year
and now accounts for 33% of total sales compared to 22% last year and
(iii) an increase in average order value. Catalogs mailed increased by
10% to 134 million compared to 120 million in the first nine months of
1997. Total orders increased 10% to 2,856,000 compared to 2,593,000 in
first nine months of 1997. Sales for the first nine months of 1998
attributable to North American operations increased 39% to $828.2
million compared to $595.8 million in the first nine months of 1997.
European sales increased 12% to $220.4 million compared to $196.9
million in the first nine months of 1997. On a currency adjusted basis,
European sales for the first nine months of 1998 increased 14%.
Gross profit increased by $23.2 million or 12% to $214 million for the
first nine months of 1998 compared to $190.9 million for the first nine
months of 1997. Gross profit as a percentage of net sales was 20.4% for
the first nine months of 1998 compared to 24.1% in first nine months of
1997. The change in the gross profit percentage from last year was
primarily due to the shift in the Company's overall product mix. This
shift was attributable to large increases in the sales of PCs, notebook
computers and brand name products which generally have a lower gross
profit percentage.
Selling, general and administrative expenses for the first nine months
of 1998 increased by $14.9 million or 10% to $166.7 million compared to
$151.8 million for the first nine months of 1997. This increase was the
result of the inclusion of Midwest Micro and the Company's continuing
investment in its major account sales force, principally in North
America. This was partially offset by an increased level of vendor
supported advertising, the implementation of cost containment measures
and the overall leveraging of selling, general and administrative
expenses over a larger sales base. Selling, general and administrative
expenses for the first nine months of 1997 included one time charges of
$9.8 million associated with the impairment of certain long lived
assets. As a result, selling, general and administrative expenses as a
percentage of sales declined to 15.9% from 19.2% for the first nine
months of 1997.
Income from operations for the first nine months of 1998 increased by
$8.2 million or to $47.3 million from $39.1 million for the first nine
months of 1997, which includes the negative effect of the one time
charges noted above. Excluding this charge, operating income decreased
3%. Income from operations as a percentage of net sales was 4.5%
compared to 4.9% in the year ago period (6.2% excluding the effect of
the aforementioned charge).
The effective tax rate for the first nine months of 1998 increased to
39.3% compared to 37.5% for the first nine months of 1997. The increase
in the rate was due primarily to a higher anticipated proportion of U.S.
income compared to the prior year.
Net income for the first nine months of 1998 was $30.0 million, or $.80
per basic and diluted share, compared to $25.9 million, or $.68 per
basic and diluted share for the first nine months of 1997.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary capital needs are to finance working capital for
sales growth and investments in property, equipment and information
technology. Strong cash flow continued to finance the Company's working
capital and capital expenditure needs. Cash provided by operations for
the nine months was $28.9 million, up 1% from the prior year, which was
the result of increased net income offset by higher working capital
required to support the Company's growth strategy. Excess funds
generated were used for acquisitions and for stock repurchases. The
Company also has access to adequate funds from short-term and long-term
borrowing capabilities.
YEAR 2000 COMPLIANCE
The Company is in the process of analyzing and addressing what is known
as the year 2000 (or "Y2K") issue. Based on current information, the
Company believes that it will be year 2000 compliant in a timely manner
and the cost of achieving such compliance will not have a materially
adverse effect on the Company's results of operations or financial
condition. As noted in the following discussion, however, there are
multiple variables in determining whether full Y2K compliance can be
achieved, many of which are dependent on efforts of third parties.
BACKGROUND.
This issue has arisen because many existing computer programs use only
two digits instead of four (E.G., "98" instead of "1998") to identify a
year in the data field. This is a holdover from the days when businesses
first started using computers and electronic memory was limited and
storage was expensive. These programs were designed and developed
without considering the impact of the upcoming change in the century.
Accordingly, some computers can not determine if the reference to the
year "02" means 2002 or 1902. The failure of such applications or
systems to properly recognize the dates beginning in the year 2000 could
result in miscalculations or even systems failures. The Company could be
affected by this problem both as a user of computers and as a direct
marketer and retail vendor of PCs and computer related products
(including private label PCs assembled by its Midwest Micro subsidiary).
In 1998 the Company established a Year 2000 Team to assess the Company's
Y2K compliance situation. This team consists of the Company's Chief
Financial Officer, Chief Information Officer, Controller, General
Counsel and a representative from the Company's management information
system (MIS) department.
INTERNAL SYSTEMS
The Company's Y2K Team has established a plan to have all of the
Company's computer and computer- dependent systems tested and, if
necessary, modified or replaced to ensure Y2K compliance. A target date
of July 1, 1999 has been fixed for such compliance. The Company believes
at this time that it should be able to meet such target date. Each of
the Company's computers and computer dependent systems has been or is
being analyzed to assess what would be the impact on the Company if the
system becomes materially impaired due to Y2K non-compliance. The
Company is nearing completion of this assessment phase.
While the Company utilizes numerous customized software programs, many
of them are similar to each other. Accordingly, if a fix is necessary
for one program, it is expected that the same or similar remedy can be
used on other similar programs. Each system is being placed in one of
three categories, based on the level of risk to the Company - Level I
(catastrophic risk), Level II (critical risk) and Level III (sustainable
risk). The Company is now in the process of doing live tests of the
Level I and Level II systems to ascertain anticipated Y2K compliance.
Based on its analysis to-date, the Company believes that all of its
internal computer systems (hardware, system software and applications
software) and computer-dependent systems, including technology embedded
in the Company's machinery and other equipment to the extent that it is
date sensitive, are currently Y2K compliant or will, through the
replacement or modification of existing hardware and software, be made
Y2K complaint in a timely manner. The Company has not retained any
outside service provider to conduct independent verification of the
Company's compliance status and does not at this time intend to hire any
such service provider but is utilizing a third-party software program to
test and assess anticipated compliance.
The Company is currently in the process of contacting its key vendors
and service providers to ascertain their Y2K compliance to the extent
that their problems could affect the Company's internal systems or other
aspects of the Company's business. The Company expects to have completed
that process by June 1999.
The Company at this time cannot make any prediction as to the degree of
compliance by such vendors and service providers or the consequence to
the Company of any noncompliance. As a direct marketer of products, the
Company is particularly dependent on the ability of telecommunications,
shipping and credit card companies to provide services and any
difficulties with such service providers could have a material adverse
impact on the Company.
Similar issues will be faced with the Company's banks and payroll
services, as well as other vendors. Any serious Y2K problems which
significant vendors and service providers encounter could materially
adversely impact the Company. Since the Company's customer base is
diverse and no one customer accounts for a significant portion of the
Company's business, the Company does not at this time believe that it is
necessary to query customers on their Y2K compliance status.
While the Company believes that the efforts which it has taken and plans
to take should be sufficient to identify and correct any Y2K problems
before December 31, 1999, there can be no assurance that the Company
will be fully Y2K complaint in a timely manner.
PRODUCTS SOLD
The Company began assembling its own private label PC hardware systems
following the acquisition of its Midwest Micro subsidiary on September
30, 1997. Prior to this time the Company only sold private label PC
systems assembled by contracted third party-manufacturers. The Company
believes that all of the private label PC hardware systems it sells,
including those it assembles itself, are Y2K complaint. All PC hardware
systems assembled by the Company on or after January 1, 1998 have been
certified to be Y2K compliant by the National Software Testing Lab
(NSTL), an independent testing lab.
The Company is in the process of questioning its vendors as to the Y2K
compliance status of the brand name (i.e. third party-manufactured)
hardware and software products it sells. Accordingly, the Company cannot
be certain at this time, and does not warrant to its customers, that the
brand name computer hardware and software it currently sells is Y2K
compliant. This includes the brand name software that is pre-loaded onto
the private label PCs the Company sells. While the Company believes that
the liability for any Y2K failure of any computer hardware or software
the Company sells rests with the manufacturer of such products or
components, and it understands that most of the major manufacturers have
"fixes" available for certain older products which have Y2K problems, it
is possible that purchasers from the Company may make claims against the
Company for alleged Y2K problems with respect to products sold by the
Company and there can be no assurance that the Company would be
successful in having any such liability be borne by its vendors.
FINANCIAL RAMIFICATION
The Company preliminarily estimates that the costs of achieving Y2K
compliance, including costs of personnel devoting significant effort on
Y2K matters, will be approximately $500,000. The costs associated with
any new computers or computer programs which are year 2000 compliant
have been and will be capitalized and amortized over the computer's
and/or software's expected useful life. Any system modification or
maintenance costs necessary to make the Company's existing computer
programs Y2K compliant have been and will be expensed as incurred. The
expenses incurred to-date to achieve year 2000 compliance have not had a
material impact on the Company's results of operations or financial
condition. Based on the Company's current status of internal Y2K
compliance review and other preliminary information, the Company does
not anticipate that expenses yet to be incurred to achieve year 2000
compliance will have a material impact on the Company's results of
operations or financial condition or that its business will be adversely
affected by the Y2K issue in any material respect.
Nevertheless, achieving Y2K compliance is dependent on multiple factors,
many of which are not within the Company's sole control. Should one or
more of the internal systems of the Company or the Company's key vendors
exhibit significant Y2K problems or if any of the products which the
Company sells which are stil under warranty are Y2K deficient, the
Company's business and its results of operations could be materially
adversely affected.
The Company may see an increase in warranty claims related to the Y2K
issue. The Company's standard limited warranty period for the PC systems
it assembles ranges from one to five years from the date of first
purchase, depending upon the system purchased and the particular
component part warranted. The Company does not make any separate
warranty on brand name products it sells, instead passing on the
manufacturer's warranty. The Company can not at this time assess the
level of Y2K-related warranty claims it may receive regarding its
products. A significant level of warranty claims relating to the Y2K
issue could have a materially adverse impact on the Company's future
results.
RISKS
Until it has completed its Y2K assessment, and attempted to fix any
problems which such assessment may disclose, the Company can not be in a
position to determine what would be its most reasonably likely worst
case Y2K scenario or any plan for handling such scenario. The Company
has not devised any back-up plans should it suffer any internal Y2K
problems or should any of its vendors' Y2K problems affect the Company.
After completion of its Y2K assessment, including a review of queries
sent to such vendors, the Company will assess the need for any
contingency plans.
The failure to correct a material Y2K problem could result in an
interruption of, or inability to perform in a timely fashion, a
necessary business activity or operation. Such failures could materially
adversely affect the Company's results of operations, liquidity and/or
financial condition. Because of the general uncertainty which companies
generally face regarding the Year 2000 issue, in part due to actions of
third- parties which could affect a company's compliance, it is not
possible to determine at this time whether any actual failures will have
a material adverse impact on the Company.
The foregoing discussion contains forward-looking statements which
should be read in conjunction with the discussion entitled FORWARD
LOOKING STATEMENTS set forth below.
IMPLICATIONS TO THE COMPANY FROM THE ADOPTION OF A EUROPEAN COMMON
CURRENCY
The Company has extensive operations in certain European countries,
including France, Germany, Italy, the Netherlands, Spain, Sweden and
United Kingdom. It also sells to additional countries in Europe. For the
most recently completed fiscal year, approximately 24% of the Company's
net sales were in Europe. With the exception of Sweden and the United
Kingdom, all of the countries in which the Company has operations have
confirmed their participation in a new 11-country European common
currency, the Euro. The adoption of such common currency will be phased
in over a three-year period starting in January 1999. During such
phase-in period, both the Euro and the historical currency of a country
will be valid, although new Euro-denominated currency will not be issued
until 2002. Each member-country will decide when its legacy currency
will cease to be legal tender, which will occur during the period
January 1 through June 30, 2002. Until the introduction of
Euro-denominated currency, the paying party will have the option to
decide whether to pay in the legacy currency or in Euros converted to
the legacy currency.
Among other possible economic implications, it is expected that the
adoption of a common currency will lead to greater price transparency
and thereby increased competition within the common currency zone. For
instance, with a single currency applicable to the entire region,
consumers may be able to more easily discern differences in price for
the Company's products between different countries and modify their
buying practices accordingly. This may require adjustments in the
Company's marketing and pricing strategies. The Company will still use
national catalogs, in the appropriate language, after the introduction
of the Euro. Whether any such price differentials will lead to
significant changes in purchasing practices by the Company's customers
depends on other factors as well, such as convenience, language-related
matters and other factors which may determine where a consumer will
purchase products. The Company is not able at this time to gauge whether
the likelihood of increased competition arising from the introduction of
the Euro would have any significant long-term adverse impact on the
pricing for the Company's products.
The adoption of a common currency may require a significant modification
to the Company's accounting systems. Among other things, it will be
necessary to operate in each country with dual currencies until the
three year phase-in-period has passed. Management believes, however,
that any necessary changes can be rapidly and inexpensively implemented
using "off-the-shelf" systems if the Company's internal systems are not
sufficient.
The Company does not believe that the adoption of a common currency will
give any parties to material contracts with the Company the right to
terminate or modify such contracts on the grounds of "frustration,"
"impossibility" or "impracticability."
Other risks associated with such currency conversion include possible
currency exchange and tax risks, neither of which the Company believes
will have a significant affect.
While the Company does not at this time anticipate that the adoption of
the Euro and any resulting changes in European economic and market
conditions will have any material adverse impact on the Company or its
European business, its analysis of this issue has only commenced
recently and the Company has not yet fully evaluated the implications of
the Euro's adoption. The Company has not adopted, nor is it at this time
contemplating the adoption of, any contingency plans regarding this
issue.
The foregoing discussion contains forward-looking statements which
should be read in conjunction with the discussion entitled FORWARD
LOOKING STATEMENTS set forth below.
FORWARD LOOKING STATEMENTS
This report contains forward looking statements within the meaning of
that term in the Private Securities Litigation Reform Act of 1995
(Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934). Additional written or oral forward
looking statements may be made by the Company from time to time, in
filings with the Securities Exchange Commission or otherwise. Statements
contained herein that are not historical facts are forward looking
statements made pursuant to the safe harbor provisions referenced above.
Forward looking statements may include, but are not limited to,
projections of revenue, income or loss and capital expenditures,
statements regarding future operations, financing needs, compliance with
financial covenants in loan agreements, plans for acquisition or sale of
assets or businesses and consolidation of operations of newly acquired
businesses, and plans relating to products or services of the Company,
assessments of materiality, predictions of future events and the effects
of pending and possible litigation, as well as assumptions relating to
the foregoing. In addition, when used in this discussion, the words
"anticipates", "believes", "estimates", "expects", "intends", "plans"
and variations thereof and similar expressions are intended to identify
forward looking statements.
Forward looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified based on
current expectations. Consequently, future events and actual results
could differ materially from those set forth in, contemplated by, or
underlying the forward looking statements contained in this report.
Statements in this report, particularly in "Item 2. Management's
Discussion and Analysis of Financial Condition and Results of
Operations", and the Notes to Consolidated Financial Statements describe
certain factors, among others, that could contribute to or cause such
differences. Other factors that could contribute to or cause such
differences include, but are not limited to, unanticipated developments
in any one or more of the following areas: (i) the Company's ability to
manage rapid growth as a result of internal expansion and strategic
acquisitions, (ii) the effect on the Company of volatility in the price
of paper and periodic increases in postage rates, (iii) the operation of
the Company's management information systems including the costs and
effects associated with the year 2000 date change problem, (iv) the
general risks attendant to the conduct of business in foreign countries,
including currency fluctuations associated with sales not denominated in
United States dollars and the adoption of the Euro, (v) significant
changes in the computer products retail industry, especially relating to
the distribution and sale of such products, (vi) competition in the PC,
notebook computer, computer related products, office products and
industrial products markets from superstores, direct response (mail
order) distributors, mass merchants, value added resellers, the Internet
and other retailers, (vii) the potential for expanded imposition of
state sales taxes, use taxes, or other taxes on direct marketing
companies, (viii) the continuation of key vendor relationships including
the ability to continue to receive vendor supported advertising, (ix)
timely availability of existing and new products, (x) risks due to
shifts in market demand and/or price erosion of owned inventory, (xi)
borrowing costs, (xii) changes in taxes due to changes in the mix of
U.S. and non-U.S. revenue, (xiii) pending or threatened litigation and
investigations and (xiv) the availability of key personnel, as well as
other risk factors which may be detailed from time to time in the
Company's Securities and Exchange Commission filings.
Readers are cautioned not to place undue reliance on any forward looking
statements contained herein, which speak only as of the date hereof. The
Company undertakes no obligation to publicly release the result of any
revisions to these forward looking statements that may be made to
reflect events or circumstances after the date hereof or to reflect the
occurrence of unexpected events.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK.
The Company is exposed to market risks, which include changes in U.S.
and international interest rates as well as changes in currency exchange
rates as measured against the U.S. dollar and each other. Global
attempts to reduce these risks by utilizing certain derivative financial
instruments.
The value of the U.S. dollar affects the Company's financial results.
Changes in exchange rates may positively or negatively affect Global's
sales (as expressed in U.S. dollars), gross margins, operating expenses
and retained earnings. The Company engages in hedging programs aimed at
limiting in part the impact of certain currency fluctuations. Using
primarily forward exchange and foreign currency option contracts,
Global, from time to time, hedges certain of its assets that, when
remeasured according to generally accepted accounting principles, may
impact the Statement of Consolidated Income. These hedging activities
provide only limited protection against currency exchange risks. Factors
that could impact the effectiveness of the Company's hedging programs
include accuracy of sales forecasts, volatility of the currency markets,
availability of hedging instruments and the credit-worthiness of the
parties which have entered into such contracts with the Company. All
currency contracts that are entered into by Global are for the sole
purpose of hedging currency exposures, not for speculative or trading
purposes. In spite of Global's hedging efforts to reduce the effect of
changes in exchange rates against the U.S. dollar, the Company's sales
or costs could still be adversely affected by changes in those exchange
rates.
As of September 30, 1998, the Company did not have any material forward
exchange or option contracts outstanding.
PART II - OTHER INFORMATION
ITEM 5. OTHER INFORMATION.
On October 20, 1998 the Board of Directors authorized the Company to
purchase an additional 2,000,000 common shares of Company stock under
the Company's stock buyback plan, bringing the total number of shares
authorized for purchase under the plan to 4,350,000 common shares. The
Company has been periodically purchasing its shares in the open market.
As of November 12, 1998 a total of 2,103,900 shares have been purchased.
ITEM 6. EXHIBITS.
(a) Exhibits.
3.1 Certificate of Incorporation. (Incorporated herein by reference
to Exhibit 3.1 to the Company's Registration Statement on Form
S-1, File No. 33-92052).
3.2 By-Laws. (Incorporated herein by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, File No.
33-92052).
4.1 Stockholders Agreement. (Incorporated herein by reference to the
Company's quarterly report on Form 10-Q for the quarterly period
ended June 30, 1995).
4.2 Specimen Stock Certificate. (Incorporated herein by reference to
Exhibit 4.2 to the Company's Registration Statement on Form S-1,
File No. 33-92052).
10.1 Lease Agreement dated September 17, 1998 between Tiger Direct,
Inc. and Keystone-Miami Property Holding Corp (New Miami
facility).
27 Financial Data Schedule.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed by the Company during the
three months ended September 30, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GLOBAL DIRECTMAIL CORP
Date: November 12, 1998 By: /S/ RICHARD LEEDS
--------------------------------------
Richard Leeds
Chairman and Chief Executive Officer
By: /S/ STEVEN GOLDSCHEIN
--------------------------------------
Steven Goldschein
Senior Vice President and
Chief Financial Officer
Space 35, 7797 West Flagler Building, and
Space 33C
KBSFB: 18002112
12/1/92 SOG(BY) OFF
REVISED 1/30/95
LEASE
KEYSTONE-MIAMI PROPERTY HOLDING CORP.
Landlord
TIGER DIRECT, INC., a Delaware corporation
Tenant
<PAGE>
TABLE OF CONTENTS
Article
Page
1. USE AND RESTRICTIONS ON USE...............................................1
2. TERM......................................................................1
3. RENT......................................................................2
4. RENT ADJUSTMENTS..........................................................2
5. SECURITY DEPOSIT..........................................................4
6. ALTERATIONS...............................................................4
7. REPAIR....................................................................5
8. LIENS.....................................................................5
9. ASSIGNMENT AND SUBLETTING.................................................6
10. INDEMNIFICATION...........................................................7
11. INSURANCE.................................................................8
12. WAIVER OF SUBROGATION.....................................................8
13. SERVICES AND UTILITIES....................................................8
14. HOLDING OVER..............................................................9
15. SUBORDINATION.............................................................9
16. RULES AND REGULATIONS....................................................10
17. REENTRY BY LANDLORD......................................................10
18. DEFAULT..................................................................10
19. REMEDIES.................................................................11
20. TENANT'S BANKRUPTCY OR INSOLVENCY........................................13
21. QUIET ENJOYMENT..........................................................14
22. DAMAGE BY FIRE, ETC......................................................15
23. EMINENT DOMAIN...........................................................15
24. SALE BY LANDLORD.........................................................15
25. ESTOPPEL CERTIFICATES....................................................16
26. SURRENDER OF PREMISES....................................................16
27. NOTICES..................................................................16
28. TAXES PAYABLE BY TENANT..................................................17
29. RELOCATION OF TENANT.....................................................17
30. DEFINED TERMS AND HEADINGS...............................................17
31. TENANT'S AUTHORITY.......................................................18
32. COMMISSIONS..............................................................18
33. TIME AND APPLICABLE LAW..................................................18
34. SUCCESSORS AND ASSIGNS...................................................18
35. ENTIRE AGREEMENT.........................................................18
36. EXAMINATION NOT OPTION...................................................18
37. RECORDATION..............................................................19
38. LIMITATION OF LANDLORD'S LIABILITY.......................................19
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - EXCLUSIVES AND RESTRICTIONS
RIDER
<PAGE>
GROSS (BY) OFFICE LEASE
REFERENCE PAGE
BUILDING: 7797 WEST FLAGLER BUILDING
7797 WEST FLAGLER STREET, MIAMI, FLORIDA
33144 (INCLUDING ALL LAND AND
IMPROVEMENTS APPURTENANT THERETO)
LANDLORD: KEYSTONE-MIAMI PROPERTY
HOLDING CORP., A FLORIDA CORPORATION
LANDLORD'S ADDRESS: FOR PAYMENT OF RENT:
MALL OF THE AMERICAS
P.O. BOX 75847
CHICAGO, ILLINOIS 60675
FOR NOTICES:
7827-B WEST FLAGLER STREET
MIAMI, FLORIDA 33144
ATTENTION: AL DIAZ
WITH A COPY TO:
RREEF MANAGEMENT COMPANY
875 N. MICHIGAN AVENUE, SUITE 4114
CHICAGO, ILLINOIS 50511
REGIONAL SHOPPING CENTER DIVISION
LEASE REFERENCE DATE: SEPTEMBER 17, 1998
TENANT: TIGER DIRECT, INC., A DELAWARE
CORPORATION
GUARANTOR: GLOBAL DIRECTMAIL CORP, A DELAWARE
CORPORATION
TENANT'S ADDRESS:
(A) AS OF BEGINNING OF TERM: 7797 WEST FLAGLER STREET, 2ND FLOOR,
MIAMI, FLORIDA 33144
ATTENTION: GILBERT FIORENTINO
(B) PRIOR TO BEGINNING OF TERM: 8700 WEST FLAGLER STREET, 4TH FLOOR,
MIAMI, FLORIDA 33174
ATTENTION: GILBERT FIORENTINO
PREMISES IDENTIFICATION: SUITE NUMBER 35 AND 33C
(FOR OUTLINE OF PREMISES SEE EXHIBIT A)
PREMISES RENTABLE AREA: APPROXIMATELY 63,882 SQ. FT. ON THE
SECOND FLOOR OF THE BUILDING, AS TO
SUITE 35; AND APPROXIMATELY 3,000 SQ.
FT. ON THE GROUND LEVEL AS TO SUITE 33C
[SUBJECT TO ADJUSTMENT IN ACCORDANCE
WITH SECTION 30 HEREOF AFTER COMPLETION
OF LANDLORD'S WORK.]
PREMISES SHALL ALSO INCLUDE (I) ALL OF
THE GROUND FLOOR LOBBY OF THE BUILDING
CONTAINING APPROXIMATELY 2,000
ADDITIONAL SQUARE FEET OF RENTABLE AREA
("LOBBY"), PLUS (II) APPROXIMATELY 2,000
SQUARE FEET OF ADDITIONAL, NON-
AIRCONDITIONED, STORAGE AREA ("STORAGE
AREA"). LOBBY SHALL BE USED EXCLUSIVELY
BY TENANT AS A TYPICAL HIGH QUALITY
OFFICE BUILDING LOBBY ONLY AND FOR NO
OTHER PURPOSE OR USE; AND STORAGE AREA
SHALL BE USED EXCLUSIVELY FOR STORAGE OF
TENANT'S MATERIALS AND FOR NO OTHER
PURPOSE OR USE.
(FOR OUTLINE OF LOBBY AND STORAGE AREA
SEE EXHIBIT A OR ATTACHMENT(S) THERETO)
(COLLECTIVELY, THE PREMISES, CONSISTING
OF THE SECOND FLOOR OF THE BUILDING, THE
LOBBY, SUITE 33C, AND THE STORAGE AREA
CONTAINING APPROXIMATELY 70,882 SQUARE
FEET, SUBJECT TO THE TERMS AND
PROVISIONS HEREOF)
<PAGE>
[REFERENCE PAGE CONTINUES ON FOLLOWING PAGE; FOR ALL PURPOSES REFERENCES HEREIN
TO THE "REFERENCE PAGE" SHALL BE DEEMED TO MEAN THIS AND THE FOLLOWING PAGE,
COLLECTIVELY
SCHEDULED COMMENCEMENT DATE: AUGUST 1, 1999
TERMINATION DATE: 11:59 P.M. ON THE LAST DAY OF THE
CONCLUSION OF A PERIOD OF TEN (10) YEARS
AND SIX (6) MONTHS AFTER THE
COMMENCEMENT DATE
TERM OF LEASE: 10 YEARS, 6 MONTHS AND 0 DAYS, BEGINNING
ON THE COM MENCEMENT DATE AND ENDING ON
THE TERMINATION DATE (UNLESS SOONER
TERMINATED PURSUANT TO THE LEASE)
INITIAL ANNUAL RENT (ARTICLE 3): $401,292.00 PER YEAR, $33,441.00 PER
MONTH, RESPECTING PREMISES (EXCLUDING
LOBBY AND STORAGE AREA).
PAYABLE IN RESPECT OF EACH OF THE FIRST
SIX (6) CONSECUTIVE MONTHS DURING THE
INITIAL TERM; AND THEREAFTER INCREASING
AS SET FORTH IN THE RIDER TO THIS LEASE.
[ALL OF THE ABOVE TOGETHER WITH ALL
SALES TAXES THEREON] PLUS:
$10,000.00 PER YEAR, $833.33 PER MONTH,
RESPECTING STORAGE AREA, PAYABLE IN
RESPECT OF EACH OF THE FIRST FIVE
CONSECUTIVE 12-MONTH PERIODS DURING THE
TERM, THEREAFTER INCREASING AS SET FORTH
IN THE RIDER TO THIS LEASE. [ALL OF THE
ABOVE TOGETHER WITH ALL SALES TAXES
THEREON].
NO ANNUAL RENT IS DEEMED ATTRIBUTABLE TO
THE LOBBY.
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (ARTICLE 3): [SEE ABOVE]
BASE YEAR (DIRECT EXPENSES): 2000
BASE YEAR (TAXES): TAXES FOR 2000
TENANT'S PROPORTIONATE SHARE: 100% (AS TO DIRECT EXPENSES); AND 10.3%
AS TO TAXES
SECURITY DEPOSIT: NONE
ASSIGNMENT/SUBLETTING FEE: $0 (NONE)
REAL ESTATE BROKER DUE COMMISSION: ABOOD & ASSOCIATES, INC., C/O CAROL
ELLIS-CUTLER LARKIN SCHMIDT WEIDENBAUM
COMMERCIAL REAL ESTATE
THE REFERENCE PAGE INFORMATION IS INCORPORATED INTO AND MADE A PART OF THE
LEASE. IN THE EVENT OF ANY CONFLICT BETWEEN ANY REFERENCE PAGE INFORMATION AND
THE LEASE, THE LEASE SHALL CONTROL. THIS LEASE INCLUDES EXHIBITS A THROUGH D,
AND RIDER, AND GUARANTY, ALL OF WHICH ARE ATTACHED AND INCORPORATED HEREIN AND
MADE A PART OF THIS LEASE.
LANDLORD: TENANT:
KEYSTONE-MIAMI PROPERTY HOLDING CORP.,
A FLORIDA CORPORATION
BY: RREEF MANAGEMENT COMPANY, TIGER DIRECT, INC.,
A DELAWARE CORPORATION A DELAWARE CORPORATION
BY: /S/ AL DIAZ BY: /S/ GILBERT FIORENTINO
AL DIAZ, VICE PRESIDENT TITLE: PRESIDENT GILBERT FIORENTINO
DATED: 9/17/98 DATED: 9/13/98
BY: /S/ LEE LETCHFORD
LEE LETCHFORD, SENIOR VP
DATED: 9/18/98
<PAGE>
L E A S E
BY THIS LEASE LANDLORD LEASES TO TENANT AND TENANT LEASES FROM LANDLORD THE
PREMISES IN THE BUILDING AS SET FORTH AND DESCRIBED ON THE REFERENCE PAGE. THE
REFERENCE PAGE, INCLUDING ALL TERMS DEFINED THEREON, IS INCORPORATED AS PART OF
THIS LEASE.
1. USE AND RESTRICTIONS ON USE.
1.1 SUITE 35 IS TO BE USED SOLELY FOR GENERAL OFFICE AND DISPLAY AND
TRAINING PURPOSES BUT ALSO INCLUDING THE OPERATION OF A SO-CALLED "CALL CENTER",
INVOLVING INSTALLED, DENSELY PACKED "CUBICLES" WITH PERSONNEL OPERATING
TELEPHONES AND COMPUTER EQUIPMENT, IN THE ORDINARY COURSE OF TENANT'S CATALOGUE
SALES OPERATIONS, PROVIDED THE LOBBY SHALL BE USED EXCLUSIVELY BY TENANT AS A
TYPICAL HIGH QUALITY OFFICE BUILDING LOBBY AND FOR NO OTHER PURPOSE OR USE; AND
STORAGE AREA SHALL BE USED EXCLUSIVELY FOR STORAGE OF TENANT'S MATERIALS AND FOR
NO OTHER USE. SUITE 33C IS TO BE USED SOLELY FOR THE OPERATION OF A RETAIL
CATALOGUE DISPLAY SHOWROOM, RESPECTING THE SALE AT RETAIL OF COMPUTERS AND
COMPUTER-RELATED ACCESSORIES AND PERIPHERALS AS TYPICALLY OFFERED FOR SALE IN
TENANT'S RETAIL SALES CATALOGUE AS OF THE DATE OF THIS LEASE AND AS SUCH
CATALOGUE MAY CHANGE CHAIN-WIDE FROM TIME TO TIME SO LONG AS ANY SUCH CHANGE
SHALL RESULT IN THE CATALOGUE PRIMARILY DEPICTING OR OFFERING FOR SALE COMPUTERS
AND COMPUTER-RELATED ACCESSORIES AND PERIPHERALS AND PROVIDED NO SUCH CHANGE
SHALL VIOLATE ANY THEN EXISTING EXCLUSIVES OR RESTRICTIVE COVENANTS GRANTED BY
LANDLORD TO OTHER TENANTS OR OCCUPANTS OF THE SHOPPING CENTER WITHIN WHICH IS
SITUATE THE BUILDING. TENANT SHALL NOT DO OR PERMIT ANYTHING TO BE DONE IN OR
ABOUT THE PREMISES WHICH WILL IN ANY WAY OBSTRUCT OR INTERFERE WITH THE RIGHTS
OF OTHER TENANTS OR OCCUPANTS OF THE BUILDING OR INJURE, ANNOY, OR DISTURB THEM
OR ALLOW THE PREMISES TO BE USED FOR ANY IMPROPER, IMMORAL, UNLAWFUL, OR
OBJECTIONABLE PURPOSE. TENANT SHALL NOT DO, PERMIT OR SUFFER IN, ON, OR ABOUT
THE PREMISES THE SALE OF ANY ALCOHOLIC LIQUOR WITHOUT THE WRITTEN CONSENT OF
LANDLORD FIRST OBTAINED, OR THE COMMISSION OF ANY WASTE. TENANT SHALL COMPLY
WITH ALL GOVERNMENTAL LAWS, ORDINANCES AND REGULATIONS APPLICABLE TO THE USE OF
THE PREMISES AND ITS OCCUPANCY AND SHALL PROMPTLY COMPLY WITH ALL GOVERNMENTAL
ORDERS AND DIRECTIONS FOR THE CORRECTION, PREVENTION AND ABATEMENT OF ANY
VIOLATIONS IN OR UPON, OR IN CONNECTION WITH, THE PREMISES, ALL AT TENANT'S SOLE
EXPENSE. TENANT SHALL NOT DO OR PERMIT ANYTHING TO BE DONE ON OR ABOUT THE
PREMISES OR BRING OR KEEP ANYTHING INTO THE PREMISES WHICH WILL IN ANY WAY
INCREASE THE RATE OF, INVALIDATE OR PREVENT THE PROCURING OF ANY INSURANCE
PROTECTING AGAINST LOSS OR DAMAGE TO THE BUILDING OR ANY OF ITS CONTENTS BY FIRE
OR OTHER CASUALTY OR AGAINST LIABILITY FOR DAMAGE TO PROPERTY OR INJURY TO
PERSONS IN OR ABOUT THE BUILDING OR ANY PART THEREOF.
1.2 TENANT SHALL NOT, AND SHALL NOT DIRECT, SUFFER OR PERMIT ANY OF ITS
AGENTS, CONTRACTORS, EMPLOYEES, LICENSEES OR INVITEES TO AT ANY TIME HANDLE,
USE, MANUFACTURE, STORE OR DISPOSE OF IN OR ABOUT THE PREMISES OR THE BUILDING
ANY (COLLECTIVELY "HAZARDOUS MATERIALS") FLAMMABLES, EXPLOSIVES, RADIOACTIVE
MATERIALS, HAZARDOUS WASTES OR MATERIALS, TOXIC WASTES OR MATERIALS, OR OTHER
SIMILAR SUBSTANCES, PETROLEUM PRODUCTS OR DERIVATIVES OR ANY SUBSTANCE SUBJECT
TO REGULATION BY OR UNDER ANY FEDERAL, STATE AND LOCAL LAWS AND ORDINANCES
RELATING TO THE PROTECTION OF THE ENVIRONMENT OR THE KEEPING, USE OR DISPOSITION
OF ENVIRONMENTALLY HAZARDOUS MATERIALS, SUBSTANCES, OR WASTES, PRESENTLY IN
EFFECT OR HEREAFTER ADOPTED, ALL AMENDMENTS TO ANY OF THEM, AND ALL RULES AND
REGULATIONS ISSUED PURSUANT TO ANY OF SUCH LAWS OR ORDINANCES (COLLECTIVELY
"ENVIRONMENTAL LAWS"), NOR SHALL TENANT SUFFER OR PERMIT ANY HAZARDOUS MATERIALS
TO BE USED IN ANY MANNER NOT FULLY IN COMPLIANCE WITH ALL ENVIRONMENTAL LAWS, IN
THE PREMISES OR THE BUILDING AND APPURTENANT LAND OR ALLOW THE ENVIRONMENT TO
BECOME CONTAMINATED WITH ANY HAZARDOUS MATERIALS. NOTWITHSTANDING THE FOREGOING,
AND SUBJECT TO LANDLORD'S PRIOR CONSENT, TENANT MAY HANDLE, STORE, USE OR
DISPOSE OF PRODUCTS CONTAINING SMALL QUANTITIES OF HAZARDOUS MATERIALS (SUCH AS
AEROSOL CANS CONTAINING INSECTICIDES, TONER FOR COPIERS, PAINTS, PAINT REMOVER
AND THE LIKE) TO THE EXTENT CUSTOMARY AND NECESSARY FOR THE USE OF THE PREMISES
FOR GENERAL OFFICE PURPOSES; AND FURTHERMORE TENANT MAY HANDLE, STORE, USE OR
PROPERLY DISPOSE OF "DARKROOM CHEMICALS" (THAT IS, CHEMICALS ORDINARILY USED IN
THE PROCESSING OF PHOTOGRAPHS AND RELATED "DARKROOM" PROCESSING ACTIVITIES
RELATING TO TENANT'S BUSINESS OPERATIONS IN THE PREMISES); PROVIDED IN EITHER
CASE THAT TENANT SHALL ALWAYS HANDLE, STORE, USE, AND DISPOSE OF ANY SUCH SMALL
QUANTITIES OF DARKROOM CHEMICALS IN A SAFE AND LAWFUL MANNER AND NEVER ALLOW
SAME TO CONTAMINATE THE PREMISES, BUILDING AND APPURTENANT LAND OR THE
ENVIRONMENT. TENANT SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD EACH AND ALL OF
THE LANDLORD ENTITIES (AS DEFINED IN ARTICLE 30) HARMLESS FROM AND AGAINST ANY
AND ALL LOSS, CLAIMS, LIABILITY OR COSTS (INCLUDING COURT COSTS AND ATTORNEY'S
FEES) INCURRED BY REASON OF ANY ACTUAL OR ASSERTED FAILURE OF TENANT TO FULLY
COMPLY WITH ALL APPLICABLE ENVIRONMENTAL LAWS, OR THE PRESENCE, HANDLING, USE OR
DISPOSITION IN OR FROM THE PREMISES OF ANY HAZARDOUS MATERIALS (EVEN THOUGH
PERMISSIBLE UNDER ALL APPLICABLE ENVIRONMENTAL LAWS OR THE PROVISIONS OF THIS
LEASE), OR BY REASON OF ANY ACTUAL OR ASSERTED FAILURE OF TENANT TO KEEP,
OBSERVE, OR PERFORM ANY PROVISION OF THIS SECTION 1.2.
2. TERM.
2.1 THE TERM OF THIS LEASE SHALL BEGIN ON THE DATE ("COMMENCEMENT DATE")
WHICH SHALL BE THE LATER OF THE SCHEDULED COMMENCEMENT DATE AS SHOWN ON THE
REFERENCE PAGE AND THE DATE THAT LANDLORD SHALL TENDER POSSESSION OF THE
PREMISES TO TENANT. LANDLORD SHALL TENDER POSSESSION OF THE PREMISES WITH ALL
THE WORK, IF ANY, TO BE PERFORMED BY LANDLORD PURSUANT TO EXHIBIT B TO THIS
LEASE ("LANDLORD'S WORK") SUBSTANTIALLY COMPLETED. TENANT SHALL DELIVER A PUNCH
LIST OF ITEMS NOT COMPLETED WITHIN 30 DAYS AFTER LANDLORD TENDERS POSSESSION OF
THE PREMISES AND LANDLORD AGREES TO PROCEED WITH DUE DILIGENCE TO PERFORM ITS
OBLIGATIONS REGARDING SUCH ITEMS. LANDLORD AND TENANT SHALL EXECUTE A MEMORANDUM
SETTING FORTH THE ACTUAL COMMENCEMENT DATE AND TERMINATION DATE.
