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EXHIBIT 10.4
10.4
LEASE AGREEMENT FOR PERMANENT OFFICE
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CORPORATE CENTER AT INTERNATIONAL PLAZA OFFICE BUILDING
LEASE AGREEMENT
LEASE DATE: December 22, 1998.
LANDLORD: Crescent Resources, Inc., a South Carolina corporation
NOTICE Post Office Box 1003 [zip code 28201-1003] (If delivered by mail)
ADDRESS OF 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 [zip code 28202] (If personally
LANDLORD: delivered or overnight service or telegram)
Charlotte, North Carolina
Attention: Xxxxxx X. Xxxxxx, Xx. Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT: Bay Cities Bank, Inc., a Florida corporation
NOTICE Austin Center West, Tower II
ADDRESS OF 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
TENANT: Xxxxx, Xxxxxxx 00000
Attention: Xxx XxXxxxx Telephone: (000) 000-0000
Upon the Commencement Date of the Lease, the Notice
Address of Tenant shall be at the Premises.
TENANT'S
CONTACT
PERSON: Attention: Xxx XxXxxxx Telephone: (000) 000-0000
BUILDING: Six (6) story office building known as Crescent Center at
International Plaza located on the Land at the Northwest corner
of the intersection of North Westshore and Spruce Boulevard,
Tampa, Florida.
LAND: That certain tract or parcel of land located in Tampa, Florida,
and described on Exhibit A attached hereto and incorporated
herein by reference.
PREMISES: Suite 100 in the Building, as more particularly described on
Exhibit B attached hereto and incorporated herein by reference.
PREMISES NET
RENTABLE
AREA: Approximately 8,056 square feet located on the first (1st)
floor in the Building.
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The exact Premises Net Rentable Area shall be determined upon
the completion of the Tenant Improvements Plans and
Specifications referred to in Exhibit "C" attached hereto.
PREMISES NET
USABLE AREA: 7,008 square feet located on the first (1st) floor in the
Building.
The exact Premises Net Usable Area shall be determined upon the
completion of the Tenant Improvements Plans and Specifications
referred to in Exhibit "C" attached hereto.
BUILDING NET
RENTABLE
AREA: 383,694 square feet. The exact Building Net Rentable Area shall
be determined upon the completion of the Building.
LEASE TERM: Five (5) years, beginning on the Commencement Date. Provided,
however, if the Commencement Date is any day other than the
first (1st) a calendar month, the Lease Term shall be extended
automatically until midnight on the last day of the calendar
month in which the Lease Term otherwise would expire.
COMMENCE-
MENT DATE: October 1, 1999.
BASE RENTAL: Annual Rate Monthly Base
Per Square Foot Rental Amount
Of Premises Based Upon
Net Rentable Area The Annual Rate
----------------- ---------------
First Year of Lease Term $22.50 $15,105.00
Second Year of Lease Term $22.94 $15,400.38
Third Year of Lease Term $23.45 $15,742.76
Fourth Year of Lease Term $23.94 $16,071.72
Fifth Year of Lease Term $24.45 $16,414.10
ADJUSTMENT
DATE: [Intentionally deleted]
BASIC COSTS
EXPENSE STOP: The Basic Costs shall be Seven and No/100 Dollars ($7.00)
multiplied by the Building Net Rentable Area.
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PREMISES
ELECTRICAL
EXPENSE STOP: Seventy cents ($.70) multiplied by the Building Net Rentable
Area.
ADVANCE
BASE RENTAL
PAYMENT: Sixteen Thousand One Hundred Twenty-Four and 59/100 Dollars
($16,124.59), which includes sales tax, for the first (1st)
month of the Lease Term.
SECURITY
DEPOSIT: [Intentionally Deleted].
TENANT
IMPROVEMENTS
ALLOWANCE: Twenty-Three and 50/100 Dollars ($23.50) per square foot of
Premises Net Rentable Area.
BROKER: CLW Realty Group, Inc.
The foregoing summary (the "Lease Summary") is hereby incorporated into and
made a part of the Lease Agreement. In the event, however, of a conflict
between the terms of the Lease Summary and the terms of the Lease Agreement,
the latter shall control.
Initial: /s/ JWT (For Landlord)
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Initial: /s/ TAM (For Tenant)
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TABLE OF CONTENTS
PARAGRAPH DESCRIPTION
1. Definitions........................................................
2. Lease Grant........................................................
3. Lease Term.........................................................
4. Use................................................................
5. Base Rental........................................................
6. Adjustments to Base Rental.........................................
7. Adjustments for Increase in Basic Costs............................
8. Services to Be Furnished by Landlord...............................
9. Construction of Improvements.......................................
10. Maintenance and Repair by Landlord.................................
11. Maintenance and Repair by Tenant...................................
12. Alterations by Tenant..............................................
13. Use of Electrical Services by Tenant...............................
14. Graphics and Signage...............................................
15. Parking............................................................
16. Compliance with Laws...............................................
17. Building Rules and Regulations.....................................
18. Entry by Landlord..................................................
19. Assignment and Subletting..........................................
20. Liens..............................................................
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21. Property Insurance.................................................
22. Liability Insurance................................................
23. Indemnities........................................................
24. Waiver and Waiver of Subrogation Rights............................
25. Casualty Damage....................................................
26. Condemnation.......................................................
27. Damages from Certain Causes........................................
28. Events of Default/Remedies.........................................
29. Security Deposit...................................................
30. Peaceful Enjoyment.................................................
31. Holding Over.......................................................
32. Subordination to Mortgage..........................................
33. Estoppel Certificate...............................................
34. Attorneys' Fees....................................................
35. No Implied Waiver..................................................
36. Personal Liability.................................................
37. Notices............................................................
38. Severability.......................................................
39. Recordation........................................................
40. Governing Law and Venue............................................
41. Force Majeure......................................................
42. Time of Performance................................................
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43. Transfers by Landlord..............................................
44. Commissions........................................................
45. Effect of Delivery of this Lease...................................
46. Real Estate Investment Trust.......................................
47. Hazardous Materials................................................
48. Landlord's Right of Relocation.....................................
49. Evidence of Authority..............................................
50. Survival of Obligations............................................
51. Confidentiality....................................................
52. Contractual Landlord's Lien........................................
53. Rent a Separate Covenant...........................................
54. Radon..............................................................
55. Miscellaneous Provisions...........................................
56. Special Stipulations...............................................
57. Waiver of Jury Trial...............................................
EXHIBITS
A Description of Land
B Designation of Premises
C Construction of Improvements
D Cleaning and Janitorial Services
E Rules and Regulations
F Special Stipulations
G Commencement Date Stipulation
H Approved Signage and Drive-Thru Facility
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into on the
date and between the Landlord and Tenant identified in the Lease Summary.
WITNESSETH:
1. Definitions.
Capitalized terms appearing in this Lease, unless defined elsewhere in this
Lease or in the Lease Summary, shall have these definitions:
(a) "Additional Rent" shall mean all sums of money in addition to Base
Rental which shall become due from Tenant under this Lease, including, without
limitation, Tenant's Proportionate Share of Basic Costs in excess of the Basic
Costs Expense Stop, as set forth in Paragraph 7 herein.
(b) "Adjustment Date" shall have the meaning set forth in the Lease
Summary.
(c) "Advance Base Rental Payment" shall have the meaning set forth in
the Lease Summary.
(d) "Base Rental" during the Lease Term shall be the amount so
designated in the Lease Summary, as same may be adjusted pursuant to the terms
of this Lease, together with all taxes (excise, sales, use or other) levied or
assessed by any governmental entity on Basic Rent, Additional Rent or any other
sums payable by Tenant under this Lease.
(e) "Basic Costs" shall mean and include: all expenses relating to the
Building and the Building Exterior Common Areas, including all costs of
operation, maintenance and management thereof and assessments for public
betterments or improvements, any assessments or fees charged by Concorde Park
Association, Inc. (the "Association"), ad valorem real estate taxes and any
other tax on real estate as such, ad valorem taxes on furniture, fixtures,
equipment or other property used in connection with the operation, maintenance
or management of the Building and the Building Exterior Common Areas and the
costs, including, without limitation, of legal and consulting fees, of
contesting or attempting to reduce any of the aforesaid taxes, reasonable
amortization of capital improvements which are required by applicable law or
which will improve the efficiency of operating, managing or maintaining the
Building or which will reduce Landlord's operating expenses or the rate of
increase thereof, the cost of labor, materials, repairs, insurance, utilities
and services and such other expenses with respect to the operation, maintenance
and management of the Building and the Building Exterior Common Areas, all of
which expenses shall be
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incurred or paid by or on behalf of Landlord or are properly chargeable to
Landlord's operating expenses in accordance with generally accepted accounting
principles as applied to the operation, maintenance and management of a first
class office building.
Notwithstanding the foregoing, it is agreed that the Basic Costs shall
not include: any leasing or marketing or brokerage costs, fees, or commissions;
any cost of upfitting space for occupancy by tenants; any amortization of
principal or interest on account of any indebtedness; any legal expenses
arising out of any misconduct or negligence of Landlord or any person for which
Landlord is responsible or arising out of dealings between any principals
constituting Landlord or arising out of any leasing, sale or financing of the
Building or the Land or any part of either of them; or, except as expressly
permitted above, any amortization or depreciation.
(f) "Basic Costs Expense Stop" shall be the amount so designated in
the Lease Summary.
(g) "Broker" shall be the party or parties so designated in the Lease
Summary.
(h) "Building" shall have the meaning set forth in the Lease Summary.
(i) "Building Exterior Common Areas" shall mean the exterior of the
Building and all of the improvements and real property on the Land, including,
without limitation, all parking areas, enclosed or otherwise, and all streets,
sidewalks, signs and landscaped areas located on or within the Land.
(j) "Building Net Rentable Area" shall have the meaning set forth in
the Lease Summary.
(k) "Building Shell Improvements" shall mean the Building improvements
constructed or to be constructed by Landlord, at Landlord's sole cost and
expense and without applying any of the Tenant Improvements Allowance. The
Building Shell Improvements are more particularly described in Exhibit C
attached hereto and incorporated herein by reference.
(l) "Commencement Date" shall mean that date set forth in the Lease
Summary, as same may be adjusted pursuant to the provisions of Paragraph 3
herein.
(m) "Common Areas" shall mean those areas within the Building devoted
to corridors, elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally and/or the public,
including any columns and/or projections located within said areas.
(n) "Force Majeure Matters" is defined in Paragraph 41 herein.
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(o) "Land" shall mean the real property upon which the Building is
situated as more particularly described on Exhibit A hereto.
(p) "Lease Term" shall mean the term of this Lease as set forth in the
Lease Summary.
(q) "Premises" shall have the meaning set forth in the Lease Summary.
(r) "Premises Electrical Expense Stop" shall have the meaning set
forth in the Lease Summary. The Premises Electrical Expense Stop is the
component of the Basic Cost Expense Stop which covers the cost of electricity
to be supplied to premises in the Building to be occupied by tenants (including
the Premises) (i) to operate lights and light fixtures therein, (ii) to operate
equipment and fixtures that are connected to electrical outlets therein and
(iii) to operate any HVAC system or unit that exclusively serves such tenant
premises (or any portion thereof).
(s) "Premises Net Rentable Area" shall have the meaning set forth in
the Lease Summary.
(t) "Premises Net Usable Area" shall have the meaning set forth in the
Lease Summary.
(u) "Tenant Improvements" shall mean the improvements to be
constructed and installed in the Premises (beyond the Building Shell
Improvements) and the Drive-Thru Facility (as hereinafter defined) in
accordance with the Tenant Improvements Plans and Specifications, the terms of
Paragraph 9 herein and Exhibit C attached hereto.
(v) "Tenant Improvements Allowance" shall mean the allowance to be
provided by Landlord to Tenant for the design, space planning and construction
of the Tenant Improvements. The amount of the Tenant Improvements Allowance is
set forth in the Lease Summary.
(w) "Tenant Improvements Plans and Specifications" shall mean the
plans and Specifications" for the construction of the Tenant Improvements,
which plans and specifications shall be prepared pursuant to Exhibit C attached
hereto.
(x) "Tenant's Proportionate Share" means that fraction, the numerator
of which is the Premises Net Rentable Area and the denominator of which is the
Building Net Rentable Area.
2. Lease Grant.
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon and subject to the covenants, agreements, provisions and
conditions of this Lease, the Premises located in the Building.
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3. Lease Term.
