EXHIBIT 10.28
Sublease Agreement
This Sublease (this "Sublease") is entered into as of June 6, 2001
("Effective Date"), between Customer Communications Center, Inc., a Minnesota
corporation ("Sublessor"), as sublandlord, and Cheap Tickets, Inc., a Delaware
corporation ("Subtenant"), as subtenant.
Recitals:
A. Sublessor is tenant under the Long Term Net Lease Agreement (the
"Primary Lease"), dated April 26, 1996, originally between Opus South
Corporation, a Florida corporation, as landlord, and Sublessor. Sublessor
represents to Subtenant that Exhibit A hereto contains a true copy of the
Primary Lease, and that there are no defaults under the Primary Lease by either
party thereto (for purposes hereof, this reference to default shall be to same
which has continued uncured beyond the applicable notice and grace period
therefor stated in the Primary Lease). The premises leased pursuant to the
Primary Lease are the parcel of land situated in Hillsborough County, Florida,
more particularly described on Exhibit B hereto, and the building ("Building")
and all other Improvements thereon (the "Demised Premises").
B. All of the landlord's right, title and interest in the Primary
Lease was assigned by Opus South Corporation to Opus Estates, L.L.C., on
December 31, 1996, and then on December 22, 1997 by Opus Estates, L.L.C. to
Glenborough Properties, L.P. ("Owner"), who presently owns fee title to the
Demised Premises and all of such landlord's interest in the Primary Lease.
C. Sublessor now desires to sublease the Demised Premises to
Subtenant on the terms stated in this Sublease.
Now, therefore, for other good and valuable consideration, and
intending to be legally bound, the parties hereto agree as follows:
I. Sublease.
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X. Xxxxx of Sublease. For and in consideration of the rents,
covenants and agreements in the Primary Lease and in this Sublease, Sublessor
demises and subleases to Subtenant and Subtenant takes and subleases from
Sublessor the Demised Premises with the right and privilege to exclusively
occupy and use the Building and together with all other rights, privileges,
easements, appurtenances, and amenities belonging to or in any way pertaining to
the Demised Premises, upon and subject to the terms of this Sublease and the
terms of the Primary Lease. Notwithstanding anything in this Sublease apparently
to the contrary, except as provided in Section A of Part III hereof, Subtenant
shall have no rights under Sections 1.3 or 1.4 of the Primary Lease or under
Article XXII thereof, which rights are reserved by Sublessor. Subject to the
preceding sentence, Sublessor authorizes and instructs Subtenant to pay Rent
directly to Owner, and to directly deal with Owner as if Subtenant were the
tenant under the Primary Lease. Notwithstanding the foregoing, however,
Subtenant acknowledges that it has no privity
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of contract with Owner, and that Owner's sole obligations under the Lease inure
to Sublessor.
B. Sale of Personalty. Exclusive possession of the Demised Premises
------------------
(subject to the Primary Lease) shall be delivered to Subtenant on the Effective
Date in broom clean condition, with the items within the Demised Premises
described in Exhibit C hereto (the "Personalty") left in place. Various items of
the Personalty are or were formerly leased or financed equipment. Subtenant
agrees to pay to Sublessor within seven (7) days after the Effective Date the
sum of $400,000 as an aggregate purchase price for the Personalty, whereupon
Sublessor shall promptly cancel or buy out all such leases and security
agreements to the extent they cover the Personalty and Sublessor shall deliver
to Subtenant a xxxx of sale (in the form of Exhibit D hereto) transferring
ownership to the Personalty to Subtenant in its "AS-IS, WHERE IS" condition,
with warranty of title and free and clear of all liens and encumbrances.
Notwithstanding the foregoing, and without additional consideration, Sublessor
may retain as its own property and remove from the Demised Premises within seven
(7) days after the Effective Date any or all items of personal property located
on the Demised Premises which are not listed on Exhibit C. Any and all property
not so removed by Sublessor shall belong to Subtenant, who may use or dispose of
same as Subtenant sees fit and at its sole expense.