2.2 TENANT AGREES THAT IN THE EVENT OF THE INABILITY OF LANDLORD TO DELIVER
POSSESSION OF THE PREMISES ON THE SCHEDULED COMMENCEMENT DATE, LANDLORD SHALL
NOT BE LIABLE FOR ANY DAMAGE RESULTING FROM SUCH INABILITY, BUT TENANT SHALL NOT
BE LIABLE FOR ANY RENT UNTIL THE TIME WHEN LANDLORD CAN, AFTER NOTICE TO TENANT,
DELIVER POSSESSION OF THE PREMISES TO TENANT. NO SUCH FAILURE TO GIVE POSSESSION
ON THE SCHEDULED COMMENCEMENT DATE SHALL AFFECT THE OTHER OBLIGATIONS OF TENANT
UNDER THIS LEASE, EXCEPT THAT IF LANDLORD IS UNABLE TO DELIVER POSSESSION OF THE
PREMISES WITHIN SIX (6) MONTHS AFTER THE DATE ALL PERMITS REQUIRED FOR THE
PROSECUTION OF LANDLORD'S WORK TO COMPLETION HAVE BEEN OBTAINED (OTHER THAN AS A
RESULT OF STRIKES, SHORTAGES OF MATERIALS OR SIMILAR MATTERS BEYOND THE
REASONABLE CONTROL OF LANDLORD AND TENANT IS NOTIFIED BY LANDLORD IN WRITING AS
TO SUCH DELAY), TENANT SHALL HAVE THE OPTION TO TERMINATE THIS LEASE UNLESS SAID
DELAY IS AS A RESULT OF: (A) TENANT'S FAILURE TO AGREE TO PLANS AND
SPECIFICATIONS; (B) TENANT'S REQUEST FOR MATERIALS, FINISHES OR INSTALLATIONS
OTHER THAN LANDLORD'S STANDARD EXCEPT THOSE, IF ANY, THAT LANDLORD SHALL HAVE
EXPRESSLY AGREED TO FURNISH WITHOUT EXTENSION OF TIME AGREED BY LANDLORD; (C)
TENANT'S MATERIAL CHANGE IN ANY PLANS OR SPECIFICATIONS; (D) PERFORMANCE OR
COMPLETION BY A PARTY EMPLOYED BY TENANT; OR, (E) TENANT'S BREACH OR VIOLATION
OF THE LEASE, OR TENANT'S FAILURE TO TIMELY AND PROPERLY RESPOND TO LANDLORD,
PROVIDE INFORMATION, DRAWINGS OR OTHER SKETCHES, GIVE APPROVALS, OR OTHERWISE
MAKE DETERMINATIONS AND SELECTIONS. IF ANY DELAY IS THE RESULT OF ANY OF THE
FOREGOING, THE COMMENCEMENT DATE AND THE PAYMENT OF RENT UNDER THIS LEASE SHALL
BE ACCELERATED BY THE NUMBER OF DAYS OF SUCH DELAY. LANDLORD SHALL DILIGENTLY
PURSUE ALL SUCH PERMITS REQUIRED TO PERFORM LANDLORD'S WORK.
2.3 IN THE EVENT LANDLORD SHALL PERMIT TENANT TO OCCUPY THE PREMISES PRIOR
TO THE COMMENCEMENT DATE, SUCH OCCUPANCY SHALL BE SUBJECT TO ALL THE PROVISIONS
OF THIS LEASE. SAID EARLY POSSESSION SHALL NOT ADVANCE THE TERMINATION DATE.
2.4 SEE RIDER PROVISION R-1 RESPECTING THE POSSIBILITY OF A "DELAY RENT
CREDIT" AS THEREIN DEFINED.
3. RENT.
3.1 TENANT AGREES TO PAY TO LANDLORD THE ANNUAL RENT IN EFFECT FROM TIME TO
TIME BY PAYING THE MONTHLY INSTALLMENT OF RENT THEN IN EFFECT ON OR BEFORE THE
FIRST DAY OF EACH FULL CALENDAR MONTH DURING THE TERM, EXCEPT THAT THE FIRST
MONTH'S RENT SHALL BE PAID UPON THE EXECUTION OF THIS LEASE, AND EXCEPT THAT THE
TERM SHALL BE DEEMED TO COMMENCE, FOR PURPOSES OF TENANT'S OBLIGATION TO PAY ALL
ITEMS OF RENT HEREUNDER, ON THE EARLIER TO OCCUR OF THE COMMENCEMENT DATE OR THE
DATE THAT LANDLORD WOULD HAVE TENDERED POSSESSION OF THE PREMISES TO TENANT BUT
FOR PRE-CONSTRUCTION DELAYS PRIMARILY CAUSED BY TENANT. THE MONTHLY INSTALLMENT
OF RENT IN EFFECT AT ANY TIME SHALL BE ONE-TWELFTH OF THE ANNUAL RENT IN EFFECT
AT SUCH TIME. RENT FOR ANY PERIOD DURING THE TERM WHICH IS LESS THAN A FULL
MONTH SHALL BE A PRORATED PORTION OF THE MONTHLY INSTALLMENT OF RENT BASED UPON
A THIRTY (30) DAY MONTH. SAID RENT SHALL BE PAID TO LANDLORD, WITHOUT DEDUCTION
OR OFFSET AND WITHOUT NOTICE OR DEMAND, AT THE LANDLORD'S ADDRESS, AS SET FORTH
ON THE REFERENCE PAGE, OR TO SUCH OTHER PERSON OR AT SUCH OTHER PLACE AS
LANDLORD MAY FROM TIME TO TIME DESIGNATE IN WRITING.
3.2 TENANT RECOGNIZES THAT LATE PAYMENT OF ANY RENT OR OTHER SUM DUE UNDER
THIS LEASE WILL RESULT IN ADMINISTRATIVE EXPENSE TO LANDLORD, THE EXTENT OF
WHICH ADDITIONAL EXPENSE IS EXTREMELY DIFFICULT AND ECONOMICALLY IMPRACTICAL TO
ASCERTAIN. TENANT THEREFORE AGREES THAT IF RENT OR ANY OTHER SUM IS NOT PAID
WITHIN TEN (10) DAYS OF THE DATE WHEN DUE AND PAYABLE PURSUANT TO THIS LEASE, A
LATE CHARGE SHALL BE IMPOSED IN AN AMOUNT EQUAL TO ONE HUNDRED ($100.00) DOLLARS
PER MONTH OR FRACTION THEREOF. THE AMOUNT OF THE LATE CHARGE TO BE PAID BY
TENANT SHALL BE REASSESSED AND ADDED TO TENANT'S OBLIGATION FOR EACH SUCCESSIVE
MONTHLY PERIOD UNTIL PAID. THE PROVISIONS OF THIS SECTION 3.2 IN NO WAY RELIEVE
TENANT OF THE OBLIGATION TO PAY RENT OR OTHER PAY MENTS ON OR BEFORE THE DATE ON
WHICH THEY ARE DUE, NOR DO THE TERMS OF THIS SECTION 3.2 IN ANY WAY AFFECT
LANDLORD'S REMEDIES PURSUANT TO ARTICLE 19 OF THIS LEASE IN THE EVENT SAID RENT
OR OTHER PAYMENT IS UNPAID AFTER DATE DUE.
4. RENT ADJUSTMENTS.
4.1 FOR THE PURPOSE OF THIS ARTICLE 4, THE FOLLOWING TERMS ARE DEFINED AS
FOLLOWS: (AND SEE RIDER)
4.1.1 LEASE YEAR: EACH CALENDAR YEAR FALLING PARTLY OR WHOLLY WITHIN THE
TERM.
4.1.2 DIRECT EXPENSES: ALL DIRECT COSTS OF OPERATION, MAINTENANCE, REPAIR
AND MANAGE MENT OF THE SECOND LEVEL ONLY OF THE BUILDING AS WELL AS SUITE 33C
(THAT IS, SUITES 35 AND 33C) AND THE ELEVATORS AND ESCALATORS EXCLUSIVELY
SERVICING ACCESS TO SUITE 35 (THE "RELEVANT PREMISES"), AS DETERMINED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND SIMILAR OFFICE
BUILDINGS IN MIAMI-DADE COUNTY, FLORIDA, INCLUDING THE FOLLOWING COSTS BY WAY OF
ILLUSTRATION, BUT NOT LIMITATION: WATER AND SEWER CHARGES TO COMMON AREAS [SEE
SECTION 13 HEREINBELOW RESPECTING TENANT'S PAYMENT FOR WATER AND SEWER CHARGES
DIRECTLY ATTRIBUTABLE TO TENANT'S USE IN ITS PREMISES]; INSURANCE CHARGES OF OR
RELATING TO ALL INSURANCE POLICIES AND ENDORSEMENTS DEEMED BY LANDLORD TO BE
REASONABLY NECESSARY OR DESIRABLE AND RELATING IN ANY MANNER TO THE PROTECTION,
PRESERVATION, OR OPERATION OF THE BUILDING OR ANY PART THEREOF; UTILITY COSTS
[SUBJECT TO SECTION 13], INCLUDING, BUT NOT LIMITED TO, THE COST OF HEAT, LIGHT,
POWER, STEAM, GAS, AND WASTE DISPOSAL [INCLUDING THE TRASH DUMPSTER REFERRED TO
IN PARAGRAPH 17 OF EXHIBIT C TO THIS LEASE]; THE COST OF SECURITY AND ALARM
SERVICES; WINDOW CLEANING COSTS; LABOR COSTS; COSTS AND EXPENSES OF MANAGING THE
BUILDING INCLUDING MANAGEMENT FEES; AIR CONDITIONING MAINTENANCE COSTS; ELEVATOR
MAINTENANCE FEES AND SUPPLIES; MATERIAL COSTS; EQUIPMENT COSTS INCLUDING THE
COST OF MAINTENAN CE, REPAIR AND SERVICE AGREEMENTS AND RENTAL AND LEASING
COSTS; PURCHASE COSTS OF EQUIPMENT OTHER THAN CAPITAL ITEMS; CURRENT RENTAL AND
LEASING COSTS OF ITEMS WHICH WOULD BE AMORTIZABLE CAPITAL ITEMS IF PURCHASED;
TOOL COSTS; LICENSES, PERMITS AND INSPECTION FEES; WAGES AND SALARIES; EMPLOYEE
BENEFITS AND PAYROLL TAXES; ACCOUNTING AND LEGAL FEES; ANY SALES, USE OR SERVICE
TAXES INCURRED IN CONNECTION THEREWITH; PARKING LOT MAINTENANCE AND OPERATION OF
THE VICINITY PARKING AREA (DESCRIBED IN THE RIDER). DIRECT EXPENSES SHALL NOT
INCLUDE DEPRECIATION OR AMORTIZATION OF THE BUILDING OR EQUIPMENT IN THE
RELEVANT PREMISES IN THE BUILDING EXCEPT AS PROVIDED HEREIN, LOAN PRINCIPAL
PAYMENTS, COSTS OF ALTERATIONS OF TENANTS' PREMISES, LEASING COMMISSIONS,
INTEREST EXPENSES ON LONG-TERM BORROWINGS, ADVERTISING COSTS OR MANAGEMENT
SALARIES FOR EXECUTIVE PERSONNEL OTHER THAN PERSONNEL LOCATED AT THE BUILDING,
TO THE EXTENT INCLUDED IN THE RELEVANT PREMISES' PORTION OF DIRECT EXPENSES. IN
ADDITION, LANDLORD SHALL BE ENTITLED TO AMORTIZE AND INCLUDE AS AN ADDITIONAL
RENTAL ADJUSTMENT: (I) AN ALLOCABLE PORTION OF THE COST OF CAPITAL IMPROVEMENT
ITEMS WHICH ARE REASONABLY CALCULATED TO REDUCE OPERATING EXPENSES; (II) FIRE
SPRINKLERS AND SUPPRESSION SYSTEMS AND OTHER LIFE SAFETY SYSTEMS; AND (III)
OTHER CAPITAL EXPENSES WHICH ARE REQUIRED UNDER ANY GOVERNMENTAL LAWS,
REGULATIONS OR ORDINANCES WHICH WERE NOT APPLICABLE TO THE BUILDING AT THE TIME
IT WAS CONSTRUCTED. ALL SUCH COSTS SHALL BE AMORTIZED OVER THE REASONABLE LIFE
OF SUCH IMPROVEMENTS IN ACCORDANCE WITH SUCH REASONABLE LIFE AND AMOR TIZATION
SCHEDULES AS SHALL BE DETERMINED BY LANDLORD IN ACCORDANCE WITH GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES. THE PARTIES ACKNOWLEDGE THAT SUITE 35 IS ON THE
UPPER LEVEL OF A RETAIL ENCLOSED SHOPPING CENTER MALL PRIMARILY OPERATING (AS TO
RETAIL IN-LINE TENANTS) ON THE GROUND LEVEL OF THE BUILDING OF WHICH SUITE 35 IS
STRUCTURALLY A PART; AND SUITE 33C IS LOCATED WITHIN THE OVERALL SHOPPING CENTER
PROPERTY ALTHOUGH WITHOUT A DIRECT ACCESS THROUGH A COMMON WALL INTO THE
ENCLOSED GROUND LEVEL SHOPPING MALL. BECAUSE OF THE FOREGOING, LANDLORD
MAINTAINS A "BIFURCATED" COMPUTATION OF DIRECT EXPENSES, SEPARATING OUT
COMPONENTS (OR FRACTIONS THEREOF) WHICH ARE APPORTIONED 100% ONLY TO THE
RELEVANT PREMISES, SUCH THAT TENANT'S PROPORTIONATE SHARE OF 100% AS IDENTIFIED
ON THE REFERENCE PAGE SHALL BE AND REMAIN ACCURATE AND IS DEEMED TO MEAN 100% OF
THE DIRECT EXPENSES SO APPORTIONED ONLY TO THE RELEVANT PREMISES. DIRECT
EXPENSES SHALL NOT INCLUDE ANY PORTION OF THE INITIAL CONSTRUCTION COSTS OF
SHOPPING CENTER IMPROVEMENTS, NOR SHALL DIRECT EXPENSES INCLUDE CAPITAL COSTS
WHICH RELATE TO OTHER PORTIONS OF THE SHOPPING CENTER (OTHER THAN THE BUILDING).
4.1.3 TAXES: REAL ESTATE TAXES AND ANY OTHER TAXES, CHARGES AND ASSESSMENTS
WHICH ARE LEVIED WITH RESPECT TO THE BUILDING OR THE LAND APPURTENANT TO THE
BUILDING, OR WITH RESPECT TO ANY IMPROVEMENTS, FIXTURES AND EQUIPMENT OR OTHER
PROPERTY OF LANDLORD, REAL OR PERSONAL, LOCATED IN THE BUILDING AND USED IN
CONNECTION WITH THE OPERATION OF THE BUILDING AND SAID LAND, ANY PAYMENTS TO ANY
GROUND LESSOR IN REIMBURSEMENT OF TAX PAYMENTS MADE BY SUCH LESSOR; AND ALL
FEES, EXPENSES AND COSTS INCURRED BY LANDLORD IN INVESTIGATING, PROTESTING,
CONTESTING OR IN ANY WAY SEEKING TO REDUCE OR AVOID INCREASE IN ANY ASSESSMENTS,
LEVIES OR THE TAX RATE PERTAINING TO ANY TAXES TO BE PAID BY LANDLORD IN ANY
LEASE YEAR. TAXES SHALL NOT INCLUDE ANY CORPORATE FRANCHISE, OR ESTATE,
INHERITANCE OR NET INCOME TAX, OR TAX IMPOSED UPON ANY TRANSFER BY LANDLORD OF
ITS INTEREST IN THIS LEASE OR THE BUILDING.
4.2 IF IN ANY LEASE YEAR, (I) DIRECT EXPENSES PAID OR INCURRED SHALL EXCEED
DIRECT EXPENSES PAID OR INCURRED IN THE BASE YEAR (DIRECT EXPENSES) AND/OR (II)
TAXES PAID OR INCURRED BY LANDLORD IN ANY LEASE YEAR SHALL EXCEED THE AMOUNT OF
SUCH TAXES WHICH BECAME DUE AND PAYABLE IN THE BASE YEAR (TAXES), TENANT SHALL
PAY AS ADDITIONAL RENT FOR SUCH LEASE YEAR TENANT'S PROPORTIONATE SHARE OF SUCH
EXCESS.
4.3 SUBJECT TO THE RIDER, THE ANNUAL DETERMINATION OF DIRECT EXPENSES SHALL
BE MADE BY LANDLORD AND, IF CERTIFIED BY A NATIONALLY RECOGNIZED FIRM OF PUBLIC
ACCOUNTANTS SELECTED BY LANDLORD, SHALL BE BINDING UPON LANDLORD AND TENANT.
TENANT MAY REVIEW THE BOOKS AND RECORDS SUPPORTING SUCH DETERMINATION IN THE
OFFICE OF LANDLORD, OR LANDLORD'S AGENT, DURING NORMAL BUSINESS HOURS, UPON
GIVING LANDLORD FIVE (5) DAYS ADVANCE WRITTEN NOTICE WITHIN SIXTY (60) DAYS
AFTER RECEIPT OF SUCH DETERMINATION, BUT IN NO EVENT MORE OFTEN THAN ONCE IN ANY
ONE YEAR PERIOD. IN THE EVENT THAT DURING ALL OR ANY PORTION OF ANY LEASE YEAR,
THE BUILDING IS NOT FULLY RENTED AND OCCUPIED LANDLORD MAY MAKE ANY APPROPRIATE
ADJUSTMENT IN OCCUPANCY-RELATED DIRECT EXPENSES FOR SUCH YEAR FOR THE PURPOSE OF
AVOIDING DISTORTION OF THE AMOUNT OF SUCH DIRECT EXPENSES TO BE ATTRIBUTED TO
TENANT BY REASON OF VARIATION IN TOTAL OCCUPANCY OF THE BUILDING, BY EMPLOYING
SOUND ACCOUNTING AND MANAGEMENT PRINCIPLES TO DETERMINE DIRECT EXPENSES THAT
WOULD HAVE BEEN PAID OR INCURRED BY LANDLORD HAD THE BUILDING BEEN FULLY RENTED
AND OCCUPIED, AND THE AMOUNT SO DETERMINED SHALL BE DEEMED TO HAVE BEEN DIRECT
EXPENSES FOR SUCH LEASE YEAR. SEE RIDER.
PRIOR TO THE ACTUAL DETERMINATION THEREOF FOR A LEASE YEAR, LANDLORD MAY
FROM TIME TO TIME ESTIMATE TENANT'S LIABILITY FOR DIRECT EXPENSES AND/OR TAXES
UNDER SECTION 4.2, ARTICLE 6 AND ARTICLE 29 FOR THE LEASE YEAR OR PORTION
THEREOF. LANDLORD WILL GIVE TENANT WRITTEN NOTIFICATION OF THE AMOUNT OF SUCH
ESTIMATE AND TENANT AGREES THAT IT WILL PAY, BY INCREASE OF ITS MONTHLY
INSTALLMENTS OF RENT DUE IN SUCH LEASE YEAR, ADDITIONAL RENT IN THE AMOUNT OF
SUCH ESTIMATE. ANY SUCH INCREASED RATE OF MONTHLY INSTALLMENTS OF RENT PURSUANT
TO THIS SECTION 4.4 SHALL REMAIN IN EFFECT UNTIL FURTHER WRITTEN NOTIFICATION TO
TENANT PURSUANT HERETO.
WHEN THE ABOVE MENTIONED ACTUAL DETERMINATION OF TENANT'S LIABILITY FOR
DIRECT EXPENSES AND/OR TAXES IS MADE FOR ANY LEASE YEAR AND WHEN TENANT IS SO
NOTIFIED IN WRITING, THEN:
IF THE TOTAL ADDITIONAL RENT TENANT ACTUALLY PAID PURSUANT TO SECTION 4.3
ON ACCOUNT OF DIRECT EXPENSES AND/OR TAXES FOR THE LEASE YEAR IS LESS THAN
TENANT'S LIABILITY FOR DIRECT EXPENSES AND/OR TAXES, THEN TENANT SHALL PAY SUCH
DEFICIENCY TO LANDLORD AS ADDITIONAL RENT IN ONE LUMP SUM WITHIN THIRTY (30)
DAYS OF RECEIPT OF LANDLORD'S BILL THEREFOR; AND
IF THE TOTAL ADDITIONAL RENT TENANT ACTUALLY PAID PURSUANT TO SECTION 4.3
ON ACCOUNT OF DIRECT EXPENSES AND/OR TAXES FOR THE LEASE YEAR IS MORE THAN
TENANT'S LIABILITY FOR DIRECT EXPENSES AND/OR TAXES, THEN LANDLORD SHALL CREDIT
THE DIFFERENCE AGAINST THE THEN NEXT DUE PAY MENTS TO BE MADE BY TENANT UNDER
THIS ARTICLE 4. TENANT SHALL NOT BE ENTITLED TO A CREDIT BY REASON OF ACTUAL
DIRECT EXPENSES AND/OR TAXES IN ANY LEASE YEAR BEING LESS THAN DIRECT EXPENSES
AND/OR TAXES IN THE BASE YEAR (DIRECT EXPENSES AND/OR TAXES).
IF THE COMMENCEMENT DATE IS OTHER THAN JANUARY 1 OR IF THE TERMINATION DATE
IS OTHER THAN DECEMBER 31, TENANT'S LIABILITY FOR DIRECT EXPENSES AND TAXES FOR
THE LEASE YEAR IN WHICH SAID DATE OCCURS SHALL BE PRORATED BASED UPON A THREE
HUNDRED SIXTY-FIVE (365) DAY YEAR.
5. SECURITY DEPOSIT.
[INTENTIONALLY OMITTED].
6. ALTERATIONS.
6.1 EXCEPT FOR THOSE, IF ANY, SPECIFICALLY PROVIDED FOR IN EXHIBIT B TO
THIS LEASE, TENANT SHALL NOT MAKE OR SUFFER TO BE MADE ANY ALTERATIONS,
ADDITIONS, OR IMPROVEMENTS, INCLUDING, BUT NOT LIMITED TO, THE ATTACHMENT OF ANY
FIXTURES OR EQUIPMENT IN, ON, OR TO THE PREMISES OR ANY PART THEREOF OR THE
MAKING OF ANY IMPROVEMENTS AS REQUIRED BY ARTICLE 7, WITHOUT THE PRIOR WRITTEN
CONSENT OF LANDLORD, WHICH CONSENT (EXCEPT AS TO STRUCTURAL MODIFICATIONS) SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED. WHEN APPLYING FOR SUCH CONSENT, TENANT
SHALL, IF REQUESTED BY LANDLORD, FURNISH COMPLETE PLANS AND SPECIFICATIONS FOR
SUCH ALTERATIONS, ADDITIONS AND IMPROVEMENTS.
6.2 IN THE EVENT LANDLORD CONSENTS TO THE MAKING OF ANY SUCH ALTERATION,
ADDITION OR IMPROVEMENT BY TENANT, THE SAME SHALL BE MADE USING LANDLORD'S
CONTRACTOR (UNLESS LANDLORD AGREES OTHERWISE) AT TENANT'S SOLE COST AND EXPENSE.
IF TENANT SHALL EMPLOY ANY CONTRACTOR OTHER THAN LANDLORD'S CONTRACTOR AND SUCH
OTHER CONTRACTOR OR ANY SUBCONTRACTOR OF SUCH OTHER CONTRACTOR SHALL EMPLOY ANY
NON-UNION LABOR OR SUPPLIER, TENANT SHALL BE RESPONSIBLE FOR AND HOLD LANDLORD
HARMLESS FROM ANY AND ALL DELAYS, DAMAGES AND EXTRA COSTS SUFFERED BY LANDLORD
AS A RESULT OF ANY DISPUTE WITH ANY LABOR UNIONS CONCERNING THE WAGE, HOURS,
TERMS OR CONDITIONS OF THE EMPLOYMENT OF ANY SUCH LABOR.
6.3 ALL ALTERATIONS, ADDITIONS OR IMPROVEMENTS PROPOSED BY TENANT SHALL BE
CONSTRUCTED IN ACCORDANCE WITH ALL GOVERNMENT LAWS, ORDINANCES, RULES AND
REGULATIONS AND TENANT SHALL, PRIOR TO CONSTRUCTION, PROVIDE THE ADDITIONAL
INSURANCE REQUIRED UNDER ARTICLE 11 IN SUCH CASE, AND ALSO ALL SUCH ASSURANCES
TO LANDLORD, INCLUDING BUT NOT LIMITED TO, WAIVERS OF LIEN, SURETY COMPANY
PERFORMANCE BONDS AND PERSONAL GUARANTIES OF INDIVIDUALS OF SUBSTANCE AS
LANDLORD SHALL REQUIRE TO ASSURE PAYMENT OF THE COSTS THEREOF AND TO PROTECT
LANDLORD AND THE BUILDING AND APPURTENANT LAND AGAINST ANY LOSS FROM ANY
MECHANIC'S, MATERIALMEN'S OR OTHER LIENS. TENANT SHALL PAY IN ADDITION TO ANY
SUMS DUE PURSUANT TO ARTICLE 4, ANY INCREASE IN REAL ESTATE TAXES ATTRIBUTABLE
TO ANY SUCH ALTERATION, ADDITION OR IMPROVEMENT FOR SO LONG, DURING THE TERM, AS
SUCH INCREASE IS ASCERTAINABLE; AT LANDLORD'S ELECTION SAID SUMS SHALL BE PAID
IN THE SAME WAY AS SUMS DUE UNDER ARTICLE 4.
6.4 ALL ALTERATIONS, ADDITIONS, AND IMPROVEMENTS IN, ON, OR TO THE PREMISES
MADE OR INSTALLED BY TENANT, INCLUDING CARPETING, SHALL BE AND REMAIN THE
PROPERTY OF TENANT DURING THE TERM BUT, EXCEPTING FURNITURE, FURNISHINGS,
MOVABLE PARTITIONS OF LESS THAN FULL HEIGHT FROM FLOOR TO CEILING AND OTHER
TRADE FIXTURES AND UPS BACKUP, TENANT INSTALLED SUPPLEMENTARY AIR CONDITIONING
UNITS AND TENANT INSTALLED BACKUP GENERATORS AND GENERATOR BATTERIES, SHALL
BECOME A PART OF THE REALTY AND BELONG TO LANDLORD WITHOUT COMPENSATION TO
TENANT UPON THE EXPIRATION OR SOONER TERMINATION OF THE TERM, AT WHICH TIME
TITLE SHALL PASS TO LANDLORD UNDER THIS LEASE AS BY A BILL OF SALE. THOSE ITEMS
EXCEPTED IN THE FOREGOING SENTENCE, WHICH SHALL NOT BECOME A PART OF THE REALTY
AND WHICH THEREFORE SHALL BELONG TO TENANT ("RETAINED ITEMS"), SHALL (I) BE
REMOVED BY TENANT AT TENANT'S SOLE COST AND EXPENSE, PRIOR TO THE DATE ON WHICH
TENANT IS REQUIRED HEREUNDER TO FULLY VACATE AND SURRENDER THE PREMISES (OR AT
TENANT'S ELECTION, WITHIN FIVE (5) DAYS THEREAFTER, PROVIDED TENANT GIVES
LANDLORD WRITTEN ADVANCE REASONABLE NOTICE OF ITS NEED TO REGAIN ACCESS TO THE
PREMISES SOLELY FOR SUCH PURPOSES AFTER THE DATE TENANT HAS VACATED AND
SURRENDERED THE PREMISES, IN WHICH EVENT LANDLORD SHALL REASONABLY MAKE THE
PREMISES AVAILABLE DURING REASONABLE HOURS DURING SUCH FIVE (5) DAY PERIOD SO AS
REASONABLY TO FACILITATE TENANT'S NEEDS TO CONTINUE WITH AND CONCLUDE ANY SUCH
FURTHER REMOVAL, REPAIR AND RESTORATION); AND ANY SUCH REPAIR AND RESTORATION
SHALL BE MADE BY TENANT AT TENANT'S SOLE COST AND EXPENSE RESPECTING ANY DAMAGED
PORTIONS OF THE PREMISES THEREBY CAUSED; OR (II) IN THE ALTERNATIVE, AS TO ANY
OR ALL OF SUCH RETAINED ITEMS, TENANT MAY ELECT AT SUCH TIME NOT TO REMOVE SAME,
IN WHICH CASE, NOTWITHSTANDING THE PRECEDING PROVISIONS IN THIS SECTION 6.4, ANY
SUCH RETAINED ITEMS SO LEFT AND THEREFORE ABANDONED BY TENANT, SHALL THEREBY BE
AND BECOME THE PROPERTY OF LANDLORD, NOTWITHSTANDING ANY OTHER TERM OR PROVISION
OF THIS LEASE, AT WHICH TIME TITLE SHALL PASS TO LANDLORD UNDER THIS LEASE AS BY
A BILL OF SALE.
7. REPAIR.
7.1 LANDLORD SHALL HAVE NO OBLIGATION TO ALTER, REMODEL, IMPROVE, REPAIR,
DECORATE OR PAINT THE PREMISES, EXCEPT AS SPECIFIED IN EXHIBIT B IF ATTACHED TO
THIS LEASE AND EXCEPT THAT LANDLORD SHALL REPAIR AND MAINTAIN THE STRUCTURAL
PORTIONS OF THE BUILDING, INCLUDING THE BASIC PLUMBING, AIR CONDITIONING,
HEATING AND ELECTRICAL SYSTEMS INSTALLED OR FURNISHED BY LANDLORD. BY TAKING
POSSESSION OF THE PREMISES, TENANT ACCEPTS THEM AS BEING IN GOOD ORDER,
CONDITION AND REPAIR AND IN THE CONDITION IN WHICH LANDLORD IS OBLIGATED TO
DELIVER THEM EXPRESSLY SUBJECT TO THE "HVAC" PROVISIONS OF THE RIDER, AND THE
PUNCH LIST PROVISIONS OF THIS LEASE, AND THE "LATENT DEFECTS" PROVISIONS OF THIS
LEASE MORE PARTICULARLY SET OUT IN SCHEDULE 1 TO EXHIBIT B TO THIS LEASE. IT IS
HEREBY UNDERSTOOD AND AGREED THAT NO REPRESENTATIONS RESPECTING THE CONDITION OF
THE PREMISES OR THE BUILDING HAVE BEEN MADE BY LANDLORD TO TENANT, EXCEPT AS
SPECIFICALLY SET FORTH IN THIS LEASE, SUBJECT TO THE "HVAC" PROVISIONS OF THE
RIDER, AND THE PUNCH LIST PROVISIONS OF THIS LEASE, AND THE "LATENT DEFECTS"
PROVISIONS OF THIS LEASE. SEE RIDER. IN CONNECTION WITH THE EXERCISE OF ITS
RIGHTS UNDER THIS SECTION 7, (I) LANDLORD AGREES TO USE COMMERCIALLY REASONABLE
EFFORTS NOT TO TAKE ANY ACTION WHICH WOULD MATERIALLY AND UNREASONABLY INTERFERE
WITH ACCESS TO THE PREMISES, FROM WITHIN THE ENCLOSED MALL OR COMMON PARKING
AREA ONLY; AND (II) LANDLORD AGREES TO EXERCISE COMMERCIALLY REASONABLE EFFORTS
TO MINIMIZE INTERFERENCE WITH THE ONGOING OPERATION OF BUSINESS IN THE PREMISES
FOR THE USES HEREIN PERMITTED, AND TO DILIGENTLY PROSECUTE ANY LANDLORD REPAIRS,
AS PRACTICABLE UNDER THE CIRCUMSTANCES.
7.2 TENANT SHALL, AT ALL TIMES DURING THE TERM, KEEP THE PREMISES IN GOOD
CONDITION AND REPAIR EXCEPTING DAMAGE BY FIRE, OR OTHER CASUALTY, AND IN
COMPLIANCE WITH ALL APPLICABLE GOVERNMENTAL LAWS, ORDINANCES AND REGULATIONS,
PROMPTLY COMPLYING WITH ALL GOVERNMENTAL ORDERS AND DIRECTIVES FOR THE
CORRECTION, PREVENTION AND ABATEMENT OF ANY VIOLATIONS OR NUISANCES IN OR UPON,
OR CONNECTED WITH, THE PREMISES, ALL AT TENANT'S SOLE EXPENSE. NOTWITHSTANDING
THE FOREGOING PROVISIONS OF THIS SECTION 7.2, TENANT SHALL NOT BE OBLIGATED TO
COMPLY WITH LAWS, ORDINANCES, ORDERS OR REGULATIONS WHICH REQUIRE TENANT TO MAKE
STRUCTURAL CHANGES TO THE PREMISES OR THE BUILDING IN WHICH THE PREMISES ARE
LOCATED, NOR SHALL TENANT BE OBLIGATED TO MAKE STRUCTURAL OR OTHER CHANGES
OUTSIDE OF THE PREMISES THE NEED FOR WHICH ARISES BY VIRTUE OF APPLICATION OF
THE ADA (HEREAFTER DEFINED) NOR SHALL TENANT BE OBLIGATED TO EFFECTUATE FIRE
CODE COMPLIANCE OUTSIDE OF THE PREMISES, UNLESS IN ANY SUCH CASE THE SAME ARISES
OUT OF TENANT'S SPECIFIC MANNER OF USE OF THE PREMISES. NOTWITHSTANDING THE
FOREGOING, THE PARTIES ACKNOWLEDGE THAT LANDLORD'S WORK WHEN COMPLETED SHALL BE
DESIGNED AND CONSTRUCTED SO AS TO COMPLY WITH APPLICABLE LAW AND "CODE",
INCLUDING ADA AND FIRE CODE REQUIREMENTS, AT TIME OF TENDER OF POSSESSION.
7.3 LANDLORD SHALL NOT BE LIABLE FOR ANY FAILURE TO MAKE ANY REPAIRS OR TO
PERFORM ANY MAINTENANCE UNLESS SUCH FAILURE SHALL PERSIST FOR AN UNREASONABLE
TIME AFTER WRITTEN NOTICE OF THE NEED OF SUCH REPAIRS OR MAINTENANCE IS GIVEN TO
LANDLORD BY TENANT.
7.4 EXCEPT AS PROVIDED IN ARTICLE 22, THERE SHALL BE NO ABATEMENT OF RENT
AND NO LIABILITY OF LANDLORD BY REASON OF ANY INJURY TO OR INTERFERENCE WITH
TENANT'S BUSINESS ARISING FROM THE MAKING OF ANY REPAIRS, ALTERATIONS OR
IMPROVEMENTS IN OR TO ANY PORTION OF THE BUILDING OR THE PREMISES OR TO
FIXTURES, APPURTENANCES AND EQUIPMENT IN THE BUILDING. EXCEPT TO THE EXTENT, IF
ANY, PROHIBITED BY LAW, TENANT WAIVES THE RIGHT TO MAKE REPAIRS AT LANDLORD'S
EXPENSE UNDER ANY LAW, STATUTE OR ORDINANCE NOW OR HEREAFTER IN EFFECT. NOTHING
CONTAINED IN THIS SECTION 7.4 SHALL EXEMPT LANDLORD FROM RESPONSIBILITY OR
LIABILITY FOR ITS NEGLIGENCE OR INTENTIONAL, WRONGFUL ACT OR BREACH OF THE
LEASE, AND TENANT SHALL NOT BE REQUIRED TO INDEMNIFY NOR HOLD LANDLORD HARMLESS
OR WAIVE ANY CLAIMS IN RESPECT TO THE SAME; SUBJECT, NEVERTHELESS, TO THE
"WAIVER OF SUBROGATION" PROVISION OF THIS LEASE.
7.5 SEE RIDER PROVISION R-13.
8. LIENS.
TENANT SHALL KEEP THE PREMISES, THE BUILDING AND APPURTENANT LAND AND TENANT'S
LEASEHOLD INTEREST IN THE PREMISES FREE FROM ANY LIENS ARISING OUT OF ANY
SERVICES, WORK OR MATERIALS PER FORMED, FURNISHED, OR CONTRACTED FOR BY TENANT,
OR OBLIGATIONS INCURRED BY TENANT. IN THE EVENT THAT TENANT SHALL NOT, WITHIN
TEN (10) DAYS FOLLOWING THE IMPOSITION OF ANY SUCH LIEN, EITHER CAUSE THE SAME
TO BE RELEASED OF RECORD OR PROVIDE LANDLORD WITH INSURANCE AGAINST THE SAME
ISSUED BY A MAJOR TITLE INSURANCE COMPANY OR SUCH OTHER PROTECTION AGAINST THE
SAME AS LANDLORD SHALL ACCEPT, LANDLORD SHALL HAVE THE RIGHT TO CAUSE THE SAME
TO BE RELEASED BY SUCH MEANS AS IT SHALL DEEM PROPER, INCLUDING PAYMENT OF THE
CLAIM GIVING RISE TO SUCH LIEN. ALL SUCH SUMS PAID BY LANDLORD AND ALL EXPENSES
INCURRED BY IT IN CONNECTION THEREWITH SHALL BE CONSIDERED ADDITIONAL RENT AND
SHALL BE PAYABLE TO IT BY TENANT ON DEMAND. NOTWITHSTANDING ANY OTHER TERMS OF
THIS LEASE, LANDLORD AND TENANT AGREE THAT THE INTEREST OF LANDLORD IN AND TO
THE BUILDING, OR ANY PART THEREOF SHALL NOT BE SUBJECT TO LIENS FOR ANY WORK,
LABOR, SERVICES, PERFORMED OR MATERIALS SUPPLIED, OR CLAIMED TO HAVE BEEN
PERFORMED OR SUPPLIED, OR ANY OTHER LIEN COGNIZABLE UNDER APPLICABLE LAWS BY
TENANT, OR TENANT'S CONTRACTORS, SUBCONTRACTORS (INCLUDING SUB- SUBCONTRACTORS),
LABORERS AND MATERIAL SUPPLIERS SUPPLYING LABOR AND/OR MATERIALS FOR THE
PREMISES.