This Lease shall continue in force during a period beginning on the
Commencement Date and continuing until the expiration of the Lease Term, unless
this Lease is sooner terminated or extended to a later date under any other
term or provision herein. Subject to delays resulting from Force Majeure
Matters or delays caused by Tenant or Tenant's agents, employees, contractors,
subcontractors or licensees, including, without limitation, change orders to
the Tenant Improvements Plans and Specifications ("Tenant Delay Factors"),
Landlord will do its best efforts to deliver the Premises to Tenant not later
than the Commencement Date set forth in the Lease Summary (the "Target
Commencement Date"), with the Tenant Improvements substantially completed in
accordance with the Tenant Improvements Plans and Specifications, as evidenced,
if requested by Tenant, by a certificate of substantial completion issued by
Landlord's architect or other designated engineering representative. If
Landlord for any reason whatsoever cannot deliver possession of the Premises to
Tenant (with the Tenant Improvements substantially completed in accordance with
the Tenant Improvements Plans and Specifications) not later than the Target
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom; but in that
event, Landlord shall act diligently and in good faith to complete the work
that is necessary to allow Landlord to deliver the Premises to Tenant as
specified above. In such case, (a) if Landlord's failure to deliver possession
of the Premises to Tenant (with the Tenant Improvements substantially completed
in accordance with the Tenant Improvements Plans and Specifications) by the
Target Commencement Date is not the result, in whole or in part, of one or more
Tenant Delay Factors, the Commencement Date shall be adjusted to be the date
when Landlord does in fact deliver possession of the Premises to Tenant as
described above and (b) if Landlord's failure to deliver possession of the
Premises to Tenant (with the Tenant Improvements substantially completed in
accordance with the Tenant Improvements Plans and Specifications) by the Target
Commencement Date is the result, in whole or in part, of one or more Tenant
Delay Factors, the Commencement Date shall be the later of (i) the Target
Commencement Date or (ii) the date the Tenant Improvements would have been
substantially completed in the absence of such Tenant Delay Factors(s).
Notwithstanding the foregoing, if for any reason other than Force Majeure
Matters or Tenant Delay Factors, Landlord cannot deliver possession of the
Premises (with the Tenant Improvements substantially completed in accordance
with the Tenant Improvements Plans and Specifications) to Tenant by October 1,
2000, Tenant shall be entitled to terminate this Lease by so notifying Landlord
in writing not later than October 10, 2000. Time is of the essence relative to
Tenant's right to terminate this Lease pursuant to this Paragraph 3 and in the
event that Tenant fails to deliver the notice of termination to Tenant by
October 10, 2000, Tenant shall have no further right to terminate this Lease.
In the event that the Building is substantially completed and a
certificate of occupancy for the shell of the Building has been issued by all
appropriate governmental entities, Tenant shall be entitled to take early
occupancy of the Premises on or after August 15, 1999. In the event that Tenant
occupies the Premises prior to the Commencement Date, all terms and conditions
applicable to Tenant under this Lease shall be enforceable against Tenant,
except that Tenant shall not be obligated to pay for Base Rental.
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If, for any reason other than Force Majeure Matters or Tenant Delay
Factors, Landlord cannot deliver possession of the Premises (with the Tenant
Improvements substantially completed in accordance with the Tenant Improvements
Plans and Specifications) to Tenant by October 1, 1999, Landlord shall pay a
per day penalty equal to two (2) days rental amount due under this Lease for
each day after October 1, 1999 that the Landlord cannot deliver possession of
the Premises (with the Tenant Improvements substantially completed in
accordance with the Tenant Improvements Plans and Specifications.
Within five (5) days following Tenant's occupancy of the Premises,
Tenant shall execute and deliver to Landlord duplicate originals of a
stipulation in the form attached to this Lease as Exhibit G (with the blanks
properly completed). Subject to Landlord's approval of the information inserted
by Tenant in the blanks, Landlord shall execute the duplicate originals of the
stipulation and shall promptly return one (1) fully executed original to
Tenant.
4. Use.
The Premises shall be used for a retail bank and for no other
purposes. Tenant agrees not to use or permit the use of the Premises for any
purpose that is illegal or is in violation of any applicable legal,
governmental, quasi-governmental or Association requirement, ordinance or rule,
or that, in Landlord's opinion, creates a nuisance, disturbs any other tenant
of the Building or injures the reputation of the Building.
5. Base Rental.
(a) Tenant agrees to pay during the Lease Term to Landlord, without
any setoff or deduction, except as provided herein, the Base Rental, and all
such other sums of money as shall become due hereunder as Additional Rent, all
of which are sometimes herein collectively called "rent" or "Rent." Base Rental
for each calendar year or portion thereof during the Lease Term, together with
any applicable adjustment thereto pursuant to Paragraph 6 herein, shall be due
and payable in advance, in twelve (12) equal installments on the first day of
each calendar month during the Lease Term; provided, however, the Base Rental
for the first (1st) full calendar month during the Lease Term (i.e., the
Advance Base Rental Payment) shall be due and payable upon the full execution
of this Lease. Tenant hereby agrees to pay such Base Rental and any adjustments
thereto to Landlord at Landlord's address provided herein (or such other
address as may be designated by Landlord in writing from time to time) monthly,
in advance, and without demand. If the Lease Term commences on a day other than
the first day of a month or terminates on a day other than the last day of a
month, then the installments of Base Rental and any adjustments thereto for
such month or months shall be prorated, based on the number of days in such
month or months.
(b) Upon the execution of this Lease, Tenant has paid to Landlord the
Advance Base Rental Payment as additional security for Tenant's performance of
its obligations under this Lease. If Tenant is not then in default under this
Lease, Landlord shall apply the Advance Base Rental
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Payment to the payment of the monthly installment of Base Rental due relative
to the first (1st) full calendar month during the Lease Term. If Tenant is then
in default under this Lease, Landlord may, at its option, apply all or any part
of the Advance Base Rental Payment to cure the default. With regard to the
first (1st) full calendar month during the Lease Term and with regard to any
partial calendar month (if any) preceding the first full calendar month during
the Lease Term, Tenant shall pay its monthly installment of Base Rental (or the
prorate portion thereof) in a timely manner pursuant to Paragraph 5(a) herein.
6. Adjustments to Base Rental. [Intentionally deleted].
7. Adjustments for Increase in Basic Costs.
With respect to each calendar year or portion thereof during the Lease
Term (and any renewal or extension thereof), Tenant shall pay Landlord as
Additional Rent, in the manner hereafter provided, Tenant's Proportionate Share
of the amount by which Basic Costs paid or incurred by Landlord during such
period (grossed up, if necessary, to reflect occupancy of ninety-five percent
(95%) of the rentable space in the Building) exceeded the Basic Costs Expense
Stop (the "Excess Basic Costs"). References in this Paragraph 7 to "Basic
Costs" shall be deemed and construed to refer to Basic Costs as grossed up
pursuant to the immediately preceding sentence. If Tenant shall be obligated to
make payments as aforesaid with regard to any partial calendar year during the
Lease Term, the Excess Basic Costs shall be prorated on the basis of the number
of days during such calendar year for which Tenant is obligated to make such
payments.
It is acknowledged and agreed that it will not be possible to
determine the actual amount of the Excess Basic Costs (if any) for a given
calendar year until after the end of such calendar year. Therefore, until
Tenant's liability for Tenant's Excess Basic Costs shall have been finally
determined for a particular calendar year, Tenant shall make payment on account
of Excess Basic Costs as follows:
(a) Commencing as of the Commencement Date and continuing throughout
the Lease Term (and any renewal or extension thereof), and subject to the
limitation expressed above, Landlord shall make a good faith estimate of Basic
Costs for such calendar year and Tenant's Proportionate Share thereof
(hereinafter "Estimated Basic Costs" and "Tenant's Estimated Excess Basic
Costs"), and Tenant shall pay to Landlord, as Additional Rent with each monthly
installment of Base Rental, an amount equal to one-twelfth (1/12) of Tenant's
Estimated Excess Basic Costs. Such payments for any partial month shall be paid
in advance at the daily rate equal to the monthly payment divided by the number
of days in the month for which the same is due. On or about January 1 of each
calendar year in respect of which Tenant shall be obligated to make payments on
account of Excess Basic Costs during the Lease Term (and any renewal or
extension thereof), Landlord shall furnish to Tenant a statement for such
calendar year of Tenant's Estimated Excess Basic Costs and thereupon, subject
to the limitations expressed above, as of such January 1, Tenant shall make
payments under this Paragraph 7(a) in accordance with such statement.
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(b) On or before April 1 in the year following the year in which the
Commencement Date occurs and each April 1 thereafter during the Lease Term (and
any renewal or extension thereof), Landlord shall furnish Tenant with a
statement setting forth the total amount of Excess Basic Costs for the
preceding calendar year. If any such statement shall show an overpayment or
underpayment of the Excess Basic Costs for the preceding calendar year, any
overpayment shall be refunded to Tenant or credited against payments due from
Tenant under this Lease, and the full amount of any underpayment shall be paid
to Landlord by Tenant not later than the first (1st) day of the first (1st)
calendar month after such statement shall have been delivered to Tenant.
(c) In the event Tenant is required to pay Excess Basic Costs pursuant
to this Paragraph 7, Tenant shall have the right, at Tenant's expense and no
more frequently than once per calendar year, to inspect Landlord's books and
records showing Basic Costs of the Building for the calendar year in question;
provided, however, Tenant shall not have the right to withhold any payments of
Excess Basic Costs due and payable hereunder the amount of which may be in
dispute, and Tenant must pay the entire amount due and payable hereunder prior
to reviewing Landlord's books and records. In the event Tenant's inspection of
Landlord's books and records reveals a verifiable error in Landlord's
computation of Excess Basic Costs resulting in an overpayment by Tenant of
Excess Basic Costs (after allowing for any adjustment pursuant to Paragraph
7(b) herein), Landlord shall promptly reimburse the amount of such overpayment
to Tenant, together with interest thereon from the date of overpayment until
the date of reimbursement at a rate per annum equal to one percent (1%) plus
the Prime Rate (as defined herein) in effect as of the date of overpayment. As
used in this Lease, the "Prime Rate" shall be deemed to be that rate of
interest announced by NationsBank, N.A., or any successor thereto, from time to
time as its "prime rate," and Landlord and Tenant acknowledge and understand
that NationsBank, N.A., lends at rates of interest both above and below the
Prime Rate. Landlord's statement setting forth the total amount of Excess Basic
Costs furnished to Tenant in accordance with the provisions of this Paragraph 7
shall be deemed to have been approved by Tenant unless protested by Tenant in
writing within ninety (90) days after delivery of such statement to Tenant at
the Premises.
Notwithstanding the foregoing provisions of this Paragraph 7, the
Excess Basic Costs (excluding taxes, insurance premiums and utilities) for the
calendar year 1999 shall not exceed five percent (5%) Basic Costs Expense Stop
(excluding taxes, insurance premiums and utilities). For each calendar year
thereafter, the Excess Basic Costs (excluding taxes, insurance premiums and
utilities) shall not exceed one hundred five percent (105%) of the Excess Basic
Costs (excluding taxes, insurance premiums and utilities) for the previous
calendar years.
8. Services to Be Furnished by Landlord.
Landlord agrees to furnish Tenant the following services:
(a) Hot and cold water at those points of supply provided for general
use of other tenants in the Building.
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(b) Except with regard to any HVAC system or unit that exclusively
serves the Premises (or any portion thereof), which shall be Tenant's
responsibility pursuant to Paragraph 11(b) herein, Landlord shall furnish
central heat and air conditioning sufficient for the comfortable occupancy of
the Premises. Provided, however, central heating and air conditioning service
at times other than for "Normal Business Hours" for the Building (which are
8:00 a.m. to 6:00 p.m. on Mondays through Fridays and 8:00 a.m. to 1:00 p.m. on
Saturdays, exclusive of normal business holidays), shall be furnished only on
the written request of Tenant delivered to Landlord on the following schedule:
(1) For evenings Monday through Friday - prior to 3:00 p.m. on the
day when such service is required;
(2) For Saturday afternoon, Saturday evening and Sunday - prior to
3:00 p.m. on Friday; and
(3) For normal business holidays - prior to the times set forth
above for the last day prior to such holiday.
Tenant shall bear the entire cost (as Additional Rent) of such additional
heating and air conditioning used by Tenant at times other than Normal Business
Hours, and Tenant shall pay such costs within ten (10) days following demand by
Landlord. The cost to be charged by Landlord to Tenant hereunder for heating
and air conditioning service used by Tenant during times other than Normal
Business Hours shall be $30.00 per hour, subject to increases in such hourly
rate from time to time during the Lease Term to reimburse Landlord for
increases in the cost to Landlord of electricity consumed in providing the
heating and air conditioning service.
If heat-generating machines or equipment shall be used in the Premises
by Tenant which affect the temperature otherwise maintained by the Building
HVAC system, Landlord shall have the right (at Landlord's option) to install
(or to require Tenant to install) one or more HVAC systems or units that
exclusively serve the Premises (or the portion thereof where such
heat-generating machines or equipment are located). As set forth in Paragraph
11(b) herein, the cost of any such separate HVAC systems or units that
exclusively serve the Premises, including the cost of installation and the cost
of operation and maintenance thereof, shall be borne by Tenant.
(c) Electrical service to serve the Common Areas and the Premises,
subject to the terms of Xxxxxxxxx 00 xxxxxx.
(x) Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to be
standard.
(e) Janitorial service, in accordance with the schedule attached
hereto as Exhibit D, Mondays through Fridays, exclusive of normal business
holidays; provided, however, if Tenant's
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floor covering or other improvements require special treatment, Tenant shall
pay the additional cleaning cost attributable thereto as Additional Rent upon
presentation of a statement therefor by Landlord.
(f) All Building standard fluorescent and incandescent light bulb
replacement in the Common Areas and all light bulb replacement in the Premises.
Provided, however, Tenant shall promptly pay to Landlord, as Additional Rent,
costs incurred by Landlord in replacing light bulbs in the Premises (including
the cost of purchasing such light bulbs) if and to the extent such replacement
cost exceeds the replacement cost for Building standard light bulbs. As used
herein, "Building standard light bulbs" shall be deemed to refer to 2' x 4', 3
lamp F40/CW with energy saving ballasts.
(g) Tenant, its employees, and its invitees who have been registered
with Landlord shall have access to the Premises (including elevator service) by
a code or card access system seven (7) days a week, twenty-four (24) hours a
day. Tenant shall receive an allotment of codes or cards for all of its
employees and for its invitees who are registered with Landlord. Landlord shall
bear the cost of each such code or card initially issued, provided Tenant shall
pay to Landlord (as Additional Rent, within thirty (30) days after Tenant
receives an invoice therefor) the actual costs incurred by Landlord in
obtaining and issuing replacement codes or cards for codes or cards previously
issued. Landlord, however, shall have no liability to Tenant, its employees,
agents, invitees or licensees for losses due to theft or burglary or for
damages done by unauthorized persons on the Premises, and Landlord shall not be
required to insure against any such losses. Tenant shall cooperate fully with
Landlord's efforts to maintain security in the Building during times other than
Normal Business Hours and shall follow all regulations promulgated by Landlord
with respect thereto.
The failure by Landlord to any extent to furnish, or the interruption
or termination of these defined services in whole or in part, resulting from
any Force Majeure Matters or from any other causes shall not (i) render
Landlord liable in any respect, (ii) be construed as an eviction of Tenant,
(iii) work an abatement of rent, or (iv) relieve Tenant from the obligation to
fulfill any covenant or agreement in this Lease. Should any of the equipment or
machinery used in the provision of such services for any cause cease to
function properly, Tenant shall have no claim for offset or abatement of rent
or damages on account of an interruption in service resulting therefrom.
Amounts payable pursuant to this Paragraph 8 shall be deemed to be Additional
Rent due from Tenant to Landlord, and any default in the payment thereof shall
entitle Landlord to all remedies provided for herein at law or in equity on
account of Tenant's failure to pay Base Rental.
Notwithstanding the foregoing, in the event that there is a failure of
services for which Landlord is responsible to perform which is not the result
of Force Majeure Matters and which renders the Premises untenantable for five
(5) consecutive days, Tenant shall be entitled to give Landlord written notice
of such event. In the event that Landlord fails to cure such failure within
five (5) days from receipt of such written notice, Tenant shall be entitled to
cure such failure and xxxx Landlord for the reasonable out-of-pocket costs of
Tenant in effecting such cure.
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9. Construction of Improvements.
(a) Subject to Force Majeure Matters and consistent with the terms of
Paragraph 3 herein and Exhibit C hereto, Landlord shall pursue diligently and
in good faith the completion of the Building Shell Improvements and the Tenant
Improvements.
(b) The Tenant Improvements Allowance shall be applied by Landlord
against the costs of designing, planning and constructing the Tenant
Improvements. In the event the costs incurred in connection with the design,
planning and construction of the Tenant Improvements exceed the Tenant
Improvements Allowance, Tenant shall be responsible for bearing and paying such
excess costs (the "Excess Costs"), as follows:
(1) Tenant shall pay to Landlord, prior to the commencement of
construction of the Tenant Improvements, an amount equal to fifty
percent (50%) of such Excess Costs (as then estimated by Landlord).
(2) After substantial completion of the Tenant Improvements but
prior to occupancy of the Premises by Tenant, Tenant shall pay to
Landlord an amount equal to ninety percent (90%) of the Excess Costs
(as then estimated by Landlord), less payments received by Landlord
pursuant to Paragraph 9(b)(1) herein.
(3) As soon as the final accounting is prepared and submitted by
Landlord to Tenant, Tenant shall pay to Landlord the entire unpaid
balance of the actual Excess Costs based on the final costs to
Landlord.
The Excess Costs (if any) payable by Tenant under this Paragraph 9(b) shall
constitute Additional Rent due hereunder at the time specified herein, and
failure to make any such payment when due shall constitute a default of Tenant
under Paragraph 28 herein. In the event the cost to complete the Tenant
Improvements is less than the Tenant Improvements Allowance, Landlord will
contribute such savings toward the payment of Tenant's actual reasonable moving
expenses, including but not limited to actual costs for moving, cabling,
telephone switcher and furniture.
(c) Except as otherwise provided above in this Paragraph 9, all
installations and improvements now or hereafter placed on or in the Premises
shall be for Tenant's account and at Tenant's cost. Tenant shall also pay ad
valorem taxes and increased insurance on or attributable to the Tenant
Improvements (to the extent of the cost of the Tenant Improvements is in excess
of the Tenant Improvements Allowance), which cost shall be payable by Tenant to
Landlord as Additional Rent.
(d) If requested by Tenant at the beginning of the sixth (6th)
calendar year of the Lease Term, Landlord will provide Tenant with a
refurbishment allowance to paint and recarpet the Premises with comparable cost
and materials as provided in the initial Tenant Improvements.
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10. Maintenance and Repair by Landlord.
Except to the extent any such repairs or replacements are the
responsibility of Tenant pursuant to the terms of Paragraph 11 or Paragraph 12
herein or any other provision in this Lease, Landlord shall be responsible for
maintaining, repairing and replacing:
(a) the roof, foundations, exterior walls, and all structural parts of
the Building;
(b) all portions of the Premises affected by structural conditions
whose source lies outside the Premises;
(c) all Common Areas and Building Exterior Common Areas;
(d) all utility, sprinkler service, electrical and plumbing lines and
HVAC systems outside the Premises but which serve the Premises on a
non-exclusive basis; and
(e) all utility, sprinkler service, electrical and plumbing lines and
HVAC systems within the Premises but which serve other space within the
Building.
Except as expressly provided herein, Landlord shall not be required to
make any repairs to the Premises or the Building.
11. Maintenance and Repair by Tenant.
In addition to any other provisions in this Lease which obligate
Tenant to perform maintenance, repair and replacement duties relative to the
Premises and/or the Building, Tenant shall be responsible for the following
maintenance, repair and replacement responsibilities:
(a) Tenant shall, at its expense, keep and maintain the Premises in
good order and repair and not commit or allow any waste to be committed on any
portion of the Premises; and at the termination of this Lease, Tenant agrees to
deliver up the Premises to Landlord in as good of a condition as existed on the
Commencement Date, excepting only ordinary wear and tear, acts of God and
repairs required to be made by Landlord pursuant to the terms of this Lease.
(b) Tenant shall, at its expense, keep and maintain all HVAC systems
and units, appliances and equipment that exclusively serve he Premises (or any
portion thereof). In the event the Premises (or any portion thereof) is
exclusively served by an HVAC system or unit, Tenant shall contract with a
qualified heating and air conditioning service company approved by Landlord for
the monthly maintenance and the repair and replacement, as necessary, of such
HVAC system or unit. Tenant shall provide Landlord with a copy of any contract
required under this Paragraph 11(b) within ten (10) days after the Commencement
Date and a copy of any subsequent contracts (or any renewal contracts) within
ten (10) days after their execution. The cost of all contracts which Tenant is
required to maintain under this Paragraph 11(b) shall be borne by Tenant.
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(c) Tenant shall, at Tenant's own cost and expense, repair or replace
any damage done to the Common Areas, the Building Exterior Common Areas, the
Building, or any part thereof (including the Premises), caused by Tenant or
Tenant's agents, employees, invitees, or visitors, and such repairs shall
restore the damaged area to as good of a condition as existed prior to such
damage and shall be effected in compliance with all applicable laws; provided,
however, if, within a reasonable period following written notice from Landlord
of the need for such repairs or replacements, Tenant fails to make such repairs
or replacements promptly, Landlord may, at its option, make the repairs or
replacements, and Tenant shall pay the cost thereof to Landlord on demand as
Additional Rent.
12. Alterations by Tenant.
Tenant shall not make or allow to be made any alterations to the
Premises or install any vending machines in the Premises, without first
obtaining the written consent of Landlord in each such instance. Any and all
alterations to the Premises shall become the property of Landlord upon the
termination of this Lease (except for movable equipment or furniture owned by
Tenant). Landlord may, by written notice to Tenant not later than sixty (60)
days prior to termination, require Tenant, upon the expiration or earlier
termination of this Lease, to remove any and all fixtures, equipment and other
improvements installed in the Premises by Tenant. In the event that Landlord so
elects and Tenant fails to remove such improvements, Landlord may remove such
improvements at Tenant's cost, and Tenant shall pay Landlord on demand the cost
of restoring any damage to the Premises resulting from such removal, excepting
only ordinary wear and tear and acts of God.
13. Use of Electrical Services by Tenant.
Landlord will install an electrical check meter (a "Check Meter ") for
the Premises as part of the Tenant Improvements. It is anticipated that the
Check Meter will measure all electricity supplied to the Premises (i) to
operate lights and light fixtures therein, (ii) to operate equipment and
fixtures that are connected to electrical outlets therein and (iii) to operate
any HVAC system or unit that exclusively serves the Premises (or any portion
thereof). As contemplated in Paragraph 8(c) herein, Landlord shall pay the
local electrical utility company prior to delinquency for the electricity
supplied to the Premises through the Check Meter. Provided, however, in the
event the amount paid by Landlord to the local electrical utility company for
electricity supplied to the Premises (as measured by the Check Meter) for any
given period of time is greater than the allocable portion of the Premises
Electrical Expense Stop (allocated to the Premises for the relevant period of
time), Landlord may submit an invoice to Tenant periodically for the cost of
such excess electricity supplied to the Premises and Tenant shall pay the full
invoiced amount (as Additional Rent) to Landlord within ten (10) days after
Tenant's receipt of each such invoice. The following formula shall be used to
determine the invoice amount for Tenant's excess electrical usage in the
Premises:
Invoice Amount = Total Electrical Costs Per Check Meter - [(Tenant's
Proportionate Share x Premises Electrical Expense
Stop) x (Number of Days in Period ) Number of Days
in Year)]
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For example, presuming (for purposes of this illustration only) that the
Premises Net Rentable Area is 10,000 square feet, that the Check Meter
indicates $2,000.00 of electricity was supplied to the Premises during a given
90-day period and that the calendar year in which such 90-day period falls
contains 365 days, Landlord shall be entitled hereunder to send an invoice to
Tenant in the amount of $321.28 for excess electrical usage in the Premises
during such 90-day period, computed as follows:
Invoice Amount = $2,000.00 - [.025 x $272,300.00) x (90 ) 365)]
= $2,000.00 -[$6,807.50 x .2466]
= $2,000.00 - $1,678.73
= $321.27
In computing invoices to be sent to Tenant for electricity supplied to the
Premises through the Check Meter, Landlord shall use the same billing rate and
structure as used by the local electrical utility company. Additionally, with
regard to any period of time that Landlord elects to use a Check Meter to xxxx
Tenant for excess electricity supplied to the Premises, Landlord also shall use
a Check Meter to xxxx other tenants in the Building for excess electricity
supplied to their respective premises; and in such case, the cost of
electricity supplied to the Premises and to other premises in the Building for
which Landlord separately bills Tenant and other tenants in the Building (i.e.
such electrical costs that exceed the Electrical Expense Stop) shall not be
included in Basic Costs hereunder, Landlord shall be entitled to xxxx Tenant
pursuant to this Paragraph 13 for excess electrical usage in the Premises
monthly, quarterly, annually or otherwise, as determined by Landlord from time
to time during the Lease Term.
14. Graphics and Signage.
All letters and numerals on doors or other signs on the Premises shall
be in the standard form of graphics for the Building, and no others shall be
used or permitted without Landlord's prior written consent. Furthermore, Tenant
shall not place signs on or in the Premises which are visible from outside the
Premises. Landlord has approved the signs for the Building ATM machine, the
Eyebrow Sign on the Building and the Drive-Thru Banking and ATM all as shown on
Exhibit "H" attached hereto (the "Landlord Approved Signage"). Tenant's name
and suite number shall be included by Landlord on the lobby directory for the
Building. On or before January 31, 1999 (the "Tenant Signage Approval Period"),
Landlord and Tenant shall agree upon the size, location, type and appearance of
monument signage, that will contain Tenant's name, along with other tenants
names, to be constructed as part of the overall signage for the Building and
pylon signs for Tenant containing Tenant's name in size and location acceptable
to Tenant (collectively, the "Tenant Signage"). Tenant shall pay all costs
associated with Tenant Signage, except that Landlord shall pay the cost for any
monument sign associated with the Building. Tenant acknowledges that the
Landlord Approved Signage and the Tenant Signage are subject to
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the approval of various entities that have approval rights with respect to
improvements constructed at International Plaza (the "Other Approvals"). Upon
agreement as to the Tenant Signage, Landlord will then attempt to obtain such
Other Approvals for the Landlord Approved Signage and the Tenant Signage. In
the event that Landlord and Tenant cannot agree to the Tenant Signage or
Landlord is not able to obtain the Other Approvals for the Landlord Approved
Signage and the Tenant Signage all on or before January 31, 1999, Tenant shall
have the right to terminate this Lease.
Landlord hereby agrees that, during the Lease Term, the Landlord will
not name the Building for a retail bank and the name of a retail bank will not
appear on the exterior of the Building. Tenant acknowledges that other signage
associated with the Building may contain the name of a retail bank.