9. ASSIGNMENT AND SUBLETTING.
9.1 TENANT SHALL NOT HAVE THE RIGHT TO ASSIGN OR PLEDGE THIS LEASE OR TO
SUBLET THE WHOLE OR ANY PART OF THE PREMISES WHETHER VOLUNTARILY OR BY OPERATION
OF LAW, OR PERMIT THE USE OR OCCUPANCY OF THE PREMISES BY ANYONE OTHER THAN
TENANT, AND SHALL NOT MAKE, SUFFER OR PERMIT SUCH ASSIGNMENT, SUBLEASING OR
OCCUPANCY WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, AND SAID RESTRICTIONS
SHALL BE BINDING UPON ANY AND ALL ASSIGNEES OF THE LEASE AND SUBTENANTS OF THE
PREMISES. NOTWITHSTANDING THE FOREGOING, TENANT MAY, WITHOUT LANDLORD'S ADVANCE
CONSENT THERETO, SUBLET A PORTION OR ALL OF THE PREMISES TO A DIVISION AND/OR
SUBSIDIARY OF GLOBAL DIRECTMAIL CORP (THE GUARANTOR OF THIS LEASE), PROVIDED
TENANT IS NOT IN DEFAULT OR VIOLATION OF THE LEASE AT SUCH TIME, SUBJECT
EXPRESSLY TO THE FOLLOWING: (I) A "DIVISION" SHALL MEAN A SPECIFIC OPERATING
GROUP OR AGGREGATE OF PERSONNEL WITHIN (EMPLOYED BY) GLOBAL DIRECTMAIL CORP
WHICH IS DESIGNATED BY GLOBAL DIRECTMAIL CORP AS A "DIVISION" BUT HAVING ITS OWN
LEGAL ENTITY (WHICH IS WHOLLY OWNED BY GLOBAL DIRECT MAIL CORP) AS THE ASSIGNEE
OR SUBTENANT; (II) "SUBSIDIARY" SHALL MEAN ANY CORPORATION OR ENTITY, THE VOTING
CONTROL OF WHICH IS HELD AND OWNED BY GLOBAL DIRECTMAIL CORP, WHERE "CONTROL"
SHALL MEAN THE ABILITY TO VOTE A MAJORITY OF THE VOTING COMMON STOCK THEREOF;
(IV) IN CASE OF A SUBLET TO A SUBSIDIARY OR DIVISION AS AFORESAID, SAME SHALL BE
SUBJECT TO AND CONDITIONED UPON THE FOLLOWING: (1) AT THE TIME OF ANY SUCH
SUBLETTING, THE SUBLESSEE SHALL OCCUPY THE PREMISES AND CONDUCT ITS BUSINESS IN
ACCORDANCE WITH THE PERMITTED USE HEREIN, (2) THE SUBLEASE AND THE SUBTENANT'S
OR DIVISION'S INTEREST THEREIN WILL IN ALL RESPECTS BE SUBJECT AND SUBORDINATE
TO ALL OF THE TERMS, COVENANTS AND CONDITIONS OF THIS LEASE AND THE SUBTENANT OR
DIVISION THEREUNDER WILL AGREE TO BE BOUND BY AND TO PERFORM ALL OF THE TERMS,
COVENANTS AND CONDITIONS OF THIS LEASE ON TENANT'S PART TO BE PERFORMED
HEREUNDER, EXCEPT THE PAYMENT OF RENT, ADDITIONAL RENTS AND OTHER CHARGES
RESERVED HEREUNDER, WHICH TENANT SHALL CONTINUE TO PAY TO LANDLORD, AND SUCH
WRITING SHALL BE DELIVERED TO LANDLORD BEARING THE ORIGINAL EXECUTIONS OF TENANT
AND SUCH SUBSIDIARY OR DIVISION WITHIN SIXTY (60) DAYS AFTER THE DATE OF SUCH
SUBLET, AND (3) NOTWITHSTANDING ANY SUCH SUBLETTING, TENANT WILL ACKNOWLEDGE IN
WRITING THAT IT WILL NOT BE RELEASED OR DISCHARGED FROM ANY LIABILITY WHATSOEVER
UNDER THIS LEASE AND WILL CONTINUE TO BE LIABLE THEREON WITH THE SAME FORCE AND
EFFECT AS THOUGH NO SUBLET HAD BEEN MADE. SUBJECT TO THE PRECEDING PROVISIONS
RESPECTING A DIVISION OR SUBSIDIARY OF GLOBAL DIRECTMAIL CORP, WHICH PROVISIONS
SHALL CONTROL: IN THE EVENT TENANT DESIRES TO SUBLET, OR PERMIT SUCH OCCUPANCY
OF, THE PREMISES, OR ANY PORTION THEREOF, OR ASSIGN THIS LEASE, TENANT SHALL
GIVE WRITTEN NOTICE THEREOF TO LANDLORD AT LEAST SIXTY (60) DAYS BUT NO MORE
THAN ONE HUNDRED EIGHTY (180) DAYS PRIOR TO THE PROPOSED COMMENCEMENT DATE OF
SUCH SUBLETTING OR ASSIGNMENT, WHICH NOTICE SHALL SET FORTH THE NAME OF THE
PROPOSED SUBTENANT OR ASSIGNEE, THE RELEVANT TERMS OF ANY SUBLEASE OR ASSIGNMENT
AND COPIES OF FINANCIAL REPORTS AND OTHER RELEVANT FINANCIAL REPORTS AND OTHER
RELEVANT FINANCIAL INFORMATION OF THE PROPOSED SUBTENANT OR ASSIGNEE.
9.2 NOTWITHSTANDING ANY ASSIGNMENT OR SUBLETTING, PERMITTED OR OTHERWISE,
TENANT SHALL AT ALL TIMES REMAIN DIRECTLY, PRIMARILY AND FULLY RESPONSIBLE AND
LIABLE FOR THE PAYMENT OF THE RENT SPECIFIED IN THIS LEASE AND FOR COMPLIANCE
WITH ALL OF ITS OTHER OBLIGATIONS UNDER THE TERMS, PROVISIONS AND COVENANTS OF
THIS LEASE. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, IF THE PREMISES OR ANY
PART OF THEM ARE THEN ASSIGNED OR SUBLET, LANDLORD, IN ADDITION TO ANY OTHER
REMEDIES PROVIDED IN THIS LEASE OR PROVIDED BY LAW, MAY, AT ITS OPTION, COLLECT
DIRECTLY FROM SUCH ASSIGNEE OR SUBTENANT ALL RENTS DUE AND BECOMING DUE TO
TENANT UNDER SUCH ASSIGNMENT OR SUBLEASE AND APPLY SUCH RENT AGAINST ANY SUMS
DUE TO LANDLORD FROM TENANT UNDER THIS LEASE, AND NO SUCH COLLECTION SHALL BE
CONSTRUED TO CONSTITUTE A NOVATION OR RELEASE OF TENANT FROM THE FURTHER
PERFORMANCE OF TENANT'S OBLIGATIONS UNDER THIS LEASE.
9.3 [INTENTIONALLY OMITTED].
9.4 [INTENTIONALLY OMITTED].
9.5 NOTWITHSTANDING ANY OTHER PROVISION HEREOF, TENANT SHALL HAVE NO RIGHT
TO MAKE (AND LANDLORD SHALL HAVE THE ABSOLUTE RIGHT TO REFUSE CONSENT TO) ANY
ASSIGNMENT OF THIS LEASE OR SUBLEASE OF ANY PORTION OF THE PREMISES IF AT THE
TIME OF EITHER TENANT'S NOTICE OF THE PROPOSED ASSIGNMENT OR SUBLEASE OR THE
PROPOSED COMMENCEMENT DATE THEREOF, THERE SHALL EXIST ANY UNCURED DEFAULT OF
TENANT OR MATTER WHICH WILL BECOME A DEFAULT OF TENANT WITH PASSAGE OF TIME
UNLESS CURED, OR IF THE PROPOSED ASSIGNEE OR SUBLESSEE IS AN ENTITY: (A) WITH
WHICH LANDLORD IS ALREADY IN NEGOTIATION AS EVIDENCED BY THE ISSUANCE OF A
WRITTEN PROPOSAL FROM LANDLORD TO SUCH PARTY OR FROM SUCH PARTY TO LANDLORD OR
AS EVIDENCED BY A LETTER OF INTENT BETWEEN LANDLORD AND SUCH PARTY [BUT WHERE
THE PROPOSED ASSIGNEE OR SUBLESSEE PROPOSES TO TAKE AN ASSIGNMENT OF ALL OF THE
PREMISES OR TO SUBLET ALL OF THE PREMISES, THIS ITEM (A) SHALL BE DEEMED
INAPPLICABLE] [SUCH A WRITING FOR PURPOSES OF THIS SECTION 9.5(A) MAY BE
EXECUTED ON BEHALF OF LANDLORD AND/OR SUCH PARTY BY AN AUTHORIZED AGENT, SUCH AS
ITS COUNSEL, BROKER, OFFICER, DIRECTOR, AUTHORIZED EMPLOYEE OR OTHER AUTHORIZED
AGENT]; (B) IS ALREADY AN OCCUPANT OF THE BUILDING UNLESS LANDLORD IS UNABLE TO
PROVIDE THE AMOUNT OF SPACE REQUIRED BY SUCH OCCUPANT; (C) IS A GOVERNMENTAL
AGENCY; (D) IS INCOMPATIBLE WITH THE CHARACTER OF OCCUPANCY OF THE BUILDING; OR
(E) WOULD SUBJECT THE PREMISES TO A USE WHICH WOULD: (I) INVOLVE INCREASED
PERSONNEL OR WEAR UPON THE BUILDING; (II) VIOLATE ANY EXCLUSIVE RIGHT GRANTED TO
ANOTHER TENANT OF THE BUILDING; (III) REQUIRE ANY ADDITION TO OR MODIFICATION OF
THE PREMISES OR THE BUILDING IN ORDER TO COMPLY WITH BUILDING CODE OR OTHER
GOVERNMENTAL REQUIREMENTS; OR, (IV) INVOLVE A VIOLATION OF SECTION 1.2. TENANT
EXPRESSLY AGREES THAT LANDLORD SHALL HAVE THE RIGHT TO REFUSE CONSENT TO ANY
SUCH ASSIGNMENT OR SUBLEASE AND THAT FOR THE PURPOSES OF ANY STATUTORY OR OTHER
REQUIREMENT OF REASONABLENESS ON THE PART OF LANDLORD SUCH REFUSAL SHALL BE
REASONABLE.
9.6 UPON ANY REQUEST TO ASSIGN OR SUBLET, TENANT WILL PAY TO LANDLORD THE
ASSIGNMENT/SUBLETTING FEE PLUS, ON DEMAND, A SUM EQUAL TO ALL OF LANDLORD'S
REASONABLE COSTS, INCLUDING ATTORNEY'S FEES, INCURRED IN INVESTIGATING AND
CONSIDERING ANY PROPOSED OR PURPORTED ASSIGNMENT OR PLEDGE OF THIS LEASE OR
SUBLEASE OF ANY OF THE PREMISES, REGARDLESS OF WHETHER LANDLORD SHALL CONSENT
TO, REFUSE CONSENT, OR DETERMINE THAT LANDLORD'S CONSENT IS NOT REQUIRED FOR,
SUCH ASSIGNMENT, PLEDGE OR SUBLEASE. ANY PURPORTED SALE, ASSIGNMENT, MORTGAGE,
TRANSFER OF THIS LEASE OR SUBLETTING WHICH DOES NOT COMPLY WITH THE PROVISIONS
OF THIS ARTICLE 9 SHALL BE VOID.
9.7
A. IF TENANT IS A CORPORATION, PARTNERSHIP OR TRUST, ANY TRANSFER OR
TRANSFERS OF OR CHANGE OR CHANGES WITHIN ANY TWELVE MONTH PERIOD IN THE NUMBER
OF THE OUTSTANDING VOTING SHARES OF THE CORPORATION, THE GENERAL PARTNERSHIP
INTERESTS IN THE PARTNERSHIP OR THE IDENTITY OF THE PERSONS OR ENTITIES
CONTROLLING THE ACTIVITIES OF SUCH PARTNERSHIP OR TRUST RESULTING IN THE PERSONS
OR ENTITIES OWNING OR CONTROLLING A MAJORITY OF SUCH SHARES, PARTNERSHIP
INTERESTS OR ACTIVITIES OF SUCH PARTNERSHIP OR TRUST AT THE BEGINNING OF SUCH
PERIOD NO LONGER HAVING SUCH OWNERSHIP OR CONTROL SHALL BE REGARDED AS
EQUIVALENT TO AN ASSIGNMENT OF THIS LEASE TO THE PERSONS OR ENTITIES ACQUIRING
SUCH OWNERSHIP OR CONTROL AND SHALL BE SUBJECT TO ALL THE PROVI SIONS OF THIS
ARTICLE 9 TO THE SAME EXTENT AND FOR ALL INTENTS AND PURPOSES AS THOUGH SUCH
WERE AN ASSIGNMENT ("CHANGE IN CONTROL"). SUBJECT TO THE FOLLOWING CONDITIONS
SET FORTH IN THIS SUBSECTION 9.7(B), AND PROVIDED TENANT IS NOT IN MONETARY
DEFAULT HEREOF AND IS NOT IN DEFAULT OR VIOLATION OF ANY OTHER TERM OR PROVISION
HEREOF BEYOND ANY THERETO APPLICABLE CURATIVE PERIOD, BUT NOTWITHSTANDING
ANYTHING ELSE CONTAINED IN THIS LEASE TO THE CONTRARY, TENANT MAY, WITHOUT
LANDLORD'S CONSENT, ASSIGN THIS LEASE (INCLUDING A CHANGE IN CONTROL) OR SUBLET
TO (I) ANY "AFFILIATE" OF TENANT, OR (II) THE SURVIVING ENTITY IN THE EVENT OF A
MERGER, CONSOLIDATION OR ACQUISITION OF TENANT, PROVIDED, HOWEVER, IN CONNECTION
WITH SUCH ASSIGNMENT OR SUBLET UNDER 9.7(A)(I) OR 9.7(A)(II), THE "PARENT
CORPORATION" OF TENANT [THAT IS, GLOBAL DIRECTMAIL CORP, WHICH OWNS ALL OF THE
ISSUED AND OUTSTANDING STOCK OF TENANT] SHALL REMAIN THE PARTY PRIMARILY
RESPONSIBLE FOR THE MANAGEMENT OF THE BUSINESS OF TENANT IN THE PREMISES AND ALL
TIGER DIRECT OPERATIONS OF TENANT AND ITS AFFILIATES. THE TERM "AFFILIATE" FOR
PURPOSES OF THIS LEASE, SHALL MEAN ANY PARTY WHICH IS CONTROLLED BY, CONTROLS,
OR IS UNDER COMMON CONTROL WITH TENANT; THE TERM "CONTROL" SHALL MEAN THE
ABILITY TO VOTE A MAJORITY OF THE VOTING COMMON STOCK.
B. ANY SUCH ASSIGNMENT OR SUBLETTING AS PERMITTED HEREUNDER SHALL BE
SUBJECT TO AND CONDITIONED UPON THE FOLLOWING: (1) AT THE TIME OF ANY SUCH
PROPOSED ASSIGNMENT, TENANT SHALL NOT BE IN DEFAULT, (2) THE ASSIGNEE OR
SUBLESSEE SHALL OCCUPY THE PREMISES AND CONDUCT ITS BUSINESS IN ACCORDANCE WITH
THE PERMITTED USE AND TRADE NAME, (3) (A) IN THE CASE OF AN ASSIGNMENT, TENANT
AND ITS ASSIGNEE SHALL EXECUTE, ACKNOWLEDGE AND DELIVER TO LANDLORD A FULLY
EXECUTED COUNTERPART OF A WRITTEN ASSIGNMENT OF LEASE BY THE TERMS OF WHICH THIS
LEASE, TOGETHER WITH ALL PREPAID RENTS AND RIGHTS TO THE SECURITY DEPOSIT, IF
ANY, HEREUNDER, SHALL BE ASSIGNED TO THE ASSIGNEE AND THE ASSIGNEE WILL ACCEPT
SAID RIGHTS AND OBLIGATIONS FOR THE BENEFIT OF LANDLORD, AND GUARANTOR SHALL
JOIN IN THE EXECUTION THEREOF SO AS TO REAFFIRM THE CONTINUING OPERATION AND
BINDING FULL FORCE AND EFFECT OF THE GUARANTY THEREAFTER, AND (B) IN THE CASE OF
A SUBLETTING, THE SUBLEASE AND THE SUBTENANT'S INTEREST THEREIN WILL IN ALL
RESPECTS BE SUBJECT AND SUBORDINATE TO ALL OF THE TERMS, COVENANTS AND
CONDITIONS OF THIS LEASE AND THE SUBTENANT THEREUNDER WILL AGREE TO BE BOUND BY
AND TO PERFORM ALL OF THE TERMS, COVENANTS AND CONDITIONS OF THIS LEASE ON
TENANT'S PART TO BE PERFORMED HEREUNDER, EXCEPT THE PAYMENT OF RENT, ADDITIONAL
RENTS AND OTHER CHARGES RESERVED HEREUNDER, WHICH TENANT SHALL CONTINUE TO PAY
TO LANDLORD, AND (4) NOTWITHSTANDING ANY SUCH ASSIGNMENT OR SUBLETTING, TENANT
AND GUARANTOR WILL ACKNOWLEDGE IN WRITING THAT IT WILL NOT BE RELEASED OR
DISCHARGED FROM ANY LIABILITY WHATSOEVER UNDER THIS LEASE AND WILL CONTINUE TO
BE LIABLE THEREON WITH THE SAME FORCE AND EFFECT AS THOUGH NO ASSIGNMENT HAD
BEEN MADE; AND THE GUARANTOR SHALL JOIN IN THE EXECUTION OF SUCH ACKNOWLEDGMENT
SO AS TO REAFFIRM THE CONTINUING OPERATION AND BINDING FULL FORCE AND EFFECT OF
THE GUARANTY THEREAFTER. NOTHING CONTAINED IN THE LEASE SHALL RESTRICT THE SALE
OF THE VOTING COMMON STOCK OF A CORPORATION, ALL OF THE VOTING COMMON STOCK OF
WHICH IS REGISTERED WITH AND TRADED ON A NATIONAL SECURITIES EXCHANGE, INCLUDING
NASDAQ AND OVER THE COUNTER, AND SUCH SALE SHALL NOT CONSTITUTE AN ASSIGNMENT
HEREUNDER; NOR SHALL THE "CHANGE OF CONTROL" PROVISIONS BE APPLICABLE THERETO.
9.8 ANY ASSIGNMENT, SUBLEASE OR OTHER TRANSFER OF TENANT'S INTEREST IN THIS
LEASE (OTHER THAN AS SPECIFIED AND CONTROLLED BY THE PROVISIONS OF SECTION 9.7
ABOVE) SHALL BE SUBJECT TO LANDLORD'S ADVANCE WRITTEN CONSENT AND, IF GIVEN,
NONETHELESS CONDITIONED UPON THE FOLLOWING: (I) TENANT AND ITS TRANSFEREE SHALL
DELIVER TO LANDLORD A FULLY EXECUTED COUNTERPART OF A WRITTEN ASSIGNMENT OF
LEASE OR SUBLEASE, AS THE CASE MAY BE, BY THE TERMS OF WHICH: (1) IN CASE OF AN
ASSIGNMENT, TENANT WILL ASSIGN TO THE TRANSFEREE TENANT'S ENTIRE INTEREST IN
THIS LEASE, TOGETHER WITH ALL PREPAID RENTS HEREUNDER, IF ANY, AND THE
TRANSFEREE WILL ACCEPT SAID ASSIGNMENT AND ASSUME AND AGREE TO PERFORM, DIRECTLY
FOR THE BENEFIT OF LANDLORD, ALL OF THE TERMS OF THIS LEASE ON TENANT'S PART TO
BE PERFORMED, AND GUARANTOR SHALL JOIN IN THE EXECUTION THEREOF SO AS TO
REAFFIRM THE CONTINUING OPERATION AND BINDING FULL FORCE AND EFFECT OF THE
GUARANTY THEREAFTER; OR (2) IN CASE OF A SUBLETTING, THE SUBLEASE AND THE
SUBLESSEE'S INTEREST THEREIN WILL IN ALL RESPECTS BE SUBJECT AND SUBORDINATE TO
ALL OF THE TERMS OF THIS LEASE AND THE SUBLESSEE THEREUNDER WILL AGREE TO BE
BOUND BY AND TO PERFORM ALL OF THE TERMS OF THIS LEASE ON TENANT'S PART TO BE
PERFORMED HEREUNDER, EXCEPT THE PAYMENT OF RENTS, WHICH TENANT SHALL CONTINUE TO
PAY TO LANDLORD (BUT FOR WHICH SUCH SUBLESSEE SHALL ALSO BE LIABLE); (II)
NOTWITHSTANDING ANY SUCH TRANSFER, TENANT AND GUARANTOR WILL ACKNOWLEDGE IN
WRITING THAT, NOTWITHSTANDING SUCH TRANSFER AND THE CONSENT OF LANDLORD THERETO,
TENANT AND GUARANTOR WILL NOT BE RELEASED OR DISCHARGED FROM ANY LIABILITY
WHATSOEVER UNDER THIS LEASE AND WILL CONTINUE TO BE LIABLE THEREON WITH THE SAME
FORCE AND EFFECT AS THOUGH NO TRANSFER HAD BEEN MADE AND THE GUARANTOR SHALL
JOIN IN THE EXECUTION OF SUCH ACKNOWLEDGMENT SO AS TO REAFFIRM THE CONTINUING
OPERATION AND BINDING FULL FORCE AND EFFECT OF THE GUARANTY THEREAFTER. SUBJECT
EXPRESSLY TO THE PROVISIONS OF SECTIONS 9.2, 9.5, 9.6, 9.7(B) AND 9.8 ABOVE,
LANDLORD SHALL NOT UNREASONABLY DENY OR WITHHOLD ITS CONSENT TO ANY PROPOSED
ASSIGNMENT OF THIS LEASE OR SUBLET OF A PORTION OF THE PREMISES.
10. INDEMNIFICATION.
NONE OF THE LANDLORD ENTITIES SHALL BE LIABLE AND TENANT HEREBY WAIVES ALL
CLAIMS AGAINST THEM FOR ANY DAMAGE TO ANY PROPERTY OR ANY INJURY TO ANY PERSON
IN OR ABOUT THE PREMISES OR THE BUILDING BY OR FROM ANY CAUSE WHATSOEVER
(INCLUDING WITHOUT LIMITING THE FOREGOING, RAIN OR WATER LEAKAGE OF ANY
CHARACTER FROM THE ROOF, WINDOWS, WALLS, BASEMENT, PIPES, PLUMBING WORKS OR
APPLIANCES, THE BUILDING NOT BEING IN GOOD CONDITION OR REPAIR, GAS, FIRE, OIL,
ELECTRICITY OR THEFT), EXCEPT TO THE EXTENT CAUSED BY OR ARISING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ITS AGENTS, EMPLOYEES OR
CONTRACTORS. TENANT SHALL PROTECT, INDEMNIFY AND HOLD THE LANDLORD ENTITIES
HARMLESS FROM AND AGAINST ANY AND ALL LOSS, CLAIMS, LIABILITY OR COSTS
(INCLUDING COURT COSTS AND ATTORNEY'S FEES) INCURRED BY REASON OF (A) ANY DAMAGE
TO ANY PROPERTY (INCLUDING BUT NOT LIMITED TO PROPERTY OF ANY LANDLORD ENTITY)
OR ANY INJURY (INCLUDING BUT NOT LIMITED TO DEATH) TO ANY PERSON OCCURRING IN,
ON OR ABOUT THE PREMISES OR THE BUILDING TO THE EXTENT THAT SUCH INJURY OR
DAMAGE SHALL BE CAUSED BY OR ARISE FROM ANY ACTUAL OR ALLEGED ACT, NEGLECT,
FAULT, OR OMISSION BY OR OF TENANT, ITS AGENTS, SERVANTS, EMPLOYEES, INVITEES,
OR VISITORS TO MEET ANY STANDARDS IMPOSED BY ANY DUTY WITH RESPECT TO THE INJURY
OR DAMAGE; (B) THE CONDUCT OR MANAGEMENT OF ANY WORK OR THING WHATSOEVER DONE BY
THE TENANT IN OR ABOUT THE PREMISES OR FROM TRANSACTIONS OF THE TENANT
CONCERNING THE PREMISES; (C) TENANT'S FAILURE TO COMPLY WITH ANY AND ALL
GOVERNMENTAL LAWS, ORDINANCES AND REGULATIONS APPLICABLE TO THE CONDITION OR USE
OF THE PREMISES OR ITS OCCUPANCY; OR (D) ANY BREACH OR DEFAULT ON THE PART OF
TENANT IN THE PERFORMANCE OF ANY COVENANT OR AGREEMENT ON THE PART OF THE TENANT
TO BE PERFORMED PURSUANT TO THIS LEASE. THE PROVISIONS OF THIS ARTICLE SHALL
SURVIVE THE TERMINATION OF THIS LEASE WITH RESPECT TO ANY CLAIMS OR LIABILITY
ACCRUING PRIOR TO SUCH TERMINATION.
11. INSURANCE.
11.1 TENANT SHALL KEEP IN FORCE THROUGHOUT THE TERM: (A) A COMMERCIAL
GENERAL LIABILITY INSURANCE POLICY OR POLICIES TO PROTECT THE LANDLORD ENTITIES
AGAINST ANY LIABILITY TO THE PUBLIC OR TO ANY INVITEE OF TENANT OR A LANDLORD
ENTITY INCIDENTAL TO THE USE OF OR RESULTING FROM ANY ACCIDENT OCCURRING IN OR
UPON THE PREMISES WITH A LIMIT OF NOT LESS THAN $1,000,000.00 PER OCCURRENCE AND
NOT LESS THAN $2,000,000.00 IN THE ANNUAL AGGREGATE, OR SUCH LARGER AMOUNT AS
LANDLORD MAY PRUDENTLY REQUIRE FROM TIME TO TIME, COVERING BODILY INJURY AND
PROPERTY DAMAGE LIABILITY AND $1,000,000 PRODUCTS/COMPLETED OPERATIONS
AGGREGATE; (B) BUSINESS AUTO LIABILITY COVERING OWNED, NON-OWNED AND HIRED
VEHICLES WITH A LIMIT OF NOT LESS THAN $1,000,000 PER ACCIDENT; (C) INSURANCE
PROTECTING AGAINST LIABILITY UNDER WORKER'S COMPENSATION LAWS WITH LIMITS AT
LEAST AS REQUIRED BY STATUTE; (D) EMPLOYERS LIABILITY WITH LIMITS OF $500,000
EACH ACCIDENT, $500,000 DISEASE POLICY LIMIT, $500,000 DISEASE--EACH EMPLOYEE;
(E) ALL RISK OR SPECIAL FORM COVERAGE PROTECTING TENANT AGAINST LOSS OF OR
DAMAGE TO TENANT'S ALTERATIONS, ADDITIONS, IMPROVEMENTS, CARPETING, FLOOR
COVERINGS, PANELINGS, DECORATIONS, FIXTURES, INVENTORY AND OTHER BUSINESS
PERSONAL PROPERTY SITUATED IN OR ABOUT THE PREMISES TO THE FULL REPLACEMENT
VALUE OF THE PROPERTY SO INSURED; AND, (F) BUSINESS INTERRUPTION INSURANCE WITH
LIMITS OF LIABILITY REPRESENTING LOSS OF AT LEAST APPROXIMATELY SIX MONTHS OF
INCOME.
11.2 EACH OF THE AFORESAID POLICIES SHALL (A) BE PROVIDED AT TENANT'S
EXPENSE; (B) NAME THE LANDLORD AND THE BUILDING MANAGEMENT COMPANY, IF ANY, AS
ADDITIONAL INSUREDS; (C) BE ISSUED BY AN INSURANCE COMPANY WITH A MINIMUM BEST'S
RATING OF "A:VII" DURING THE TERM; AND (D) PROVIDE THAT SAID INSURANCE SHALL NOT
BE CANCELED UNLESS THIRTY (30) DAYS PRIOR WRITTEN NOTICE (TEN DAYS FOR
NON-PAYMENT OF PREMIUM) SHALL HAVE BEEN GIVEN TO LANDLORD; AND SAID POLICY OR
POLICIES OR CERTIFICATES THEREOF SHALL BE DELIVERED TO LANDLORD BY TENANT UPON
THE COMMENCEMENT DATE AND AT LEAST THIRTY (30) DAYS PRIOR TO EACH RENEWAL OF
SAID INSURANCE.
11.3 WHENEVER TENANT SHALL UNDERTAKE ANY ALTERATIONS, ADDITIONS OR
IMPROVEMENTS IN,TO OR ABOUT THE PREMISES ("WORK") THE AFORESAID INSURANCE
PROTECTION MUST EXTEND TO AND INCLUDE INJURIES TO PERSONS AND DAMAGE TO PROPERTY
ARISING IN CONNECTION WITH SUCH WORK, WITHOUT LIMITATION INCLUDING LIABILITY
UNDER ANY APPLICABLE STRUCTURAL WORK ACT, AND SUCH OTHER INSURANCE AS LANDLORD
SHALL REQUIRE; AND THE POLICIES OF OR CERTIFICATES EVIDENCING SUCH INSURANCE
MUST BE DELIVERED TO LANDLORD PRIOR TO THE COMMENCEMENT OF ANY SUCH WORK.
12. WAIVER OF SUBROGATION.
SO LONG AS THEIR RESPECTIVE INSURERS SO PERMIT, TENANT AND LANDLORD HEREBY
MUTUALLY WAIVE THEIR RESPECTIVE RIGHTS OF RECOVERY AGAINST EACH OTHER FOR ANY
LOSS INSURED BY FIRE, EXTENDED COVERAGE, ALL RISKS OR OTHER INSURANCE NOW OR
HEREAFTER EXISTING FOR THE BENEFIT OF THE RESPECTIVE PARTY BUT ONLY TO THE
EXTENT OF THE NET INSURANCE PROCEEDS PAYABLE UNDER SUCH POLICIES. EACH PARTY
SHALL OBTAIN ANY SPECIAL ENDORSEMENTS REQUIRED BY THEIR INSURER TO EVIDENCE
COMPLIANCE WITH THE AFOREMENTIONED WAIVER.
13. SERVICES AND UTILITIES
13.1 PROVIDED TENANT SHALL NOT BE IN DEFAULT UNDER THIS LEASE, AND SUBJECT
TO THE OTHER PROVISIONS OF THIS LEASE, LANDLORD AGREES TO FURNISH TO THE
PREMISES DURING ORDINARY BUSINESS HOURS ON GENERALLY RECOGNIZED BUSINESS DAYS
(BUT EXCLUSIVE IN ANY EVENT OF SUNDAYS AND LEGAL HOLIDAYS), THE FOLLOWING
SERVICES AND UTILITIES SUBJECT TO THE RULES AND REGULATIONS OF THE BUILDING
PRESCRIBED FROM TIME TO TIME: (A) WATER SUITABLE FOR NORMAL OFFICE USE OF THE
PREMISES; (B) HEAT AND AIR CONDITIONING TO COMMON AREAS AS REQUIRED IN
LANDLORD'S JUDGMENT FOR THE USE AND OCCUPATION OF THE PREMISES; (C)
[INTENTIONALLY OMITTED]; (D) ELEVATOR SERVICE BY NONATTENDED AUTOMATIC
ELEVATORS; (E) SUCH WINDOW WASHING AS MAY FROM TIME TO TIME IN LANDLORD'S
JUDGMENT BE REASONABLY REQUIRED; AND, (F) EQUIPMENT TO BRING TO TENANT'S METER,
ELECTRICITY FOR LIGHTING, CONVENIENCE OUTLETS AND OTHER NORMAL OFFICE USE.
NOTWITHSTANDING THE FOREGOING, LANDLORD AGREES TO FURNISH THE SERVICES DESCRIBED
IN ITEMS (A), (B), AND (D), 24-HOURS PER DAY, 7-DAYS PER WEEK. TO THE EXTENT
THAT TENANT IS NOT BILLED DIRECTLY BY A PUBLIC UTILITY, TENANT SHALL PAY, UPON
DEMAND, AS ADDITIONAL RENT, FOR ALL ELECTRICITY AND WATER AND SEWER USAGE USED
BY TENANT IN THE PREMISES. THE CHARGE SHALL BE AT THE RATES CHARGED FOR SUCH
SERVICES BY THE LOCAL PUBLIC UTILITY. LANDLORD SHALL NOT BE LIABLE FOR, AND
TENANT SHALL NOT BE ENTITLED TO, ANY ABATEMENT OR REDUCTION OF RENTAL BY REASON
OF LANDLORD'S FAILURE TO FURNISH ANY OF THE FOREGOING, UNLESS SUCH FAILURE SHALL
PERSIST FOR AN UNREASONABLE TIME AFTER WRITTEN NOTICE OF SUCH FAILURE IS GIVEN
TO LANDLORD BY TENANT AND PROVIDED FURTHER THAT LANDLORD SHALL NOT BE LIABLE
WHEN SUCH FAILURE IS CAUSED BY ACCIDENT, BREAKAGE, REPAIRS, LABOR DISPUTES OF
ANY CHARACTER, ENERGY USAGE RESTRICTIONS OR BY ANY OTHER CAUSE, SIMILAR OR
DISSIMILAR, BEYOND THE REASONABLE CONTROL OF LANDLORD; BUT SUBJECT TO THE
FOLLOWING EXPRESS REMEDY. IF, DUE TO THE NEGLIGENT OR WILLFUL ACT OR OMISSION OF
LANDLORD, ITS AGENTS OR EMPLOYEES, THERE SHALL BE AN INTERRUPTION OF UTILITIES
SO THAT TENANT IS WHOLLY UNABLE IN THE EXERCISE OF REASONABLE JUDGMENT TO
OPERATE BUSINESS IN SUITE 35 OR SUITE 33C OF THE PREMISES ("INOPERABLE
CONDITION") FOR A PERIOD IN EXCESS OF THREE (3) DAYS AFTER WRITTEN NOTICE
THEREOF TO LANDLORD, AS TENANT'S SOLE AND EXCLUSIVE REMEDIES: (I) THE BASE
RENTAL AND TENANT'S SHARE OF DIRECT EXPENSES OTHERWISE PAYABLE UNDER THE LEASE
PROPORTIONATELY ATTRIBUTABLE TO THE AFFECTED SPACE SHALL ABATE UNTIL SUCH
UTILITIES ARE RESTORED SO AS TO PERMIT TENANT TO OPERATE BUSINESS IN THE
PREMISES; AND (II) IF SUCH INOPERABLE CONDITION EXISTS FOR A CONTINUOUS PERIOD
IN EXCESS OF FOURTEEN (14) DAYS AFTER SUCH WRITTEN NOTICE, THEN TENANT MAY ALSO
SEEK ALL LEGAL AND EQUITABLE REMEDIES INCLUDING INJUNCTIVE RELIEF IN ANY COURT
OF LAW OR EQUITY OF COMPETENT JURISDICTION; BUT (III) IF SUCH INOPERABLE
CONDITION EXISTS FOR A CONTINUOUS PERIOD IN EXCESS OF THIRTY (30) DAYS AFTER
SUCH WRITTEN NOTICE, THEN TENANT MAY TERMINATE THIS LEASE PROVIDED IN CASE OF
ANY SUCH TERMINATION, TENANT SHALL NOT BE ENTITLED TO ANY DAMAGE OR EQUITABLE
REMEDY OR RELIEF ARISING OUT OF OR RELATED TO SUCH INOPERABLE CONDITION
CIRCUMSTANCE, AND ANY ACTION THERETOFORE COMMENCED BY TENANT AGAINST LANDLORD
SHALL BE DISMISSED WITH PREJUDICE, AND LANDLORD SHALL BE DEEMED RELEASED FROM
LIABILITY FOR ANY DAMAGE OR OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH
SUCH INOPERABLE CONDITION CIRCUMSTANCE. LANDLORD SHALL USE REASONABLE EFFORTS TO
REMEDY ANY INTERRUPTION IN THE FURNISHING OF SERVICES AND UTILITIES. SEE RIDER.
13.2 SHOULD TENANT REQUIRE ANY ADDITIONAL WORK OR SERVICE, AS DESCRIBED
ABOVE, INCLUDING SERVICES FURNISHED OUTSIDE ORDINARY BUSINESS HOURS SPECIFIED
ABOVE, LANDLORD MAY, ON TERMS TO BE AGREED, UPON REASONABLE ADVANCE NOTICE BY
TENANT, FURNISH SUCH ADDITIONAL SERVICE AND TENANT AGREES TO PAY LANDLORD SUCH
CHARGES AS MAY BE AGREED UPON, INCLUDING ANY TAX IMPOSED THEREON, BUT IN NO
EVENT AT A CHARGE LESS THAN LANDLORD'S ACTUAL COST PLUS OVERHEAD FOR SUCH
ADDITIONAL SERVICE AND, WHERE APPROPRIATE, A REASONABLE ALLOWANCE FOR
DEPRECIATION OF ANY SYSTEMS BEING USED TO PROVIDE SUCH SERVICE.
13.3 WHEREVER HEAT-GENERATING MACHINES OR EQUIPMENT ARE USED BY TENANT IN
THE PREMISES WHICH AFFECT THE TEMPERATURE OTHERWISE MAINTAINED BY THE AIR
CONDITIONING SYSTEM, LANDLORD RESERVES THE RIGHT TO INSTALL SUPPLEMENTARY AIR
CONDITIONING UNITS IN OR FOR THE BENEFIT OF THE PREMISES AND THE COST THEREOF,
INCLUDING THE COST OF INSTALLATION AND THE COST OF OPERATIONS AND MAINTENANCE,
SHALL BE PAID BY TENANT TO LANDLORD UPON DEMAND AS SUCH ADDITIONAL RENT.
NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE THAT ADDITIONAL
ANTICIPATED HEAT GENERATED FROM THE OPERATION OF APPROXIMATELY 500 COMPACTED
"CUBICLES" USED BY NUMEROUS PERSONNEL (TYPICALLY ONE (1) PER CUBICLE) FOR
PURPOSES OF THE OPERATION OF A "CALL CENTER", AND THE CONCOMITANT PC COMPUTERS
AND MONITORS AND PERIPHERALS (COLLECTIVELY, "DENSE OPERATION HEAT GENERATION"),
WERE ALL TAKEN INTO ACCOUNT IN CONNECTION WITH THE ANTICIPATED HVAC UPGRADE AT
LANDLORD'S COST (NOT TO BE CHARGED AGAINST OR PAID FOR FROM THE ALLOWANCE
DESCRIBED IN SCHEDULE 1 TO EXHIBIT B TO THIS LEASE) AS REFERENCED IN RIDER
PROVISION R-8 TO THIS LEASE; AND NO SUCH HEAT GENERATION RESULTING FROM SUCH
DENSE OPERATION HEAT GENERATION SHALL BE DEEMED OR CONSTRUED TO GIVE RISE TO A
RIGHT OF LANDLORD TO CHARGE COSTS FOR SUPPLEMENTARY AIR CONDITIONING UNITS OR
ITS OPERATIONS OR MAINTENANCE, TO TENANT UNDER THIS SECTION 13.3.
13.4 TENANT MAY, WITHOUT THE WRITTEN CONSENT OF LANDLORD, USE APPARATUS OR
DEVICES IN THE PREMISES, WHICH MAY INCREASE THE AMOUNT OF ELECTRICITY OR WATER
REASONABLY ANTICIPATED TO BE FURNISHED OR SUPPLIED FOR USE OF THE PREMISES AS
HEREIN CONTEMPLATED, INCLUDING IN RESPECT OF THE DENSE OPERATION HEAT GENERATION
OPERATION DESCRIBED ABOVE AND RESTROOM AND RELATED FACILITIES ORDINARILY AND
REASONABLY ASSOCIATED WITH SUCH ANTICIPATED NUMBER OF PERSONNEL (HEREAFTER,
"EXPECTED DENSE USE"), SO LONG AS SAME DO NOT CAUSE TENANT OR LANDLORD OR THE
PREMISES OR SURROUNDING PROPERTY OR IMPROVEMENTS TO VIOLATE "CODE" OR OTHER LAWS
OR OTHERWISE TO CREATE A FIRE HAZARD OR OTHER DANGEROUS CONDITION; BUT TENANT
MAY NOT CONNECT WITH ELECTRIC CURRENT, EXCEPT THROUGH EXISTING ELECTRICAL
OUTLETS IN THE PREMISES, OR WATER PIPES, ANY APPARATUS OR DEVICE FOR THE
PURPOSES OF USING ELECTRICAL CURRENT OR WATER, OTHER THAN IN COMPLIANCE WITH
APPLICABLE "CODE" AND LAW AND SO AS NOT TO CREATE A FIRE HAZARD OR OTHER
DANGEROUS CONDITION. THE PARTIES ACKNOWLEDGE THAT THE ANTICIPATED WORK WILL
INCLUDE CHANGES TO ELECTRICAL AND WATER SUPPLY AND RETURN SO AS TO PROPERLY
ACCOMMODATE THE ANTICIPATED EXPECTED DENSE USE, ALL OF WHICH CHANGES SHALL BE
DEEMED ITEMS OF "LANDLORD'S OBLIGATIONS" UNDER PARAGRAPH (B) OF SCHEDULE 1 TO
EXHIBIT B TO THIS LEASE. TENANT AGREES TO PAY AS ADDITIONAL RENT TO LANDLORD
PROMPTLY UPON DEMAND THEREFOR, THE COST OF ALL SUCH WATER AND ELECTRIC CURRENT
CONSUMED FOR THE PREMISES (AS SHOWN BY METERS, IF ANY, OR, IF NONE, AS
REASONABLY ESTIMATED BY LANDLORD) AT THE RATES CHARGED FOR SUCH SERVICES BY THE
LOCAL PUBLIC UTILITY OR AGENCY, AS THE CASE MAY BE, FURNISHING THE SAME, PLUS
ANY ADDITIONAL EXPENSE INCURRED IN KEEPING ACCOUNT OF THE WATER AND ELECTRIC
CURRENT SO CONSUMED. IF NEW OR ADDITIONAL METERS ARE REQUIRED IN CONNECTION WITH
THE FOREGOING, TENANT AT ITS SOLE COST AND EXPENSE SHALL PAY FOR THE
INSTALLATION THEREOF.