15. Parking.
During the Lease Term, Tenant shall have, without charge, the
non-exclusive right to use, in common with Landlord, other tenants of the
Building, and their respective guests and invitees, the automobile parking
areas, driveways, and footways located on the Land. Notwithstanding the terms
and provisions in the immediately preceding sentence, (i) Tenant and Tenant's
guests and invitees shall not, at any given time, be entitled to use more than
five (5) parking spaces for each 1,000 square feet of Premises Net Useable
Area, and (ii) Landlord shall have the right during the Lease Term to reserve
parking spaces on the Land for the exclusive use of other tenants in the
Building, provided the reservation of such spaces for the exclusive use of
other tenants in the Building does not have the effect of denying Tenant the
non-exclusive use of five (5) parking spaces for each 1,000 square feet of
Premises Net Rentable Area. As part of the five (5) parking spaces per 1,000
square feet of Premises Net Useable Area, Landlord will provide Tenant with
eight (8) reserved parking spaces in the surface parking lot located at the
north end of the Westshore wing of the Building as close to the entry doors as
allowed by applicable governmental regulations at no additional cost to Tenant,
which shall be labeled "Bay Cities Bank Visitors" and two (2) additional
reserved parking spaces for employees of Tenant in the parking garage
associated with the Building.
16. Compliance with Laws.
Tenant agrees to comply with all applicable laws, ordinances, rules
and regulations of the Association or any governmental entity or agency having
jurisdiction over the Premises. Without limiting the generality of the
foregoing, in the event the Premises must be modified or any other action
relating to the Premises must be undertaken in the future to comply with the
Americans With Disabilities Act or any similar federal, state or local statute,
law, or ordinance, the responsibility for such modification or action
(including the payment of all costs incurred in connection therewith) shall
belong to Tenant. If the Common Areas or the Building Exterior Common Areas
must be modified or any other action relating to the Common Areas or the
Building Exterior Common Areas must be undertaken in the future to comply with
the Americans
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With Disabilities Act or any similar federal, state or local statute, law, or
ordinance and if such modification or action is required because of (i) any
special or unique use or activity in the Premises or (ii) the performance of
any alterations within the Premises, the responsibility for such modification
or action (including the payment of all costs incurred in connection therewith)
shall belong to Tenant. Except as provided in the immediately preceding
sentence, in the event the Common Areas or the Building Exterior Common Areas
must be modified or any other action relating to the Common Areas or the
Building Exterior Common Areas must be undertaken in the future to comply with
the Americans With Disabilities Act or any similar federal, state or local
statute, law, or ordinance, the responsibility for such modification or action
(including the payment of all costs incurred in connection therewith, subject
to the terms and provisions of this Lease relating to the pass-through of Basic
Costs) shall belong to Landlord.
17. Building Rules and Regulations.
Tenant shall comply with the rules and regulations applicable to the
Building and the Building Exterior Common Areas (the "Rules and Regulations")
adopted and altered by Landlord from time to time and shall cause all of its
agents, employees, invitees and visitors to do so; all changes to the Rules and
Regulations will be sent by Landlord to Tenant in writing. The initial Rules
and Regulations, which have been reviewed and approved by Tenant, are attached
hereto as Exhibit E.
18. Entry by Landlord.
Tenant agrees to permit Landlord and Landlord's agents and
representatives to enter into and upon any part of the Premises at all
reasonable hours (and in emergencies at all times) to inspect the same, to show
the Premises to prospective purchasers, mortgagees, tenants or insurers, to
install or maintain Check Meters and other devices to determine if Tenant's
electrical usage is in excess of design loads and capacities, and to clean or
make repairs, alterations or additions thereto, and Tenant shall not be
entitled to any abatement or reduction of rent by reason thereof.
19. Assignment and Subletting.
(a) Tenant shall not assign this Lease or sublet all or any part of
the Premises or make any other transfer of its interest in the whole or any
portion thereof, directly or indirectly, at any time during the Lease Term
without the prior written consent of Landlord, which such consent shall not be
unreasonably withheld. Any attempted assignments, subleases or other transfers
by Tenant in violation of the terms and conditions of this Paragraph 19(a)
shall be null and void. In the event that Tenant desires at any time to assign
this Lease or sublet all or any part of the Premises, Tenant shall submit to
Landlord at least thirty (30) days prior to the proposed effective date of the
assignment or sublease, in writing, (i) a request for permission to assign or
sublet setting forth the proposed effective date which shall be no less than
thirty (30) days after the sending of such notice; (ii) the name of the
proposed subtenant or assignee or other party; (iii) the nature of the business
to be carried on in the Premises after the assignment or sublet; (iv) the terms
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and provisions of the proposed assignment or sublet; and (v) current financial
statements of the proposed subtenant or assignee; and such additional
information that Landlord may reasonably request in order to make a reasoned
judgment. Notwithstanding the foregoing, Landlord consent shall not be required
for an assignment or sublease to a successor of Tenant resulting from a merger,
consolidation, sale or acquisition of all of the stock of Tenant, provided that
such resulting entity is of equal or better creditworthiness as Tenant and
Tenant continues to be primarily liable under the Lease, or a sublease to a
wholly-owned affiliate or subsidiary of Tenant and Tenant continues to be
primarily liable under the Lease.
(b) If Tenant requests Landlord's consent to an assignment of this
Lease or subletting of all of the Premises, or any other transfer of its
interest(s), Landlord shall have the option (without limiting Landlord's other
rights hereunder) of terminating this Lease with respect to the entire Premises
subject to the proposed assignment, subletting or transfer upon fifteen (15)
days' notice and of dealing directly with the proposed assignee, subtenant or
transferee. If Landlord should fail to notify Tenant in writing of its decision
within a fifteen (15) day period after Landlord is notified in writing of the
proposed assignment, sublease or other transfer, Tenant shall give a second
notice to Landlord, and in the event that Landlord should fail to notify Tenant
of it decision within ten (10) days after receipt of the second notice,
Landlord shall be deemed to have elected to keep this Lease in full force and
effect.
(c) All cash or other proceeds of any assignment, sale, sublease or
other transfer of Tenant's interest in this Lease, whether consented to by
Landlord or not, shall be paid to Landlord notwithstanding the fact that such
proceeds exceed the rentals called for hereunder, unless Landlord agrees to the
contrary in writing, and Tenant hereby assigns all rights it might have or ever
acquire in any such proceeds to Landlord. This covenant and assignment shall
run with the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, successors and assigns. Any assignee,
subtenant or purchaser of Tenant's interest in this Lease (all such assignees,
subtenants and purchasers being hereinafter referred to as "Successors"), by
assuming Tenant's obligations hereunder, shall assume liability to Landlord for
all amounts paid to persons other than Landlord by such Successor in
consideration of any such sale, assignment or subletting, in violation of the
provisions herein. Landlord hereby reserves the right to condition Landlord's
consent to any assignment or sublet upon Landlord's receipt from Tenant of a
written agreement, in form and substance acceptable to Landlord, pursuant to
which Tenant shall pay over to Landlord fifty percent (50%) of all rent or
other consideration received by Tenant from any such subtenant or assignee,
either initially or over the term of the assignment or sublease, in excess of
the Rent called for hereunder, or, in case of the sublease of a portion of the
Premises, in excess of such rent fairly allocable to such portion, after
appropriate adjustments to assure that all other payments called for hereunder
are taken into account, and after taking into account Tenant's reasonable
expenses incurred in connection with such subletting or assignment.
(d) If Tenant assigns, sublets or makes any other transfer of all or
any portion of its interest(s) hereunder, Tenant named in this Lease shall
remain directly and primarily responsible for the faithful performance and
observance of all of the covenants and obligations on Tenant's
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part to be performed in this Lease. No assignment or subletting shall affect
the continuing primary liability of Tenant hereunder (which, following any
assignment or sublet, shall be joint and several with the assignee or
subtenant), and Tenant shall not be released from performing any of the terms,
covenants and conditions of this Lease.
(e) Any assignee or subtenant hereunder shall be bound by and shall
comply with all of the terms and provisions in this Lease, including, without
limitation, the use restriction set forth in Paragraph 4 herein. As a condition
to the effectiveness of any assignment that is permitted hereunder, the
assignee shall, by an instrument in writing, assume and agree to perform (for
the express benefit of Landlord) the terms hereof; and as a condition to the
effectiveness of any sublease that is permitted hereunder, the subtenant shall
acknowledge in writing (for the express benefit of Landlord) the existence of
this Lease and shall covenant not to do or permit to be done anything that
would constitute a breach hereof.
(f) Landlord's consent to any one assignment, sublease or other
transfer hereunder shall not waive the requirement of its consent to any
subsequent assignment, sublease or other transfer as required herein.
(g) Tenant shall not advertise its space for assignment or subletting
at a rental rate lower than the rental schedule established from time to time
by Landlord for comparable space in International Plaza for a comparable term
in the Building or in any other building owned by Landlord in International
Plaza. Further, no assignment or subletting shall be made: (i) to any person or
entity which shall at that time be a tenant, subtenant or other occupant of any
part of the Building or any other building owned by Landlord in International
Plaza when Landlord has other comparable space in the Building or in another
building in International Plaza available for leasing by Landlord; (ii) to any
one who dealt with Landlord or Landlord's agent (directly or through a broker)
with respect to space in the Building or in another building in International
Plaza during the six (6) months immediately preceding Tenant's request for
Landlord's consent; (iii) to any person or entity when the Landlord has other
comparable space in the Building or in another building in International Plaza
available for leasing and suitable for use by such proposed tenant; (iv) to any
person or entity for the conduct of business which is not in keeping with the
standards and general character of the Building; (v) which would require the
demolition or reconfiguration of any portion of the Premises or which would
result in the Premises being subdivided into more than two (2) rental units.
All rights and options of Tenant hereunder, if any, to expand the Premises,
contract the Premises, extend or renew the Term, shorten the Term, and any
right of first refusal shall automatically terminate upon the assignment of
this Lease or upon sublet of all or any part of the Premises unless Landlord
specifically agrees in writing that such rights and options shall continue.
Tenant acknowledges that the restrictions on assignments and subleases
described herein are a material inducement for Landlord entering into this
Lease and shall be enforceable by Landlord against Tenant and against any
assignee or subtenant or any other party acquiring an interest in this Lease.
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20. Liens.
Tenant will not permit any mechanic's lien(s) or other liens to be
placed upon the Premises, the Building or the Land and nothing in this Lease
shall be deemed or construed in any way as constituting the consent or request
of Landlord, express or implied, by inference or otherwise, to any person for
the performance of any labor or the furnishing of any materials to the
Premises, or any part thereof, nor as giving Tenant any right, power or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to any mechanics' or other
liens against the Premises, the Building or the Land. In the event any such
lien is attached to the Premises, the Building or the Land, then, in addition
to any other right or remedy of Landlord, Landlord may, but shall not be
obliged to, discharge the same. Any amount paid by Landlord for any of the
aforesaid purposes shall be reimbursed by Tenant to Landlord on demand as
Additional Rent.
The interest of Landlord shall not be subject to liens for
improvements made by Tenant in and to the Premises. Tenant shall notify every
contractor making such improvements of the provisions set forth in the
preceding sentence of this paragraph. The parties agree, should Landlord so
request, to execute, acknowledge and deliver without charge to Tenant, a Short
Form Lease in recordable form in accordance with Chapter 713, Florida Statutes
containing a confirmation that the interest of Landlord shall not be subject to
liens for improvements made by Tenant to the Premises.
21. Property Insurance.
Landlord shall maintain fire and extended coverage insurance on the
Building and the Premises, such policy(ies) to cover Landlord's interest in the
Building and Premises for not less than the full replacement value thereof.
Such insurance shall be maintained at the expense of Landlord (as a part of
Basic Costs), and payments for losses thereunder shall be made solely to
Landlord or the mortgagees of Landlord relative to the Land and the Building
(collectively, "Mortgagees"; each, a "Mortgagee"), as their respective
interests shall appear. Tenant shall maintain, at its expense, in an amount
equal to full replacement cost, fire and extended coverage insurance on all of
its personal property, including removable trade fixtures, located in the
Premises. Tenant shall, at Landlord's request from time to time, provide
Landlord with current certificates of insurance evidencing Tenant's compliance
with the terms and requirements of this Paragraph 21 and Paragraph 22 herein.
All policies required to be maintained by Tenant under this Paragraph 21 and
Paragraph 22 herein shall contain a provision whereby the insurer is not
allowed to cancel, fail to renew or change materially the coverage without
first giving thirty (30) days prior written notice to Landlord. Tenant shall
also obtain the agreement of Tenant's insurers to notify Landlord that a policy
is due to expire at least thirty (30) days prior to such expiration.
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22. Liability Insurance.
Tenant and Landlord shall, each at its own expense, maintain a policy
or policies of comprehensive general liability insurance (occurrence coverage)
with respect to the respective activities of each on the Land and in the
Building with the premiums thereon fully paid on or before the due date, issued
by and binding upon an insurance company authorized to conduct such business in
the State of Florida. Such comprehensive general liability insurance to be
maintained by Tenant and Landlord under this Paragraph 22 shall afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage or combination thereof; and such comprehensive general
liability insurance to be maintained by Tenant shall name Landlord as an
additional insured. Such insurance coverage maintained by Tenant also shall
include, without limitation, personal injury and contractual liability coverage
for the performance by Tenant of the indemnity agreements set forth in this
Lease. Landlord shall not be required to maintain insurance against thefts
within the Premises or the Building or on the Land.