14. HOLDING OVER.
TENANT SHALL PAY LANDLORD FOR EACH DAY TENANT RETAINS POSSESSION OF THE PREMISES
OR PART OF THEM AFTER TERMINATION OF THIS LEASE BY LAPSE OF TIME OR OTHERWISE AT
THE RATE ("HOLDOVER RATE") WHICH SHALL BE 150% OF THE AMOUNT OF THE ANNUAL RENT
FOR THE LAST PERIOD PRIOR TO THE DATE OF SUCH TERMINATION PLUS ALL RENT
ADJUSTMENTS UNDER ARTICLE 4; PRORATED ON A DAILY BASIS, AND ALSO PAY ALL DAMAGES
SUSTAINED BY LANDLORD BY REASON OF SUCH RETENTION. IF LANDLORD GIVES NOTICE TO
TENANT OF LANDLORD'S ELECTION TO THAT EFFECT, SUCH HOLDING OVER SHALL CONSTITUTE
RENEWAL OF THIS LEASE FOR A PERIOD FROM MONTH TO MONTH AT THE HOLDOVER RATE, BUT
IF THE LANDLORD DOES NOT SO ELECT, NO SUCH RENEWAL SHALL RESULT NOTWITHSTANDING
ACCEPTANCE BY LANDLORD OF ANY SUMS DUE HEREUNDER AFTER SUCH TERMINATION; AND
INSTEAD, A TENANCY AT SUFFERANCE AT THE HOLDOVER RATE SHALL BE DEEMED TO HAVE
BEEN CREATED. IN ANY EVENT, NO PROVISION OF THIS ARTICLE 14 SHALL BE DEEMED TO
WAIVE LANDLORD'S RIGHT OF REENTRY OR ANY OTHER RIGHT UNDER THIS LEASE OR AT LAW.
NOTWITHSTANDING THE FOREGOING, PROVIDED TENANT IS NOT THEN IN MONETARY DEFAULT
OR VIOLATION OF ANY TERM OR CONDITION OF THIS LEASE, AND PROVIDED TENANT IS NOT
THEN IN MATERIAL NON-MONETARY DEFAULT OR VIOLATION OF ANY TERM OR CONDITION OF
THIS LEASE, THEN, UPON WRITTEN NOTICE FROM TENANT TO LANDLORD GIVEN NO FEWER
THAN 120 DAYS PRIOR TO THE TERMINATION DATE, THE TERM SHALL BE DEEMED EXTENDED,
FOR SUCH ONE (1) OCCASION ONLY, FOR A PERIOD OF THIRTY (30) DAYS AFTER THE
TERMINATION DATE, UPON THE SAME BASE RENT AND OTHER RENTS AND CHARGES OTHERWISE
PAYABLE BY TENANT DURING THE LAST FULL MONTH OF THE TERM IMMEDIATELY PRECEDING
THE TERMINATION DATE.
15. SUBORDINATION.
WITHOUT THE NECESSITY OF ANY ADDITIONAL DOCUMENT BEING EXECUTED BY TENANT FOR
THE PURPOSE OF EFFECTING A SUBORDINATION, THIS LEASE SHALL BE SUBJECT AND
SUBORDINATE AT ALL TIMES TO GROUND OR UNDERLYING LEASES AND TO THE LIEN OF ANY
MORTGAGES OR DEEDS OF TRUST NOW OR HEREAFTER PLACED ON, AGAINST OR AFFECTING THE
BUILDING [COLLECTIVELY, "UNDERLYING INTEREST HOLDER"], LANDLORD'S INTEREST OR
ESTATE IN THE BUILDING, OR ANY GROUND OR UNDERLYING LEASE [PROVIDED ONLY THAT
SUCH UNDERLYING INTEREST HOLDER SHALL RECOGNIZE TENANT AND THIS LEASE AND AGREE
TO BE BOUND BY ITS TERMS AS SUCCESSOR "LANDLORD" HEREUNDER (BUT NO SUCH
RECOGNITION OR AGREEMENT TO BE BOUND SHALL BE REQUIRED WHERE TENANT IS THEN IN
DEFAULT OR VIOLATION OF ANY TERM OR PROVISION OF THE LEASE)]; PROVIDED, HOWEVER,
THAT IF THE LESSOR, MORTGAGEE, TRUSTEE, OR HOLDER OF ANY SUCH MORTGAGE OR DEED
OF TRUST ELECTS TO HAVE TENANT'S INTEREST IN THIS LEASE BE SUPERIOR TO ANY SUCH
INSTRUMENT, THEN, BY NOTICE TO TENANT, THIS LEASE SHALL BE DEEMED SUPERIOR,
WHETHER THIS LEASE WAS EXECUTED BEFORE OR AFTER SAID INSTRUMENT. NOTWITHSTANDING
THE FOREGOING, TENANT COVENANTS AND AGREES TO EXECUTE AND DELIVER UPON DEMAND
SUCH FURTHER INSTRUMENTS EVIDENCING SUCH SUBORDINATION OR SUPERIORITY OF THIS
LEASE AS MAY BE REQUIRED BY LANDLORD [PROVIDED THAT THE UNDERLYING INTEREST
HOLDER SHALL RECOGNIZE TENANT AND THIS LEASE AND AGREE TO BE BOUND BY ITS TERMS
AS SUCCESSOR "LANDLORD" HEREUNDER (BUT NO SUCH RECOGNITION OR AGREEMENT TO BE
BOUND SHALL BE REQUIRED WHERE TENANT IS THEN IN DEFAULT OR VIOLATION OF ANY TERM
OR PROVISION OF THE LEASE)]. LANDLORD REPRESENTS TO TENANT THAT, AS OF THE DATE
OF FULL EXECUTION AND DELIVERY OF THIS LEASE, THERE IS NO REAL ESTATE MORTGAGE
LIEN AGAINST THE FEE TITLE TO THE UNDERLYING LAND ON WHICH IS SITUATE THE
BUILDING AND THE REMAINDER OF THE OVERALL SHOPPING CENTER WITHIN WHICH IS
SITUATE THE PREMISES; AND IN THE FUTURE WHERE ANY SUCH REAL ESTATE MORTGAGE LIEN
IS OR IS TO BE CREATED AND WHICH DOES OR SHALL ENCUMBER SUCH UNDERLYING FEE
SIMPLE LAND, LANDLORD SHALL EXERCISE REASONABLE EFFORTS TO SEEK A FORM OF
NON-DISTURBANCE AGREEMENT IN FAVOR OF TENANT, IN SUCH LENDER'S TYPICAL FORM.
16. RULES AND REGULATIONS.
TENANT SHALL FAITHFULLY OBSERVE AND COMPLY WITH ALL THE RULES AND REGULATIONS AS
SET FORTH IN EXHIBIT C TO THIS LEASE AND ALL REASONABLE MODIFICATIONS OF AND
ADDITIONS TO THEM FROM TIME TO TIME PUT INTO EFFECT BY LANDLORD. LANDLORD SHALL
NOT BE RESPONSIBLE TO TENANT FOR THE NONPERFORMANCE BY ANY OTHER TENANT OR
OCCUPANT OF THE BUILDING OF ANY SUCH RULES AND REGULATIONS. LANDLORD AGREES THAT
IT SHALL NOT ENFORCE SUCH RULES AND REGULATIONS AGAINST TENANT UNLESS THE SAME
ARE REASONABLE AND UNIFORMLY ENFORCED AGAINST OTHER TENANTS, AS APPLICABLE; NOR
SHALL ANY SUCH RULES AND REGULATIONS BE INCONSISTENT WITH OR CONTRARY TO THE
TERMS AND PROVISIONS OF THIS LEASE. NO SUCH RULE OR REGULATION SHALL INCREASE
TENANT'S BASE RENT DUE UNDER THIS LEASE. IN CONNECTION WITH THE EXERCISE OF ITS
RIGHTS UNDER THIS SECTION 16, LANDLORD AGREES TO EXERCISE COMMERCIALLY
REASONABLE EFFORTS TO MINIMIZE INTERFERENCE WITH THE ONGOING OPERATION OF
BUSINESS IN THE PREMISES FOR THE PERMITTED USES, AS PRACTICABLE UNDER THE
CIRCUMSTANCES.
17. REENTRY BY LANDLORD.
17.1 LANDLORD RESERVES AND SHALL AT REASONABLE TIMES UPON PRIOR REASONABLE
NOTICE [EXCEPT THAT IN CASE OF EMERGENCY, NO ADVANCE NOTICE SHALL BE REQUIRED
AND THE FOLLOWING SHALL BE PERMITTED AT ANY TIME] HAVE THE RIGHT TO RE-ENTER THE
PREMISES TO INSPECT THE SAME, TO SUPPLY ANY OTHER SERVICE TO BE PROVIDED BY
LANDLORD TO TENANT UNDER THIS LEASE, TO SHOW SAID PREMISES TO PROSPECTIVE
PURCHASERS, MORTGAGEES OR TENANTS, AND TO ALTER, IMPROVE OR REPAIR THE PREMISES
AND ANY PORTION OF THE BUILDING, WITHOUT ABATEMENT OF RENT, AND MAY FOR THAT
PURPOSE ERECT, USE AND MAINTAIN SCAFFOLDING, PIPES, CONDUITS AND OTHER NECESSARY
STRUCTURES AND OPEN ANY WALL, CEILING OR FLOOR IN AND THROUGH THE BUILDING AND
PREMISES WHERE REASONABLY REQUIRED BY THE CHARACTER OF THE WORK TO BE PERFORMED,
PROVIDED ENTRANCE TO THE PREMISES SHALL NOT BE BLOCKED THEREBY, AND FURTHER
PROVIDED THAT THE BUSINESS OF TENANT SHALL NOT BE INTERFERED WITH UNREASONABLY.
17.2 LANDLORD SHALL HAVE THE RIGHT AT ANY TIME TO CHANGE THE ARRANGEMENT
AND/OR LOCATIONS OF ENTRANCES [PROVIDED, AS TO THE ENTRANCE TO THE LOBBY:
CHANGES SHALL BE EXPRESSLY LIMITED TO THOSE ARISING OUT OF COSMETIC CHANGES,
DESIGN CHANGES NOT NEGATIVELY AFFECTING DIMENSIONS OR FUNCTIONALITY, REPAIRS,
AND MAINTENANCE THEREOF, AND NO LOCATION CHANGES THEREOF SHALL BE MATERIAL,
MEANING THAT A MINOR SHIFT OF LOCATION IN CONNECTION WITH SUCH PERMITTED
COSMETIC AND OTHER CHANGES SHALL NOT VIOLATE THESE PROVISIONS BUT NO OTHER
MATERIAL MOVEMENT OF THE LOCATION THEREOF SHALL BE PERMITTED], OR PASSAGEWAYS,
DOORS AND DOORWAYS [BUT AS TO PASSAGEWAYS, DOORS AND DOORWAYS, TO THE EXTENT ANY
RELATE TO THE ENTRANCE TO THE LOBBY, EXPRESSLY SUBJECT TO THE FOREGOING LOBBY
ENTRANCE CHANGE LIMITATIONS], AND CORRIDORS, WINDOWS, ELEVATORS, STAIRS, TOILETS
OR OTHER PUBLIC PARTS OF THE BUILDING AND TO CHANGE THE NAME, NUMBER OR
DESIGNATION BY WHICH THE BUILDING IS COMMONLY KNOWN [PROVIDED, WHERE A NEW
COMMONLY KNOWN DESIGNATION OF NAME OR NUMBER FOR THE BUILDING IS MADE BY
LANDLORD FOR PUBLIC USE AND REFERENCE TO THE BUILDING (AS OPPOSED TO A STRICTLY
LANDLORD-INTERNAL DESIGNATION), THEN LANDLORD SHALL MAKE AVAILABLE TO TENANT A
REIMBURSEMENT PAYMENT, NOT A RENTAL CREDIT, OF AN AMOUNT UP TO $1,500.00 TO
OFFSET CERTAIN COSTS AND EXPENSES OF REPRINTING A SHORT-TERM SUPPLY OF
STATIONERY REFLECTING SUCH NEW DESIGNATION, SUCH REIMBURSEMENT PAYABLE PROVIDED
TENANT IS NOT IN DEFAULT OF THIS LEASE WITHIN THIRTY (30) DAYS AFTER WRITTEN
NOTICE GIVEN UPON SUCH NEW STATIONERY, REQUESTING SUCH REIMBURSEMENT,
ACCOMPANIED BY PAID RECEIPT(S) EVIDENCING TENANT'S HAVING INCURRED AT LEAST SUCH
AMOUNT OF STATIONERY REPRINTING EXPENSES AS ARE SO REQUESTED. IN THE EVENT THAT
LANDLORD DAMAGES ANY PORTION OF ANY WALL OR WALL COVERING, CEILING, OR FLOOR OR
FLOOR COVERING WITHIN THE PREMISES, LANDLORD SHALL REPAIR OR REPLACE THE DAMAGED
PORTION TO MATCH THE ORIGINAL AS NEARLY AS COMMERCIALLY REASONABLE BUT SHALL NOT
BE REQUIRED TO REPAIR OR REPLACE MORE THAN THE PORTION ACTUALLY DAMAGED. IN
CONNECTION WITH THE EXERCISE OF ITS RIGHTS UNDER THIS SECTION 17.2, (I) LANDLORD
AGREES TO USE COMMERCIALLY REASONABLE EFFORTS NOT TO TAKE ANY ACTION WHICH WOULD
MATERIALLY AND UNREASONABLY INTERFERE WITH ACCESS TO THE PREMISES, FROM WITHIN
THE ENCLOSED MALL OR COMMON PARKING AREA ONLY; AND (II) LANDLORD AGREES TO
EXERCISE COMMERCIALLY REASONABLE EFFORTS TO MINIMIZE INTERFERENCE WITH THE
ONGOING OPERATION OF BUSINESS IN THE PREMISES FOR THE USES HEREIN PERMITTED, AND
TO DILIGENTLY PROSECUTE ANY LANDLORD REPAIRS, AS PRACTICABLE UNDER THE
CIRCUMSTANCES, AND (III) LANDLORD AGREES TO USE ITS BEST EFFORTS TO REFRAIN FROM
LOCATING WITHIN THE SALES AREA OF SUITE 33C, UNCONCEALED PIPES, CONDUITS,
UTILITY LINES OR WIRES.
17.3 TENANT HEREBY WAIVES ANY CLAIM FOR DAMAGES FOR ANY INJURY OR
INCONVENIENCE TO OR INTER FERENCE WITH TENANT'S BUSINESS, ANY LOSS OF OCCUPANCY
OR QUIET ENJOYMENT OF THE PREMISES, AND ANY OTHER LOSS OCCASIONED BY ANY ACTION
OF LANDLORD AUTHORIZED BY THIS ARTICLE 17. TENANT AGREES TO REIMBURSE LANDLORD,
ON DEMAND, AS ADDITIONAL RENT, FOR ANY EXPENSES WHICH LANDLORD MAY INCUR IN THUS
EFFECTING COMPLIANCE WITH TENANT'S OBLIGATIONS UNDER THIS LEASE.
FOR EACH OF THE AFORESAID PURPOSES, LANDLORD SHALL AT ALL TIMES HAVE AND
RETAIN A KEY WITH WHICH TO UNLOCK ALL OF THE DOORS IN THE PREMISES, EXCLUDING
TENANT'S VAULTS AND SAFES OR SPECIAL SECURITY AREAS (DESIGNATED IN ADVANCE), AND
LANDLORD SHALL HAVE THE RIGHT TO USE ANY AND ALL MEANS WHICH LANDLORD MAY DEEM
PROPER TO OPEN SAID DOORS IN AN EMERGENCY TO OBTAIN ENTRY TO ANY PORTION OF THE
PREMISES. AS TO ANY PORTION TO WHICH ACCESS CANNOT BE HAD BY MEANS OF A KEY OR
KEYS IN LANDLORD'S POSSESSION, LANDLORD IS AUTHORIZED TO GAIN ACCESS BY SUCH
MEANS AS LANDLORD SHALL ELECT AND THE COST OF REPAIRING ANY DAMAGE OCCURRING IN
DOING SO SHALL BE BORNE BY TENANT AND PAID TO LANDLORD AS ADDITIONAL RENT UPON
DEMAND.
NOTHING CONTAINED IN THIS SECTION 17.3 SHALL EXEMPT LANDLORD FROM
RESPONSIBILITY OR LIABILITY FOR ITS NEGLIGENCE OR INTENTIONAL, WRONGFUL ACT OR
BREACH OF THE LEASE, AND TENANT SHALL NOT BE REQUIRED TO INDEMNIFY NOR HOLD
LANDLORD HARMLESS OR WAIVE ANY CLAIMS IN RESPECT TO THE SAME; SUBJECT,
NEVERTHELESS, TO THE "WAIVER OF SUBROGATION" PROVISION OF THIS LEASE.
18. DEFAULT.
18.1 EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 20, THE FOLLOWING EVENTS SHALL
BE DEEMED TO BE EVENTS OF DEFAULT UNDER THIS LEASE:
18.1.1 TENANT SHALL FAIL TO PAY WHEN DUE ANY SUM OF MONEY BECOMING DUE TO
BE PAID TO LANDLORD UNDER THIS LEASE, WHETHER SUCH SUM BE ANY INSTALLMENT OF THE
RENT RESERVED BY THIS LEASE, ANY OTHER AMOUNT TREATED AS ADDITIONAL RENT UNDER
THIS LEASE, OR ANY OTHER PAYMENT OR REIMBURSEMENT TO LANDLORD REQUIRED BY THIS
LEASE, WHETHER OR NOT TREATED AS ADDITIONAL RENT UNDER THIS LEASE, AND SUCH
FAILURE SHALL CONTINUE FOR A PERIOD OF TEN (10) DAYS AFTER WRITTEN NOTICE THAT
SUCH PAYMENT WAS NOT MADE WHEN DUE, BUT IF ANY SUCH NOTICE SHALL BE GIVEN, FOR
THE TWELVE MONTH PERIOD COMMENCING WITH THE DATE OF SUCH NOTICE, THE FAILURE TO
PAY WITHIN TEN (10) DAYS AFTER DUE ANY ADDITIONAL SUM OF MONEY BECOMING DUE TO
BE PAID TO LANDLORD UNDER THIS LEASE DURING SUCH PERIOD SHALL BE AN EVENT OF
DEFAULT, WITHOUT NOTICE.
18.1.2 TENANT SHALL FAIL TO COMPLY WITH ANY TERM, PROVISION OR COVENANT OF
THIS LEASE WHICH IS NOT PROVIDED FOR IN ANOTHER SECTION OF THIS ARTICLE AND
SHALL NOT CURE SUCH FAILURE WITHIN TWENTY (20) DAYS (FORTHWITH, IF THE FAILURE
INVOLVES A HAZARDOUS CONDITION) AFTER WRITTEN NOTICE OF SUCH FAILURE TO TENANT.
18.1.3 TENANT SHALL FAIL TO VACATE THE PREMISES IMMEDIATELY UPON
TERMINATION OF THIS LEASE, BY LAPSE OF TIME OR OTHERWISE, OR UPON TERMINATION OF
TENANT'S RIGHT TO POSSESSION ONLY.
18.1.4 TENANT SHALL BECOME INSOLVENT, ADMIT IN WRITING ITS INABILITY TO PAY
ITS DEBTS GENERALLY AS THEY BECOME DUE, FILE A PETITION IN BANKRUPTCY OR A
PETITION TO TAKE ADVANTAGE OF ANY INSOLVENCY STATUTE, MAKE AN ASSIGNMENT FOR THE
BENEFIT OF CREDITORS, MAKE A TRANSFER IN FRAUD OF CREDITORS, APPLY FOR OR
CONSENT TO THE APPOINTMENT OF A RECEIVER OF ITSELF OR OF THE WHOLE OR ANY
SUBSTANTIAL PART OF ITS PROPERTY, OR FILE A PETITION OR ANSWER SEEKING
REORGANIZATION OR ARRANGEMENT UNDER THE FEDERAL BANKRUPTCY LAWS, AS NOW IN
EFFECT OR HEREAFTER AMENDED, OR ANY OTHER APPLICABLE LAW OR STATUTE OF THE
UNITED STATES OR ANY STATE THEREOF.
18.1.5 A COURT OF COMPETENT JURISDICTION SHALL ENTER AN ORDER, JUDGMENT OR
DECREE ADJUDICATING TENANT BANKRUPT, OR APPOINTING A RECEIVER OF TENANT, OR OF
THE WHOLE OR ANY SUBSTANTIAL PART OF ITS PROPERTY, WITHOUT THE CONSENT OF
TENANT, OR APPROVING A PETITION FILED AGAINST TENANT SEEKING REORGANIZATION OR
ARRANGEMENT OF TENANT UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES, AS NOW IN
EFFECT OR HEREAFTER AMENDED, OR ANY STATE THEREOF, AND SUCH ORDER, JUDGMENT OR
DECREE SHALL NOT BE VACATED OR SET ASIDE OR STAYED WITHIN THIRTY (30) DAYS FROM
THE DATE OF ENTRY THEREOF.
19. REMEDIES.
19.1 EXCEPT AS OTHERWISE PROVIDED IN ARTICLE 20, UPON THE OCCURRENCE OF ANY
OF THE EVENTS OF DEFAULT DESCRIBED OR REFERRED TO IN ARTICLE 18, LANDLORD SHALL
HAVE THE OPTION TO PURSUE ANY ONE OR MORE OF THE FOLLOWING REMEDIES WITHOUT ANY
NOTICE OR DEMAND WHATSOEVER, CONCURRENTLY OR CONSECUTIVELY AND NOT
ALTERNATIVELY:
19.1.1 LANDLORD MAY, AT ITS ELECTION, TERMINATE THIS LEASE OR TERMINATE
TENANT'S RIGHT TO POSSESSION ONLY, WITHOUT TERMINATING THE LEASE.
19.1.2 UPON ANY TERMINATION OF THIS LEASE, WHETHER BY LAPSE OF TIME OR
OTHERWISE, OR UPON ANY TERMINATION OF TENANT'S RIGHT TO POSSESSION WITHOUT
TERMINATION OF THE LEASE, TENANT SHALL SURRENDER POSSESSION AND VACATE THE
PREMISES IMMEDIATELY, AND DELIVER POSSESSION THEREOF TO LANDLORD, AND TENANT
HEREBY GRANTS TO LANDLORD FULL AND FREE LICENSE TO ENTER INTO AND UPON THE
PREMISES IN SUCH EVENT AND TO REPOSSESS LANDLORD OF THE PREMISES AS OF
LANDLORD'S FORMER ESTATE AND TO EXPEL OR REMOVE TENANT AND ANY OTHERS WHO MAY BE
OCCUPYING OR BE WITHIN THE PREMISES AND TO REMOVE TENANT'S SIGNS AND OTHER
EVIDENCE OF TENANCY AND ALL OTHER PROPERTY OF TENANT THEREFROM WITHOUT BEING
DEEMED IN ANY MANNER GUILTY OF TRESPASS, EVICTION OR FORCIBLE ENTRY OR DETAINER,
AND WITHOUT INCURRING ANY LIABILITY FOR ANY DAMAGE RESULTING THEREFROM, TENANT
WAIVING ANY RIGHT TO CLAIM DAMAGES FOR SUCH RE-ENTRY AND EXPULSION, AND WITHOUT
RELINQUISHING LANDLORD'S RIGHT TO RENT OR ANY OTHER RIGHT GIVEN TO LANDLORD
UNDER THIS LEASE OR BY OPERATION OF LAW.
19.1.3 UPON ANY TERMINATION OF THIS LEASE, WHETHER BY LAPSE OF TIME OR
OTHERWISE, LANDLORD SHALL BE ENTITLED TO RECOVER AS DAMAGES, ALL RENT, INCLUDING
ANY AMOUNTS TREATED AS ADDITIONAL RENT UNDER THIS LEASE, AND OTHER SUMS DUE AND
PAYABLE BY TENANT ON THE DATE OF TERMINATION, PLUS AS LIQUIDATED DAMAGES AND NOT
AS A PENALTY, AN AMOUNT EQUAL TO THE SUM OF: (A) AN AMOUNT EQUAL TO THE THEN
PRESENT VALUE OF THE RENT RESERVED IN THIS LEASE FOR THE RESIDUE OF THE STATED
TERM OF THIS LEASE INCLUDING ANY AMOUNTS TREATED AS ADDITIONAL RENT UNDER THIS
LEASE AND ALL OTHER SUMS PROVIDED IN THIS LEASE TO BE PAID BY TENANT, MINUS THE
FAIR RENTAL VALUE OF THE PREMISES FOR SUCH RESIDUE; (B) THE VALUE OF THE TIME
AND EXPENSE NECESSARY TO OBTAIN A REPLACEMENT TENANT OR TENANTS, AND THE
ESTIMATED EXPENSES DESCRIBED IN SECTION 19.1.4 RELATING TO RECOVERY OF THE
PREMISES, PREPARATION FOR RELETTING AND FOR RELETTING ITSELF; AND (C) THE COST
OF PERFORMING ANY OTHER COVENANTS WHICH WOULD HAVE OTHERWISE BEEN PERFORMED BY
TENANT.
19.1.4 UPON ANY TERMINATION OF TENANT'S RIGHT TO POSSESSION ONLY WITHOUT
TERMINATION OF THE LEASE:
19.1.4.1 NEITHER SUCH TERMINATION OF TENANT'S RIGHT TO POSSESSION NOR
LANDLORD'S TAKING AND HOLDING POSSESSION THEREOF AS PROVIDED IN SECTION 19.1.2
SHALL TERMINATE THE LEASE OR RELEASE TENANT, IN WHOLE OR IN PART, FROM ANY
OBLIGATION, INCLUDING TENANT'S OBLIGA TION TO PAY THE RENT, INCLUDING ANY
AMOUNTS TREATED AS ADDITIONAL RENT, UNDER THIS LEASE FOR THE FULL TERM, AND IF
LANDLORD SO ELECTS TENANT SHALL PAY FORTHWITH TO LANDLORD THE SUM EQUAL TO THE
ENTIRE AMOUNT OF THE RENT, INCLUDING ANY AMOUNTS TREATED AS ADDITIONAL RENT
UNDER THIS LEASE, FOR THE REMAINDER OF THE TERM PLUS ANY OTHER SUMS PROVIDED IN
THIS LEASE TO BE PAID BY TENANT FOR THE REMAINDER OF THE TERM.
19.1.4.2 LANDLORD MAY, BUT NEED NOT, RELET THE PREMISES OR ANY PART THEREOF
FOR SUCH RENT AND UPON SUCH TERMS AS LANDLORD, IN ITS SOLE DISCRETION, SHALL
DETERMINE (INCLUDING THE RIGHT TO RELET THE PREMISES FOR A GREATER OR LESSER
TERM THAN THAT REMAINING UNDER THIS LEASE, THE RIGHT TO RELET THE PREMISES AS A
PART OF A LARGER AREA, AND THE RIGHT TO CHANGE THE CHARACTER OR USE MADE OF THE
PREMISES). IN CONNECTION WITH OR IN PREPARATION FOR ANY RELETTING, LANDLORD MAY,
BUT SHALL NOT BE REQUIRED TO, MAKE REPAIRS, ALTERATIONS AND ADDITIONS IN OR TO
THE PREMISES AND REDECORATE THE SAME TO THE EXTENT LANDLORD DEEMS NECESSARY OR
DESIRABLE, AND TENANT SHALL, UPON DEMAND, PAY THE COST THEREOF, TOGETHER WITH
LANDLORD'S EXPENSES OF RELETTING, INCLUDING, WITHOUT LIMITATION, ANY COMMISSION
INCURRED BY LANDLORD. IF LANDLORD DECIDES TO RELET THE PREMISES OR A DUTY TO
RELET IS IMPOSED UPON LANDLORD BY LAW, LANDLORD AND TENANT AGREE THAT
NEVERTHELESS LANDLORD SHALL AT MOST BE REQUIRED TO USE ONLY THE SAME EFFORTS
LANDLORD THEN USES TO LEASE PREMISES IN THE BUILDING GENERALLY AND THAT IN ANY
CASE THAT LANDLORD SHALL NOT BE REQUIRED TO GIVE ANY PREFERENCE OR PRIORITY TO
THE SHOWING OR LEASING OF THE PREMISES OVER ANY OTHER SPACE THAT LANDLORD MAY BE
LEASING OR HAVE AVAILABLE AND MAY PLACE A SUITABLE PROSPECTIVE TENANT IN ANY
SUCH OTHER SPACE REGARDLESS OF WHEN SUCH OTHER SPACE BECOMES AVAILABLE. LANDLORD
SHALL NOT BE REQUIRED TO OBSERVE ANY INSTRUCTION GIVEN BY TENANT ABOUT ANY
RELETTING OR ACCEPT ANY TENANT OFFERED BY TENANT UNLESS SUCH OFFERED TENANT HAS
A CREDIT-WORTHINESS ACCEPTABLE TO LANDLORD AND LEASES THE ENTIRE PREMISES UPON
TERMS AND CONDITIONS INCLUDING A RATE OF RENT (AFTER GIVING EFFECT TO ALL
EXPENDITURES BY LANDLORD FOR TENANT IMPROVEMENTS, BROKER'S COMMISSIONS AND OTHER
LEASING COSTS) ALL NO LESS FAVORABLE TO LANDLORD THAN AS CALLED FOR IN THIS
LEASE, NOR SHALL LANDLORD BE REQUIRED TO MAKE OR PERMIT ANY ASSIGNMENT OR
SUBLEASE FOR MORE THAN THE CURRENT TERM OR WHICH LANDLORD WOULD NOT BE REQUIRED
TO PERMIT UNDER THE PROVISIONS OF ARTICLE 9.
19.1.4.3 UNTIL SUCH TIME AS LANDLORD SHALL ELECT TO TERMINATE THE LEASE AND
SHALL THEREUPON BE ENTITLED TO RECOVER THE AMOUNTS SPECIFIED IN SUCH CASE IN
SECTION 19.1.3, TENANT SHALL PAY TO LANDLORD UPON DEMAND THE FULL AMOUNT OF ALL
RENT, INCLUDING ANY AMOUNTS TREATED AS ADDITIONAL RENT UNDER THIS LEASE AND
OTHER SUMS RESERVED IN THIS LEASE FOR THE REMAINING TERM, TOGETHER WITH THE
COSTS OF REPAIRS, ALTERATIONS, ADDITIONS, REDECORATING AND LANDLORD'S EXPENSES
OF RELETTING AND THE COLLECTION OF THE RENT ACCRUING THEREFROM (INCLUDING
ATTORNEY'S FEES AND BROKER'S COMMISSIONS), AS THE SAME SHALL THEN BE DUE OR
BECOME DUE FROM TIME TO TIME, LESS ONLY SUCH CONSIDERATION AS LANDLORD MAY HAVE
RECEIVED FROM ANY RELETTING OF THE PREMISES; AND TENANT AGREES THAT LANDLORD MAY
FILE SUITS FROM TIME TO TIME TO RECOVER ANY SUMS FALLING DUE UNDER THIS ARTICLE
19 AS THEY BECOME DUE. ANY PROCEEDS OF RELETTING BY LANDLORD IN EXCESS OF THE
AMOUNT THEN OWED BY TENANT TO LANDLORD FROM TIME TO TIME SHALL BE CREDITED
AGAINST TENANT'S FUTURE OBLIGATIONS UNDER THIS LEASE BUT SHALL NOT OTHERWISE BE
REFUNDED TO TENANT OR INURE TO TENANT'S BENEFIT.
19.2 LANDLORD MAY, AT LANDLORD'S OPTION, ENTER INTO AND UPON THE PREMISES
IF LANDLORD DETERMINES IN ITS SOLE DISCRETION THAT TENANT IS NOT ACTING WITHIN A
COMMERCIALLY REASONABLE TIME TO MAINTAIN, REPAIR OR REPLACE ANYTHING FOR WHICH
TENANT IS RESPONSIBLE UNDER THIS LEASE AND CORRECT THE SAME, WITHOUT BEING
DEEMED IN ANY MANNER GUILTY OF TRESPASS, EVICTION OR FORCIBLE ENTRY AND DETAINER
AND WITHOUT INCURRING ANY LIABILITY FOR ANY DAMAGE OR INTERRUPTION OF TENANT'S
BUSINESS RESULTING THEREFROM. IF TENANT SHALL HAVE VACATED THE PREMISES,
LANDLORD MAY AT LANDLORD'S OPTION RE-ENTER THE PREMISES AT ANY TIME DURING THE
LAST SIX MONTHS OF THE THEN CURRENT TERM OF THIS LEASE AND MAKE ANY AND ALL SUCH
CHANGES, ALTERATIONS, REVISIONS, ADDITIONS AND TENANT AND OTHER IMPROVEMENTS IN
OR ABOUT THE PREMISES AS LANDLORD SHALL ELECT, ALL WITHOUT ANY ABATEMENT OF ANY
OF THE RENT OTHERWISE TO BE PAID BY TENANT UNDER THIS LEASE.
19.3 IF, ON ACCOUNT OF ANY BREACH OR DEFAULT BY TENANT IN TENANT'S
OBLIGATIONS UNDER THE TERMS AND CONDITIONS OF THIS LEASE, IT SHALL BECOME
NECESSARY OR APPROPRIATE FOR LANDLORD TO EMPLOY OR CONSULT WITH AN ATTORNEY
CONCERNING OR TO ENFORCE OR DEFEND ANY OF LANDLORD'S RIGHTS OR REMEDIES ARISING
UNDER THIS LEASE, TENANT AGREES TO PAY ALL LANDLORD'S ATTORNEY'S FEES SO
INCURRED. TENANT EXPRESSLY WAIVES ANY RIGHT TO: (A) TRIAL BY JURY; AND (B)
SERVICE OF ANY NOTICE REQUIRED BY ANY PRESENT OR FUTURE LAW OR ORDINANCE
APPLICABLE TO LANDLORDS OR TENANTS BUT NOT REQUIRED BY THE TERMS OF THIS LEASE.
19.4 PURSUIT OF ANY OF THE FOREGOING REMEDIES SHALL NOT PRECLUDE PURSUIT OF
ANY OF THE OTHER REMEDIES PROVIDED IN THIS LEASE OR ANY OTHER REMEDIES PROVIDED
BY LAW (ALL SUCH REMEDIES BEING CUMULATIVE), NOR SHALL PURSUIT OF ANY REMEDY
PROVIDED IN THIS LEASE CONSTITUTE A FORFEITURE OR WAIVER OF ANY RENT DUE TO
LANDLORD UNDER THIS LEASE OR OF ANY DAMAGES ACCRUING TO LANDLORD BY REASON OF
THE VIOLATION OF ANY OF THE TERMS, PROVISIONS AND COVENANTS CONTAINED IN THIS
LEASE.
19.5 NO ACT OR THING DONE BY LANDLORD OR ITS AGENTS DURING THE TERM SHALL
BE DEEMED A TERMINATION OF THIS LEASE OR AN ACCEPTANCE OF THE SURRENDER OF THE
PREMISES, AND NO AGREEMENT TO TERMINATE THIS LEASE OR ACCEPT A SURRENDER OF SAID
PREMISES SHALL BE VALID, UNLESS IN WRITING SIGNED BY LANDLORD. NO WAIVER BY
LANDLORD OF ANY VIOLATION OR BREACH OF ANY OF THE TERMS, PROVISIONS AND
COVENANTS CONTAINED IN THIS LEASE SHALL BE DEEMED OR CONSTRUED TO CONSTITUTE A
WAIVER OF ANY OTHER VIOLATION OR BREACH OF ANY OF THE TERMS, PROVISIONS AND
COVENANTS CONTAINED IN THIS LEASE. LANDLORD'S ACCEPTANCE OF THE PAYMENT OF
RENTAL OR OTHER PAYMENTS AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT SHALL NOT
BE CONSTRUED AS A WAIVER OF SUCH DEFAULT, UNLESS LANDLORD SO NOTIFIES TENANT IN
WRITING. FORBEARANCE BY LANDLORD IN ENFORCING ONE OR MORE OF THE REMEDIES
PROVIDED IN THIS LEASE UPON AN EVENT OF DEFAULT SHALL NOT BE DEEMED OR CONSTRUED
TO CONSTITUTE A WAIVER OF SUCH DEFAULT OR OF LANDLORD'S RIGHT TO ENFORCE ANY
SUCH REMEDIES WITH RESPECT TO SUCH DEFAULT OR ANY SUBSEQUENT DEFAULT.
19.6 TO SECURE THE PAYMENT OF ALL RENTALS AND OTHER SUMS OF MONEY BECOMING
DUE FROM TENANT UNDER THIS LEASE, LANDLORD SHALL HAVE AND TENANT GRANTS TO
LANDLORD A FIRST LIEN UPON THE LEASEHOLD INTEREST OF TENANT UNDER THIS LEASE,
WHICH LIEN MAY BE ENFORCED IN EQUITY, AND A CONTINUING SECURITY INTEREST UPON
ALL GOODS, WARES, EQUIPMENT, FIXTURES, FURNITURE, INVENTORY, ACCOUNTS, CONTRACT
RIGHTS, CHATTEL PAPER AND OTHER PERSONAL PROPERTY OF TENANT SITUATED ON THE
PREMISES, AND SUCH PROPERTY SHALL NOT BE REMOVED THEREFROM WITHOUT THE CONSENT
OF LANDLORD UNTIL ALL ARREARAGES IN RENT AS WELL AS ANY AND ALL OTHER SUMS OF
MONEY THEN DUE TO LANDLORD UNDER THIS LEASE SHALL FIRST HAVE BEEN PAID AND
DISCHARGED. IN THE EVENT OF A DEFAULT UNDER THIS LEASE, LANDLORD SHALL HAVE, IN
ADDITION TO ANY OTHER REMEDIES PROVIDED IN THIS LEASE OR BY LAW, ALL RIGHTS AND
REMEDIES UNDER THE UNIFORM COMMERCIAL CODE, INCLUDING WITHOUT LIMITATION THE
RIGHT TO SELL THE PROPERTY DESCRIBED IN THIS SECTION 19.6 AT PUBLIC OR PRIVATE
SALE UPON FIVE (5) DAYS' NOTICE TO TENANT. TENANT SHALL EXECUTE ALL SUCH
FINANCING STATEMENTS AND OTHER INSTRU MENTS AS SHALL BE DEEMED NECESSARY OR
DESIRABLE IN LANDLORD'S DISCRETION TO PERFECT THE SECURITY INTEREST HEREBY
CREATED.