23. Indemnities.
Landlord shall not be liable to Tenant, or to Tenant's agents,
servants, employees, customers, or invitees for any injury to person or damage
to property caused by any act, omission, or neglect of Tenant, its agents,
servants, employees, invitees, licensees or any other person entering the Land,
the Building Exterior Common Areas, the Building or the Premises under the
invitation of Tenant or arising out of a default by Tenant in the performance
of its obligations hereunder or arising out of the use and occupancy of the
Premises by Tenant. Tenant hereby indemnifies and holds Landlord harmless from
all liability and claims for any such damage or injury. Landlord hereby
indemnifies and holds Tenant harmless from all liability and claims for damage
to property of Tenant incurred or suffered by Tenant or its employees to the
extent arising from the negligent acts or omissions of Landlord or any agent or
employee of Landlord in or about the Building Exterior Common Areas.
24. Waiver and Waiver of Subrogation Rights.
Anything in this Lease to the contrary notwithstanding (including,
without limitation, Paragraph 23 herein), Landlord and Tenant each hereby waive
any and all rights of recovery, claim, action, or cause of action, against the
other, its agents, officers, or employees, for any loss or damage that may
occur to the Premises or a part thereof, or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, or
any other cause(s) which are insured against under the terms of the standard
fire and extended coverage insurance policies referred to in Paragraph 21
herein, regardless of cause or origin, including negligence of the other party
hereto, its agents, officers, or employees. All insurance policies carried with
respect to Paragraph 21 herein, if permitted under applicable law, shall
contain a provision whereby the insurer waives, prior to loss, all rights of
subrogation against Landlord and Tenant.
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25. Casualty Damage.
If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord. In case
the Building shall be so damaged that substantial alteration or reconstruction
of the Building shall be required (whether or not the Premises shall have been
damaged by such casualty) or in the event any Mortgagee should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt or in the event of any material uninsured loss to the
Building, Landlord may, at its option, terminate this Lease by notifying Tenant
in writing of such termination within ninety (90) days after the date of such
casualty. If, by reason of such casualty, the Premises are rendered
untenantable in some material portion, and the amount of time required to
repair the damage is reasonably determined by Landlord to be in excess of one
hundred eighty (180) days from the date upon which Landlord is required to
determine whether to terminate this Lease, then Tenant shall have the right to
terminate this Lease by giving Landlord written notice of termination within
thirty (30) days after the date Landlord delivers Tenant notice that the amount
of time required to repair the damage has been determined by Landlord to be in
excess of one hundred eighty (180) days. If Landlord (or Tenant, if applicable)
does not thus elect to terminate this Lease, Landlord shall commence and
proceed with reasonable diligence to restore the Building to substantially the
same condition as existed immediately prior to the occurrence of the casualty,
except that Landlord's obligation to restore shall not exceed the scope of the
work required to be done by Landlord in originally constructing the Building
Shell Improvements and installing the Tenant Improvements in the Premises, nor
shall Landlord be obligated to restore the Building Shell Improvements or the
Premises if the cost of the restoration work required under this Lease and all
other leases of space in the Building exceeds the insurance proceeds actually
received by Landlord as a result of the casualty. When the Tenant Improvements
have been restored by Landlord, Tenant shall restore Tenant's furniture and
equipment. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the provisions of the
next sentence, Landlord shall allow Tenant a fair diminution of rent during the
time and to the extent the Premises are untenantable. If the Premises or any
other portion of the Building is damaged by fire or other casualty resulting
from the fault or negligence of Tenant or any of Tenant's agents, employees, or
invitees, the rent hereunder shall not be diminished during the repair of such
damage and Tenant shall be liable to Landlord for the cost of the repair and
restoration of the Building caused thereby to the extent such cost and expense
are not covered by insurance proceeds.
26. Condemnation.
If the whole or substantially the whole of the Building or the
Premises should be taken for any public or quasi-public use, by right of
eminent domain or otherwise or should be sold in lieu of condemnation, then
this Lease shall terminate as of the date when physical possession of the
Building or the Premises is taken by the condemning authority. If less than the
whole or substantially the whole of the Building or Premises is thus taken or
sold and the remaining portion
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of the Building can no longer be operated as a multi-tenant office building on
a financially sound basis, in Landlord's sole opinion, or if any Mortgagee
should require that the condemnation proceeds payable as a result of such
taking or sale be applied to the payment of the mortgage debt, Landlord
(whether or not the Premises are affected by the taking or sale) may terminate
this Lease by giving written notice thereof to Tenant, in which event this
Lease shall terminate as of the date when physical possession of such portion
of the Building or Premises is taken by the condemning authority. If this Lease
is not so terminated upon any such taking or sale and if a portion of the
Premises is affected thereby, the Base Rental payable hereunder shall be
diminished by an equitable amount, and Landlord shall, to the extent Landlord
deems feasible, restore the Building and the Premises to substantially their
former condition, except Landlord's obligation to restore shall not exceed the
scope of the work required to be done by Landlord in originally constructing
the Building Shell Improvements and installing the Tenant Improvements, nor
shall Landlord in any event be obligated to restore the Building Shell
Improvements or the Tenant Improvements if the cost of the restoration work
required under this Lease and all other leases of space in the Building exceeds
the amount received by Landlord for such taking. All amounts awarded upon a
taking of any part or all of the Building or the Premises shall belong to
Landlord, and Tenant shall not be entitled to and expressly waives all claims
to any such compensation. Tenant shall be entitled to make a separate claim
against the condemning authority for its personal property and moving expenses
provided that such claim does not diminish Landlord's award.
27. Damages from Certain Causes.
Landlord shall not be liable to Tenant for any loss or damage to any
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition, or order
of governmental body or authority or by any other Force Majeure Matter. Nor
shall Landlord be liable for any damage or inconvenience which may arise
through repair or alteration of any part of the Building or premises. The
preceding sentence shall not limit Tenant's rights for the failure of Landlord
to complete the Tenant Improvements as provided for in Paragraph 3 of this
Lease.
28. Events of Default/Remedies.
(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant fails to pay any installment of Base Rental
or Additional Rent when due and such failure continues for more than ten (10)
days after Tenant is given written notice of such failure (provided, however,
Tenant shall not be entitled to such notice and cure period more than twice in
any calendar year during the Lease Term); (ii) Tenant fails to comply with any
provision of this Lease (other than clauses (iii), (iv), (v), (vi) and (vii) in
this Paragraph 28(a)), all of which terms, provisions and covenants shall be
deemed material and such failure continues for more than thirty (30) days after
Tenant is given written notice of such failure (provided such 30-day notice and
cure period for non-monetary defaults shall be decreased or dispensed with, as
reasonably required, in cases of emergency or in circumstances where such
failure will result in a default by Landlord under other leases of space in the
Building); (iii) the leasehold hereunder demised is taken on
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execution or other process of law in any action against Tenant; (iv) Tenant
becomes insolvent or unable to pay its debts as they become due; (v) Tenant
takes any action to or notifies Landlord that Tenant intends to file a petition
under any section or chapter of the United States Bankruptcy Code, as amended
from time to time, or under any similar law or statute of the United States or
any State thereof; or a petition shall be filed against Tenant under any such
statute or Tenant or any creditor of Tenant's notifies Landlord that it knows
such a petition will be filed or Tenant notifies Landlord that it expects such
a petition to be filed; or (vi) a receiver or trustee is appointed for Tenant's
leasehold interest in the Premises or for all or a substantial part of the
assets of Tenant. Provided, however, and notwithstanding the foregoing
provisions in this Paragraph 28(a), Tenant shall not be entitled to any notice
and cure period in connection with Tenant's obligation to vacate the Premises
at the end of the Lease Term.
(b) Upon the occurrence under this Lease of any event or events of
default by Tenant, whether enumerated in Paragraph 28(a) herein or not,
Landlord shall have the option to pursue any one or more of the following
remedies: (i) terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord; (ii) terminate Tenant's right to occupy the
Premises and re-enter and take possession of the Premises (without terminating
this Lease) and relet or attempt to relet the Premises for the account of
Tenant and Landlord shall not be deemed to have thereby accepted a surrender of
the Premises, and Tenant shall remain liable for all Basic Rent, Additional
Rent or other sums due under this Lease and for all damages suffered by
Landlord because of Tenant's breach of any provision of this Lease; (iii) enter
upon the Premises and do whatever Tenant is obligated to do under the terms of
this Lease, and Tenant agrees to reimburse Landlord on demand for any expense
which Landlord may incur in effecting compliance with Tenant's obligations
under this Lease, and Tenant further agrees that Landlord shall not be liable
for any damages resulting to Tenant from such action; (iv) accelerate and
declare the entire remaining unpaid Basic Rent and Additional Rent for the
balance of the Lease Term to be immediately due and payable forthwith, and may,
at once, take legal action to recover and collect the same; and (v) exercise
all other remedies and seek all damages available to Landlord at law or in
equity, including, without limitation, injunctive relief of all varieties.
In the event Landlord elects to re-enter or take possession of the
Premises after Tenant's default, Tenant hereby waives notice of such re-entry
or repossession and of Landlord's intent to re-enter or take possession.
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, expel or remove Tenant and any other person
who may be occupying said Premises or any part thereof. In addition, the
provisions of Paragraph 31 herein shall apply with respect to the period from
and after the giving of notice of such termination to Tenant. All of Landlord's
remedies under this Lease shall be cumulative and not exclusive. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an event
of default shall not be deemed or construed to constitute a waiver of such
default or an election of remedies.
(c) Any installment of Base Rental and any Additional Rent not paid
within ten (10) days following the date when due and payable shall bear
interest from the date due until paid at
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the lesser of (i) eighteen percent (18%) per annum or (ii) the maximum lawful
contract rate per annum.
(d) This Paragraph 28 shall be enforceable to the maximum extent not
prohibited by applicable law, and the unenforceability of any portion thereof
shall not thereby render unenforceable any other portion. To the extent any
provision of applicable law requires some action by Landlord to evidence or
effect the termination of this Lease or to evidence the termination of Tenant's
right of occupancy, Tenant and Landlord hereby agree that notice, in writing
only and delivered in accordance with Paragraph 37 herein, shall be sufficient
to evidence and effect the termination therein provided for.
(e) Landlord shall be in default hereunder in the event Landlord has
not begun and pursued with reasonable diligence the cure of any failure of
Landlord to meet its obligations hereunder within thirty (30) days of receipt
by Landlord of written notice from Tenant of the alleged failure to perform.
Except as otherwise provided in Paragraph 3 herein, in no event shall Tenant
have the right to terminate or rescind this Lease or otherwise withhold or
xxxxx Basic Rent or Additional Rent as a result of Landlord's default as to any
covenant or agreement contained in this Lease or as a result of the breach of
any promise or inducement hereof, whether in this Lease or elsewhere. Tenant
hereby waives such remedies for default hereunder and Tenant's remedies for
default by Landlord hereunder shall be limited to action for damages and/or
injunction. In addition, Tenant hereby covenants that, prior to the exercise of
any such remedies, it will give the Mortgagee(s) who then hold(s) a mortgage on
the Building the same notice and time period as Landlord to cure any default by
Landlord under this Lease.
29. Security Deposit.
As security for the performance of its obligations under this Lease,
Tenant, upon its execution of this Lease, has paid to Landlord a security
deposit (the "Security Deposit") in the amount stated in the Lease Summary. The
Security Deposit may be applied by Landlord to cure any default of Tenant under
this Lease, and upon notice by Landlord of such application, Tenant shall
replenish the Security Deposit in full by promptly paying to Landlord the
amount so applied. Landlord shall not pay any interest on the Security Deposit.
Within forty-five (45) days after the expiration date of the Lease Term,
Landlord shall return to Tenant the balance, if any, of the Security Deposit.
The Security Deposit shall not be deemed an advance payment of rent or a
measure of damages for any defense to any action which Landlord may at any time
commence against Tenant. If Landlord's interest in the Premises is sold or
otherwise transferred, Landlord shall have the right to transfer the Security
Deposit to the new owner, and upon the transfer of the Security Deposit,
Landlord shall thereupon be released from all liability for the Security
Deposit, and Tenant shall thereafter look solely to such new owner for the
Security Deposit. The terms hereof shall apply to every transfer of the
Security Deposit.
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30. Peaceful Enjoyment.
Tenant shall, and may peacefully have, hold, and enjoy the Premises
against Landlord and all persons claiming by and through or under Landlord for
the Lease Term, subject to the other terms hereof, provided Tenant pays the
rent and other sums herein recited to be paid by Tenant and performs all of
Tenant's covenants and agreements herein contained. This covenant and any and
all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective periods of ownership of Landlord's interest hereunder.
31. Holding Over.
If Tenant remains in possession of the Premises or any part thereof
after the expiration or earlier termination of this Lease, whether with or
without Landlord's acquiescence, Tenant shall be deemed a tenant at will. In
the event of any such holding over by Tenant after the expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Paragraph 28(b) herein, Tenant shall, throughout the entire holdover period,
pay Base Rental equal to greater of one hundred twenty-five percent (125%) of
the Base Rental in effect immediately before the holdover period began or the
"Prevailing Market Rate" (to be determined in the same manner as provided for
in Paragraph 2 of the Special Stipulations set forth on Exhibit F attached
hereto), together with all applicable Additional Rent which would have been
applicable had the Lease Term continued through the period of such holding over
by Tenant. Tenant shall also remain liable for any and all damages, direct and
consequential, suffered by Landlord as a result of any holdover without
Landlord's unequivocal written acquiescence. No holding over by Tenant after
the expiration of the Lease Term shall be construed to extend the Lease Term.
32. Subordination to Mortgage.
Provided that Tenant receives an agreement of non-disturbance, Tenant
accepts this Lease subject and subordinate to any mortgage, deed of trust, or
other lien presently existing or hereafter arising upon the Premises, the
Building and/or the Land, and to any renewals, modifications, refinancings and
extensions thereof, but Tenant agrees that any such Mortgagee shall have the
right (without seeking or obtaining Tenant's consent) at any time to
subordinate such mortgage, deed of trust or other lien to this Lease. Tenant
agrees to cooperate and execute and deliver such further instruments
subordinating this Lease or attorning to the holder of any such liens as
Landlord may request within fifteen (15) days of the date of such request.
33. Estoppel Certificate.
Tenant agrees that it will, from time to time upon request by Landlord
and within fifteen (15) days of such request, cooperate and execute and deliver
to such persons as Landlord shall request an estoppel certificate in recordable
form certifying that this Lease is unmodified and in
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full force and effect (or if there have been modifications, that this Lease is
in full force and effect as so modified), stating the dates to which rent and
other charges payable under this Lease have been paid, stating that, to the
best knowledge of Tenant, Landlord is not in default hereunder (or if Tenant
alleges a default, stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require. In the event
that Tenant should fail to execute any such estoppel certificate promptly as
requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such estoppel certificate in Tenant's name, place
and stead, it being agreed that such power is one coupled with an interest.
34. Attorneys' Fees.
In the event either party defaults in the performance of any of the
terms of this Lease and the other party employs attorney(s) in connection
therewith, the defaulting party agrees to pay the prevailing party's reasonable
attorneys' and paralegals' fees (calculated at such attorneys' reasonable and
customary hourly rates and without regard to the amount in controversy) and
costs of litigation, whether at the trial level, on appeal or in any bankruptcy
or administrative proceedings.
35. No Implied Waiver.
The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement herein or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such rent or to pursue any other
remedy in this Lease provided.
36. Personal Liability.
The liability of Landlord to Tenant for any default by Landlord under
the terms of this Lease shall be limited to the equity of Landlord in the
Building and the Land, and Tenant agrees to look solely to Landlord's equity in
the Building and the Land for recovery of any judgment from Landlord, it being
intended that neither Landlord nor the shareholders, parents, affiliates,
partners, members, or owners of Landlord shall be personally liable for any
judgment or deficiency.
37. Notices.
Any notice in this Lease provided for must, unless otherwise expressly
provided herein, be in writing, and may, unless otherwise in this Lease
expressly provided, be served by depositing
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the same in the United States mail, postpaid and certified or registered and
addressed to the party to be notified, with return receipt requested, or by
delivering the same in person to an officer of such party, or by prepaid
telegram or overnight delivery service (e.g., Federal Express), addressed to
the party to be notified at the applicable address stated in the Lease Summary
or such other address, notice of which has been given to the other party
pursuant to this Paragraph 37. Notice deposited in the mail in the manner
hereinabove described shall be effective from and after the expiration of five
(5) calendar days after it is so deposited. Notice by prepaid telegram or
overnight delivery service shall be effective on the first business day after
said notice is sent. Notice by facsimile shall be effective on the day sent by
facsimile (provided the original is sent by one of the other permitted means).
38. Severability.
If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law,
notwithstanding the invalidity of any other term or provision hereof.
39. Recordation.
Tenant agrees not to record this Lease; provided, however, Landlord
shall execute and deliver a memorandum of this Lease, in recordable form, and
suitable to provide record notice of this Lease, if so requested by Tenant.
40. Governing Law and Venue.
This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed, and enforced in accordance with the laws of the
State of Florida and venue for any actions initiated by Landlord or Tenant
shall be in Hillsborough County.
41. Force Majeure.
Whenever a period of time is herein prescribed for the taking of any
action by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays due
to any condition, matter or circumstance beyond the reasonable control of
Landlord (collectively, "Force Majeure Matters"; each, a "Force Majeure
Matter"), including, without limitation, the following: strikes; defaults or
failures to perform by contractors or subcontractors; unavailability of
materials; lockouts; acts of God; governmental restrictions, war or enemy
action or invasion; civil commotion; insurrection; riot; mob violence;
malicious mischief or sabotage; fire or any other casualty; adverse weather
conditions or unusual inclement weather; a condemnation; failure of a
governmental instrumentality to act in a timely
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fashion; any litigation or other legal proceeding which delays the approval of
plans or the issuance of any grading or building permit for construction,
including, without limitation, the issuance of an injunction enjoining such
approval and/or issuance, as the case may be; any law, order or regulation of
any governmental, quasi-governmental, judicial or military authority; or other
similar cause. Without limiting the generality of the foregoing, in the event a
Force Majeure Matter affects Landlord's construction and delivery obligation(s)
relative to the Premises under this Lease, at Landlord's option, the
Commencement Date shall be extended by the same number of days as the number of
days of delay caused by such Force Majeure Matter on the critical path of
completing such construction and delivery obligation(s).
42. Time of Performance.
Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease.
43. Transfers by Landlord.
Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations hereunder and in the Building and property
referred to herein, and in such event and upon such transfer Landlord shall be
released from any further obligations hereunder, and Tenant agrees to look
solely to such successor in interest of Landlord for the performance of such
obligations, except those obligations of Landlord with respect to which a
default exists as of the effective date of such transfer or assignment.
44. Commissions.
Landlord warrants and represents to Tenant that Landlord has not
engaged or contracted with any person, firm or entity to serve or act as a
broker, agent or finder, other than Broker (if any), for the purpose of leasing
the Premises or in regard to this Lease. Tenant warrants and represents to
Landlord that Tenant has not engaged, contracted with or dealt with any person,
firm or entity (other than Broker, if any) to serve or act as a broker, agent
or finder, for the purpose of leasing the Premises or in regard to this Lease.
Landlord agrees to be solely responsible for the payment of any commission to
Broker (if any) relating to this Lease pursuant to a separate agreement between
Landlord and Broker (if any). Tenant shall and does hereby indemnify and hold
harmless Landlord from and against any claim for any consulting fee, finder's
fee, commission, or like compensation, including reasonable attorneys' fees in
defense thereof, payable in connection with this Lease and asserted by any
party arising out of any act or agreement by Tenant, excluding the commission
payable by Landlord to Broker (if any) as described above.
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45. Effect of Delivery of this Lease.
Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and such delivery does not constitute an offer to Tenant or an
option in favor of Tenant. This Lease shall not be effective until an original
executed by both Landlord and Tenant is delivered to and accepted by Landlord.
46. Real Estate Investment Trust.
During the Lease Term, should a real estate investment trust become
Landlord hereunder, all provisions of this Lease shall remain in full force and
effect except as modified by this Paragraph 46. If Landlord in good faith
determines that its status as a real estate investment trust under the
provisions of the Internal Revenue Code of 1986, as heretofore or hereafter
amended, will be jeopardized because of any provision of this Lease, Landlord
may request reasonable amendments to this Lease and Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
amendments do not (a) increase the monetary obligations of Tenant pursuant to
this Lease or (b) in any other manner adversely affect Tenant's interest in the
Premises.
47. Hazardous Materials.
(a) Throughout the Lease Term, Tenant shall not knowingly cause,
permit or allow any chemical substances, asbestos or asbestos-containing
materials, formaldehyde, polychlorinated biphenyls, and toxic, carcinogenic,
radioactive, dangerous or hazardous material, substance, waste, contaminant, or
pollutant regulated now or hereafter by any governmental entity or agency
(collectively, "Hazardous Materials") to be placed, stored, dumped, dispensed,
released, discharged, used, sold, transported, or located on or within any
portion of the Premises, the Building or the Land by itself or its servants,
agents, employees, contractors, subcontractors, licensees, assignees or
subtenants; provided, however, minor quantities of Hazardous Materials may be
used or stored in the Premises for cleaning purposes only or in connection with
the use of office equipment and the normal operation of Tenant's office only,
so long as such quantities and the use thereof are permitted by or are exempt
from applicable governmental regulation. Tenant agrees to give Landlord prompt
written notice of any discovery, discharge, release or threatened discharge or
threatened release of any Hazardous Materials on or about the Premises, the
Building or the Land. Tenant agrees to promptly clean up any Hazardous
Materials which are placed in the Premises or on the Land by Tenant or its
servants, agents, employees, contractors, subcontractors, licensees, assignees
or subtenants and to remediate and remove any such contamination relating to
the Premises, the Building and/or the Land, as appropriate, at Tenant's cost
and expense, in compliance with all applicable laws, ordinances, rules and
regulations then in effect and to Landlord's satisfaction, at no cost or
expense to Landlord. Additionally, Tenant hereby agrees to indemnify and hold
harmless Landlord and Landlord's partners, officers, directors, members,
affiliates, employees and agents from and against all loss, cost, damage,
liability and expense (including attorneys' fees and expenses) arising from or
relating to any
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Hazardous Materials (other than those permitted above) which are placed in the
Premises or the Building or on the Land by Tenant or its servants, agents,
employees, contractors, subcontractors, licensees, assignees or subtenants.
(b) The terms and provisions in this Paragraph 47 shall survive the
termination or earlier expiration of this Lease.
48. Landlord's Right of Relocation. [Intentionally deleted].
49. Evidence of Authority.
If requested by Landlord, Tenant shall furnish appropriate legal
documentation evidencing the valid existence and good standing of Tenant and
the authority of any parties signing this Lease to act for Tenant. By signing
this Lease on Tenant's behalf, the signatory for Tenant hereby represents the
truth of such facts to Landlord.
50. Survival of Obligations.
Notwithstanding any term or provision in this Lease to the contrary,
any liability or obligation of Landlord or Tenant arising during or accruing
with respect to the Lease Term shall survive the expiration or earlier
termination of this Lease, including, without limitation, obligations and
liabilities relating to (i) rent payments, (ii) the condition of the Premises
and the removal of Tenant's property, and (ii) indemnity and hold harmless
provisions in this Lease.
51. Confidentiality.
Tenant agrees, on behalf of Tenant and Tenant's employees, agents,
contractors, consultants, partners, affiliates, assignees and subtenants, not
to disclose the terms of this Lease or the results of any audit of Landlord's
books and records under this Lease to any third party except (i) legal counsel
to Tenant, (ii) any assignee of Tenant's interest in this Lease or any
subtenant of Tenant relative to the Premises (or any portion thereof), (iii) as
required by applicable law or by subpoena or other similar legal process, or
(iv) for financial reporting purposes.
52. Contractual Landlord's Lien.
Landlord shall have, and at all times, a valid security interest to
secure the payment of Basic Rent, Additional Rent, and other sums of money
becoming due hereunder from Tenant, and to secure payment of any damages or
loss which Landlord may suffer by reason of the breach by Tenant of any
covenant, agreement, or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements, and other personal property of
Tenant presently or which may hereinafter situated in the Premises, and all
proceeds therefrom. Such property shall not be removed therefrom without the
consent of Landlord until all arrearages in rent as well as any and other sums
of money to Landlord hereunder shall first have been paid and discharged and
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all the covenants, agreements, and conditions have been fully complied with and
performed by Tenant. In consideration of this Lease, upon occurrence and the
event of default by Tenant, Landlord may, in addition to any of the remedies
provided herein, enter upon the Premises and take possession of any and all
good, wares, equipment, fixtures, furniture, improvements, and other personal
property of Tenant situated on or in the Premises, without liability for
trespass or conversion, and sell the same at public or private sale, with our
without having such property at the sale, after giving Tenant reasonable notice
of the time and place of any public sale or of the time after which any private
sale is to be made, at which sale Landlord or its assigns may purchase. Unless
otherwise prohibited by law, and without intending to exclude any other manner
of giving Tenant reasonable notice, the requirement of reasonable notice shall
be met if such notice is given in the manner described in Paragraph 37 of this
Lease at least five (5) days before time of sale. Proceeds of any such
disposition, plus any and all expenses connected with the taking of possession,
holding and selling of the property (including reasonable attorneys' fees and
paralegals' fees, whether incurred in court, out of court, on appeal or in
bankruptcy administrative proceedings and other expenses), shall be applied as
a credit against the indebtedness of the secured by the security interest
granted in this Paragraph 52. Any surplus shall be paid to Tenant or as
otherwise provided by law, and Tenant shall pay any deficiencies forthwith.
Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a
financing statement in the form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Uniform Commercial Code in force in the State of Florida.
53. Rent a Separate Covenant. Tenant shall not for any reason withhold
or reduce Tenant's required payments of Basic Rent and other charges provided
in this Lease, it being expressly understood and agreed contractually by the
parties that the payment of Basic Rent, Additional Rent, and other charges
provided under this Lease is a contractual covenant by Tenant that is
independent of the other covenants of the parties under this Lease.