19.7 ANY AND ALL PROPERTY WHICH MAY BE REMOVED FROM THE PREMISES BY
LANDLORD PURSUANT TO THE AUTHORITY OF THIS LEASE OR OF LAW, TO WHICH TENANT IS
OR MAY BE ENTITLED, MAY BE HANDLED, REMOVED AND/OR STORED, AS THE CASE MAY BE,
BY OR AT THE DIRECTION OF LANDLORD BUT AT THE RISK, COST AND EXPENSE OF TENANT,
AND LANDLORD SHALL IN NO EVENT BE RESPONSIBLE FOR THE VALUE, PRESERVATION OR
SAFEKEEPING THEREOF. TENANT SHALL PAY TO LANDLORD, UPON DEMAND, ANY AND ALL
EXPENSES INCURRED IN SUCH REMOVAL AND ALL STORAGE CHARGES AGAINST SUCH PROPERTY
SO LONG AS THE SAME SHALL BE IN LANDLORD'S POSSESSION OR UNDER LANDLORD'S
CONTROL. ANY SUCH PROPERTY OF TENANT NOT RETAKEN BY TENANT FROM STORAGE WITHIN
THIRTY (30) DAYS AFTER REMOVAL FROM THE PREMISES SHALL, AT LANDLORD'S OPTION, BE
DEEMED CONVEYED BY TENANT TO LANDLORD UNDER THIS LEASE AS BY A BILL OF SALE
WITHOUT FURTHER PAYMENT OR CREDIT BY LANDLORD TO TENANT.
20. TENANT'S BANKRUPTCY OR INSOLVENCY.
20.1 IF AT ANY TIME AND FOR SO LONG AS TENANT SHALL BE SUBJECTED TO THE
PROVISIONS OF THE UNITED STATES BANKRUPTCY CODE OR OTHER LAW OF THE UNITED
STATES OR ANY STATE THEREOF FOR THE PROTECTION OF DEBTORS AS IN EFFECT AT SUCH
TIME (EACH A "DEBTOR'S LAW"):
20.1.1 TENANT, TENANT AS DEBTOR-IN-POSSESSION, AND ANY TRUSTEE OR RECEIVER
OF TENANT'S ASSETS (EACH A "TENANT'S REPRESENTATIVE") SHALL HAVE NO GREATER
RIGHT TO ASSUME OR ASSIGN THIS LEASE OR ANY INTEREST IN THIS LEASE, OR TO
SUBLEASE ANY OF THE PREMISES THAN ACCORDED TO TENANT IN ARTICLE 9, EXCEPT TO THE
EXTENT LANDLORD SHALL BE REQUIRED TO PERMIT SUCH ASSUMPTION, ASSIGNMENT OR
SUBLEASE BY THE PROVISIONS OF SUCH DEBTOR'S LAW. WITHOUT LIMITATION OF THE
GENERALITY OF THE FOREGOING, ANY RIGHT OF ANY TENANT'S REPRESENTATIVE TO ASSUME
OR ASSIGN THIS LEASE OR TO SUBLEASE ANY OF THE PREMISES SHALL BE SUBJECT TO THE
CONDITIONS THAT: 20.1.1.1 SUCH DEBTOR'S LAW SHALL PROVIDE TO TENANT'S
REPRESENTATIVE A RIGHT OF ASSUMPTION OF THIS LEASE WHICH TENANT'S REPRESENTATIVE
SHALL HAVE TIMELY EXERCISED AND TENANT'S REPRESENTATIVE SHALL HAVE FULLY CURED
ANY DEFAULT OF TENANT UNDER THIS LEASE.
20.1.1.2 TENANT'S REPRESENTATIVE OR THE PROPOSED ASSIGNEE, AS THE CASE
SHALL BE, SHALL HAVE DEPOSITED WITH LANDLORD AS SECURITY FOR THE TIMELY PAYMENT
OF RENT AN AMOUNT EQUAL TO THE LARGER OF: (A) THREE MONTHS' RENT AND OTHER
MONETARY CHARGES ACCRUING UNDER THIS LEASE; AND (B) ANY SUM SPECIFIED IN ARTICLE
5; AND SHALL HAVE PROVIDED LANDLORD WITH ADEQUATE OTHER ASSURANCE OF THE FUTURE
PERFORMANCE OF THE OBLIGATIONS OF THE TENANT UNDER THIS LEASE. WITHOUT
LIMITATION, SUCH ASSURANCES SHALL INCLUDE, AT LEAST, IN THE CASE OF ASSUMPTION
OF THIS LEASE, DEMONSTRATION TO THE SATISFACTION OF THE LANDLORD THAT TENANT'S
REPRESENTATIVE HAS AND WILL CONTINUE TO HAVE SUFFICIENT UNENCUMBERED ASSETS
AFTER THE PAYMENT OF ALL SECURED OBLIGA TIONS AND ADMINISTRATIVE EXPENSES TO
ASSURE LANDLORD THAT TENANT'S REPRESENTATIVE WILL HAVE SUFFICIENT FUNDS TO
FULFILL THE OBLIGATIONS OF TENANT UNDER THIS LEASE; AND, IN THE CASE OF
ASSIGNMENT, SUBMISSION OF CURRENT FINANCIAL STATEMENTS OF THE PROPOSED ASSIGNEE,
AUDITED BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT REASONABLY ACCEPTABLE TO
LANDLORD AND SHOWING A NET WORTH AND WORKING CAPITAL IN AMOUNTS DETERMINED BY
LANDLORD TO BE SUFFICIENT TO ASSURE THE FUTURE PERFORMANCE BY SUCH ASSIGNEE OF
ALL OF THE TENANT'S OBLIGATIONS UNDER THIS LEASE.
20.1.1.3 THE ASSUMPTION OR ANY CONTEMPLATED ASSIGNMENT OF THIS LEASE OR
SUBLEASING ANY PART OF THE PREMISES, AS SHALL BE THE CASE, WILL NOT BREACH ANY
PROVISION IN ANY OTHER LEASE, MORTGAGE, FINANCING AGREEMENT OR OTHER AGREEMENT
BY WHICH LANDLORD IS BOUND.
20.1.1.4 LANDLORD SHALL HAVE, OR WOULD HAVE HAD ABSENT THE DEBTOR'S LAW, NO
RIGHT UNDER ARTICLE 9 TO REFUSE CONSENT TO THE PROPOSED ASSIGNMENT OR SUBLEASE
BY REASON OF THE IDENTITY OR NATURE OF THE PROPOSED ASSIGNEE OR SUBLESSEE OR THE
PROPOSED USE OF THE PREMISES CONCERNED.
21. QUIET ENJOYMENT.
LANDLORD REPRESENTS AND WARRANTS THAT IT HAS FULL RIGHT AND AUTHORITY TO ENTER
INTO THIS LEASE AND THAT TENANT, WHILE PAYING THE RENTAL AND PERFORMING ITS
OTHER COVENANTS AND AGREEMENTS CONTAINED IN THIS LEASE, SHALL PEACEABLY AND
QUIETLY HAVE, HOLD AND ENJOY THE PREMISES FOR THE TERM WITHOUT HINDRANCE OR
MOLESTATION FROM LANDLORD SUBJECT TO THE TERMS AND PROVISIONS OF THIS LEASE.
LANDLORD SHALL NOT BE LIABLE FOR ANY INTERFERENCE OR DISTURBANCE BY OTHER
TENANTS OR THIRD PERSONS, NOR SHALL TENANT BE RELEASED FROM ANY OF THE
OBLIGATIONS OF THIS LEASE BECAUSE OF SUCH INTERFERENCE OR DISTURBANCE.
22. DAMAGE BY FIRE, ETC.
22.1 IN THE EVENT THE PREMISES OR THE BUILDING ARE DAMAGED BY FIRE OR OTHER
CAUSE AND IN LANDLORD'S REASONABLE ESTIMATION SUCH DAMAGE CAN BE MATERIALLY
RESTORED WITHIN NINETY (90) DAYS, LANDLORD SHALL FORTHWITH REPAIR THE SAME AND
THIS LEASE SHALL REMAIN IN FULL FORCE AND EFFECT, EXCEPT THAT TENANT SHALL BE
ENTITLED TO A PROPORTIONATE ABATEMENT IN RENT FROM THE DATE OF SUCH DAMAGE. SUCH
ABATEMENT OF RENT SHALL BE MADE PRO RATA IN ACCORDANCE WITH THE EXTENT TO WHICH
THE DAMAGE AND THE MAKING OF SUCH REPAIRS SHALL INTERFERE WITH THE USE AND
OCCUPANCY BY TENANT OF THE PREMISES FROM TIME TO TIME. WITHIN FORTY-FIVE (45)
DAYS FROM THE DATE OF SUCH DAMAGE, LANDLORD SHALL NOTIFY TENANT, IN WRITING, OF
LANDLORD'S REASONABLE ESTIMATION OF THE LENGTH OF TIME WITHIN WHICH MATERIAL
RESTORATION CAN BE MADE, AND LANDLORD'S DETERMINATION SHALL BE BINDING ON
TENANT. FOR PURPOSES OF THIS LEASE, THE BUILDING OR PREMISES SHALL BE DEEMED
"MATERIALLY RESTORED" IF THEY ARE IN SUCH CONDITION AS WOULD NOT PREVENT OR
MATERIALLY INTERFERE WITH TENANT'S USE OF THE PREMISES FOR THE PURPOSE FOR WHICH
IT WAS BEING USED IMMEDIATELY BEFORE SUCH DAMAGE.
22.2 IF SUCH REPAIRS CANNOT, IN LANDLORD'S REASONABLE ESTIMATION, BE MADE
WITHIN NINETY (90) DAYS, LANDLORD AND TENANT SHALL EACH HAVE THE OPTION OF
GIVING THE OTHER, AT ANY TIME WITHIN SIXTY (60) DAYS AFTER SUCH DAMAGE, NOTICE
TERMINATING THIS LEASE AS OF THE DATE OF SUCH DAMAGE. IN THE EVENT OF THE GIVING
OF SUCH NOTICE, THIS LEASE SHALL EXPIRE AND ALL INTEREST OF THE TENANT IN THE
PREMISES SHALL TERMINATE AS OF THE DATE OF SUCH DAMAGE AS IF SUCH DATE HAD BEEN
ORIGINALLY FIXED IN THIS LEASE FOR THE EXPIRATION OF THE TERM. IN THE EVENT THAT
NEITHER LANDLORD NOR TENANT EXERCISES ITS OPTION TO TERMINATE THIS LEASE, THEN
LANDLORD SHALL REPAIR OR RESTORE SUCH DAMAGE, THIS LEASE CONTINUING IN FULL
FORCE AND EFFECT, AND THE RENT HEREUNDER SHALL BE PROPORTIONATELY ABATED AS
PROVIDED IN SECTION 22.1. 22.3 LANDLORD SHALL NOT BE REQUIRED TO REPAIR OR
REPLACE ANY DAMAGE OR LOSS BY OR FROM FIRE OR OTHER CAUSE TO ANY PANELINGS,
DECORATIONS, PARTITIONS, ADDITIONS, RAILINGS, CEILINGS, FLOOR COVERINGS, OFFICE
FIXTURES OR ANY OTHER PROPERTY OR IMPROVEMENTS INSTALLED ON THE PREMISES OR
BELONGING TO TENANT. ANY INSURANCE WHICH MAY BE CARRIED BY LANDLORD OR TENANT
AGAINST LOSS OR DAMAGE TO THE BUILDING OR PREMISES SHALL BE FOR THE SOLE BENEFIT
OF THE PARTY CARRYING SUCH INSURANCE AND UNDER ITS SOLE CONTROL.
22.4 IN THE EVENT THAT LANDLORD SHOULD FAIL TO COMPLETE SUCH REPAIRS AND
MATERIAL RESTORATION WITHIN SIXTY (60) DAYS AFTER THE DATE ESTIMATED BY LANDLORD
THEREFOR AS EXTENDED BY THIS SECTION 22.4, TENANT MAY AT ITS OPTION AND AS ITS
SOLE REMEDY TERMINATE THIS LEASE BY DELIVERING WRITTEN NOTICE TO LANDLORD,
WITHIN FIFTEEN (15) DAYS AFTER THE EXPIRATION OF SAID PERIOD OF TIME, WHEREUPON
THE LEASE SHALL END ON THE DATE OF SUCH NOTICE OR SUCH LATER DATE FIXED IN SUCH
NOTICE AS IF THE DATE OF SUCH NOTICE WAS THE DATE ORIGINALLY FIXED IN THIS LEASE
FOR THE EXPIRATION OF THE TERM; PROVIDED, HOWEVER, THAT IF CONSTRUCTION IS
DELAYED BECAUSE OF CHANGES, DELETIONS OR ADDITIONS IN CONSTRUCTION REQUESTED BY
TENANT, STRIKES, LOCKOUTS, CASUALTIES, ACTS OF GOD, WAR, MATERIAL OR LABOR
SHORTAGES, GOVERNMENT REGULATION OR CONTROL OR OTHER CAUSES BEYOND THE
REASONABLE CONTROL OF LANDLORD, THE PERIOD FOR RESTORATION, REPAIR OR REBUILDING
SHALL BE EXTENDED FOR THE AMOUNT OF TIME LANDLORD IS SO DELAYED.
22.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS RTICLE: (A)
LANDLORD SHALL NOT HAVE ANY OBLIGATION WHATSOEVER TO REPAIR, RECONSTRUCT, OR
RESTORE THE PREMISES WHEN THE DAMAGES RESULTING FROM ANY CASUALTY COVERED BY THE
PROVISIONS OF THIS ARTICLE 22 OCCUR DURING THE LAST TWELVE (12) MONTHS OF THE
TERM OR ANY EXTENSION THEREOF, BUT IF LANDLORD DETERMINES NOT TO REPAIR SUCH
DAMAGES LANDLORD SHALL NOTIFY TENANT AND IF SUCH DAMAGES SHALL RENDER ANY
MATERIAL PORTION OF THE PREMISES UNTENANTABLE TENANT SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE BY NOTICE TO LANDLORD WITHIN FIFTEEN (15) DAYS AFTER
RECEIPT OF LANDLORD'S NOTICE; (B) IN THE EVENT THE HOLDER OF ANY INDEBTEDNESS
SECURED BY A MORTGAGE OR DEED OF TRUST COVERING THE PREMISES OR BUILDING
REQUIRES THAT ANY INSURANCE PROCEEDS BE APPLIED TO SUCH INDEBTEDNESS, THEN
LANDLORD SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE BY DELIVERING WRITTEN
NOTICE OF TERMINATION TO TENANT WITHIN FIFTEEN (15) DAYS AFTER SUCH REQUIREMENT
IS MADE BY ANY SUCH HOLDER, WHEREUPON THIS LEASE SHALL END ON THE DATE OF SUCH
DAMAGE AS IF THE DATE OF SUCH DAMAGE WERE THE DATE ORIGINALLY FIXED IN THIS
LEASE FOR THE EXPIRATION OF THE TERM; AND (C) IN NO EVENT SHALL LANDLORD BE
REQUIRED TO EXPEND FOR SUCH REPAIR AN AMOUNT IN EXCESS OF THE INSURANCE PROCEEDS
RECEIVED BY LANDLORD HAVING FIRST DEDUCTED ANY PORTION PAID TO LANDLORD'S
MORTGAGEE AS REQUIRED UNDER ANY MORTGAGE OR DEED OF TRUST.
22.6 IN THE EVENT OF ANY DAMAGE OR DESTRUCTION TO THE BUILDING OR PREMISES
BY ANY PERIL COVERED BY THE PROVISIONS OF THIS ARTICLE 22, IT SHALL BE TENANT'S
RESPONSIBILITY TO PROPERLY SECURE THE PREMISES AND UPON NOTICE FROM LANDLORD TO
REMOVE FORTHWITH, AT ITS SOLE COST AND EXPENSE, SUCH PORTION OF ALL OF THE
PROPERTY BELONGING TO TENANT OR ITS LICENSEES FROM SUCH PORTION OR ALL OF THE
BUILDING OR PREMISES AS LANDLORD SHALL REQUEST.
23. EMINENT DOMAIN.
IF ALL OR ANY SUBSTANTIAL PART OF THE PREMISES SHALL BE TAKEN OR APPROPRIATED BY
ANY PUBLIC OR QUASI-PUBLIC AUTHORITY UNDER THE POWER OF EMINENT DOMAIN, OR
CONVEYANCE IN LIEU OF SUCH APPROPRIATION, EITHER PARTY TO THIS LEASE SHALL HAVE
THE RIGHT, AT ITS OPTION, OF GIVING THE OTHER, AT ANY TIME WITHIN THIRTY (30)
DAYS AFTER SUCH TAKING, NOTICE TERMINATING THIS LEASE, EXCEPT THAT TENANT MAY
ONLY TERMINATE THIS LEASE BY REASON OF TAKING OR APPROPRIATION, IF SUCH TAKING
OR APPROPRIATION SHALL BE SO SUBSTANTIAL AS TO MATERIALLY INTERFERE WITH
TENANT'S USE AND OCCUPANCY OF THE PREMISES. IF NEITHER PARTY TO THIS LEASE SHALL
SO ELECT TO TERMINATE THIS LEASE, THE RENTAL THEREAFTER TO BE PAID SHALL BE
ADJUSTED ON A FAIR AND EQUITABLE BASIS UNDER THE CIRCUMSTANCES. IN ADDITION TO
THE RIGHTS OF LANDLORD ABOVE, IF ANY SUBSTANTIAL PART OF THE BUILDING SHALL BE
TAKEN OR APPROPRIATED BY ANY PUBLIC OR QUASI-PUBLIC AUTHORITY UNDER THE POWER OF
EMINENT DOMAIN OR CONVEYANCE IN LIEU THEREOF, AND REGARDLESS OF WHETHER THE
PREMISES OR ANY PART THEREOF ARE SO TAKEN OR APPROPRIATED, LANDLORD SHALL HAVE
THE RIGHT, AT ITS SOLE OPTION, TO TERMINATE THIS LEASE. LANDLORD SHALL BE
ENTITLED TO ANY AND ALL INCOME, RENT, AWARD, OR ANY INTEREST WHATSOEVER IN OR
UPON ANY SUCH SUM, WHICH MAY BE PAID OR MADE IN CONNECTION WITH ANY SUCH PUBLIC
OR QUASI-PUBLIC USE OR PURPOSE, AND TENANT HEREBY ASSIGNS TO LANDLORD ANY
INTEREST IT MAY HAVE IN OR CLAIM TO ALL OR ANY PART OF SUCH SUMS, OTHER THAN ANY
SEPARATE AWARD WHICH MAY BE MADE WITH RESPECT TO TENANT'S TRADE FIXTURES AND
MOVING EXPENSES OR OTHER DAMAGES PROPERLY CLAIMED BY TENANT, PROVIDED (I) TENANT
SHALL MAKE NO CLAIM FOR THE VALUE OF ANY UNEXPIRED TERM AND (II) NO SUCH CLAIM
BY TENANT SHALL HAVE THE EFFECT OF REDUCING THE AWARD OTHERWISE AVAILABLE TO
LANDLORD.
24. SALE BY LANDLORD.
IN EVENT OF A SALE OR CONVEYANCE BY LANDLORD OF THE BUILDING, THE SAME SHALL
OPERATE TO RELEASE LANDLORD FROM ANY FUTURE LIABILITY UPON ANY OF THE COVENANTS
OR CONDITIONS, EXPRESSED OR IMPLIED, CONTAINED IN THIS LEASE IN FAVOR OF TENANT,
AND IN SUCH EVENT TENANT AGREES TO LOOK SOLELY TO THE RESPONSIBILITY OF THE
SUCCESSOR IN INTEREST OF LANDLORD IN AND TO THIS LEASE. EXCEPT AS SET FORTH IN
THIS ARTICLE 24, THIS LEASE SHALL NOT BE AFFECTED BY ANY SUCH SALE AND TENANT
AGREES TO ATTORN TO THE PURCHASER OR ASSIGNEE. IF ANY SECURITY HAS BEEN GIVEN BY
TENANT TO SECURE THE FAITHFUL PERFORMANCE OF ANY OF THE COVENANTS OF THIS LEASE,
LANDLORD MAY TRANSFER OR DELIVER SAID SECURITY, AS SUCH, TO LANDLORD'S SUCCESSOR
IN INTEREST AND THEREUPON LANDLORD SHALL BE DISCHARGED FROM ANY FURTHER
LIABILITY WITH REGARD TO SAID SECURITY.
25. ESTOPPEL CERTIFICATES.
WITHIN TEN (10) DAYS FOLLOWING ANY WRITTEN REQUEST WHICH LANDLORD MAY MAKE FROM
TIME TO TIME, TENANT SHALL EXECUTE AND DELIVER TO LANDLORD OR MORTGAGEE OR
PROSPECTIVE MORTGAGEE A SWORN STATEMENT CERTIFYING: (A) THE DATE OF COMMENCEMENT
OF THIS LEASE; (B) THE FACT THAT THIS LEASE IS UNMODIFIED AND IN FULL FORCE AND
EFFECT (OR, IF THERE HAVE BEEN MODIFICATIONS TO THIS LEASE, THAT THIS LEASE IS
IN FULL FORCE AND EFFECT, AS MODIFIED, AND STATING THE DATE AND NATURE OF SUCH
MODIFICATIONS); (C) THE DATE TO WHICH THE RENT AND OTHER SUMS PAYABLE UNDER THIS
LEASE HAVE BEEN PAID; (D) THE FACT THAT THERE ARE NO CURRENT DEFAULTS UNDER THIS
LEASE BY EITHER LANDLORD OR TENANT EXCEPT AS SPECIFIED IN TENANT'S STATEMENT;
AND (E) SUCH OTHER MATTERS AS MAY BE REQUESTED BY LANDLORD. LANDLORD AND TENANT
INTEND THAT ANY STATEMENT DELIVERED PURSUANT TO THIS ARTICLE 25 MAY BE RELIED
UPON BY ANY MORTGAGEE, BENEFICIARY OR PURCHASER AND TENANT SHALL BE LIABLE FOR
ALL LOSS, COST OR EXPENSE RESULTING FROM THE FAILURE OF ANY SALE OR FUNDING OF
ANY LOAN CAUSED BY ANY MATERIAL MISSTATEMENT CONTAINED IN SUCH ESTOPPEL
CERTIFICATE. TENANT IRREVOCABLY AGREES THAT IF TENANT FAILS TO EXECUTE AND
DELIVER SUCH CERTIFICATE WITHIN SUCH TEN (10) DAY PERIOD LANDLORD OR LANDLORD'S
BENEFICIARY OR AGENT MAY EXECUTE AND DELIVER SUCH CERTIFICATE ON TENANT'S
BEHALF, AND THAT SUCH CERTIFICATE SHALL BE FULLY BINDING ON TENANT.
26. SURRENDER OF PREMISES.
26.1 TENANT SHALL, AT LEAST THIRTY (30) DAYS BEFORE THE LAST DAY OF THE
TERM, ARRANGE TO MEET LANDLORD FOR A JOINT INSPECTION OF THE PREMISES. IN THE
EVENT OF TENANT'S FAILURE TO ARRANGE SUCH JOINT INSPECTION TO BE HELD PRIOR TO
VACATING THE PREMISES, LANDLORD'S INSPECTION AT OR AFTER TENANT'S VACATING THE
PREMISES SHALL BE CONCLUSIVELY DEEMED CORRECT FOR PURPOSES OF DETERMINING
TENANT'S RESPONSIBILITY FOR REPAIRS AND RESTORATION.
26.2 AT THE END OF THE TERM OR ANY RENEWAL OF THE TERM OR OTHER SOONER
TERMINATION OF THIS LEASE, TENANT WILL PEACEABLY DELIVER UP TO LANDLORD
POSSESSION OF THE PREMISES, TOGETHER WITH ALL IMPROVEMENTS OR ADDITIONS UPON OR
BELONGING TO THE SAME, BY WHOMSOEVER MADE, IN THE SAME CONDITIONS RECEIVED OR
FIRST INSTALLED, BROOM CLEAN AND FREE OF ALL DEBRIS, EXCEPTING ONLY ORDINARY
WEAR AND TEAR AND DAMAGE BY FIRE OR OTHER CASUALTY. TENANT MAY, AND AT
LANDLORD'S REQUEST SHALL, AT TENANT'S SOLE COST, REMOVE UPON TERMINATION OF THIS
LEASE, ANY AND ALL FURNITURE, FURNISHINGS, MOVABLE PARTITIONS OF LESS THAN FULL
HEIGHT FROM FLOOR TO CEILING, TRADE FIXTURES AND OTHER PROPERTY INSTALLED BY
TENANT, TITLE TO WHICH SHALL NOT BE IN OR PASS AUTOMATICALLY TO LANDLORD UPON
SUCH TERMINATION, REPAIRING ALL DAMAGE CAUSED BY SUCH REMOVAL. PROPERTY NOT SO
REMOVED SHALL, UNLESS REQUESTED TO BE REMOVED, BE DEEMED ABANDONED BY THE TENANT
AND TITLE TO THE SAME SHALL THEREUPON PASS TO LANDLORD UNDER THIS LEASE AS BY A
BILL OF SALE. ALL OTHER ALTERATIONS, ADDITIONS AND IMPROVEMENTS IN, ON OR TO THE
PREMISES SHALL BE DEALT WITH AND DISPOSED OF AS PROVIDED IN ARTICLE 6 HEREOF.
26.3 ALL OBLIGATIONS OF TENANT UNDER THIS LEASE NOT FULLY PERFORMED AS OF
THE EXPIRATION OR EARLIER TERMINATION OF THE TERM SHALL SURVIVE THE EXPIRATION
OR EARLIER TERMINATION OF THE TERM. IN THE EVENT THAT TENANT'S FAILURE TO
PERFORM PREVENTS LANDLORD FROM RELEASING THE PREMISES, TENANT SHALL CONTINUE TO
PAY RENT PURSUANT TO THE PROVISIONS OF ARTICLE 14 UNTIL SUCH PERFORMANCE IS
COMPLETE. UPON THE EXPIRATION OR EARLIER TERMINATION OF THE TERM, TENANT SHALL
PAY TO LANDLORD THE AMOUNT, AS ESTIMATED BY LANDLORD, NECESSARY TO REPAIR AND
RESTORE THE PREMISES AS PROVIDED IN THIS LEASE AND/OR TO DISCHARGE TENANT'S
OBLIGATION FOR UNPAID AMOUNTS DUE OR TO BECOME DUE TO LANDLORD. ALL SUCH AMOUNTS
SHALL BE USED AND HELD BY LANDLORD FOR PAYMENT OF SUCH OBLIGATIONS OF TENANT,
WITH TENANT BEING LIABLE FOR ANY ADDITIONAL COSTS UPON DEMAND BY LANDLORD, OR
WITH ANY EXCESS TO BE RETURNED TO TENANT AFTER ALL SUCH OBLIGATIONS HAVE BEEN
DETERMINED AND SATISFIED. ANY OTHERWISE UNUSED SECURITY DEPOSIT SHALL BE
CREDITED AGAINST THE AMOUNT PAYABLE BY TENANT UNDER THIS LEASE.
27. NOTICES.
ANY NOTICE OR DOCUMENT REQUIRED OR PERMITTED TO BE DELIVERED UNDER THIS LEASE
SHALL BE ADDRESSED TO THE INTENDED RECIPIENT, SHALL BE TRANSMITTED PERSONALLY,
BY FULLY PREPAID REGISTERED OR CERTIFIED UNITED STATES MAIL RETURN RECEIPT
REQUESTED, OR BY REPUTABLE INDEPENDENT CONTRACT DELIVERY SERVICE FURNISHING A
WRITTEN RECORD OF ATTEMPTED OR ACTUAL DELIVERY, AND SHALL BE DEEMED TO BE
DELIVERED WHEN TENDERED FOR DELIVERY TO THE ADDRESSEE AT ITS ADDRESS SET FORTH
ON THE REFERENCE PAGE, OR AT SUCH OTHER ADDRESS AS IT HAS THEN LAST SPECIFIED BY
WRITTEN NOTICE DELIVERED IN ACCORDANCE WITH THIS ARTICLE 27, OR IF TO TENANT AT
EITHER ITS AFORESAID ADDRESS OR ITS LAST KNOWN REGISTERED OFFICE OR HOME OF A
GENERAL PARTNER OR INDIVIDUAL OWNER, WHETHER OR NOT ACTUALLY ACCEPTED OR
RECEIVED BY THE ADDRESSEE.
28. TAXES PAYABLE BY TENANT.
IN ADDITION TO RENT AND OTHER CHARGES TO BE PAID BY TENANT UNDER THIS LEASE,
TENANT SHALL REIMBURSE TO LANDLORD, UPON DEMAND, ANY AND ALL TAXES PAYABLE BY
LANDLORD (OTHER THAN NET INCOME TAXES) WHETHER OR NOT NOW CUSTOMARY OR WITHIN
THE CONTEMPLATION OF THE PARTIES TO THIS LEASE: (A) UPON, ALLOCABLE TO, OR
MEASURED BY OR ON THE GROSS OR NET RENT PAYABLE UNDER THIS LEASE, INCLUDING
WITHOUT LIMITATION ANY GROSS INCOME TAX OR EXCISE TAX LEVIED BY THE STATE, ANY
POLITICAL SUBDIVISION THEREOF, OR THE FEDERAL GOVERNMENT WITH RESPECT TO THE
RECEIPT OF SUCH RENT; (B) UPON OR WITH RESPECT TO THE POSSESSION, LEASING,
OPERATION, MANAGEMENT, MAINTENANCE, ALTERATION, REPAIR, USE OR OCCUPANCY OF THE
PREMISES OR ANY PORTION THEREOF, INCLUDING ANY SALES, USE OR SERVICE TAX IMPOSED
AS A RESULT THEREOF; (C) UPON OR MEASURED BY THE TENANT'S GROSS RECEIPTS OR
PAYROLL OR THE VALUE OF TENANT'S EQUIPMENT, FURNITURE, FIXTURES AND OTHER
PERSONAL PROPERTY OF TENANT OR LEASEHOLD IMPROVEMENTS, ALTERATIONS OR ADDITIONS
LOCATED IN THE PREMISES; OR (D) UPON THIS TRANSACTION OR ANY DOCUMENT TO WHICH
TENANT IS A PARTY CREATING OR TRANSFERRING ANY INTEREST OF TENANT IN THIS LEASE
OR THE PREMISES. IN ADDITION TO THE FOREGOING, TENANT AGREES TO PAY, BEFORE
DELINQUENCY, ANY AND ALL TAXES LEVIED OR ASSESSED AGAINST TENANT AND WHICH
BECOME PAYABLE DURING THE TERM HEREOF UPON TENANT'S EQUIPMENT, FURNITURE,
FIXTURES AND OTHER PERSONAL PROPERTY OF TENANT LOCATED IN THE PREMISES.
<PAGE>
29. RELOCATION OF TENANT.
[INTENTIONALLY OMITTED]
30. DEFINED TERMS AND HEADINGS.
THE ARTICLE HEADINGS SHOWN IN THIS LEASE ARE FOR CONVENIENCE OF REFERENCE AND
SHALL IN NO WAY DEFINE, INCREASE, LIMIT OR DESCRIBE THE SCOPE OR INTENT OF ANY
PROVISION OF THIS LEASE. ANY INDEMNIFICATION OR INSURANCE OF LANDLORD SHALL
APPLY TO AND INURE TO THE BENEFIT OF ALL THE FOLLOWING "LANDLORD ENTITIES",
BEING LANDLORD, LANDLORD'S INVESTMENT MANAGER, AND THE TRUSTEES, BOARDS OF
DIRECTORS, OFFICERS, GENERAL PARTNERS, BENEFICIARIES, STOCKHOLDERS, EMPLOYEES
AND AGENTS OF EACH OF THEM. ANY OPTION GRANTED TO LANDLORD SHALL ALSO INCLUDE OR
BE EXER CISABLE BY LANDLORD'S TRUSTEE, BENEFICIARY, AGENTS AND EMPLOYEES, AS THE
CASE MAY BE. IN ANY CASE WHERE THIS LEASE IS SIGNED BY MORE THAN ONE PERSON, THE
OBLIGATIONS UNDER THIS LEASE SHALL BE JOINT AND SEVERAL. THE TERMS "TENANT" AND
"LANDLORD" OR ANY PRONOUN USED IN PLACE THEREOF SHALL INDICATE AND INCLUDE THE
MASCULINE OR FEMININE, THE SINGULAR OR PLURAL NUMBER, INDIVIDUALS, FIRMS OR
CORPORATIONS, AND EACH OF THEIR RESPECTIVE SUCCESSORS, EXECUTORS, ADMINISTRATORS
AND PERMITTED ASSIGNS, ACCORDING TO THE CONTEXT HEREOF. SUBJECT TO THE
PROVISIONS OF THE RIDER WHICH SHALL CONTROL, THE TERM "RENTABLE AREA" SHALL MEAN
THE RENTABLE AREA OF THE PREMISES OR THE BUILDING AS CALCULATED BY THE LANDLORD
ON THE BASIS OF THE PLANS AND SPECIFICATIONS OF THE BUILDING (THERE SHALL BE NO
"COMMON AREA FACTOR" IN THE COMPUTATION OF "RENTABLE AREA"). TENANT HEREBY
ACCEPTS AND AGREES TO BE BOUND BY THE FIGURES FOR THE RENTABLE SPACE FOOTAGE OF
THE PREMISES AND TENANT'S PROPORTIONATE SHARE SHOWN ON THE REFERENCE PAGE.
HOWEVER, LANDLORD RESERVES THE RIGHT TO REMEASURE THE PREMISES AT ANY TIME PRIOR
TO THE END OF THE FIRST FULL LEASE YEAR AND IF SUCH REMEASUREMENT INDICATES A
SQUARE FOOTAGE AMOUNT DIFFERENT THAN SPECIFIED ON THE REFERENCE PAGE, THE
PARTIES AGREE THAT THE ANNUAL RENT, PROPORTIONATE SHARE AND OTHER CHARGES,
RIGHTS AND OBLIGATIONS DETERMINED WITH REFERENCE TO THE RENTABLE SPACE OF THE
PREMISES SHALL BE ADJUSTED TO REFLECT SUCH CORRECTED SQUARE FOOTAGE AMOUNT. IF
EITHER PARTY SO ELECTS, SUCH ADJUSTMENTS SHALL BE REFLECTED IN A LEASE AMENDMENT
EXECUTED BY BOTH LANDLORD AND TENANT. SEE RIDER.
31. TENANT'S AUTHORITY.
IF TENANT SIGNS AS A CORPORATION EACH OF THE PERSONS EXECUTING THIS LEASE ON
BEHALF OF TENANT REPRESENTS AND WARRANTS THAT TENANT HAS BEEN AND IS QUALIFIED
TO DO BUSINESS IN THE STATE IN WHICH THE BUILDING IS LOCATED, THAT THE
CORPORATION HAS FULL RIGHT AND AUTHORITY TO ENTER INTO THIS LEASE, AND THAT ALL
PERSONS SIGNING ON BEHALF OF THE CORPORATION WERE AUTHORIZED TO DO SO BY
APPROPRIATE CORPORATE ACTIONS. IF TENANT SIGNS AS A PARTNERSHIP, TRUST OR OTHER
LEGAL ENTITY, EACH OF THE PERSONS EXECUTING THIS LEASE ON BEHALF OF TENANT
REPRESENTS AND WARRANTS THAT TENANT HAS COMPLIED WITH ALL APPLICABLE LAWS, RULES
AND GOVERNMENTAL REGULATIONS RELATIVE TO ITS RIGHT TO DO BUSINESS IN THE STATE
AND THAT SUCH ENTITY ON BEHALF OF THE TENANT WAS AUTHORIZED TO DO SO BY ANY AND
ALL APPROPRIATE PARTNERSHIP, TRUST OR OTHER ACTIONS. TENANT AGREES TO FURNISH
PROMPTLY UPON REQUEST A CORPORATE RESOLUTION, PROOF OF DUE AUTHORIZATION BY
PARTNERS, OR OTHER APPROPRIATE DOCUMENTATION EVIDENCING THE DUE AUTHORIZATION OF
TENANT TO ENTER INTO THIS LEASE.
32. COMMISSIONS.
EACH OF THE PARTIES REPRESENTS AND WARRANTS TO THE OTHER THAT IT HAS NOT DEALT
WITH ANY BROKER OR FINDER IN CONNECTION WITH THIS LEASE, EXCEPT AS DESCRIBED ON
THE REFERENCE PAGE (BROKERS NOTED ON THE REFERENCE PAGE ARE HEREIN REFERRED TO
COLLECTIVELY AS THE "ACKNOWLEDGED BROKERS"). THE PARTIES EACH REPRESENT AND
WARRANT TO THE OTHER THAT NEITHER HAS ENGAGED OR OTHERWISE ACCEPTED, SOLICITED
OR RETAINED THE SERVICES OF A REAL ESTATE BROKER OR OTHER FINDER OR PARTY
ENTITLED IN ANY WAY TO A COMMISSION OR FEE FOR SERVICES SIMILAR TO THOSE
PROVIDED BY A REAL ESTATE BROKER (HEREIN "ANOTHER BROKER"), OTHER THAN THE
ACKNOWLEDGED BROKERS IN CONNECTION WITH THIS LEASE TRANSACTION AND NO REAL
ESTATE BROKER OR ANOTHER BROKER OTHER THAN THE ACKNOWLEDGED BROKERS ARE ENTITLED
TO A COMMISSION OR OTHER FEE IN CONNECTION HEREWITH. LANDLORD ACKNOWLEDGES ITS
RESPONSIBILITY THROUGH SEPARATE WRITTEN AGREEMENTS TO PAY COMMISSION TO THE
ACKNOWLEDGED BROKERS IN RESPECT OF THIS LEASE, AND IN RESPECT OF ANY FUTURE
COMMISSION WHICH MIGHT ARISE BECAUSE OF THE EXPANSION RIGHTS NOTED IN RIDER
PROVISION R-7 TO THIS LEASE. THE FOREGOING "SEPARATE WRITTEN AGREEMENTS" ARE
MORE PARTICULARLY DESCRIBED AS: "AUTHORIZATION TO LEASE AGREEMENT" BY AND
BETWEEN LANDLORD AND ABOOD & ASSOCIATES, INC. DATED OCTOBER 29, 1997 AND
"ADDENDUM TO AUTHORIZATION TO LEASE AGREEMENT" DATED MAY 7, 1998 BY AND BETWEEN
LANDLORD AND ABOOD & ASSOCIATES, INC. EACH PARTY (AN "OFFENDING PARTY") AGREES
TO INDEMNIFY AND HOLD THE OTHER PARTY (THE "HARMED PARTY") HARMLESS FROM AND
AGAINST ALL COSTS, DAMAGES, COMMISSIONS AND ATTORNEYS' FEES (THROUGH ALL
APPELLATE LEVELS) INCURRED BY THE HARMED PARTY IN CONNECTION WITH A BREACH OF
THIS SECTION 32 OR A FALSE STATEMENT IN THIS SECTION 32 MADE BY SUCH OFFENDING
PARTY.
33. TIME AND APPLICABLE LAW.
TIME IS OF THE ESSENCE OF THIS LEASE AND ALL OF ITS PROVISIONS. THIS LEASE SHALL
IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE IN WHICH THE BUILDING IS
LOCATED.
34. SUCCESSORS AND ASSIGNS.
SUBJECT TO THE PROVISIONS OF ARTICLE 9, THE TERMS, COVENANTS AND CONDITIONS
CONTAINED IN THIS LEASE SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
HEIRS, SUCCESSORS, EXECUTORS, ADMINISTRATORS AND ASSIGNS OF THE PARTIES TO THIS
LEASE.
35. ENTIRE AGREEMENT.
THIS LEASE, TOGETHER WITH ITS EXHIBITS, CONTAINS ALL AGREEMENTS OF THE PARTIES
TO THIS LEASE AND SUPERSEDES ANY PREVIOUS NEGOTIATIONS. THERE HAVE BEEN NO
REPRESENTATIONS MADE BY THE LANDLORD OR UNDERSTANDINGS MADE BETWEEN THE PARTIES
OTHER THAN THOSE SET FORTH IN THIS LEASE AND ITS EXHIBITS. THIS LEASE MAY NOT BE
MODIFIED EXCEPT BY A WRITTEN INSTRUMENT DULY EXECUTED BY THE PARTIES TO THIS
LEASE.
36. EXAMINATION NOT OPTION.
SUBMISSION OF THIS LEASE SHALL NOT BE DEEMED TO BE A RESERVATION OF THE
PREMISES. LANDLORD SHALL NOT BE BOUND BY THIS LEASE UNTIL IT HAS RECEIVED A COPY
OF THIS LEASE DULY EXECUTED BY TENANT AND HAS DELIVERED TO TENANT A COPY OF THIS
LEASE DULY EXECUTED BY LANDLORD, AND UNTIL SUCH DELIVERY LANDLORD RESERVES THE
RIGHT TO EXHIBIT AND LEASE THE PREMISES TO OTHER PROSPECTIVE TENANTS.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, LANDLORD MAY
WITHHOLD DELIVERY OF POSSESSION OF THE PREMISES FROM TENANT UNTIL SUCH TIME AS
TENANT HAS PAID TO LANDLORD ANY SECURITY DEPOSIT REQUIRED BY ARTICLE 5, THE
FIRST MONTH'S RENT AS SET FORTH IN ARTICLE 3 AND ANY SUM OWED PURSUANT TO THIS
LEASE.
37. RECORDATION.
TENANT SHALL NOT RECORD OR REGISTER THIS LEASE OR A SHORT FORM MEMORANDUM HEREOF
WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, AND THEN SHALL PAY ALL CHARGES
AND TAXES INCIDENT SUCH RECORDING OR REGISTRATION.
38. LIMITATION OF LANDLORD'S
LIABILITY. REDRESS FOR ANY CLAIM AGAINST LANDLORD UNDER THIS LEASE SHALL BE
LIMITED TO AND ENFORCEABLE ONLY AGAINST AND TO THE EXTENT OF LANDLORD'S INTEREST
IN THE BUILDING. THE OBLIGATIONS OF LANDLORD UNDER THIS LEASE ARE NOT INTENDED
TO AND SHALL NOT BE PERSONALLY BINDING ON, NOR SHALL ANY RESORT BE HAD TO THE
PRIVATE PROPERTIES OF, ANY OF ITS TRUSTEES OR BOARD OF DIRECTORS AND OFFICERS,
AS THE CASE MAY BE, ITS INVESTMENT MANAGER, THE GENERAL PARTNERS THEREOF, OR ANY
BENEFICIARIES, STOCKHOLDERS, EMPLOYEES, OR AGENTS OF LANDLORD OR THE INVESTMENT
MANAGER.
LANDLORD:
KEYSTONE-MIAMI PROPERTY HOLDING CORP.,
A FLORIDA CORPORATION
BY: RREEF MANAGEMENT COMPANY,
A DELAWARE CORPORATION
BY: /S/ AL DIAZ /S/ ROSA TORRES-LARA
--------------------------- ---------------------------------------
AL DIAZ, VICE PRESIDENT WITNESS (PRINT & SIGN) ROSA TORRES LARA
DATED: 9/17, 1998
/S/ SUSAN S. SALMAN
---------------------------------------
WITNESS (PRINT & SIGN) SUSAN S. SALMAN
BY: /S/ LEE LETCHFORD /S/ MARY WULFING
-------------------------- ---------------------------------------
LEE LETCHFORD, SENIOR VP WITNESS (PRINT & SIGN) MARY WULFING
DATED: 9-18-, 1998
/S/ PHILIP HENDERSON
---------------------------------------
WITNESS (PRINT & SIGN) PHILIP HODGKINSON
[CORPORATE SEAL]
<PAGE>
TENANT:
TIGER DIRECT, INC., A DELAWARE CORPORATION
BY: /S/ GILBERT FIORENTINO /S/ DAN BROWN
----------------------------- ---------------------------------------
[PRINT & SIGN] WITNESS (PRINT & SIGN) DAN BROWN
GILBERT FIORENTINO, PRESIDENT
/S/ CARL FIORENTINO
---------------------------------------
WITNESS (PRINT & SIGN) CARL FIORENTINO
[CORPORATE SEAL]
<PAGE>
EXHIBIT A
ATTACHED TO AND MADE A PART OF
LEASE BEARING THE LEASE REFERENCE
DATE OF SEPTEMBER 17, 1998 BETWEEN
KEYSTONE-MIAMI PROPERTY HOLDING
CORP., AS LANDLORD, AND
TIGER DIRECT, INC., A DELAWARE CORPORATION, AS TENANT
PREMISES
EXHIBIT A IS DIAGRAMMATIC AND INTENDED ONLY TO SHOW THE GENERAL LAYOUT OF THE
PREMISES AS OF THE BEGINNING OF THE TERM OF THIS LEASE. IT DOES NOT IN ANY WAY
SUPERSEDE ANY OF LANDLORD'S RIGHTS SET FORTH IN SECTION 17.2 WITH RESPECT TO
ARRANGEMENTS AND/OR LOCATIONS OF PUBLIC PARTS OF THE BUILDING AND CHANGES IN
SUCH ARRANGEMENTS AND/OR LOCATIONS. IT IS NOT TO BE SCALED; ANY MEASUREMENTS OR
DISTANCES SHOWN SHOULD BE TAKEN AS APPROXIMATE. TO THE EXTENT (IF SO) THAT
EXHIBIT A PURPORTS TO REFLECT ANY OTHER TENANTS IN THE BUILDING OR ADJACENT
AREAS, SAME SHALL NOT BE DEEMED A REPRESENTATION OF EXISTING OR FUTURE
TENANCIES.
SEE ATTACHED
<PAGE>
EXHIBIT B
ATTACHED TO AND MADE A PART OF
LEASE BEARING THE LEASE REFERENCE
DATE OF SEPTEMBER 17, 1998 BETWEEN
KEYSTONE-MIAMI PROPERTY HOLDING
CORP., AS LANDLORD AND
TIGER DIRECT, INC., A DELAWARE CORPORATION, AS TENANT
INITIAL ALTERATIONS
LANDLORD SHALL PARTITION AND PREPARE THE PREMISES IN ACCORDANCE WITH THE PLANS
AND SPECIFICATIONS PREPARED BY
___X___ LANDLORD'S ARCHITECT
_______ TENANT'S ARCHITECT
AND APPROVED BY LANDLORD. LANDLORD SHALL NOT BE REQUIRED TO INSTALL ANY
PARTITIONS OR IMPROVEMENTS WHICH ARE NOT IN CONFORMITY WITH THE PLANS AND
SPECIFICATIONS FOR THE BUILDING OR WHICH ARE NOT APPROVED BY LANDLORD OR
LANDLORD'S ARCHITECT. LANDLORD SHALL BEAR THE EXPENSE OF INSTALLING ONLY THOSE
ITEMS AND MAKING ONLY SUCH IMPROVEMENTS AS ARE BUILDING STANDARD IMPROVEMENTS
AND "ADDITIONAL IMPROVEMENTS" AS NOTED IN SCHEDULE 1 ATTACHED AND MADE A PART
HEREOF; AND THE COST OF ALL INSTALLATIONS OR IMPROVEMENTS IN EXCESS OF THE
BUILDING STANDARD IMPROVEMENTS AND THE ADDITIONAL IMPROVEMENTS WHICH ARE TO BE
MADE BY LANDLORD SHALL BE PAID BY TENANT, AS ADDITIONAL RENT HEREUNDER, IN
ACCORDANCE WITH THE TERMS HEREOF, EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS
OF SCHEDULE 1 HERETO. FAILURE BY TENANT TO PAY ANY SUMS DESCRIBED IN THIS
EXHIBIT B, AS MODIFIED BY SCHEDULE 1, IN FULL WITHIN TEN (10) DAYS AFTER
TENANT'S RECEIPT OF AN INVOICE THEREFOR WILL CONSTITUTE FAILURE TO PAY RENT WHEN
DUE AND AN EVENT OF DEFAULT BY TENANT HEREUNDER, GIVING RISE TO ALL REMEDIES
AVAILABLE TO LANDLORD UNDER THIS LEASE OR OTHERWISE FOR NONPAYMENT OF RENT. IT
IS STIPULATED THAT TIME IS OF THE ESSENCE IN CONNECTION WITH TENANT'S COMPLIANCE
WITH THE TERMS OF THIS EXHIBIT B AND THE ATTACHED SCHEDULE 1.
IN ADDITION, LANDLORD AGREES OR ACKNOWLEDGES THAT:
A. BIDS, SELECTION OF CONTRACTOR. LANDLORD WILL OBTAIN AT LEAST THREE (3)
COMPETITIVE BIDS FROM LICENSED CONTRACTORS BEFORE SELECTING FROM AMONG THOSE
BIDS, THE CONTRACTOR TO PERFORM WORK HEREUNDER. LANDLORD NEED NOT NECESSARILY IN
EVERY INSTANCE SELECT THE LOWEST BID; BUT LANDLORD SHALL EXERCISE REASONABLE
JUDGMENT IN FACTORING THE AMOUNT OF THE BID INTO OTHER RELEVANT AND REASONABLE
CONSIDERATIONS IN THE SELECTION OF THE CONTRACTOR; AND SUBJECT TO LANDLORD'S
COMPLIANCE WITH THE FOREGOING SELECTION PROCESS, TENANT SHALL NOT UNREASONABLY
OBJECT TO THE CONTRACTOR SO SELECTED. WHERE LANDLORD AND TENANT NONETHELESS
CANNOT AGREE ON WHICH CONTRACTOR AMONG THE BIDS OBTAINED SHALL BE SELECTED, EACH
SHALL PRESENT THEIR PERSPECTIVE TO THE ARCHITECT, WHO SHALL SELECT THE
CONTRACTOR IN THE EXERCISE OF FAIR AND UNBIASED JUDGMENT, AFTER TAKING INTO
ACCOUNT THE AMOUNT OF THE BIDS AND ALL OTHER FACTORS REASONABLY INCLUDED AMONG
THE RELEVANT CONSIDERATIONS IN MAKING SUCH DETERMINATION, INCLUDING THE
PERSPECTIVE OF LANDLORD AND TENANT PRESENTED TO THE ARCHITECT AS AFORESAID; AND
SUCH DETERMINATION SHALL BE FINAL AND BINDING UPON ALL PARTIES.
B. USE OF ALLOWANCE. THE PARTIES ACKNOWLEDGE THAT, SUBJECT TO ITS AVAILABILITY
(THAT IS, UP TO THE AMOUNT OF ALLOWANCE OTHERWISE HEREUNDER MADE AVAILABLE BY
LANDLORD), THE COSTS OF THE FOLLOWING ITEMS MAY BE REIMBURSED FROM THE
ALLOWANCE: TENANT'S UPS BACKUP SYSTEM, ELECTRICAL WIRING, SECURITY SYSTEM, AND
CONSTRUCTION OF THE PARKING CANOPY AS DESCRIBED IN RIDER PROVISION R-
10(C)(III), AND ANY OTHER ITEM, THE COST OF WHICH IS EXPRESSLY PROVIDED
ELSEWHERE IN THIS LEASE AS AN ITEM WHICH MAY BE REIMBURSED FROM THE ALLOWANCE.
<PAGE>
SEE SCHEDULE 1, ATTACHED AND MADE A PART HEREOF.
<PAGE>
SCHEDULE 1 TO EXHIBIT B
LANDLORD'S WORK:
(A) ALLOWANCE. THE PARTIES ACKNOWLEDGE THAT NOTWITHSTANDING THE PROVISIONS IN
EXHIBIT B, LANDLORD SHALL PAY AS HEREIN PROVIDED A SUM TOWARD THE LANDLORD'S
WORK UP TO $1,471,404.00 ASSUMING THE PREMISES RENTABLE AREA [EXCLUDING THE
LOBBY AND EXCLUDING THE STORAGE AREA; THAT IS INCLUDING ONLY SUITE 35 AND SUITE
33C RENTABLE AREA] IS 66,882 SQUARE FEET [THAT IS, THE PRODUCT OF $22.00 AND
66,882 SQUARE FEET OF RENTABLE AREA] (THE "IMPROVEMENT COST" OR "ALLOWANCE")
PROVIDED HOWEVER, THAT IN THE EVENT OF ADJUSTMENT OF THE SQUARE FOOTAGE OF
SUITES 35 AND/OR 33C] FROM AN AGGREGATE OF 66,882 SQUARE FEET OF RENTABLE AREA
SET OUT IN THE LEASE REFERENCE PAGE, PURSUANT TO ARTICLE 30 OF THE LEASE, THEN
THE IMPROVEMENT COST SHALL BE COMPUTED BASED UPON THE ADJUSTED SQUARE FEET OF
RENTABLE AREA OF SUITES 35 AND 33C, AS APPLICABLE; THAT IS, $22.00 MULTIPLIED BY
SUCH ADJUSTED SQUARE FOOTAGE. THE PARTIES AGREE THAT THE COST OF LANDLORD'S WORK
SHALL BE PAID FOR AS FOLLOWS: FIRST, BY LANDLORD UP TO A MAXIMUM EXPENDITURE OF
THE IMPROVEMENT COST, AND SECOND, BY TENANT, FOR ALL COSTS AND EXPENSES ACTUALLY
AND TO BE INCURRED BY LANDLORD IN PERFORMING ALL OF THE LANDLORD'S WORK,
INCLUDING THE COSTS OF DESIGN PROFESSIONALS, INCLUDING LANDLORD'S ARCHITECT AND
ENGINEER, AND LANDLORD'S CONTRACTOR; PROVIDED, HOWEVER, CERTAIN ITEMS OF WORK
HEREAFTER DEFINED AS "LANDLORD'S OBLIGATIONS" SHALL BE PAID FOR BY LANDLORD AND
SHALL NOT BE PAID FOR BY APPLICATION TO ANY PORTION OF THE ALLOWANCE.
NOTWITHSTANDING ANYTHING ELSE HEREIN CONTAINED, PRIOR TO, AND AS AN EXPRESS
CONDITION TO, LANDLORD'S OBLIGATION TO COMMENCE ANY OF SUCH LANDLORD'S WORK,
LANDLORD SHALL ADVISE TENANT OF THE TOTAL ESTIMATED COST TO PERFORM ALL OF THE
LANDLORD'S WORK, AND TENANT SHALL PAY IN ADVANCE TO LANDLORD ANY OF SUCH COSTS
WHICH EXCEED THE IMPROVEMENT COST. FURTHERMORE, SHOULD THE FOREGOING ESTIMATE
PROVE TO BE LOW, AT SUCH TIME AS LANDLORD DETERMINES SUCH TO BE TRUE (TAKING
INTO ACCOUNT ANY ADDITIONAL FUNDS PREVIOUSLY COLLECTED IN ACCORDANCE HEREWITH
TOWARD SUCH ESTIMATED EXCESS) TENANT SHALL WITHIN FIVE (5) DAYS PAY ANY
ADDITIONAL EXPENSES OF WHICH LANDLORD NOTIFIES TENANT, WHICH ARE REQUIRED TO
COMPLETE LANDLORD'S WORK; AND IN SUCH EVENT, WHILE LANDLORD AWAITS ANY EXCESS
PAYMENT SO REQUIRED, LANDLORD MAY CEASE AND DESIST FROM PERFORMING THE
LANDLORD'S WORK UNTIL SUCH FUNDS ARE PAID IN FULL. ALL ITEMS OF LANDLORD'S WORK,
WHETHER PAID FOR BY LANDLORD AS AFORESAID OR NOT, SHALL BE AND BECOME THE
PROPERTY OF LANDLORD UPON EXPIRATION OR EARLIER TERMINATION OF THE LEASE AND
SHALL REMAIN ON THE PREMISES AT ALL TIMES DURING THE TERM. TENANT SHALL NOT BE
ENTITLED TO PAYMENT OR RENT REDUCTION OR ANY OTHER ABATEMENT, BACK-CHARGE, OR
OFF-SET AGAINST RENT OR CHARGES OTHERWISE DUE FROM TENANT UNDER THE LEASE IN
RESPECT OF ANY PORTION OF THE IMPROVEMENT COST WHICH IS NOT USED BY LANDLORD
TOWARD COMPLETION OF LANDLORD'S WORK; ALL OF WHICH UNUSED IMPROVEMENT COST SHALL
BE IRRELEVANT. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT LANDLORD SHALL HAVE NO
OBLIGATION TO "SET ASIDE" OR "FUND" ANY PORTION OR ALL OF THE IMPROVEMENT COST
AND NO SUCH "SET ASIDE" IS CONTEMPLATED, NO "POOL" OR "ESCROW" OR "ACCOUNT" OF
FUNDS SHALL OR SHALL BE DEEMED TO EXIST BY VIRTUE HEREOF, AND, OTHER THAN AS
EXPRESSLY HEREIN PROVIDED IN RESPECT OF THE WILLINGNESS OF LANDLORD TO PAY FOR
CERTAIN OF THE LANDLORD'S WORK HEREUNDER UP TO THE IMPROVEMENT COST FROM
LANDLORD'S CURRENT OPERATING BUDGET, TENANT SHALL HAVE NO RIGHTS OR INTERESTS
WHATSOEVER IN THE IMPROVEMENT COST. WHERE THE SQUARE FOOTAGE ADJUSTMENT
REFERENCED ABOVE OCCURS AFTER LANDLORD HAS COMPLETED ALL LANDLORD'S WORK AND
AFTER A DETERMINATION HAS BEEN MADE AS TO WHETHER TENANT OWES ANY EXCESS
EXPENSES BEYOND THE IMPROVEMENT COST, AND WHERE BY VIRTUE OF THE ADJUSTMENT IT
IS DETERMINED THAT IN FACT TENANT OWED LESS (OR NONE) OF THE EXCESS IMPROVEMENT
COST, THEN, PROVIDED TENANT IS NOT IN DEFAULT OR VIOLATION OF ANY TERM OR
CONDITION OF THE LEASE AT SUCH TIME, AND PROVIDED TENANT HAS ALREADY IN FACT
OVERPAID SUCH EXCESS AMOUNT TO LANDLORD, THEN LANDLORD SHALL REFUND SUCH
OVERPAYMENT TO TENANT WITHIN THIRTY (30) DAYS OF SUCH DETERMINATION OR AT
LANDLORD'S ELECTION, LANDLORD SHALL PERMIT TENANT AN ABATEMENT AGAINST ITS
REGULARLY ACCRUING RENTAL CHARGES UNDER THIS LEASE TO THE FULL AMOUNT OF SUCH
OVERPAYMENT. WHERE BY VIRTUE OF SUCH SQUARE FOOTAGE ADJUSTMENT A DETERMINATION
IS MADE THAT TENANT OWES ADDITIONAL EXCESS COSTS, TENANT SHALL PAY SAME TO
LANDLORD ON THE EARLIER TO OCCUR OF THIRTY (30) DAYS AFTER NOTICE THEREOF OR
TOGETHER WITH TENANT'S NEXT PAYABLE PERIODIC RENT.
(B) LANDLORD'S WORK. LANDLORD'S WORK SHALL CONSIST OF BUILDING STANDARD
IMPROVEMENTS [DETAILS AND SPECIFICATIONS FOR WHICH ARE AVAILABLE FROM LANDLORD'S
ARCHITECT, UPON REQUEST] AND ITEMS OF ADDITIONAL WORK, HEREAFTER DESCRIBED. THE
ITEMS OF ADDITIONAL WORK SHALL BE THOSE ITEMS ULTIMATELY INCLUDED IN THE
DRAWINGS, PLANS AND SPECIFICATIONS FOR LANDLORD'S WORK ULTIMATELY PREPARED BY
LANDLORD'S ARCHITECT AND APPROVED BY TENANT, IN THE TIME AND MANNER HEREIN
PROVIDED; BUT SHALL EXCLUDE THE CONSTRUCTION OF THE PARKING CANOPY [SEE
CONTROLLING PROVISIONS IN THE RIDER, AT R-10(C)(III)]. "LANDLORD'S OBLIGATIONS"
[THAT IS, ITEMS OF WORK WHICH ARE NOT PAID FOR OUT OF THE ALLOWANCE], ARE AS
FOLLOWS: (I) RENOVATION, AND ADDITION [TO THE EXTENT REQUIRED BY LAW OR "CODE"]
OF EXISTING OR NEW [TO THE EXTENT REQUIRED BY LAW OR "CODE"] COMMON AREA
RESTROOMS INCLUDING COMPLIANCE WITH THE REQUIREMENTS OF THE AMERICANS WITH
DISABILITIES ACT OF 1990 AND RELATED REGULATIONS AND GUIDELINES PROMULGATED
THEREUNDER ("ADA"), (II) CORRECTION OF ANY PRE-EXISTING CONDITION TO SATISFY
BUILDING "CODE" COMPLIANCE REQUIREMENTS, (III) FIRE CODE COMPLIANCE (INCLUDING
SPRINKLERS), (IV) IMPACT FEES, (V) BELL SOUTH OR LANDLORD'S INSTALLATION OF
FIBER OPTIC TELEPHONE WIRING BROUGHT TO THE PREMISES, CONFORMING TO THE "DS 3
NIMELY FIBER ACCESS" STANDARD OR TYPE AND (VI) STRUCTURAL ALTERATIONS REQUIRED
TO ACCOMMODATE TENANT'S USE. THE PARTIES ACKNOWLEDGE THAT LANDLORD SHALL DESIGN
TO "CODE" AND THE DESIGN SHALL TAKE INTO ACCOUNT THE DENSE OPERATION HEAT
GENERATION USE ANTICIPATED BY TENANT IN SUITE 35. FURTHERMORE, DESIGN SHALL
ACCOMMODATE AND LANDLORD SHALL PERMIT, SUBJECT TO THE FOLLOWING, INSTALLATION OF
TENANT'S 200 GALLON SALT WATER FISH TANK (COSTS OF THE TANK AND ITS INSTALLATION
ARE NOT TO BE PAID FROM THE ALLOWANCE); PROVIDED, NO SUCH TANK OR INSTALLATION
SHALL BE PERMITTED WHERE TO DO SO WOULD BREACH OR VIOLATE THE STRUCTURAL
INTEGRITY OF THE BUILDING OR OTHERWISE GIVE RISE TO A WEIGHT LOAD WHICH IS NOT
PROPERLY AND SAFELY DISTRIBUTED IN ACCORDANCE WITH THE ENGINEERED TOLERANCES OF
THE BUILDING AND ITS STRUCTURE AND IN ACCORDANCE WITH "CODE" AND LAW. THE
PARTIES ACKNOWLEDGE THAT SO LONG AS LANDLORD'S WORK PROCEEDS AND IS COMPLETED
AND SUITES 35 AND 33C OF THE PREMISES ARE TENDERED AS HEREIN CONTEMPLATED, SUCH
THAT AT TIME OF TENDER, THE PREMISES COMPLY WITH THEN APPLICABLE EXISTING LAW
AND "CODE", THEN, ANY CHANGES IN LAW OR "CODE" THEREAFTER, INCLUDING IN RESPECT
OF ADA COMPLIANCE THEREAFTER LEGISLATED OR MADE APPLICABLE BY LAW, SHALL NOT
GIVE RISE TO A FUTURE OBLIGATION OF LANDLORD TO PERFORM ANY FURTHER WORK IN THE
PREMISES; AND TO THE EXTENT SAME SHALL GIVE RISE TO FUTURE ADA COMPLIANCE OR
OTHER "CODE" OR LAW COMPLIANCE IN THE LOBBY OR COMMON AREAS, THE COSTS THEREOF
SHALL BE INCLUDED TO THE EXTENT PERMITTED IN THIS LEASE IN DIRECT EXPENSES. AT
ALL TIMES DURING AND AFTER CONSTRUCTION OF THE LANDLORD'S WORK, TENANT AGREES TO
COMPLY WITH ALL APPLICABLE PROVISIONS OF THE LEASE.
(C) COOPERATION / COORDINATION / TIME FRAMES.
SPACE PLAN. ALL PLANS AND DRAWINGS REQUIRED SHALL BE PREPARED IN ACCORDANCE WITH
THE SCHEDULE INDICATED BELOW. LANDLORD'S ARCHITECT, IN CONSULTATION WITH
LANDLORD'S ENGINEER(S), SHALL PREPARE DETAILED SPACE PLANS SUFFICIENT TO CONVEY
THE ARCHITECTURAL DESIGN OF THE PREMISES (THE "SPACE PLAN"). THE SPACE PLAN
SHALL BE PROMPTLY APPROVED AND SIGNED BY TENANT AND FORWARDED TO LANDLORD IN THE
TIME AND MANNER HEREIN PROVIDED.
CRITICAL DELIVERY ITEMS. THE SPACE PLAN SHALL INCLUDE, WITHOUT LIMITATION, THE
SPACE PLAN REQUIREMENTS REASONABLY DESIGNATED BY TENANT AFTER APPROPRIATE
CONSULTATION WITH LANDLORD'S PROFESSIONALS, INCLUDING LANDLORD'S ARCHITECT AND
CONTRACTOR. TENANT SHALL PREPARE AND DELIVER TO LANDLORD NO LATER THAN THE
"SPACE PLAN DELIVERY DATE" (DEFINED BELOW) DETAILED INFORMATION WITH RESPECT TO
THE FOLLOWING ITEMS ("CRITICAL DELIVERY ITEMS"), TOGETHER WITH TENANT'S
AUTHORIZATION TO LANDLORD TO MAKE ALL NECESSARY PURCHASES, DELIVERY
ARRANGEMENTS, ETC., RELATIVE TO SUCH ITEMS:
1. SPECIAL ELECTRICAL/DATA PROCESSING REQUIREMENTS--RAISED OR CELLULAR FLOORS,
ELEVATORING, RAMPING AND FLOOR-TO-CEILING INTERIOR GLASS
2. HVAC REQUIREMENTS--SPECIAL DUCTWORK
3. SPECIAL SPRINKLER REQUIREMENTS AND SPRINKLER HEAD LOCATIONS
4. SPECIAL TELEPHONE/COMMUNICATION REQUIREMENTS
5. SPECIAL PLUMBING REQUIREMENTS--EXECUTIVE RESTROOMS, SINKS, KITCHENETTES
6. SPECIAL SECURITY REQUIREMENTS--STAIRS, ELEVATOR, FLOOR ENTRY
7. SPECIAL LIFE SAFETY REQUIREMENTS
8. SPECIAL ELEVATOR LOBBY DESIGN
9. BASE BUILDING STRUCTURE MODIFICATIONS, STAIRWELL AND SHAFT OPENINGS,
ADDITIONAL FLOOR LOADING REQUIREMENTS, ETC.
10. ANY OTHER ITEM SIMILAR TO THE FOREGOING OR OTHERWISE REQUIRING SPECIAL
ATTENTION OR PREPARATION OR INVOLVING MATERIAL WITH LONG LEAD-TIME FOR
MANUFACTURING AND/OR DELIVERY.
WORKING DRAWINGS. BASED ON THE APPROVED SPACE PLAN, LANDLORD SHALL DELIVER TO
TENANT THE FOLLOWING DRAWINGS: ELECTRICAL PLAN, REFLECTED CEILING PLAN, A FINISH
PLAN AND ELEVATIONS ALONG WITH ANY INTERNAL OR EXTERNAL COMMUNICATIONS OR
SPECIAL UTILITY FACILITIES WHICH WILL REQUIRE CONDUIT OR OTHER IMPROVEMENTS
WITHIN COMMON AREAS. THE COST OF THESE PLANS SHALL BE PAID BY AND IN THE MANNER
INDICATED ABOVE (INCLUDING APPLICATION FIRST OF THE ALLOWANCE, TO THE EXTENT OF
THE ALLOWANCE). LANDLORD SHALL CAUSE LANDLORD'S ARCHITECT TO INCORPORATE
TENANT'S DRAWINGS INTO A COMPLETE SET OF ARCHITECTURAL, ELECTRICAL, MECHANICAL,
PLUMBING, LIFE SAFETY AND STRUCTURAL DRAWINGS AND SPECIFICATIONS (COLLECTIVELY,
THE "WORKING DRAWINGS"). TENANT SHALL DELIVER TO LANDLORD WRITTEN APPROVAL OF
THE WORKING DRAWINGS NO LATER THAN THE WORKING DRAWINGS APPROVAL DATE (AS SET
FORTH BELOW) THEREBY ACKNOWLEDGING THAT THE WORKING DRAWINGS CORRECTLY DEPICT
THE PROPER LAYOUT AND DESIGN FOR ANY AND ALL ADDITIONAL IMPROVEMENTS DESIRED BY
TENANT FOR THE PREMISES. LANDLORD'S CONTRACTOR IN COOPERATION WITH THE
LANDLORD'S ARCHITECT SHALL BE RESPONSIBLE FOR FILING, MONITORING AND OBTAINING
THE PERMITS. LANDLORD'S WORKING DRAWINGS SHALL:
1. BE COMPATIBLE WITH THE BUILDING SHELL, WITH THE DESIGN, CONSTRUCTION AND
EQUIPMENT OF THE BUILDING AND WITH THE BUILDING STANDARDS AND CRITERIA;
2. COMPLY WITH ALL APPLICABLE LAWS AND ORDINANCES, AND THE RULES AND REGULATIONS
OF ALL GOVERNMENTAL AUTHORITIES HAVING JURISDICTION, INCLUDING ADA;
3. COMPLY WITH ALL APPLICABLE INSURANCE REGULATIONS; AND
4. INCLUDE LOCATIONS OF ALL IMPROVEMENTS INCLUDING COMPLETE DIMENSIONS.
CHANGES TO THE WORKING DRAWING. WITH RESPECT TO ANY CHANGES AFTER TENANT
APPROVAL OF THE WORKING DRAWINGS, TENANT SHALL BE RESPONSIBLE FOR ALL COSTS
RELATING THERETO BUT ONLY TO THE EXTENT NOT PAID FOR BY THE ALLOWANCE AS
PROVIDED ABOVE [THAT IS, SUCH COSTS SHALL BE TREATED THE SAME AS OTHER COSTS
REIMBURSABLE BY THE ALLOWANCE HEREUNDER], WHICH SHALL INCLUDE, WITHOUT
LIMITATION, ALL ARCHITECTURAL AND ENGINEERING RE-DESIGN FEES AND EXPENSES,
CONTRACTOR'S FEES, COST OF MATERIALS NO LONGER USABLE, COST OF NEW LABOR AND
MATERIALS, COST RESULTING IN ANY DELAYS OR SCHEDULE ACCELERATION COSTS TO AVOID
DELAYS INCURRED BY LANDLORD AS A RESULT OF SUCH CHANGES, AND AN ADMINISTRATIVE
COST RECOVERY (ACR) OF FIFTEEN PERCENT (15%) OF ALL SUCH COSTS.
SCHEDULE OF DATES. THE SCHEDULE FROM INITIAL SPACE PLAN TO TENANT'S MOVE-IN
AND/OR TENANT'S OCCUPANCY AND/OR OPERATION IN THE PREMISES SHALL PROCEED AS
INDICATED BELOW AND EACH ACTION SHALL BE COMPLETED ON OR BEFORE THE DATE HEREIN
SPECIFIED. WHERE DATES BELOW ARE NOT SPECIFIED, OR WHERE IN ACCORDANCE WITH ANY
OTHER TERM OR PROVISION HEREOF, A DEADLINE OR OTHER DATE FOR PERFORMANCE,
CONSENT, APPROVAL OR OTHER RESPONSE FROM TENANT OCCURS OR PASSES OR OTHERWISE
LAPSES OR IS IGNORED WITHOUT APPROPRIATE AND TIMELY RESPONSE BY TENANT, THEN,
THE PARTIES EXPRESSLY AGREE AS FOLLOWS: LANDLORD'S ARCHITECT, ACTING REASONABLY,
(I) SHALL DETERMINE THE DATES APPLICABLE BELOW, FILL THEM IN (OR MODIFY THEM)
BELOW, AND LANDLORD SHALL PROVIDE TENANT WITH NOTICE OF SUCH DATES WHICH SHALL
THEN BIND THE PARTIES AS IF SUCH DATES HAD BEEN INCLUDED BELOW FROM INCEPTION;
AND (II) MAY AT TENANT'S EXPENSE ENGAGE IN THE ITEM OF LATE PERFORMANCE REQUIRED
ON TENANT'S BEHALF, AND TENANT SHALL HOLD LANDLORD AND ITS ARCHITECT AND OTHER
PROFESSIONALS HARMLESS FROM ANY CLAIM OR DISPUTE IN RESPECT THEREOF; AND (III)
SHALL ASSUME AND MAY IRREVOCABLY RELY UPON THE LACK OF RESPONSE TO CONSTITUTE AN
AFFIRMATIVE GRANT OF APPROVAL OR CONSENT, AS APPLICABLE AND TENANT SHALL HOLD
LANDLORD AND ITS ARCHITECT AND OTHER PROFESSIONALS HARMLESS FROM ANY CLAIM OR
DISPUTE IN RESPECT THEREOF:
ACTION RESPONSE/TIMEFRAME DUE DATE
(I) TENANT DELIVERS TO __________, 1998
LANDLORD THE INITIAL SPACE
PLAN.
(II) Landlord delivers to 10 business days
Tenant written notice after receipt of
approving or disapproving the Space Plan.
initial Space Plan (the "SPACE
PLAN DELIVERY DATE").
(III)Tenant delivers to Landlord, if 7 business days after
necessary, comments, Space Plan Delivery Date.
objections and requirements
respecting redesign of Space
Plan ("REDESIGN COMMENTS
DATE").
(IV) Landlord delivers to 7 business days
Tenant redesigned Space Plan after Redesign
and written notice of final Comments Date.
approval of Space Plan
("SPACE PLAN REVISION DATE").
(V) The Landlord's Architect 10 business days after
delivers to Tenant and Space Plan Revision Date
Landlord the Working
Drawings (the "WORKING
DRAWINGS APPROVAL DATE".
(VI) Tenant delivers to 7 business days after
Landlord, if necessary, Working Drawings Approval Date.
comments, objections and
requirements respecting
redesigned Working Drawings
("WORKING DRAWINGS
COMMENTS DATE").
(VII)Landlord delivers to 10 business days after
Tenant redesigned Working Working Drawings Comments
Drawings and written notice Date.
of final approval of Working
Drawings ("WORKING
DRAWINGS REVISION DATE").
(VIII)Landlord's Architect Promptly as practicable.
submits to proper entities the
Working Drawings for permit.
(IX) Commencement of Constructuion Immediately upon receipt
of permit.
(X) Scheduled Commencement Date July 1, 1999
SCHEDULE OF DATES - ADDITIONAL PROVISIONS.
ANY TIME EXPENDED RESPECTING REDESIGNING AND RE-APPROVAL SHALL ADD THE
SAME NUMBER OF DAYS TO THE DATES ABOVE AS THE NUMBER OF DAYS SPENT ON REDESIGN
AND RE- APPROVAL, SUBJECT, HOWEVER, TO ULTIMATE DEADLINES AS HEREIN ESTABLISHED
(OR AS LANDLORD OR ITS ARCHITECT MAY, ACTING PROPERLY UNDER THESE TERMS AND
PROVISIONS, SO ESTABLISH) AND SUBJECT TO THE EXPRESS PROVISIONS OF THE LEASE AT
SECTION 3.1 RESPECTING THE COMMENCEMENT OF RENT. "SUBSTANTIALLY COMPLETED"
LANDLORD'S WORK AS DESCRIBED IN THE LEASE AT SECTION 2.1, SHALL MEAN THE DATE OF
ISSUANCE OF A PERMANENT CERTIFICATE OF OCCUPANCY FOR THE SPACE IN QUESTION BY
THE APPROPRIATE GOVERNMENTAL AUTHORITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, IF LANDLORD SHALL BE DELAYED, HINDERED OR PREVENTED FROM
TIMELY COMPLETING SAID WORK BY REASON OF ACTS OF GOD, STRIKES, LOCKOUTS, LABOR
DISPUTES, INABILITY TO PRODUCE MATERIALS, FAILURE OF POWER, RESTRICTIVE
GOVERNMENTAL LAWS OR REGULATIONS, RIOTS, INSURRECTIONS, WAR, OR OTHER CAUSES NOT
WITHIN THE REASONABLE CONTROL OF LANDLORD (EXPRESSLY EXCEPTING THE FINANCIAL
ABILITY OF LANDLORD TO PERFORM ITS OBLIGATIONS HEREUNDER), THEN THE PERIOD FOR
COMPLETION OF SAID LANDLORD'S WORK SHALL BE EXTENDED FOR A PERIOD EQUIVALENT TO
THE PERIOD OF SUCH DELAY AND NO SUCH DELAY SHALL BE DEEMED TO ACCELERATE THE
FIRST DAY OF THE TERM OR THE FIRST DAY ON WHICH RENT COME DUE UNDER THE LEASE.
LANDLORD SHALL ONLY BE OBLIGATED TO EXPEND UP TO THE ALLOWANCE AND ANY EXCESS
COST SHALL BE THE SOLE RESPONSIBILITY OF TENANT. DELAYS IN LANDLORD'S PROCEEDING
WITH WORK DUE TO TENANT'S FAULT, BREACH OR OTHER VIOLATION OF THE TERMS AND
CONDITIONS HEREOF OR OF THE LEASE, INCLUDING DELAYS OCCASIONED BY TENANT'S
FAILURE TO RESPOND TO INQUIRIES, FAILURE TO PROVIDE INFORMATION, FAILURE TO MAKE
DECISIONS, FAILURE TO PAY MONEYS OWED, SHALL NOT GIVE RISE TO ANY RIGHT OF
TENANT TO CLAIM AN ENTITLEMENT TO DELAY THE COMMENCEMENT DATE FROM THE DATE IT
WOULD HAVE OCCURRED BUT FOR SUCH ACTS OR FAILURES BY TENANT; AND LANDLORD'S
ARCHITECT, ACTING REASONABLY, SHALL DESIGNATE SUCH "DEEMED" COMPLETION DATE,
WHICH SHALL CONTROL WHERE APPLICABLE FOR PURPOSES OF DETERMINING THE DATE ON
WHICH RENTS AND THE TERM SHALL BE DEEMED TO COMMENCE.