54. Radon.
As required by Florida Statutes, 404.056(6) 1995, Landlord notifies
Tenant as follows:
"RADON GAS: Radon is a naturally occurring radioactive gas, that when
it has accumulated in a building in sufficient quantities, it may present
health risk to persons who are exposed to it over time. Levels of Radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding Radon and Radon testing may be obtained from
your county public health unit."
55. Miscellaneous Provisions.
The entire agreement, intent and understanding between Landlord and
Tenant is contained in the provisions of this Lease and the exhibits attached
hereto and any stipulations, representations, promises or agreements, written
or oral, made prior to or contemporaneously with this Lease shall have no legal
or equitable effect or consequence unless reduced to writing herein
-30-
38
or in the exhibits attached hereto. This Lease may not be modified except by a
written instrument by the parties hereto. The terms "Landlord" and "Tenant" and
all pronouns relating thereto shall be deemed to mean and include corporations,
partnerships and individuals as may fit the context, and the masculine gender
shall be deemed to include the feminine and the neuter, and the singular
number, the plural.
56. Special Stipulations.
The special stipulations, if any, set forth on Exhibit F attached to
this Lease are incorporated herein by reference. If there is no Exhibit F
attached to this Lease, there are no such special stipulations. Such special
stipulations shall control if in conflict with any of the foregoing provisions
of this Lease.
57. WAIVER OF JURY TRIAL.
THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES AND/OR BUILDING AND/OR CLAIM OR INJURY OR
DAMAGE. IN THE EVENT LANDLORD COMMENCES ANY PROCEEDINGS TO ENFORCE THIS LEASE
OR THE LANDLORD/TENANT RELATIONSHIP BETWEEN THE PARTIES OR FOR NON-PAYMENT OF
BASIC RENT OF ANY NATURE WHATSOEVER, OR ADDITIONAL MONIES DUE LANDLORD FROM
TENANT UNDER THIS LEASE, TENANT WILL NOT INTERPOSE ANY COUNTERCLAIM OF WHATEVER
NATURE OR DESCRIPTION IN ANY SUCH PROCEEDINGS. IN THE EVENT TENANT MUST,
BECAUSE OF APPLICABLE COURT RULES, INTERPOSE ANY COUNTERCLAIM OR OTHER CLAIM
AGAINST SUCH PROCEEDING THE LANDLORD AND TENANT COVENANT AND AGREE THAT, IN
ADDITION TO ANY OTHER LAWFUL REMEDY OF LANDLORD UPON MOTION OF LANDLORD, SUCH
COUNTERCLAIM OR OTHER CLAIM ASSERTED BY TENANT SHALL BE SEVERED OUT OF THE
PROCEEDINGS INSTITUTED BY LANDLORD AND, IF NECESSARY, TRANSFERRED TO A COURT OF
DIFFERENT JURISDICTION, AND THE PROCEEDINGS INSTITUTED BY LANDLORD MAY PROCEED
TO FINAL JUDGMENT SEPARATELY AND APART FROM AND WITHOUT CONSOLIDATION WITH OR
REFERENCE TO THE STATUS OF EACH COUNTERCLAIM OR ANY CLAIM ASSERTED BY TENANT.
-31-
39
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple original counterparts as of the day and year first above written.
Signed, sealed and delivered LANDLORD:
in the presence of:
CRESCENT RESOURCES, INC.,
a South Carolina corporation
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------
Print Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
---------------------- --------------------------------
Title: Vice President
-------------------------------
/s/ Xxxxxx X. Xxxxx
---------------------------------
Print Name: Xxxxxx X. Xxxxx [CORPORATE SEAL]
----------------------
TENANT:
BAY CITIES BANK, INC.
a Florida corporation
/s/ Xxx Vassamas By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------- ----------------------------------
Print Name: Xxx Vassamas Name: Xxxxxxx X. XxXxxxx
---------------------- --------------------------------
Title: President & CEO
-------------------------------
/s/ Xxxxxx Xxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxx [CORPORATE SEAL]
----------------------
-32-
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EXHIBIT A
Description of Land
All that certain tract or parcel of land lying and being in the City
of Tampa, Hillsborough County, Florida, and being more particularly described
as follows:
X-0
00
XXXXXXX X
Designation of Premises
[TO BE PROVIDED]
B-1
42
EXHIBIT C
Construction of Improvements
1. Building Shell Improvements. Landlord, at Landlord's sole cost, shall
complete or has completed the following as part of the Building Shell
Improvements:
o 2' x 2' ceiling grid installed at 9' above the finished floor
o 2' x 2' regular acoustical ceiling tile (to be stacked on the floor in
the Premises)
o columns wrapped with drywall
o high efficiency 2' x 4', 3 lamp fixtures with 18-cell parabolic lenses
and lights at a ratio of one fixture per 75 square feet of Premises Net
Usable Area (to be stacked on the floor in the Premises)
o low pressure and medium pressure duct work
o interior and perimeter VAV boxes installed at the rate of approximately
one (1) per 1,548 usable square feet
o Building standard fire sprinkler system (in accordance with applicable
code requirements), with heads turned up
o demising walls: Landlord shall pay for the cost of the demising walls on
the Common Areas side of the demising wall and Tenant shall pay the cost
for the demising walls to the interior portion of the Common Areas
demising walls and the cost of the demising walls between the Premises
and other tenant space in the Building
o blinds for exterior windows
2. Construction Supervision. Landlord shall co-ordinate the design and
construction of the Tenant Improvements for Tenant as outlined below in
sections 3 through 8 of this Exhibit C. Landlord shall not receive a fee
for this construction administration/management service.
3. Architect. Urban Studies is hereby approved by Tenant and Landlord as the
architect for the Tenant Improvements and shall hereinafter be referred to
as "Tenant Architect". Landlord shall enter into a contract with the Tenant
Architect to prepare the Tenant Improvements Plans and Specifications.
Landlord shall have the right to use any mechanical, electrical and
plumbing architects/engineers required to complete the Tenant Improvement
Plans and Specifications.
4. Preliminary Plans. Tenant shall work with Tenant Architect to prepare a set
of design development plans (the "Preliminary Plans") acceptable to Tenant
for the interior build out of the Premises by March 1, 1999. Tenant shall
submit a signed set of the Preliminary Plans to Landlord for review and
approval which shall not be unreasonably withheld or denied. Landlord shall
have five (5) business days from receipt of the Preliminary Plans to review
and request any changes. In the event that Landlord fails to respond within
such five (5) business day period, Tenant shall notify Landlord, in
writing, that Landlord has failed to reply. In the event that Landlord
fails to respond to this second notice within five (5)
C-1
43
business days from receipt of the second notice, Landlord shall be deemed
to have approved the Preliminary Plans. If changes are requested during the
review period, Tenant shall have fifteen (15) days to work with Landlord
and Tenant Architect to modify the Preliminary Plans so they are acceptable
to both Landlord and Tenant. If Tenant does not approve the Preliminary
Plans within this fifteen (15) day period, it shall be considered a Tenant
Delay Factor for each day thereafter that the Preliminary Plans have not
been approved.
5. Preliminary Budget. Once the Preliminary Plans have been approved by both
Tenant and Landlord, Landlord shall co-ordinate having a construction
budget prepared with a detailed line item breakdown of all costs and
contractor fees. Such budget shall hereinafter be referred to as
"Preliminary Budget". Landlord shall have the Preliminary Budget completed
for review by Tenant within fifteen (15) days after the Preliminary Plans
have been approved. Tenant shall have fifteen (15) days upon receipt of the
Preliminary Budget to review and approve the Preliminary Budget. If Tenant
does not respond within the fifteen (15) day review period, the Preliminary
Budget shall be considered approved by Tenant. If Tenant does not approve
the budget, in writing, Landlord and Tenant shall have thirty (30) days
from the date that Tenant informs Landlord of its disapproval to work with
Landlord and Tenant Architect to approve the Preliminary Plans accordingly.
If Tenant does not approve the Preliminary Budget within this thirty (30)
day period, it shall be considered a Tenant Delay Factor for each day
thereafter that the Preliminary Budget is not approved.
6. Tenant Improvement Plans and Specifications. Immediately after the
Preliminary Plans and Preliminary Budget have been approved by both Tenant
and Landlord, Landlord shall direct the Tenant Architect to prepare Tenant
Improvements Plans and Specifications. Landlord shall have forty-five (45)
days to complete the Tenant Improvement Plans and Specifications complete
with finishes and mechanical, electrical and plumbing engineered drawings.
7. Construction Bid. Landlord shall deliver the completed Tenant Improvement
Plans and Specifications to three (3) general contractors to obtain bids
from each contractor for the construction of the Tenant Improvements in
accordance with the Tenant Improvements Plans and Specifications and shall
obtain such bids on or before thirty (30) days from the approval of the
Tenant Improvements Plans and Specifications. After receipt of such bids,
Landlord and Tenant shall select the contractor that Landlord reasonably
believes to be the best for the job, taking into consideration prior
experience, price and financial stability. Landlord shall not be obligated
to accept the lowest bid. The selected contractor shall hereinafter be
referred to as the "Contractor" and the bid submitted by the Contractor
shall hereinafter be referred to as the "Final Construction Budget". If the
Final Construction Budget is not more than five percent (5%) over the
Preliminary Budget, the Final Construction Budget and the Tenant
Improvement Plans and Specifications shall be considered approved and
Landlord shall be released to submit the Tenant Improvement Plans and
Specifications to the Contractor for the construction of the Tenant
Improvements. If the Final Construction Budget is six percent (6%) or more
than the
C-2
44
Preliminary Budget, then Tenant shall have ten (10) days from receipt of
such to review the Final Construction Budget to approve or disapprove. If
Tenant does not respond within the ten (10) day review period, the Final
Construction Budget and Tenant Improvement Plans and Specifications shall
be considered approved. If Tenant disapproves the Final Construction
Budget, then Tenant shall have thirty (30 ) days to work with Contractor,
Tenant Architect and Landlord to modify the Tenant Improvement Plans and
Specifications and Final Construction Budget so they are acceptable to
Tenant and Landlord. If Tenant does not approve the Final Construction
Budget and the Tenant Improvements Plans and Specifications within this
thirty (30) day period, it shall be considered a Tenant Delay Factor for
each day thereafter that they are not approved.
8. Change Order. After the approval of the Final Construction Budget and the
Tenant Improvement Plans and Specifications, any changes to the Tenant
Improvement Plans and Specifications shall be deemed a Change Order. In the
event Tenant desires a Change Order, Tenant shall deliver written notice to
Landlord. Upon receipt of such written notice, Landlord shall, within four
(4) business days, notify Tenant's Contact Person as to the cost of such
Change Order and whether such Change Order will cause a Tenant Delay
Factor. Upon notice to Tenant's Contact Person, Tenant shall have five (5)
days to advise Landlord of either going forward with the Change Order or
withdrawing the request for the Change Order. In the event that Tenant
fails to respond within such five (5) day period, Tenant shall be deemed to
have withdrawn such Change Order request.
C-3
45
EXHIBIT D
Cleaning and Janitorial Services
LANDLORD SHALL FURNISH CLEANING AND JANITORIAL SERVICES TO THE PREMISES AND
COMMON AREAS AS DESCRIBED BELOW:
DAILY (Monday - Friday):
o Sweep, dry mop or vacuum, as appropriate, all floor areas; remove
material such as gum and tar which has adhered to the floor.
o Empty and damp wipe all ash trays, waste baskets and containers, remove
all trash from the leased premises.
o Dust all cleared horizontal surfaces with treated dust cloth, including
furniture, files, telephones, equipment that can be reached without a
ladder.
o Spot wash to remove smudges, marks and fingerprints from such areas that
can be reached without a ladder.
o Damp mop all non-resilient floors such as terrazzo and ceramic tile.
o Clean freight and passenger elevator cabs and landing doors.
o Clean mirrors, soap dispensers, shelves, wash basins, exposed plumbing,
dispenser and disposal container exteriors, damp wipe all ledges, toilet
stalls and toilet doors.
o Clean toilets and urinals with detergent disinfectants.
o Furnish and refill all soap, toilet, sanitary napkin and towel
dispensers.
o Spot clean carpet stains.
o Wash glass in Building directory, entrance doors and frames.
WEEKLY:
o Dust vertical blinds and louvers.
o Spot wash interior partition glass and door glass to remove smudge
marks.
o Sweep all stairs areas.
o Dust all baseboards.
D-1
46
MONTHLY:
o Scrub and recondition resilient floor areas.
o Wash all stairwell landings and treads.
o Wash all interior glass both sides.
QUARTERLY:
o High dust all horizontal and vertical surfaces not reached by nightly
cleaning.
o Vacuum all ceiling and wall air supply and exhaust diffusers and grills.
o Wash and polish vertical terrazzo and marble surfaces.
o Spot clean carpeted areas.
SEMI-ANNUALLY:
o Damp wash diffusers, grills, and other such items.
ANNUALLY:
o Strip and refinish all resilient floors.
o Wash all building exterior glass both sides.
o Clean light fixtures, reflectors, globes, diffusers and trim.
o Clean all vertical surfaces not attended to during nightly, weekly,
quarterly or semi-annually cleaning.
Landlord will provide a day xxxxxx for use throughout the Building on
business days, Monday through Friday.