TENANT MAY ORDER CHANGES IN THE WORK AT ANY TIME PRIOR TO THE SPACE
PLAN REVISION DATE. SHOULD TENANT ORDER CHANGES IN THE WORK AFTER THE SPACE PLAN
REVISION DATE, TENANT SHALL ALSO PAY TO LANDLORD, NOTWITHSTANDING LANDLORD'S
APPROVAL OF SUCH CHANGES (1) THE REASONABLE CHARGES FOR ADDITIONAL ARCHITECTURAL
AND ENGINEERING TIME RESULTING FROM SUCH CHANGES, (2) ALL CHARGES INCURRED BY
LANDLORD FOR ADDITIONAL OR OVERTIME LABOR IN ORDER TO COMPLETE CONSTRUCTION OF
SUCH CHANGES AND THE WORK BY THE SCHEDULED COMMENCEMENT DATE, OR INCURRED BY
LANDLORD AS A RESULT OF CHANGING THE TENANT CONSTRUCTION SCHEDULE AND (3)
LANDLORD'S ACR. WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD, TENANT SHALL NOT
BE ENTITLED TO ORDER CHANGES TO THE WORKING DRAWINGS DURING THE SIXTY (60) DAY
PERIOD IMMEDIATELY PRECEDING THE SCHEDULED COMMENCEMENT DATE OF THIS LEASE. SUCH
ADDITIONAL RENT AND CHARGES SHALL BE PAID BY TENANT TO LANDLORD WITHIN TEN (10)
DAYS AFTER RECEIPT BY TENANT OF LANDLORD'S INVOICE THEREFOR. NO DELAY IN WORK
OCCASIONED BY SUCH CHANGES SHALL GIVE RISE TO A DELAY IN THE COMMENCEMENT DATE
OF THIS LEASE.
CONSTRUCTION OF THE IMPROVEMENTS WILL BE COMPLETED IN A GOOD AND
WORKMANLIKE MANNER, AND IN ACCORDANCE WITH THE SPACE PLAN AND WORKING DRAWINGS
(AS REVISED, IF APPLICABLE). LANDLORD SHALL PROMPTLY NOTIFY TENANT IN WRITING OF
THE SUBSTANTIAL COMPLETION OF CONSTRUCTION OF THE IMPROVEMENTS.
TENANT AGREES THAT IN THE EVENT TENANT SHALL (I) MAKE ANY CHANGES IN
THE WORKING DRAWINGS OR WORK OR IMPROVEMENTS REQUIRED THEREBY (NOTWITHSTANDING
LANDLORD'S APPROVAL OF SUCH CHANGES), OR (II) DIRECTLY OR INDIRECTLY THROUGH ANY
PERSON, FIRM OR CORPORATION EMPLOYED BY TENANT, UNREASONABLY INTERFERE WITH OR
DELAY THE WORK OF LANDLORD'S CONTRACTOR, OR (III) CAUSE ANY DELAY IN LANDLORD'S
COMPLETION OF THE PREMISES THROUGH ANY FAULT OR NEGLIGENCE OF TENANT OR ITS
AGENTS, THEREBY DELAYING LANDLORD'S TENDERING OF POSSESSION OF THE PREMISES, OR
TENANT'S OCCUPANCY OF THE PREMISES, BEYOND THE DATE WHICH WOULD HAVE BEEN THE
COMMENCEMENT DATE OF THIS LEASE BUT FOR SUCH CHANGES OR DELAYS, THEN TENANT
SHALL COMMENCE PAYMENT OF ALL RENTALS PROVIDED FOR HEREIN ON THE DATE WHICH
WOULD HAVE BEEN THE COMMENCEMENT DATE OF THIS LEASE, BUT FOR SUCH CHANGES OR
DELAYS, AND SUCH DATE SHALL BE THE COMMENCEMENT DATE OF THIS LEASE FOR ALL
PURPOSES.
TENANT SHALL BE ENTITLED TO ENTER THE PREMISES FROM TIME TO TIME
DURING THE COURSE OF CONSTRUCTION AS MAY BE REASONABLY NECESSARY FOR TENANT'S
SPACE PLANNING OR INSPECTION PURPOSES, OR FOR THE INSTALLATION BY TENANT OF ITS
FIXTURES OR EQUIPMENT PROVIDED (I) TENANT NOTIFIES LANDLORD IN ADVANCE OF SUCH
PROPOSED ENTRY AND COORDINATES SUCH ENTRY SO AS TO BE ACCOMPANIED BY LANDLORD OR
LANDLORD'S REPRESENTATIVE, (II) TENANT DOES NOT HINDER OR INTERFERE WITH
CONSTRUCTION OF THE PREMISES OR THE ACTIVITIES OF LANDLORD'S CONTRACTORS, AND
(III) TENANT TAKES SUCH REASONABLE PROTECTIVE PRECAUTIONS OR MEASURES FOR
LANDLORD AND/OR TENANT AS LANDLORD MAY REASONABLY REQUEST, GIVEN THE STAGE OF
CONSTRUCTION AT THE TIME OF SUCH ENTRY, INCLUDING (IF APPROPRIATE) EXECUTION OF
RELEASES FROM LIABILITY FOR LANDLORD OR LANDLORD'S CONTRACTORS FOR INJURIES
SUSTAINED BY TENANT DURING SUCH ENTRY.
AT ANY TIME AFTER SUBSTANTIAL COMPLETION OF THE CONSTRUCTION OF THE
PREMISES AND PRIOR TO TENANT'S INSTALLATION OF ITS FIXTURES, EQUIPMENT AND
FURNISHINGS IN THE PREMISES, TENANT MAY INSPECT THE PREMISES (WITH LANDLORD) AND
FURNISH TO LANDLORD A "PUNCH LIST" OF ERRORS (IF ANY) AND OMISSIONS (IF ANY) IN
THE CONSTRUCTION OF THE PREMISES KNOWN TO TENANT TO EXIST. ANY DISPUTES BETWEEN
LANDLORD AND TENANT CONCERNING ANY PUNCH LIST ITEM NOT RESOLVED BY LANDLORD AND
TENANT SHALL BE DECIDED BY THE ARCHITECT WHO PREPARED THE WORKING DRAWINGS, AND
ANY SUCH DECISION SHALL BE BINDING ON LANDLORD AND TENANT. UPON RECEIPT OF THE
PUNCH LIST, LANDLORD SHALL, AT LANDLORD'S COST AND EXPENSE (BUT SUBJECT TO
PAYMENT FROM THE ALLOWANCE), PROMPTLY CORRECT (OR CAUSE THE CONTRACTOR TO
CORRECT) SUCH ERRORS AND OMISSIONS, BUT SUCH AGREEMENTS OF LANDLORD SHALL NOT
RELIEVE OR RELEASE TENANT FROM ANY OF ITS PAYMENT OBLIGATIONS SET FORTH HEREIN
AND IN THE LEASE. A FAILURE BY TENANT TO INCLUDE ON THE PUNCH LIST ANY ERROR OR
OMISSION REASONABLY APPARENT UPON REASONABLE INSPECTION AND INQUIRY SHALL
CONSTITUTE A WAIVER AND RELEASE BY TENANT OF ANY CLAIM OR CAUSE OF ACTION FOR
DAMAGES FROM LANDLORD RESULTING FROM SUCH ERROR OR OMISSION. THE EXISTENCE OF
THE PUNCH LIST (AND COMPLETION OF THE ITEMS LISTED THEREON) SHALL NOT DELAY
COMMENCEMENT OF THE TERM OF THIS LEASE NOR AFFECT TENANT'S OBLIGATION TO OCCUPY
THE PREMISES AND TO PAY RENTALS IN ACCORDANCE WITH THE PROVISIONS OF THIS LEASE.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, LANDLORD SHALL
BE RESPONSIBLE TO CORRECT ANY LATENT DEFECTS IN LANDLORD'S WORK; PROVIDED,
HOWEVER, THAT TENANT NOTIFIES LANDLORD OF SUCH LATENT DEFECTS WITHIN SIX (6)
MONTHS AFTER TENANT DISCOVERS SAME.
WHERE ANY PORTION OF WORK OR INSTALLATION ARE TO BE PERFORMED BY
TENANT, TENANT MAY EMPLOY ITS OWN CONTRACTOR, SUBJECT OTHERWISE TO THE
PROVISIONS OF SECTION 6.2 OF THE LEASE; PROVIDED SUCH TENANT-CONTRACTOR SHALL BE
SUBJECT TO LANDLORD'S ADVANCE REASONABLE APPROVAL (SUCH APPROVAL SHALL NOT
UNREASONABLY BE WITHHELD, DELAYED, REFUSED OR DENIED), AND SUCH
TENANT-CONTRACTOR SHALL BE LICENSED AND BONDED AND SHALL MEET LANDLORD'S
REASONABLE INSURANCE REQUIREMENTS.
<PAGE>
EXHIBIT C
ATTACHED TO AND MADE A PART OF LEASE BEARING THE
LEASE REFERENCE DATE OF SEPTEMBER 17, 1998 BETWEEN
KEYSTONE-MIAMI PROPERTY HOLDING CORP., AS LANDLORD AND
TIGER DIRECT, INC., A DELAWARE CORPORATION, AS TENANT
RULES AND REGULATIONS
1. NO SIGN, PLACARD, PICTURE, ADVERTISEMENT, NAME OR NOTICE SHALL BE INSTALLED
OR DISPLAYED ON ANY PART OF THE OUTSIDE OR INSIDE OF THE BUILDING WITHOUT THE
PRIOR WRITTEN CONSENT OF THE LANDLORD. LANDLORD SHALL HAVE THE RIGHT TO REMOVE,
AT TENANT'S EXPENSE AND WITHOUT NOTICE, ANY SIGN INSTALLED OR DISPLAYED IN
VIOLATION OF THIS RULE. ALL APPROVED SIGNS OR LETTERING ON DOORS AND WALLS SHALL
BE PRINTED, PAINTED, AFFIXED OR INSCRIBED AT THE EXPENSE OF TENANT BY A PERSON
OR VENDOR CHOSEN BY LANDLORD. IN ADDITION, LANDLORD RESERVES THE RIGHT TO CHANGE
FROM TIME TO TIME THE FORMAT OF THE SIGNS OR LETTERING AND TO REQUIRE PREVIOUSLY
APPROVED SIGNS OR LETTERING TO BE APPROPRIATELY ALTERED.
2. IF LANDLORD OBJECTS IN WRITING TO ANY CURTAINS, BLINDS, SHADES OR SCREENS
ATTACHED TO OR HUNG IN OR USED IN CONNECTION WITH ANY WINDOW OR DOOR OF THE
PREMISES, TENANT SHALL IMMEDIATELY DISCONTINUE SUCH USE. NO AWNING SHALL BE
PERMITTED ON ANY PART OF THE PREMISES. TENANT SHALL NOT PLACE ANYTHING OR ALLOW
ANYTHING TO BE PLACED AGAINST OR NEAR ANY GLASS PARTITIONS OR DOORS OR WINDOWS
WHICH MAY APPEAR UNSIGHTLY, IN THE OPINION OF LANDLORD, FROM OUTSIDE THE
PREMISES.
3. TENANT SHALL NOT OBSTRUCT ANY SIDEWALKS, HALLS, PASSAGES, EXITS, ENTRANCES,
ELEVATORS, ESCALATORS OR STAIRWAYS OF THE BUILDING. THE HALLS, PASSAGES, EXITS,
ENTRANCES, SHOPPING MALLS, ELEVATORS, ESCALATORS AND STAIRWAYS ARE NOT FOR THE
GENERAL PUBLIC, AND LANDLORD SHALL IN ALL CASES RETAIN THE RIGHT TO CONTROL AND
PREVENT ACCESS TO THE BUILDING OF ALL PERSONS WHOSE PRESENCE IN THE JUDGMENT OF
LANDLORD WOULD BE PREJUDICIAL TO THE SAFETY, CHARACTER, REPUTATION AND INTERESTS
OF THE BUILDING AND ITS TENANTS PROVIDED THAT NOTHING CONTAINED IN THIS RULE
SHALL BE CONSTRUED TO PREVENT SUCH ACCESS TO PERSONS WITH WHOM ANY TENANT
NORMALLY DEALS IN THE ORDINARY COURSE OF ITS BUSINESS, UNLESS SUCH PERSONS ARE
ENGAGED IN ILLEGAL ACTIVITIES. NO TENANT AND NO EMPLOYEE OR INVITEE OF ANY
TENANT SHALL GO UPON THE ROOF OF THE BUILDING.
4. THE DIRECTORY OF THE BUILDING WILL BE PROVIDED EXCLUSIVELY FOR THE DISPLAY OF
THE NAME AND LOCATION OF TENANTS ONLY AND LANDLORD RESERVES THE RIGHT TO EXCLUDE
ANY OTHER NAMES THEREFROM.
5. ALL CLEANING AND JANITORIAL SERVICES FOR THE BUILDING SHALL BE PROVIDED
EXCLUSIVELY THROUGH LANDLORD, AT TENANT'S COST AND EXPENSE. TENANT SHALL NOT
CAUSE ANY UNNECESSARY LABOR BY CARELESSNESS OR INDIFFERENCE TO THE GOOD ORDER
AND CLEANLINESS OF THE PREMISES. LANDLORD SHALL NOT IN ANY WAY BE RESPONSIBLE TO
ANY TENANT FOR ANY LOSS OF PROPERTY ON THE PREMISES, HOWEVER OCCURRING, OR FOR
ANY DAMAGE TO ANY TENANT'S PROPERTY BY THE JANITOR OR ANY OTHER EMPLOYEE OR ANY
OTHER PERSON.
6. LANDLORD WILL FURNISH TENANT FREE OF CHARGE WITH TWO KEYS TO EACH DOOR IN THE
PREMISES. LANDLORD MAY MAKE A REASONABLE CHARGE FOR ANY ADDITIONAL KEYS, AND
TENANT SHALL NOT MAKE OR HAVE MADE ADDITIONAL KEYS, AND TENANT SHALL NOT ALTER
ANY LOCK OR INSTALL A NEW OR ADDITIONAL LOCK OR BOLT ON ANY DOOR OF ITS
PREMISES. TENANT, UPON THE TERMINATION OF ITS TENANCY, SHALL DELIVER TO LANDLORD
THE KEYS OF ALL DOORS WHICH HAVE BEEN FURNISHED TO TENANT, AND IN THE EVENT OF
LOSS OF ANY KEYS SO FURNISHED, SHALL PAY LANDLORD THEREFOR.
7. IF TENANT REQUIRES TELEGRAPHIC, TELEPHONIC, BURGLAR ALARM OR SIMILAR
SERVICES, IT SHALL FIRST OBTAIN, AND COMPLY WITH, LANDLORD'S INSTRUCTIONS IN
THEIR INSTALLATION.
8. NO EQUIPMENT, MATERIALS, FURNITURE, PACKAGES, SUPPLIES, MERCHANDISE OR OTHER
PROPERTY WILL BE RECEIVED IN THE BUILDING OR CARRIED IN THE ELEVATORS EXCEPT
BETWEEN SUCH HOURS AND IN SUCH ELEVATORS AS MAY BE DESIGNATED BY LANDLORD.
9. TENANT SHALL NOT PLACE A LOAD UPON ANY FLOOR WHICH EXCEEDS THE LOAD PER
SQUARE FOOT WHICH SUCH FLOOR WAS DESIGNED TO CARRY AND WHICH IS ALLOWED BY LAW.
LANDLORD SHALL HAVE THE RIGHT TO PRESCRIBE THE WEIGHT, SIZE AND POSITION TO ALL
EQUIPMENT, MATERIALS, FURNITURE OR OTHER PROPERTY BROUGHT INTO THE BUILDING.
HEAVY OBJECTS SHALL, STAND ON SUCH PLATFORMS AS DETERMINED BY LANDLORD TO BE
NECESSARY TO PROPERLY DISTRIBUTE THE WEIGHT. BUSINESS MACHINES AND MECHANICAL
EQUIPMENT BELONGING TO TENANT WHICH CAUSE NOISE OR VIBRATION THAT MAY BE
TRANSMITTED TO THE STRUCTURE OF THE BUILDING OR TO ANY SPACE IN THE BUILDING TO
SUCH A DEGREE AS TO BE OBJECTIONABLE TO LANDLORD OR TO ANY TENANTS SHALL BE
PLACED AND MAINTAINED BY TENANT, AT TENANT'S EXPENSE, ON VIBRATION ELIMINATORS
OR OTHER DEVICES SUFFICIENT TO ELIMINATE NOISE OR VIBRATION. THE PERSONS
EMPLOYED TO MOVE SUCH EQUIPMENT IN OR OUT OF THE BUILDING MUST BE ACCEPTABLE TO
LANDLORD. LANDLORD WILL NOT BE RESPONSIBLE FOR LOSS OF, OR DAMAGE TO, ANY SUCH
EQUIPMENT OR OTHER PROPERTY FROM ANY CAUSE, AND ALL DAMAGE DONE TO THE BUILDING
BY MAINTAINING OR MOVING SUCH EQUIPMENT OR OTHER PROPERTY SHALL BE REPAIRED AT
THE EXPENSE OF TENANT.
10. TENANT SHALL NOT USE ANY METHOD OF HEATING OR AIR CONDITIONING OTHER THAN
THAT SUPPLIED BY LANDLORD. TENANT SHALL NOT WASTE ELECTRICITY, WATER OR AIR
CONDITIONING. TENANT SHALL KEEP CORRIDOR DOORS CLOSED.
11. LANDLORD RESERVES THE RIGHT TO EXCLUDE FROM THE BUILDING BETWEEN THE HOURS
OF 6 P.M. AND 7 A.M. THE FOLLOWING DAY, OR SUCH OTHER HOURS AS MAY BE
ESTABLISHED FROM TIME TO TIME BY LANDLORD, AND ON SUNDAYS AND LEGAL HOLIDAYS ANY
PERSON UNLESS THAT PERSON IS KNOWN TO THE PERSON OR EMPLOYEE IN CHARGE OF THE
BUILDING AND HAS A PASS OR IS PROPERLY IDENTIFIED. TENANT SHALL BE RESPONSIBLE
FOR ALL PERSONS FOR WHOM IT REQUESTS PASSES AND SHALL BE LIABLE TO LANDLORD FOR
ALL ACTS OF SUCH PERSONS. LANDLORD SHALL NOT BE LIABLE FOR DAMAGES FOR ANY ERROR
WITH REGARD TO THE ADMISSION TO OR EXCLUSION FROM THE BUILDING OF ANY PERSON.
12. TENANT SHALL CLOSE AND LOCK THE DOORS OF ITS PREMISES AND ENTIRELY SHUT OFF
ALL WATER FAUCETS OR OTHER WATER APPARATUS AND ELECTRICITY, GAS OR AIR OUTLETS
BEFORE TENANT AND ITS EMPLOYEES LEAVE THE PREMISES. TENANT SHALL BE RESPONSIBLE
FOR ANY DAMAGE OR INJURIES SUSTAINED BY OTHER TENANTS OR OCCUPANTS OF THE
BUILDING OR BY LANDLORD FOR NONCOMPLIANCE WITH THIS RULE.
13. THE TOILET ROOMS, TOILETS, URINALS, WASH BOWLS AND OTHER APPARATUS SHALL NOT
BE USED FOR ANY PURPOSE OTHER THAN THAT FOR WHICH THEY WERE CONSTRUCTED, NO
FOREIGN SUBSTANCE OF ANY KIND WHATSOEVER SHALL BE THROWN INTO ANY OF THEM, AND
THE EXPENSE OF ANY BREAKAGE, STOPPAGE OR DAMAGE RESULTING FROM THE VIOLATION OF
THIS RULE SHALL BE BORNE BY THE TENANT WHO, OR WHOSE EMPLOYEES OR INVITEES,
SHALL HAVE CAUSED IT.
14. TENANT SHALL NOT INSTALL ANY RADIO OR TELEVISION ANTENNA, SATELLITE DISH
(SUBJECT HOWEVER TO ANY CONTRARY PROVISIONS EXPRESSLY SET FORTH IN THE LEASE OR
THE RIDER), LOUDSPEAKER OR OTHER DEVICE ON THE ROOF OR EXTERIOR WALLS OF THE
BUILDING. TENANT SHALL NOT INTERFERE WITH RADIO OR TELEVISION BROADCASTING OR
RECEPTION FROM OR IN THE BUILDING OR ELSEWHERE.
15. EXCEPT AS APPROVED BY LANDLORD, TENANT SHALL NOT MARK, DRIVE NAILS, SCREW OR
DRILL INTO THE PARTITIONS, WOODWORK OR PLASTER OR IN ANY WAY DEFACE THE
PREMISES. TENANT SHALL NOT CUT OR BORE HOLES FOR WIRES. TENANT SHALL NOT AFFIX
ANY FLOOR COVERING TO THE FLOOR OF THE PREMISES IN ANY MANNER EXCEPT AS APPROVED
BY LANDLORD. TENANT SHALL REPAIR ANY DAMAGE RESULTING FROM NONCOMPLIANCE WITH
THIS RULE.
16. TENANT SHALL NOT INSTALL, MAINTAIN OR OPERATE UPON THE PREMISES ANY VENDING
MACHINE.
17. TENANT SHALL STORE ALL ITS TRASH AND GARBAGE WITHIN ITS PREMISES. TENANT
SHALL NOT PLACE IN ANY TRASH BOX OR RECEPTACLE ANY MATERIAL WHICH CANNOT BE
DISPOSED OF IN THE ORDINARY AND CUSTOMARY MANNER OF TRASH AND GARBAGE DISPOSAL.
ALL GARBAGE AND REFUSE DISPOSAL SHALL BE MADE IN ACCORDANCE WITH DIRECTIONS
ISSUED FROM TIME TO TIME BY LANDLORD. NOTWITHSTANDING THE FOREGOING, LANDLORD
SHALL PROVIDE A TRASH DUMPSTER AT LANDLORD'S EXPENSE, IN THE COMMON AREAS, IN A
LOCATION SELECTED BY LANDLORD IN ITS SOLE DISCRETION BUT TAKING INTO ACCOUNT
WHERE POSSIBLE THE NEED TO PLACE SAME WITHIN REASONABLE PROXIMITY OF THE
PREMISES, WHICH DUMPSTER SHALL BE MADE AVAILABLE FOR TENANT'S USE FOR THE
DISPOSAL ONLY OF ORDINARY "STANDARD" OFFICE TRASH AND WASTE, SUBJECT OTHERWISE
TO THE TERMS AND CONDITIONS OF THE LEASE. THE COST OF THE OPERATION AND
MAINTENANCE OF THE DUMPSTER (INCLUDING THE COST OF ITS INCLUSION AMONG ALL
DUMPSTERS "SERVICED" (EMPTIED) BY LANDLORD OR ITS AGENTS OR CONTRACTORS), SHALL
BE INCLUDED AMONG THE DIRECT EXPENSES.
18. NO COOKING SHALL BE DONE OR PERMITTED BY ANY TENANT ON THE PREMISES, EXCEPT
BY THE TENANT OF UNDERWRITERS' LABORATORY APPROVED MICROWAVE OVEN OR EQUIPMENT
FOR BREWING COFFEE, TEA, HOT CHOCOLATE AND SIMILAR BEVERAGES SHALL BE PERMITTED
PROVIDED THAT SUCH EQUIPMENT AND USE IS IN ACCORDANCE WITH ALL APPLICABLE
FEDERAL, STATE AND CITY LAWS, CODES, ORDINANCES, RULES AND REGULATIONS.
19. TENANT SHALL NOT USE IN ANY SPACE OR IN THE PUBLIC HALLS OF THE BUILDING ANY
HAND TRUCKS EXCEPT THOSE EQUIPPED WITH THE RUBBER TIRES AND SIDE GUARDS OR SUCH
OTHER MATERIAL-HANDLING EQUIPMENT AS LANDLORD MAY APPROVE. TENANT SHALL NOT
BRING ANY OTHER VEHICLES OF ANY KIND INTO THE BUILDING.
20. TENANT SHALL NOT USE THE NAME OF THE BUILDING IN CONNECTION WITH OR IN
PROMOTING OR ADVERTISING THE BUSINESS OF TENANT EXCEPT AS TENANT'S ADDRESS.
21. THE REQUIREMENTS OF TENANT WILL BE ATTENDED TO ONLY UPON APPROPRIATE
APPLICATION TO THE OFFICE OF THE BUILDING BY AN AUTHORIZED INDIVIDUAL. EMPLOYEES
OF LANDLORD SHALL NOT PERFORM ANY WORK OR DO ANYTHING OUTSIDE OF THEIR REGULAR
DUTIES UNLESS UNDER SPECIAL INSTRUCTION FORM LANDLORD, AND NO EMPLOYEE OF
LANDLORD WILL ADMIT ANY PERSON (TENANT OR OTHERWISE) TO ANY OFFICE WITHOUT
SPECIFIC INSTRUCTIONS FROM LANDLORD.
22. LANDLORD MAY WAIVE ANY ONE OR MORE OF THESE RULES AND REGULATIONS FOR THE
BENEFIT OF ANY PARTICULAR TENANT OR TENANTS, BUT NO SUCH WAIVER BY LANDLORD
SHALL BE CONSTRUED AS A WAIVER OF SUCH RULES AND REGULATIONS IN FAVOR OF ANY
OTHER TENANT OR TENANTS, NOR PREVENT LANDLORD FROM THEREAFTER ENFORCING ANY SUCH
RULES AND REGULATIONS AGAINST ANY OR ALL OF THE TENANTS OF THE BUILDING.
23. THESE RULES AND REGULATIONS ARE IN ADDITION TO, AND SHALL NOT BE CONSTRUED
TO IN ANY WAY MODIFY OR AMEND, IN WHOLE OR IN PART, THE TERMS, COVENANTS,
AGREEMENTS AND CONDITIONS OF ANY LEASE OF PREMISES IN THE BUILDING.
24. LANDLORD RESERVES THE RIGHT TO MAKE SUCH OTHER AND REASONABLE RULES AND
REGULATIONS AS IN ITS JUDGMENT MAY FROM TIME TO TIME BE NEEDED FOR SAFETY AND
SECURITY, FOR CARE AND CLEANLINESS OF THE BUILDING AND FOR THE PRESERVATION OF
GOOD ORDER IN AND ABOUT THE BUILDING. TENANT AGREES TO ABIDE BY ALL SUCH RULES
AND REGULATIONS IN THIS EXHIBIT C STATED AND ANY ADDITIONAL RULES AND
REGULATIONS WHICH ARE ADOPTED.
25. TENANT SHALL BE RESPONSIBLE FOR THE OBSERVANCE OF ALL OF THE FOREGOING RULES
BY TENANT'S EMPLOYEES, AGENTS, CLIENTS, CUSTOMERS, INVITEES AND GUESTS.
26. LANDLORD AGREES THAT IT SHALL NOT ENFORCE AGAINST TENANT ANY SUCH RULES AND
REGULATIONS NOTED ON THIS EXHIBIT UNLESS THE SAME ARE REASONABLE AND UNIFORMLY
ENFORCED AGAINST OTHER TENANTS, AS APPLICABLE. NO SUCH RULE OR REGULATION SHALL
MATERIALLY INCREASE TENANT'S PERIODIC MONETARY CHARGES DUE UNDER THIS LEASE. IN
CONNECTION WITH THE OPERATION OR ENFORCEMENT OF THE FOREGOING RULES AND
REGULATIONS, LANDLORD AGREES TO EXERCISE COMMERCIALLY REASONABLE EFFORTS TO
MINIMIZE INTERFERENCE WITH THE ONGOING OPERATION OF BUSINESS IN THE PREMISES FOR
THE PERMITTED USES, AS PRACTICABLE UNDER THE CIRCUMSTANCES.
<PAGE>
LEASE RIDER
Notwithstanding anything contained in the Lease (the "ORIGINAL LEASE") to and of
which this Rider ("RIDER") is attached and made a part, the provisions of this
Rider shall be paramount and controlling. All terms used in this Rider shall
have the meanings ascribed to them in the Original Lease, unless the context
clearly otherwise requires. The Original Lease, together with this Rider, may be
collectively referred to herein as "THIS LEASE".
R-1 EXISTING TENANT / COMMENCEMENT DATE DELAY / DELAY RENT CREDIT:
Landlord and Tenant understand and acknowledge that the Premises are
currently subject to that certain lease (the "EXISTING LEASE")
respecting the Premises by and between Landlord and that certain tenant
doing business as "Santa Cruz" (the "EXISTING TENANT"), which pursuant
to the terms thereof, requires or will require the Existing Tenant to
vacate and surrender the Premises on or before the date on which
Landlord is required hereunder to deliver possession of the Premises to
Tenant, and Landlord and Tenant agree that Landlord shall in no event
have any liability whatsoever to Tenant for any delay or refusal of
Existing Tenant to timely and properly vacate and surrender the
Premises. Landlord shall have the sole and exclusive right to any and
all damages, including without limitation, holdover rent, suffered or
otherwise incurred as a result of the failure by Existing Tenant to so
vacate and surrender the Premises. In the event Existing Tenant has not
so vacated and surrendered the Premises by September 1, 1999, then, as
and for Tenant's sole and exclusive remedy (other than the right of
termination, subject to the terms and conditions relating thereto, as
set forth in Section 2.2 of the Lease), Tenant shall be granted an
Annual Rent credit in the amount of twice the amount of Annual Rent
(computed on a daily prorated basis) otherwise due for each day
thereafter until Landlord tenders possession in accordance with the
terms and conditions of the Lease, including Section 2.1, PROVIDED that
any portion of such delay caused by Tenant's breach or violation of the
Lease, or Tenant's failure to timely and properly respond to Landlord,
provide information, drawings or other sketches, give approvals, or
otherwise make determinations and selections, shall not be deemed a
delayed day for which such Annual Rent (daily) credit accrues (herein,
the "DELAY RENT CREDIT").
In addition, irrespective of the date on which the Existing Tenant
vacates and surrenders the Premises, if Landlord has not tendered
possession of the Premises in accordance with the terms and conditions
of the Lease as aforesaid, on or before September 1, 1999, then, as and
for Tenant's sole and exclusive remedy (other than the right of
termination, subject to the terms and conditions relating thereto, as
set forth in Section 2.2 of the Lease), Tenant shall be granted the
Delay Rent Credit noted above (subject to the same proviso noted above
respecting Tenant-caused delay) respecting each day after September 1,
1999 until Landlord so tenders possession.
In case of an accrued Delay Rent Credit, the parties agree that same
shall be enjoyed by Tenant only in the following manner: upon Landlord's
tender of possession of the Premises as herein noted, the accumulated
Delay Rent Credit shall be credited, day for day, against the Annual
Rent otherwise due under the terms of the Lease (attributable to each
such day), until the Delay Rent Credit is so exhausted, at which time
Tenant shall commence to pay its Annual Rent installments in the time
and manner required in the Lease. Notwithstanding the occurrence of days
on which Delay Rent Credit is being enjoyed in accordance herewith,
Tenant nonetheless shall pay any other charges or items of rent or
Additional Rent otherwise payable under the Lease, in the time and
manner required, subject to the terms and conditions of the Lease.
R-2 PREMISES, LOBBY, STORAGE AREA: The parties acknowledge that the Premises
are initially comprised of four (4) areas: (i) the premises on the
second (2nd) floor of the Building and known as Suite 35, as indicated
on EXHIBIT A, containing approximately 63,882 square feet of rentable
area, subject to adjustment as provided in Article 30 of the Original
Lease, and (ii) the Lobby, containing approximately 2,000 square feet,
as outlined on EXHIBIT A (or attachment(s) thereto), (iii) the former
"driver's license" space and known as Suite 33C, as indicated on EXHIBIT
A, containing approximately 3,000 square feet of rentable area, and (iv)
the Storage Area, containing approximately 2,000 square feet of
non-air-conditioned storage space as outlined on EXHIBIT A (or
attachment(s) thereto).
R-3 RENTS: Annual Rent shall be due in the time and manner set forth in this
Lease and shall be comprised of the Annual Rent due (i) for the Premises
(excluding the Lobby and the Storage Area), plus (ii) for the Storage
Area, plus (iii) in respect of any "Expansion Area" hereafter defined,
plus (iv) in respect of any additional space arising by reason of the
application of Tenant's "First Right of Notice" by Tenant's "Election"
as described below.
The Annual Rent due during the Term in respect of Suites 35 and 33C of
the PREMISES (that is, the Premises but excluding the Lobby and
excluding the Storage Area) shall be as follows, together with all sales
tax thereon:
MONTHLY INSTALLMENT OF
PERIOD DURING ANNUAL RENT ANNUAL RENT
INITIAL TERM $'S PER ANNUM $'S PER MONTH
Commencement Date through the
conclusion of the sixth (6th)
month thereafter 401,292.00 33,441.00
Seventh (7th) month after the
Commencement Date through the
conclusion of the sixty-sixth
(66th) month after the
Commencement Date 802,584.00 66,882.00
Sixty seventh (67th) month after
the Commencement Date through the
conclusion of the one hundred
twenty sixth (126th) month after
the Commencement Date 902,907.00 75,242.25
The Annual Rent due during the Term in respect of the STORAGE AREA only shall be
as follows, together with all sales tax thereon:
MONTHLY INSTALLMENT OF
PERIOD DURING ANNUAL RENT ANNUAL RENT
INITIAL TERM $'S PER ANNUM $'S PER MONTH
Commencement Date through
the conclusion of the
sixtieth (60th) month thereafter 10,000.00 833.33
Sixty-first month after the
Commencement Date through the
Termination Date of the
Initial Term 11,500.00 958.33
No Annual Rent is deemed attributable to the Lobby.
R-4 DIRECT EXPENSES, TAXES - CONTROL: Tenant's Proportionate Share of the
excess Direct Expenses [whether or not a particular item of Direct
Expense might otherwise be deemed a "controllable expense"], including
utilities and property insurance, and Tenant's Proportionate Share of
excess Taxes, all otherwise payable in full by Tenant pursuant to the
Lease, including Article 4 thereof, are herein collectively referred to
as "EXCESS EXPENSES". Landlord agrees that Excess Expenses shall not
increase IN THE AGGREGATE by more than five and one-half (5 1/2%)
percent per annum, from one year to the next ("CONTROL"). The foregoing
Control shall apply to Excess Expenses otherwise payable in the year
2001 and each year thereafter. The Lease, including Sections 4.1 and
13.1 of the Original Lease, is hereby clarified to provide that
janitorial services [and electric, water and sewer utilities, as well as
telephone and other Tenant-specific services and utilities] within the
Premises do not comprise a portion of the Base Year Direct Expenses but
instead are separately obtained and payable in full by Tenant.
R-5 OPTIONS TO RENEW:
(A) FIRST OPTION TERM - Provided Tenant is not in default or
violation of any of the terms and conditions of the Lease at the time of
exercise or commencement of the following described option, Tenant is
granted the option to extend the term of the Lease for one (1)
additional period of five (5) years (the "FIRST OPTION TERM"),
commencing upon the Termination Date of the initial Term of the Lease
(the "INITIAL TERM"), upon the following terms and conditions. The
Tenant shall deliver written notice of its intent to exercise this
option to Landlord no later than one-hundred eighty (180) days prior to
the expiration of the Initial Term. Subject to the conditions herein
expressed, delivery of the written notice of the intent to exercise the
option shall irrevocably commit the Tenant to the First Option Term. The
First Option Term shall be subject to all the terms, covenants and
provisions of the Lease, except as modified by this R-5 (but no options
shall be reimposed). If Tenant does not so exercise said option in the
time and manner herein provided, time being strictly of the essence, any
and all of Tenant's option rights for the First Option Term and Second
Option Term (hereinafter defined) shall be deemed waived. The constant
Annual Rent for each year of the First Option Term shall be equal to
$991,448.64 per annum, $82,620.72 per month, together with all sales tax
thereon. The Base Year shall be deemed changed to the year in which the
first day of the First Option Term occurs [such Base Year shall remain
the same throughout the remainder of such First Option Term]. At the
commencement of the First Option Term, Landlord shall at its expense (i)
install new carpeting to equal or better quality as when first installed
at inception of this Lease and (ii) repaint to equal or better quality
as when first painted at inception of this Lease, in both cases within
all of the then existing Premises (other than the Lobby and other than
the Storage Area and other than any other area in respect of which no or
reduced Annual Rent is attributable), such work to proceed in accordance
with the terms and conditions of this Lease. In addition, the Annual
Rent attributable to the Storage Area for each 12-month period during
the First Option Term shall be $13,225.00 PER ANNUM, payable in monthly
installments of $1,102.08 PER MONTH, plus all applicable sales tax
thereon.
(B) SECOND OPTION TERM - Provided Tenant is not in default or
violation of any of the terms and conditions of the Lease at the time of
exercise or commencement of the following described option, Tenant is
granted the option to extend the term of the Lease for one (1)
additional period of five (5) years (the "SECOND OPTION TERM"),
commencing upon the expiration of the First Option Term, upon the
following terms and conditions [the First Option Term and the Second
Option Term may be collectively referred to as the "OPTION TERMS"]. The
Tenant shall deliver written notice of its intent to exercise this
option to Landlord no later than one-hundred eighty (180) days prior to
the expiration of the First Option Term. Subject to the conditions
herein expressed, delivery of the written notice of the intent to
exercise the option shall irrevocably commit the Tenant to the Second
Option Term. The Second Option Term shall be subject to all the terms,
covenants and provisions of this Lease, except as modified by this R-5
(but no options shall be reimposed). If Tenant does not so exercise said
Option in the time and manner herein provided, time being strictly of
the essence, any and all of Tenant's option rights for the Second Option
Term shall be deemed waived. The constant Annual Rent for each year of
the Second Option Term shall be at the greater of (x) one and one-half
(1 1/2%) percent over the Annual Rent payable during the last twelve
(12) month period immediately preceding the conclusion of the First
Option Term and (y) "market rate" for similar space in the Building as
determined by "Baseball Arbitration" as each is described below. Time
shall be of the essence with respect to Tenant's exercise of the option
to extend for the Second Option Term. The Base Year shall be deemed
changed to the year in which the first day of the Second Option Term
occurs [such Base Year shall remain the same throughout the remainder of
such Second Option Term]. In addition, the Annual Rent attributable to
the Storage Area for each 12-month period during the Second Option Term
shall be $15,208.75 PER ANNUM, payable in monthly installments of
$1,267.40 PER MONTH, plus all applicable sales tax thereon.
(C) BASEBALL ARBITRATION - Where the greater value described above in
subparagraph (B) [as between (x) and (y)] is the value determined
through Baseball Arbitration:
(a) Annual Rent during the Second Option Term shall be at the
then existing market rental rate (as hereinafter defined) as of the
first day of the Second Option Term.
(b) Within ten (10) business days after Tenant has exercised its
option for the Second Option Term, Landlord and Tenant shall each in
writing present to the other party their respective determinations of
market rental rate for the Premises for the Second Option Term (the
"LANDLORD'S OFFER" and "TENANT'S OFFER", respectively).
(c) If said market rates for Annual Rent determined by the lower
of the two (2) Offers respecting market rates for Annual Rent is less
than ten percent (10%) below the higher, then such market rates for
Annual Rent shall be determined by averaging the two (2) Offers
respecting Annual Rent.
(d) If the difference between the lower of the two (2) Offers is
10% or more than ten percent (10%) below the higher, then such market
rates shall be determined by "BASEBALL ARBITRATION" (as hereinafter
defined), in accordance with the procedure set forth below.
(e) Baseball Arbitration shall proceed in accordance with the
following procedures:
(1) Within twenty (20) business days after Tenant has
exercised its option for the Second Option Term, Landlord and Tenant
shall each select an arbitrator ("LANDLORD'S ARBITRATOR" and "TENANT'S
ARBITRATOR", respectively), who shall each be a qualified and impartial
person licensed in the State of Florida as an MAI appraiser with at
least ten (10) years of experience in appraising the type of matters for
which they are called on to appraise hereunder in the greater Miami area
and whose fees and costs shall each be paid by the respective party
appointing such Arbitrator.