D-2
47
EXHIBIT E
Rules and Regulations
1. Sidewalks, doorways, vestibules, halls, stairways, and similar
areas shall not be obstructed nor shall refuse, furniture, boxes or other items
be placed therein by any tenant or its officers, agents, servants, and
employees, or be used for any purpose other than ingress and egress to and from
premises in the Building, or for going from one part of the Building to another
part of the Building. Canvassing, soliciting and peddling in the Building are
prohibited.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which constructed, and no unsuitable material shall be placed
therein.
3. No signs, directories, posters, advertisements, or notices shall be
painted or affixed on or to any of the windows or doors, or in corridors or
other parts of the Building, except in such color, size, and style, and in such
places, as shall be first approved in writing by Landlord in its discretion.
However, the prohibition in the immediately preceding sentence shall not limit
or restrict any tenant's right to maintain within the premises occupied by such
tenant any signs, directories, posters, advertisements, or notices so long as
such items are not visible from the exterior of the premises occupied by such
tenant or from the Common Areas of the Building. Landlord shall have the right
to remove all unapproved signs without notice to any tenant, at the expense of
the responsible tenant.
4. No tenant shall do, or permit anything to be done, in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
5. Landlord shall have the power to prescribe the weight and position
of heavy equipment or objects which may overstress any portion of the floor.
All damage done to the Building by the improper placing of such heavy items
will be repaired at the sole expense of the responsible tenant.
6. Each tenant shall notify the Building manager when safes or other
heavy equipment are to be taken in or out of the Building, and the moving shall
be done after written permission is obtained from Landlord on such conditions
as Landlord shall require.
7. All deliveries must be made via the service entrance and service
elevator, when provided, during normal working hours. Landlord's written
approval must be obtained for any delivery after normal working hours.
8. Each tenant shall cooperate with Landlord's employees in keeping
such tenant's premises neat and clean.
9. Each tenant shall not cause or permit any improper noises in the
Building, allow any unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any
X-0
00
xxx xxxxx tenants or persons having business with them. However, Landlord
acknowledges that, if permitted by the applicable lease, a tenant may operate a
food services facility within the premises of such tenant for the sole use and
benefit of the occupants of such premises and that such food services facility
may emit odors normally associated with the operation of such on-site food
services facilities.
10. No animals shall be brought into or kept in or about the Building.
11. When conditions are such that a tenant must dispose of crates,
boxes, etc. on the sidewalk, it will be the responsibility of such tenant to
dispose of same prior to 7:30 a.m. or after 5:30 p.m.
12. No machinery of any kind, other than ordinary office machines such
as typewriters, information processing systems, copy machines, communications
equipment and calculators, shall be operated in any premises in the Building
without the prior written consent of Landlord, nor shall any tenant use or keep
in the Building any inflammable or explosive fluid or substance (including
Christmas trees and ornaments), or any illuminating materials. No space heaters
or fans shall be operated in the Building.
13. No motorcycles or similar vehicles will be allowed in the
Building.
14. No nails, hooks, or screws shall be driven into or inserted in any
part of the Building, except as approved by Building maintenance personnel.
Notwithstanding the foregoing, a tenant may decorate the interior of such
tenant's premises at such tenant's sole discretion provided such decorations do
not impact the structural integrity of the Building and cannot be seen from the
exterior of the Building or from any Common Areas of the Building.
15. Landlord has the right to evacuate the Building in the event of an
emergency or catastrophe.
16. No food and/or beverages shall be distributed from any tenant's
office without the prior written approval of the Building manager. But a tenant
may prepare coffee and similar beverages and warm typical luncheon items for
the consumption of such tenant's employees and invitees. Furthermore, Landlord
acknowledges that, if permitted by the applicable lease, a tenant may operate a
food services facility within the premises of such tenant for the sole use and
benefit of the occupants of such premises.
17. No additional locks shall be placed upon any doors without the
prior written consent of Landlord. All necessary keys or access cards or codes
shall be furnished by Landlord, and the same shall be surrendered upon
termination of the applicable lease, and each tenant shall then give Landlord
or Landlord's agent an explanation of the combination of all locks on the doors
or vaults. Replacement keys or access cards or codes (i.e., replacements for
keys or access cards or codes previously issued by Landlord) shall be obtained
only from Landlord, and Tenant shall pay to Landlord (as Additional Rent,
within thirty (30) days after Tenant receives an invoice therefor) the actual
costs incurred by Landlord in obtaining and issuing replacement keys or access
cards or codes for keys or access cards or codes previously issued.
X-0
00
00. Tenants will not locate furnishings or cabinets adjacent to
mechanical or electrical access panels or over air conditioning outlets so as
to prevent operating personnel from servicing such units as routine or
emergency access may require. Cost of moving such furnishings for Landlord's
access will be for the responsible tenant's account. The lighting and air
conditioning equipment of the Building will remain the exclusive charge of the
Building designated personnel.
19. Each tenant shall comply with reasonable parking rules and
regulations as may be posted and distributed by Landlord from time to time.
20. No portion of the Building shall be used for the purpose of
lodging rooms.
21. Prior written approval, which shall be at Landlord's sole
discretion, must be obtained for installation of window shades, blinds, drapes,
or any other window treatment of any kind whatsoever. Landlord will control all
internal lighting that may be visible from the exterior of the Building and
shall have the right to change any unapproved lighting, without notice to the
responsible tenant, at the responsible tenant's expense.
22. No tenant shall make any changes or alterations to any portion of
the Building without Landlord's prior written approval, which may be given on
such conditions as Landlord may elect. All such work shall be done by Landlord
or by licensed contractors and/or workmen.
23. Tenant shall not employ any service or contractor for services or
work to be performed in the Building except as approved by Landlord.
24. No tenant, employee or invitee shall go upon the roof of the
Building, without prior approval and consent by Landlord.
25. Landlord reserves the right to waive any one of these rules or
regulations. With respect to any particular tenant and any such waiver shall
not constitute a waiver of any other rule or regulation or any subsequent
application thereof to the same or any other tenant. Notwithstanding the
foregoing, Landlord shall not selectively enforce the rules or act in a
discriminatory manner.
26. Tenant assumes all risks from theft or vandalism and agrees to
keep its Premises locked.
27. Landlord reserves the right to amend these rules and regulations
or make such additional reasonable rules and regulations it may from time to
time deem necessary for the appropriate operation and safety of the Building
and their occupants. Tenant agrees to abide by such additional or amended rules
and regulations.
X-0
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00. The following are established as reasonable and usual business for
access to the Building: 7:00 a.m. through 7:00 p.m. Monday through Friday,
except for January 1 (New Year's Day), the last Monday in May (Memorial Day),
July 4 (Independence Day), the first Monday in September (Labor Day), the last
Thursday in November (Thanksgiving) and December 25 (Christmas), or as may be
modified by Landlord pursuant to any law. Access to the building at any time
other than 7:00 a.m. through 7:00 p.m.; Monday through Friday (and on holidays
as described above) shall be through utilization of the building card reader
access system.
X-0
00
XXXXXXX X
Special Stipulations
1. Right of First Refusal. Landlord and Tenant agree that, provided
Tenant in is possession of the Premises and is not in default of any of the
terms, covenants and conditions of this Lease, Tenant shall have a right of
first refusal to lease from Landlord any unleased space in the Building on the
first floor of the Building, but subject to other tenant's superior rights (the
"Additional Premises") on the same terms and conditions that Landlord shall
have received and deemed acceptable in a bonafide offer from a third party.
Tenant shall exercise its right of first refusal by written notice to
Landlord within seven (7) business days following receipt of written notice
from Landlord containing the terms of the third party's offer, acceptable to
the Landlord, for the Additional Premises. In the event that Tenant exercises
the right granted herein, Landlord and Tenant shall enter into an amendment to
this Lease to incorporate the Additional Premises and to make the necessary
adjustments to the Basic Rent and similar provisions to this Lease. In the
event Tenant declines to exercise its rights as provided for, or fails to
deliver or fails to deliver notice thereof within the time period stipulated
above, or fails to execute the requisite amendment of this Lease; this right of
first refusal shall lapse and be of no further force and effect. This right of
first refusal shall not be severed from this Lease or separately sold,
assigned, or transferred.
2. Renewal Option. Provided Tenant is in possession of the Premises
and is not in default of any term, covenant or condition of this Lease, Tenant
shall have the option to renew the term of this Lease for one (1) additional
period of five (5) years (the "Renewal Term") to commence immediately upon the
expiration of the initial Lease Term upon the same terms, covenants and
conditions as contained in this Lease except that (i) the Base Rental at the
"Prevailing Market Rate"; (ii) there shall be no abatement of rent; (iii)
Landlord shall not be obligated to construct, pay for, or grant an allowance
with respect to improvements to the premises unless otherwise specifically
provided for in this Lease, and (iv) there shall be no further option to renew
the Lease Term, except as specifically provided herein. The Prevailing Market
Rate shall mean the then current market renewal rental activity for Class A
office space in the Westshore area of Tampa, Florida.
In order to exercise the options granted herein, Tenant shall notify
Landlord in writing, not less than twelve (12) months prior to the expiration
of the initial Lease Term that it is exercising its option to renew the Lease
Term. On receipt of such notice, Landlord will in writing, not less than thirty
(30) days after receipt of a notice from Tenant, notify Tenant what the Base
Rental will be for such Renewal Term. Tenant shall within fifteen (15) days of
Landlord's notice of the Base Rental for such Renewal Term, notify Landlord if
Tenant accepts or disputes such Base Rental. If Tenant notifies Landlord within
the aforesaid fifteen (15) day period that Tenant disputes the Base Rental
quoted by Landlord, the parties shall during the following thirty (30) days
negotiate in good faith to determine the Base Rental for such Renewal Term. If
within said thirty (30) day period the parties are unable to agree on the Base
Rental, then within ten (10) days thereafter, each party shall select a duly
qualified licensed appraiser experienced in appraising
F-1
52
commercial property in the vicinity of the Building who will submit appraisals
for the Premises within thirty (30) days of their appointment. If the
difference between the appraisals is five percent (5%) or less, the Base Rental
shall be determined by the average of the two appraisals. If the difference is
greater than five percent (5%) then the two appraisers shall select a third
qualified appraiser who will submit an appraisal within thirty (30) days
following the submission of the first appraisal. The Base Rental shall then be
the average of the two closest appraisals. The fees of such appraiser shall be
paid by the party appointing the appraiser. The fees of the third appraiser, if
any, shall be shared equally by the parties. In the event the Tenant exercises
the option, Landlord and Tenant shall execute a modification of this Lease
acknowledging said renewal and setting forth the Base Rental.
The option shall be void if at the time of such option Tenant is not
in possession of the Premises or is in default of this Lease or Tenant fails to
deliver the requisite notice thereof within the time period specified. The
option granted herein shall not be severed from the Lease, separately sold,
assigned or transferred.
3. Drive-Thru. Tenant shall be entitled to use a two (2) lane
drive-thru facility in the size, location and appearance as depicted on Exhibit
"H" attached to this Lease (the "Drive-Thru Facility"). The Drive-Thru Facility
shall be deemed part of the Premises for purposes of this Lease except that (i)
no Base Rental shall be applicable to the Drive-Thru Facility; (ii) all costs
of operation, maintenance and repair shall be at Tenant's sole cost and expense
(such that Landlord shall not bear any costs associated with the Drive-Thru
Facility) and; (iii) the Drive-Thru Facility shall not be used for calculation
of the square footage within the Premises Net Rentable Area, Premises Net
Useable Area, Building Net Rentable Area and Tenant Improvement Allowance. The
design and plans and specification for the Drive-Thru Facility shall be
included in the Tenant Improvement Plans and Specifications.
4. Exclusive Use. During the Lease Term, Landlord agrees not the enter
into a lease with another tenant in the Building with a specific permitted use
as a retail bank. This restriction shall immediately expire in the event that
Tenant no longer is using the Premises for a retail bank or is no longer in
occupancy of the Premises.
F-2
53
EXHIBIT G
Commencement Date Stipulation
Pursuant to that certain Lease Agreement (the "Lease) between CRESCENT
RESOURCES, INC., a South Carolina corporation (the "Landlord"), and BAY CITIES
BANK, INC., a Florida corporation (the "Tenant"), dated as of _________________
199__, for certain premises in the Corporate Center at International Plaza
Office Building located at the Northwest corner of the intersection of North
Westshore Boulevard, Tampa, Florida, Landlord and Tenant hereby stipulate and
certify that:
1. The Commencement Date under the Lease is expiration date of the
Lease Term is _______________, 199___, and the expiration date of
the Lease Term is ___________________, ______.
2. Tenant's obligation to pay Rent under the Lease commenced on the
Commencement Date.
The terms and provisions of this Commencement Date Stipulation are
hereby incorporated into the Lease and modify any and all provisions to the
contrary contained therein.
Executed under seal as of the _____ day of __________________________,
199__.
TENANT:
BAY CITIES BANK, INC.
a Florida corporation
[CORPORATE SEAL]
ATTEST: By:
----------------------------------
Name:
--------------------------------- --------------------------------
, Secretary Title: President
---------------------- ----------------------
LANDLORD:
CRESCENT RESOURCES, INC.,
a South Carolina corporation
[CORPORATE SEAL]
ATTEST: By:
----------------------------------
Name:
--------------------------------- --------------------------------
, Secretary Title: President
---------------------- ----------------------
X-0
00
XXXXXXX X
Xxxxx-Xxxx Facility
LEASE.AGR
H-1