(2) Landlord's Arbitrator and Tenant's Arbitrator shall name
a third arbitrator, similarly qualified, within ten (10) days after the
appointment of Landlord's Arbitrator and Tenant's Arbitrator.
(3) Said third arbitrator shall, after due consideration of
the factors to be taken into account under the definition of market rate
set forth below and hearing whatever evidence the arbitrator deems
appropriate from Landlord, Tenant and others, and obtaining any other
information the arbitrator deems necessary, in good faith, make its own
determination of the market rate for the Premises as of the commencement
of the Second Option Term for a term equal to the duration of the Second
Option Term (the "ARBITRATOR'S INITIAL DETERMINATION") and thereafter
said third arbitrator shall select either Landlord's Offer or Tenant's
Offer, but no other, whichever is closest to the Arbitrator's Initial
Determination (the Offer so selected is herein referred to as
"ARBITRATOR'S FINAL DETERMINATION") such determinations to be made
within thirty (30) days after the appointment of the third arbitrator.
The arbitrator's Initial Determination and Final Determination and the
market information upon which each such determination was based shall be
in writing and counterparts thereof shall be delivered to Landlord and
Tenant within said thirty (30) day period.
(4) The arbitrator shall have no right or ability to
determine the market rate in any other manner. The Arbitrator's Final
Determination once properly made as herein provided and announced in
writing to Landlord and Tenant, shall be binding upon the parties
hereto.
(5) The costs and fees of the third arbitrator shall be paid
by Tenant if the Arbitrator's Final Determination shall be Landlord's
Offer or by Landlord if the arbitrator's Final Determination shall be
Tenant's Offer.
(6) If Tenant fails to appoint Tenant's Arbitrator in the
manner and within the time specified above, then the market rental rate
shall be at the rate set forth in Landlord's Offer. If Landlord fails to
appoint Landlord's Arbitrator in the manner and within the time set
forth above, then the market rental rate shall be at the rate set forth
in Tenant's Offer. If Landlord's Arbitrator and Tenant's Arbitrator
shall fail to appoint a third arbitrator within the time and in the
manner prescribed above, then Landlord and Tenant shall jointly and
promptly apply to the local office of the American Arbitration
Association for the appointment of the third Arbitrator.
(7) As used herein the term "MARKET RATE" shall mean the then
prevailing market rate for full service Annual Rent, without
consideration of any improvement allowances or other concessions actual
or available in the "market", with a Base Year deemed changed to the
year in which the first day of the Second Option Term occurs [such Base
Year shall remain the same throughout the remainder of such Second
Option Term], for tenants of comparable quality for renewal leases in
buildings of comparable size, age, use, location and quality in the
greater Miami area, taking into consideration the extent of the
availability of space as large as the Premises in the marketplace and
all other (except as aforesaid) economic terms then customarily
prevailing in such renewal leases in said marketplace.
R-6 FIRST RIGHT OF NOTICE TO LEASE OFFICE OF THE AMERICAS SPACE: Provided
Tenant is not in default or violation of any term or condition of the
Lease, all of the following provisions of this Rider R-6 shall control:
Landlord shall not lease any "Office of the Americas Building" space (as
hereinafter defined), except in accordance with the provisions of this
R-6. Upon the "availability" (as hereinafter defined) of Office of the
Americas Building space, Landlord shall give Tenant written notice
thereof. Within three (3) business days after receipt of such notice,
Tenant may deliver to Landlord notice of its election to lease the
Office of the Americas Building space ("ELECTION"), except as otherwise
set forth in this Rider R-6. If Tenant fails to deliver such notice
within the time required therefor, time being strictly of the essence,
Tenant shall be deemed to release and waive its rights under this Rider
R-6 as to such space. For purposes of this Rider R-6, the term "Office
of the Americas Building" space means space in that certain building
known as "Office of the Americas", having an address of 7757 West
Flagler Street, Miami, Florida 33144, approximately reflected on EXHIBIT
A (the "OFFICE OF THE AMERICAS BUILDING"). The term "available" means
space for which a lease has expired (whether or not the same has become
vacant) or for which a then existing lease is scheduled to expire or
terminate within six (6) months thereafter and for which Landlord has
received a "Request for Proposal" from a prospective new tenant;
provided that no space shall be deemed "available" if Landlord enters
into an extension or renewal agreement with an occupant of such space,
provided that such other occupant has not surrendered possession of such
space to Landlord prior to commencement of any extension or renewal
term. Any lease of Office of the Americas Building space by Tenant shall
be formally accomplished by the execution and delivery by Landlord,
Tenant and any Guarantor(s) of a modification of this Lease by which the
Premises are increased to include such additional Office of the Americas
Building space [Tenant shall cause Guarantor(s) to join therein; such
modification shall be prepared by Landlord's counsel; and Tenant shall
reimburse Landlord's reasonable administrative and legal fees and costs
incurred in the preparation and processing thereof] and such
modification shall (a) provide for a term expiring simultaneously with
the Term of this Lease or any extension or renewal term for which
election has then been made hereunder; (b) contain the same rights of
extension or renewal then remaining hereunder; and (c) contain all
terms, conditions and provisions under this Lease, except that (i)
Landlord shall have no obligation to perform any Landlord's Work or to
incur any cost of improvements to the Office of the Americas Building
space, which Tenant shall accept in AS-IS and WHERE-IS condition in all
respects; (ii) the commencement date of the lease of the Office of the
Americas Building space [that is, the first day on which such space
shall be deemed included in the Premises herein leased, and therefore
the first day on which rents attributable thereto shall be deemed to
accrue] shall be the date of delivery of Tenant's Election; (iii) Annual
Rent for the Office of the Americas Building space shall equal the
product of the rentable area square feet of applicable Office of the
Americas Building space multiplied by the then current "Annual Rent
Price per Square Foot" [hereafter defined]; and thereafter, the Annual
Rent for the applicable Office of the Americas Building space shall
increase from time to time so as to always equal the product of the
applicable Office of the Americas Building space rentable area square
feet multiplied by the then current Annual Rent Price per Square Foot,
and (iv) the Base Year applicable in the computation of charges
hereunder applicable to any such Office of the Americas Building space
shall be the same Base Year then applicable under the Lease immediately
preceding the Election. The "ANNUAL RENT PRICE PER SQUARE FOOT" at any
moment shall equal the quotient of the rentable area square feet for all
of the Premises [including any additions or expansions but excluding the
Lobby square feet and excluding any other square feet for which Annual
Rent is not paid and excluding the Storage Space or other space for
which a reduced Annual Rent is paid; collectively all such excluded
square footage is referred to as "EXCLUDED SPACE"] DIVIDED BY the
aggregate Annual Rent payable at such moment (that is, on an annualized
basis) for all of the Premises [including any additions or expansions
but excluding Excluded Space].
R-7 EXPANSION RIGHTS: The parties acknowledge that there presently exist in
the Office of the Americas Building, (i) that certain existing tenancy
with a tenant doing business as "New Horizons Computer Learning Center
of Miami", occupying approximately 11,000 square feet of rentable area
identified as Suite 82A-1, presently scheduled to expire October 1,
2002, subject to an extension option of one (1) additional five (5)-year
period ("NEW HORIZONS"); (ii) that certain existing tenancy with Dade
County (a political subdivision of the State of Florida), occupying
approximately 14,700 square feet of rentable area identified as Suite
230, presently scheduled to expire May 31, 2003 [or earlier], subject to
extension options ("DADE COUNTY PLANNING"); (iii) that certain "raw"
(unbuilt) rentable area within the SECOND FLOOR ONLY, of the Office of
the Americas Building [not necessarily adjacent or contiguous] in the
aggregate containing approximately 32,000 square feet of rentable area
("UNBUILT SPACE") which at present is not subject to lease
(collectively, the New Horizons space, the Dade County Planning space,
and the Unbuilt Space may also be referred to as the "EXPANSION SPACES"
or separately [or any portion thereof] as "EXPANSION SPACE"). Subject
expressly to the provisions hereof and provided Tenant is not in default
or violation of any term or condition of the Lease at the time of
exercise or commencement of any of the following expansion options,
Tenant shall have the right DURING THE INITIAL TERM ONLY, to expand into
any Expansion Space, in the time and manner, and subject to the rents
and other conditions, limitations and provisions set forth below and in
the Lease, including without limitation the provisions of the Lease at
Sections 1.1 and 1.2 governing use and restrictions on use:
(A) NEW LEASE. Whenever during the initial Term of the Lease,
Landlord shall lease space to a tenant in the Office of the Americas
Building, which space exists among the Expansion Spaces AND WHICH SPACE
EXCEEDS 10,000 SQUARE FEET of rentable area AND which space had NOT
previously been described in a notice to Tenant advising of its then
newly leased status (any lease for space meeting all of the foregoing
requirements is herein referred to as a "NEW LEASE"), Landlord shall in
writing thereafter notify Tenant of such New Lease, such notice to
indicate the trade name of the tenant under the New Lease, the suite
number or other general description of the location of the space leased,
the square footage of rentable area leased, the approximate commencement
date, and the actual or expected termination date. New Horizons, Dade
County Planning, and any tenant under any such New Lease of which
written notice is given to Tenant are all herein referred to from time
to time as "EXISTING OR FUTURE TENANTS" or separately as an "EXISTING OR
FUTURE TENANT". Landlord agrees to limit all New Leases for Unbuilt
Space to a term of no greater than five (5) years; provided, any renewal
or extension options therein contained shall provide that such renewal
or extension is expressly subject to Tenant's expansion options under
this Lease, as herein set forth and therefore expressly conditioned upon
Tenant's lack of timely delivery of an "Expansion Notice" hereafter
defined respecting such Expansion Space. Tenant expressly acknowledges
and affirms that Landlord and others shall rely upon, time being
strictly of the essence, and shall be entitled so to do, the effect of
Tenant's lack of timely delivery of notice of exercise of an expansion
option respecting the applicable Expansion Space, for purposes of
relying upon a binding unconditional exercise of an expansion or renewal
option, no longer subject to Tenant's rights herein, and Tenant shall
indemnify and hold Landlord harmless from all suits, claims, damages,
losses or liability arising out of Tenant's improper late assertion of
an expansion option hereunder where Landlord and the applicable Existing
or Future Tenant respecting the applicable Expansion Space have acted in
reliance upon a waiver or relinquishment of Tenant's expansion option
arising by Tenant's affirmative assurance or failure to exercise such
option in the time and matter herein specified.
(B) EXPANSION NOTICE. At any time during the initial Term only, and
at least six (6) months prior to the termination date of the lease
respecting New Horizons or Dade County Planning, but otherwise at least
nine (9) months prior to the termination date of any New Lease, in
either case time being strictly of the essence, Tenant shall (if ever)
in writing deliver notice to Landlord unequivocally stating that Tenant
elects to expand into all of the Expansion Space leased under the
applicable lease to such Existing or Future Tenant, in the time and
manner and subject to the rents, terms and conditions hereof ("EXPANSION
NOTICE"). Tenant's failure to timely deliver such Expansion Notice shall
irrevocably be deemed to waive any right of Tenant to expand into such
Expansion Space thereafter [irrespective of any future lease therefor,
thereafter arising; and the parties acknowledge that Landlord shall have
no obligation to provide further notice to Tenant respecting any such
future lease therefor, thereafter arising]. Any such Expansion Notice
respecting New Horizons or Dade County Planning space only, shall be
deemed, whether or not it so indicates, to expressly incorporate
Tenant's acknowledgment that same is subject to any renewal or extension
of the applicable lease.
(C) AVAILABLE EXPANSION SPACE NOTICE. At any time during the initial
Term only of this Lease, prior to Landlord's written notice to Tenant of
any New Lease affecting a specific portion of Expansion Space not
subject to lease and equal to or exceeding 10,000 square feet of
rentable area only ("AVAILABLE EXPANSION SPACE") [space containing FEWER
THAN 10,000 SQUARE FEET of rentable area shall NOT be subject to the
terms hereof], Tenant may deliver written notice to Landlord
unequivocally stating that Tenant elects to expand into the Available
Expansion Space in the time and manner and subject to the rents, terms
and conditions hereof ("AVAILABLE EXPANSION SPACE NOTICE").
(D) TENDER OF POSSESSION. Landlord shall tender possession ("TENDER")
of the Expansion Space which is properly the subject of a timely
delivered written Expansion Notice or Available Expansion Space Notice
within thirty (30) days after delivery of Available Expansion Space
Notice or within thirty (30) days after any Existing or Future Tenant
under lease for such space fully and finally vacates and surrenders same
to Landlord ("SURRENDER"), as applicable; but subject to a later
delivery in either case as may be applicable or necessary by reason any
delay or refusal of any such Existing or Future Tenant to timely and
properly Surrender [the provisions above at Rider provision R-1,
respecting Existing Lease and Existing Tenant shall be deemed fully
applicable here as if restated in this sentence, but instead referring
to any Existing or Future Tenant and applicable so as to protect
Landlord against and to incorporate the agreements of Tenant respecting,
any such delay or refusal to timely Surrender]. Upon Tender, the
Premises under this Lease shall be deemed expanded to include the
applicable Expansion Space; and all of the terms, conditions and
provisions of the Lease shall be deemed fully to apply to and in respect
of such Expansion Space, modified however as herein set forth. In
connection with any such expansion as described in this Rider provision
R-7, same shall be formally accomplished by the execution and delivery
by Landlord, Tenant and any Guarantor(s) of a modification of this Lease
by which the Premises are increased to include such Expansion Space
[Tenant shall cause Guarantor(s) to join therein; such modification
shall be prepared by Landlord's counsel; and Tenant shall reimburse
Landlord's reasonable administrative and legal fees and costs incurred
in the preparation and processing thereof].
(E) "AS IS" CONDITION. Subject to the next sentence, Tenant
acknowledges and agrees that when applicable, in each case the Expansion
Space has been and is currently in existence and by Landlord's tender of
delivery thereof, Tenant shall at such time be deemed to accept the
applicable Expansion Space in "AS IS" condition (except only for any
applicable Landlord's Work), and Tenant shall reserve no claims, offsets
or backcharges regarding the condition thereof. Notwithstanding the
preceding sentence, Landlord shall be responsible to correct any latent
defects in any work performed by Landlord therein, provided Tenant
notifies Landlord in writing of such latent defects within six (6)
months after Landlord initially Tenders possession thereof, time being
strictly of the essence. No increased rights of parking or signage shall
accrue, arise or be deemed to exist by virtue of any Tender or other
leasing of Expansion Space [or space arising under the provisions of
Rider R-6 above] by Tenant.
(F) LANDLORD'S WORK. The parties acknowledge that in each case of
such expansion, Tenant shall timely cooperate with Landlord in the
preparation and finalization of Space Plans, and other submissions,
Working Drawings, renderings, comments and requirements, in the same
manner and subject to the same terms and conditions for Landlord's Work
[to the Premises at the inception of the initial Lease term hereof, as
set out in the Lease and EXHIBIT B thereto], but modified as follows:
(i) the delivery date of the initial Space Plan shall be twenty
(20) days after Tenant delivers its Expansion Notice or Available
Expansion Space Notice, as applicable;
(ii) the contemplated work shall be limited to the applicable
Expansion Space only;
(iii) the provisions which provide for certain items of work
[including "ADA" compliance and fire sprinkler installations] to be
performed at Landlord's sole cost and without right of reimbursement
from the Allowance, are modified so as to allow Landlord to draw against
the Allowance for all such costs and expenses respecting the applicable
Expansion Space;
(iv) the applicable Allowance shall be a value computed as the
product of the square feet of rentable area of the applicable Expansion
Space, multiplied by the value $22.00, further multiplied by a fraction,
the numerator of which shall be the number of months (rounded up to the
next whole number) remaining after Landlord's Tender of such Expansion
Space through the Termination Date of the initial Term of this Lease,
and the denominator of which shall be 126;
(v) references in the Landlord's Work provisions to the Building
shall be deemed references to the Office in the Americas Building and
references in the Landlord's Work provisions to the Premises shall be
deemed references to the applicable Expansion Space; and
(vi) the Scheduled Commencement Date shall be changed to the date
which is thirty (30) days after Tender of possession of the applicable
Expansion Space.
(G) TERM, RENT COMMENCEMENT. The term of Tenant's lease of any such
Expansion Space shall be coterminous with (that is, terminate at the
same time as, and subject to the same options to renew or extend as)
Tenant's Term under the Original Lease. The first day of the Term
respecting such Expansion Space shall be the date of Landlord's tender
of possession, and all rents and charges attributable to such Expansion
Space shall immediately commence and be due and payable from and after
such date of Tender, in the time and manner and subject to the terms and
provisions of the Lease, payable simultaneously with all other rents and
charges otherwise payable by Tenant under the Original Lease.
(H) ANNUAL RENT. The Annual Rent attributable to such Expansion Space
at any moment during the Term, including as same may be extended or
renewed, shall be computed as the product of the square feet of rentable
area of the applicable Expansion Space, multiplied by the Annual Rent
Price per Square Foot then applicable.
(I) OPERATING EXPENSES AND TAXES. The Operating Expenses and Taxes
respecting such Expansion Space after the date of Tender shall be those
attributable to the Office in the Americas Building, and Tenant shall
pay it's Proportionate Share of the excess thereof over the Base Year
2000; and same shall be computed, due, and payable in the time and
manner and subject to the terms and conditions of this Lease, except
that the Proportionate Share attributable to the Office in the Americas
Building Operating Expenses and Taxes shall be a fraction comprised of
the quotient of the aggregate square feet of rentable area of Office in
the Americas Building space then under Lease to Tenant, divided by the
aggregate square feet of leased and occupied rentable area in the Office
in the Americas Building (expressly subject to and limited by the same
provisions of "control" as set forth in Rider provision R-4 above).
R-8 HVAC: Landlord agrees that it shall, on or before the date of tender of
delivery of possession of the Premises, make all mechanical, electrical
and HVAC systems operational; and where necessary Landlord shall take
action at its expense to upgrade existing air conditioning capacity so
as to comply with Landlord's obligations arising under Sections 7.1 and
13.1 of the Original Lease [but subject to the provisions of Section
13.3 of the Original Lease and Paragraph 10 of Exhibit C to the Original
Lease]. All work or actions taken in compliance with this HVAC paragraph
shall be paid for by Landlord and shall not be reimbursed by or applied
against the Allowance.
R-9 SIGNAGE: Subject to all applicable laws and compliance with this Lease,
including Landlord's Building Standard criteria, Tenant shall be
entitled to install, expressly subject to "code", at its sole cost and
expense, up to three (3) Building Standard exterior signs identifying
Tenant's tradename [HOWEVER, Tenant acknowledges that Landlord has
advised that "code" at present evidently prohibits more than TWO (2)
such signs and irrespective of such "code" more restrictive provisions
herein shall control], provided, however, that the size, dimensions,
location, colors, lettering and all other aspects of the signage shall
be subject to Landlord's prior written approval (where within the
parameters of "code" and Landlord's uniform signage criteria, such
approval shall not be unreasonably withheld or delayed). Tenant may
select the location for such signs from among the following three (3)
locations, provided, Tenant's election, once made, shall be final: (i)
exterior face of the Building facing the Palmetto Expressway, at the
location where the Existing Tenant's "Santa Cruz" signage exists, (ii)
exterior face of the Building on the West side of the Building, EITHER
where the Existing Tenant's "Santa Cruz" signage exists OR at the
location of existing "Mall of the Americas" signage at the non-mall
entrance to the Building [as approximately shown on EXHIBIT A], or (iii)
on the exterior face of the building in which is situate the Space 33C
portion of the Premises (collectively, the "BASIC SIGNAGE"). Landlord
agrees at its cost and expense to remove the said "Mall of the Americas"
sign at the non-mall entrance to the Building irrespective of whether
Tenant selects such location as aforesaid. The Basic Signage shall be
fabricated, erected, installed and maintained all at Tenant's sole
expense contemporaneously with substantial completion of Landlord's
Work, subject always to compliance with all applicable laws, compliance
with this Lease and satisfaction of any and all reasonable requirements
and conditions therefor as Landlord may impose from time to time. In the
event of termination of this Lease, or upon voluntary or involuntary
dispossession of Tenant, then in addition to any and all other remedies
provided in this Lease, Landlord shall have the right, without any
liability to Tenant, to remove all Basic Signage at Tenant's cost.
Except as set forth above, no signs of any kind or nature, symbols or
identifying markers may be put in or about the exterior of the Premises
or the Building or any part thereof, without the prior written approval
of Landlord, acting in its unrestricted discretion.
R-10 PARKING:
(A) PROPERTY. The parties acknowledge that the Building exists within
an overall property which includes parking areas and other improvements,
including an enclosed retail shopping mall presently used primarily by
retail tenants and known as "Mall of the Americas". The Building, the
other nearby improvements, including Mall of the Americas, and the
shared parking areas are herein referred to collectively as the "CENTER
PROPERTY".
(B) PARKING AREA. The parties acknowledge that in the immediate
vicinity of the Building exist approximately 565 parking space
("VICINITY PARKING") (as such Vicinity Parking area is approximately
located on EXHIBIT A to this Lease) and adjacent to the Building and
forming a part of the Center Property is an area presently used for the
parking of motor and other vehicles by occupants and tenants (and others
so entitled) of the Building and other improvements (including Mall of
the Americas) within or forming a part of the Center Property (the
"PARKING AREA") (as such Parking Area is approximately located as of the
date hereof on EXHIBIT A to this Lease). For purposes of these
provisions, the Parking Area includes the Vicinity Parking, and the
Parking Area (so inclusive) contains as of the date of this Lease,
approximately 2,500 parking spaces. Tenant acknowledges and affirms that
the Parking Area shall be and remain subject to the exclusive control
and management of Landlord and/or Landlord's designees; the manner in
which the Parking Area may be operated and maintained, and the
expenditures therefor, shall be at the sole discretion of Landlord, and
Landlord shall have the sole right and exclusive authority to employ and
discharge all personnel with respect thereto. The use by Tenant of the
Parking Area shall be subject to rules and regulations for the use
thereof as prescribed from time to time by Landlord or the owner of such
Parking Area, expressly including the right to designate areas within
which Tenant and its employees, personnel, invitees, contractors and any
other parties related to Tenant shall be required to park.
Notwithstanding the provisions of the Lease and hereof, including
Landlord's rights below respecting the Parking Area, changes to the
Vicinity Parking area shall be subject to certain limitations as
follows: Landlord shall not decrease the total number of spaces within
the Vicinity Parking area or otherwise materially adversely reconfigure,
modify or decrease the overall approximate square footage of the
Vicinity Parking or materially adversely change or modify the layout of
striping, bumpers and travel paths within the Vicinity Parking area
unless required by or so as to comply with or as resulting from laws,
"code" or other governmental or administrative requirements [including
zoning and handicap, "stroller" or similar access requirements],
exercise or compliance with exercises of eminent domain or other
condemnation, or judicial order, decree or mandate, or events of
casualty or catastrophe or other acts of G-d or events beyond Landlord's
reasonable control (collectively, "GOVERNMENTAL AND JUDICIAL COMPLIANCE
AND SIMILAR EVENTS").
(C) UNRESERVED, CANOPIED AND RESERVED-VISITOR SPACES. Tenant and its
customers, visitors and employees are hereby granted a revocable,
non-exclusive license (in common with all others to whom Landlord has or
may hereafter grant rights) to use, during the Term, the Parking Area as
same may now or at any time during the Term exist, for the parking of
permitted vehicles (within the lines), strictly on an unreserved basis,
expressly subject to the terms and conditions hereof, including
Landlord's regulations and designations of specific areas of parking as
noted above ("UNRESERVED SPACES"). During the Term of this Lease, as
same may be extended, Landlord agrees that, subject expressly however to
the foregoing, including Governmental and Judicial Compliance and
Similar Events:
(i) no fewer than 2,500 parking spaces shall exist within all of
the Parking Area, and no more than 626 of the spaces within the Parking
Area at any time shall be exclusively reserved to persons or parties
other than Tenant or parties connected to Tenant [and the remainder
shall be Unreserved Spaces],
(ii) no fewer than 7 Unreserved Spaces shall exist per 1,000
square feet of rentable area of the Premises [including any additions or
expansions but excluding Excluded Space],
(iii) ten (10) canopied parking spaces with the Tenant's name
painted on the parking bumper will be provided for Tenant's exclusive,
reserved use [canopy to be constructed at the location designated by
Landlord, such construction to be performed by Tenant at its sole cost
and expense PROVIDED the foregoing cost and expense shall be
reimbursable from the Allowance, treating such cost and expense in the
same manner as any other item or charge otherwise payable from the
Allowance],
(iv) twenty (20) additional parking spaces shall be exclusively
reserved for Tenant's use and marked on the parking bumper,
"Tiger-Direct Visitor", such twenty (20) spaces to be located directly
in front of Tenant's non-mall entrance, and
(v) commencing as of the later to occur of the date of execution
and delivery of this Lease and the date of full execution and delivery
of a separate written agreement between Tenant and Landlord limited to
the terms and conditions further governing the following "shuttle
parking" provisions ["SEPARATE WRITING"], and concluding upon the date
Tenant opens for business in the Premises, Landlord shall designate an
area within the Parking Area, such area to be selected in Landlord's
sole discretion, in which area a revocable license is granted to Tenant
for the limited purpose of allowing its employees to park (subject to
the rules, regulations and parking provisions of this Lease and Rider
and subject to availability of such spaces from time to time), so as to
permit Tenant (at its sole cost, expense and risk) to operate a shuttle
service to transport such employees to and from their cars so parked and
Tenant's existing facilities (hereafter, "EMPLOYEE SHUTTLE AREA").
Landlord shall not be required to exercise any effort or incur any
expense to specially police or otherwise secure exclusivity of such
Employee Shuttle Area and Landlord expressly reserves the right to
prohibit any particular user thereof who violates the terms or
conditions hereof, including Landlord's rules and regulations governing
such area. If, due to seasonal fluctuations in parking demands or other
reasons, including Landlord's repair, maintenance and/or construction or
improvement in or to the Parking Area, customers, workers, non-Tenant
employees or others park in or obstruct such designated area or other
interference with such area arises by reason of other activities or
repair, maintenance, construction or improvement, Landlord shall not be
obligated to take affirmative action to remove, cease, expedite, abate,
modify or otherwise prohibit or enjoin such interfering circumstances.
The foregoing Employee Shuttle Area provisions shall be subject to any
further terms and conditions specified in the Separate Writing.
(D) LANDLORD'S EXPRESS RIGHTS AND RESERVATIONS. Landlord hereby
expressly reserves the right but without obligation therefor, from time
to time, to construct, maintain and operate lighting and other
facilities, equipment and signs on all of said Parking Area; to police
and provide security, in Landlord's sole judgment (subject to express
provisions elsewhere herein set forth); to construct surface,
subterranean and/or elevated parking areas and facilities; to change or
reduce the area, level, location and arrangement of all components of
the Parking Area; to restrict parking by tenants and other occupants of
the Building or adjacent retail areas and their respective employees,
agents, subtenants, concessionaires and licensees; to enforce parking
charges; to modify the traffic flow pattern and layout of parking spaces
and the entrances and exits to adjoining public streets or walkways and
otherwise reconfigure, increase or diminish the Parking Area [but as to
the Vicinity Parking area, Landlord's rights shall be subject to the
limitations described above in Rider provision R-10(B) as affected by
the Governmental and Judicial Compliance and Similar Events provisions];
to utilize portions thereof for temporary storage of construction
equipment; to utilize portions thereof for kiosks, entertainment,
displays and charitable activities; and Landlord may do such other acts
in and to the Parking Area as in its judgment may be desirable to
improve the convenience or attraction thereof. In addition, Landlord may
close temporarily all or any portion of thereof for the purpose of
making repairs or changes thereto and to discourage non-customer
parking; to close all or any portion thereof or facilities to such
extent as may, in the opinion of Landlord's counsel, be legally
sufficient to prevent a dedication thereof or the accrual of any rights
to any person or the public therein; and to do and perform such other
acts in and to said areas and improvements as Landlord shall determine.
Landlord shall have no liability nor shall Tenant be entitled to any
abatement of Rent or for damages of any kind as a result of any
interruption or discontinuance of furnishing Parking Area availability
in accordance with these express reservations, subject however to the
provisions at subitem (c) immediately above.
R-11 EXCLUSIVES/RESTRICTIVE COVENANTS: Tenant shall abide by, comply with and
not violate any and all "exclusives" and restrictive covenants now or
hereafter affecting the Shopping Center or the Building or any portion
thereof; provided the same shall not prohibit the use permitted by
Section 1.1 of the Original Lease [but, in respect of any future
catalogue change as permitted in Section 1.1 of the Original Lease, to
the extent it affects the future use of Space 33C, which may change to
conform with catalogue changes subject to the provisions of Section 1.1
of the Original Lease, Tenant shall not violate any then existing
"exclusives" and restrictive covenants then affecting the Shopping
Center]. Without limiting the generality of the foregoing, Tenant shall
abide by, comply with and not violate any and all "exclusives" and
restrictive covenants set forth in Exhibit D.
R-12 RADON: Section 404.056 (6), Fla. Stat., requires the inclusion of the
following "Notification on Real Estate Documents" at the time of, or
prior to, contract for sale and purchase of any building or execution of
a rental agreement for any building: "Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your
county health department."
R-13 REPAIR BY TENANT UPON FAILURE OF LANDLORD TO PERFORM: Notwithstanding
any other provision of the Lease, in the event Landlord has failed and
refused in violation of the Lease to make or render any non-structural
interior repair to Suites 35 or 33C or the Lobby, which Landlord is
obligated to make under the express repair provisions of the Lease,
then, after twenty (20) days' advance written demand therefor by Tenant
upon Landlord (or such reasonable additional period of time that
Landlord may require where Landlord has commenced the repair and same
cannot reasonably be concluded within such 20 day period but Landlord is
reasonably prosecuting same to completion; or sooner in the event of an
emergency where delay would cause Tenant to suffer additional losses or
otherwise the repair is unquestionably required and necessary to
mitigate damages or loss [an "emergency repair"], but in such case upon
as much notice as is reasonably practicable in the circumstances),
Tenant may perform the repair or emergency repair within the aforesaid
portions of the Premises only, and only to the extent necessary to stem
or mitigate the continued suffering of damages or losses until such time
as Landlord shall render the complete repair. Provided Tenant is not in
default or violation of this Lease upon the giving of any of the
following notices or upon the date on which reimbursement is due or
off-set [strictly as set forth below] is permitted, then, upon thirty
(30) days' advance written demand to Landlord therefor, to include paid
receipts evidencing actual reasonable costs necessarily so incurred by
Tenant, Landlord shall reimburse such actual reasonable costs so
incurred by Tenant; and where Landlord fails to timely reimburse same,
then, and only then, provided Tenant has first given Landlord an
additional twenty (20) days' advance written notice specifically
indicating Tenant's intention to off-set rent, given after the
expiration of the foregoing thirty (30) days' notice period, still
without Landlord having reimbursed such amount, Tenant may elect to
recover such reimbursement due Tenant, by off-set against installment(s)
of Annual Rent otherwise thereafter accruing and coming due under this
Lease [any other sum claimed by Tenant to be due from Landlord, arising
out of any other provision of this Lease, may be recovered by Tenant
only through, and Tenant's remedy is limited to, an action for damages].
R-14 LIMITED PROTECTED AREA: Notwithstanding the provisions of the Lease,
provided Tenant is not in default of any term or provision of the Lease
beyond any applicable cure period, and in respect ONLY to the Vicinity
Parking area approximately located on EXHIBIT A to this Lease
("PROTECTED AREA"), Landlord shall not construct a "Permanent Building"
as hereafter defined within the said Protected Area, provided, however,
nothing herein contained shall limit or impair Landlord's right to
otherwise properly operate the common area and all parking areas
(including the portion thereof contained within the Protected Area),
including without limitation the repair, replacement, or new
installation of underground utilities or above ground parking area
accoutrements including lighting standards, paving, signage, bumpers,
curbs, and other road or parking area improvements, as determined to be
necessary by Landlord in its sole and absolute discretion, and any other
renovation, refurbishment, replacement, repair, or alteration within the
common area other than the construction of a Permanent Building within
the Protected Area, nor shall anything herein contained limit or impair
Landlord's ability to fully comply in any lawful manner with any
governmentally imposed rule, regulation or law including compliance with
or suffering the consequences of any Governmental and Judicial
Compliance and Similar Events. A "Permanent Building" shall mean any
permanent structure suitable for human occupancy, the construction of
which requires approval from local government and issuance of a
certificate of occupancy; and Permanent Building shall also include any
other constructed improvement [other than as expressly reserved to
Landlord hereinabove] which interferes with or more than immaterially
decreases the number of parking spaces available within the Protected
Area. As used in this Rider, the Lease or elsewhere in any exhibits or
attachments to the Lease, "common area" (or "common areas") or "Common
Area" (or "Common Areas") shall refer to the non- Premises areas (that
is, all areas exterior to the Premises), within or outside of the
building in which the Premises is situate (including parking areas) as
well as, without limitation, other enclosed areas exterior to the
Premises, such as the areas used for mechanical, electrical, telephone
and janitor closets, any "central plant", building equipment rooms,
restrooms, vending areas, corridors, elevator lobbies (other than the
Lobby), building stairs, any fire tower(s), elevator shafts, flues,
stacks, vertical pipe shafts and vertical ducts (but not including any
area for the special or dedicated use of a particular tenant such as
special stairs or elevators).
R-15 SATELLITE DISH: Notwithstanding anything contained herein to the
contrary, Tenant shall be permitted a license, to continue co-terminus
with the duration of this Lease, terminable only upon a termination or
other expiration of this Lease, to install a satellite dish subject to
the following terms and conditions:
(a) Subject to Tenant obtaining and maintaining all required
governmental approvals, Tenant shall be permitted to install a disc
shaped electronic satellite antenna having a diameter of not greater
than 2 feet (the "DISC"), within an entirely enclosed screen wall,
satisfactory to Landlord, at a location on the roof over any of the
Premises as Landlord shall reasonably designate and otherwise
subject to the following terms and conditions (the "DISC
INSTALLATION"). All roof penetrations and roof repairs shall be
performed by a duly licensed and bonded roofer approved in writing
by Landlord. The screen wall shall completely shield the Disc from
view except from a vantage point directly above same.
(b) Except as otherwise provided herein, all provisions of the Lease
shall be deemed applicable to the Disc Installation. Tenant shall
submit to Landlord, for Landlord's prior written approval, which
approval Landlord shall not unreasonably withhold, complete plans
and specifications for the Disc and Disc Installation within ninety
(90) days following execution and delivery of this Lease. Tenant
shall be responsible in determining the sufficiency of the roof
structure to support the live and static load of the Disc and screen
wall. Tenant shall install the Disc without voiding Landlord's
roofing bond. If required by Landlord, Tenant shall at its own cost
and expense install catwalks to the location of the Disc. Within a
period of ninety (90) days after Landlord has given its approval of
Tenant's aforesaid plans and specifications, Tenant shall complete
the Disc Installation.
(c) Upon reasonable notice to Landlord, Tenant shall be permitted access
to the Disc and the roof of the Premises, subsequent to the Disc
Installation and during the term of the Lease, as necessary for the
proper maintenance thereof.
(d) Prior to the expiration (but not sooner termination) of the Lease,
so long as Tenant is not in default, Tenant shall be permitted
access to the roof of the Premises to remove the Disc, provided that
Tenant, at Tenant's sole cost and expense, shall repair any damage
related thereto and restore the roof to the same condition as
existed prior to the Disc Installation.
(e) Under no circumstances will Tenant permit the operation of the Disc
to interfere with or otherwise impede the operations of any other
communications, electronic transmission or other similar systems
operating in, to or from the building, the common area, or the
shopping center of which the building is a part and in the event
operation of Tenant's Disc does so interfere with or otherwise
impede any other communications, transmissions or system and Tenant
fails to remove and abate such interference or impedence, then
Landlord shall be permitted to remove the Disc, at Tenant's sole
cost and expense, as if the term of the Lease had expired.
(f) Under no circumstance shall Tenant use the Disc and Disc
Installation for any purpose other than Tenant's ordinary business
use in furtherance of Tenant's Use as permitted under this Lease,
for the sole benefit of Tenant. In clarification and not limitation
of the immediately preceding sentence, Tenant shall not "re-sell" or
lease, sublease, license or otherwise permit use of all or any
portion of the signals or bandwidth or other electromagnetic
emissions from or to the Disc, by any other tenant in the building
or other building(s) comprising the overall project of which the
Premises are a part, including the shopping center or by any other
party or person whatsoever (other than Tenant and its affiliated
companies or internal divisions), provided, in case of a permitted
assignment of the Lease or a permitted sublet of 100% of the
Premises, the license herein granted to use the Disc may be included
in the assignment or sublet to the same assignee or sublessee for
the duration of its term or sublet, as applicable, otherwise subject
to all of these terms and conditions.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year provided in the Original Lease.
WITNESSES: TENANT:
TIGER DIRECT, INC.,
/S/ DAN BROWN a Delaware corporation
- ------------------------------
[Sign & Print]
/S/ CARL FIORENTINO By: /S/ GILBERT FIORENTINO
- ------------------------------ ------------------------------
[Sign & Print] [Print & Sign Above], President
LANDLORD:
KEYSTONE-MIAMI PROPERTY
HOLDING CORP., a Florida corporation
By: RREEF Management Company, a
Delaware corporation
By: /S/ AL DIAZ
-------------------------------
Al Diaz, Vice President
/S/ ROSA TORRES-LARA
- ------------------------------
[Sign & Print]
/S/ SUSAN S. SALMAN
- ------------------------------
WITNESS [Sign & Print] Susan S. Salman
[Sign & Print]
By: /S/ LEE LETCHFORD
------------------------------
Lee Letchford, Senior V.P.
[Corporate Seal]
/S/ MARY WULFING
- ------------------------------
WITNESS [Sign & Print] Mary Wulfing
/S/ PHILIP HENDERSON
- ------------------------------
WITNESS [Sign & Print] Phlip Henderson
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS AT SEPTEMBER 30, 1998 (UNAUDITED) AND THE
CONDENSED CONSOLIDATED STATEMENTS OF INCOME FOR THE SIX MONTHS ENDED SEPTEMBER
30, 1998 (UNAUDITED) OF GLOBAL DIRECTMAIL CORP AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 34,420
<SECURITIES> 7,524
<RECEIVABLES> 148,996
<ALLOWANCES> 0
<INVENTORY> 111,878
<CURRENT-ASSETS> 340,424
<PP&E> 32,852
<DEPRECIATION> 0
<TOTAL-ASSETS> 436,181
<CURRENT-LIABILITIES> 154,883
<BONDS> 5,464
0
0
<COMMON> 382
<OTHER-SE> 275,452
<TOTAL-LIABILITY-AND-EQUITY> 436,181
<SALES> 1,048,581
<TOTAL-REVENUES> 1,048,581
<CGS> 834,552
<TOTAL-COSTS> 834,552
<OTHER-EXPENSES> 166,745
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (2,227)
<INCOME-PRETAX> 49,511
<INCOME-TAX> 19,466
<INCOME-CONTINUING> 30,045
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 30,045
<EPS-PRIMARY> .80
<EPS-DILUTED> .80
</TABLE>