C. Assumption of Primary Lease. Subtenant assumes and agrees to be
---------------------------
bound by and to observe and perform all of the terms, covenants and conditions
to be kept, observed and performed by Sublessor as tenant under the Primary
Lease accruing on and after the Effective Date, including the obligation to pay
directly to Owner (or as otherwise provided in the Primary Lease) all rent and
Items constituting Additional Rent under the Primary Lease. Subtenant hereby
agrees to indemnify, defend and hold Sublessor harmless from and against any and
all low, cost, damage, expense (including reasonable attorney's fees and court
costs at trial and all appellate levels), liability, claims or causes of action
existing in favor of or asserted by Owner under the Primary Lease arising out of
or relating to Subtenant's failure to timely observe and perform any of the
tenant's obligations under the Primary Lease which arise on or after the
effective Date.
D. Term. Subtenant shall have and hold the Demised Premises for and
----
during a term (the "Term") commencing on the Effective Date and continuing
thereafter until and ending on December 31, 2003, unless the Term is extended as
provided in Section A of Part III of this Sublease or this Sublease is
terminated as provided herein or because the Primary Lease is terminated.
E. Rent. Commencing as of the Effective Date, Subtenant shall pay on
----
Sublessor's behalf all Basic Rent and Additional Rent due and accruing under the
Primary Lease directly to Owner (or as otherwise provided in the Primary Lease)
when and as often as the same become due under the Primary Lease without demand,
deduction or setoff. Within 20 days after the Effective Date, rent, real estate
taxes and other charges payable by the tenant under the Primary Lease relating
to any period before the Effective Date which become due and payable after the
Effective Date and such amounts heretofore paid by Sublessor relating to any
period from and after the Effective Date shall be prorated on a dally basis
between Sublessor and Subtenant so that Sublessor pays all
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such amounts relating to periods prior to the Effective Date and Subtenant pays
all such amounts relating to any part of the Term. The net amount so owed by one
party to the other shall be paid within 30 days after the Effective Date.
If Subtenant fails to timely pay or perform any of the tenant's
obligations under the Primary Lease and Sublessor pays or performs same in
accordance with Section B of Part III of this Sublease, Subtenant shall
reimburse such amounts paid or the actual and reasonable cost of such
performance to Sublessor Immediately upon demand, as additional rent under
this Sublease.
F. Use. The Demised Premises shall be used throughout the Term only
---
for general office use, including a telephone call center related to Subtenant's
travel bookings business and/or for any other use or uses permitted by the
Primary Lease. Subtenant shall, at its own expense, comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities now in force or which hereafter may be in
force, with respect to Subtenant's specific use, occupation or alteration of the
Demised Premises, including without limitation, environmental laws and
regulations (collectively, "Laws"). Subtenant agrees to indemnify, defend and
hold Sublessor harmless from and against any penalty, damage or charge imposed
for any violation by Subtenant, its agents, contractors or employees of any
Laws.
G. Assignment and Subletting. Subtenant shall not assign, mortgage
-------------------------
or hypothecate the subleasehold estate created hereby or any interest therein,
nor may Subtenant sublet the Demised Premises or any portion thereof, without in
each and every instance obtaining the prior written consent of Sublessor and
Owner, which consent by Sublessor may be withheld or conditioned in its sole and
absolute discretion. Neither the sale or acquisition of the stock of Subtenant
nor the merger of Subtenant into or with another corporation shall be deemed a
breach of the foregoing covenant.
H. Alterations and Repairs. Any installation, alterations
-----------------------
construction or modification to the Demised Premises by Subtenant requiring
Owner's approval under the Primary Lease shall additionally require Sublessor's
prior written approval. Sublessor shall either approve or disapprove such
alterations or other changes on the same terms, conditions and within the same
time periods as apply to Owner and are stipulated in the Primary Lease. Due to
Sublessor's potential liability for any such alterations or Improvements under
Section 19.1 of the Primary Lease, Sublessor may withhold such approval in its
sole and absolute discretion. In no circumstances shall Sublessor have any
obligation to Subtenant to in any way maintain, repair, alter or reconstruct any
improvements, equipment, fixtures or personalty in or on the Demised Premises.
Subtenant shall have no responsibility to Sublessor or Owner under Section 19.1
with respect to Improvements or alterations made by Sublessor prior to the
Effective Date.
I. Entry by Sublessor. Subtenant acknowledges that Owner has certain
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rights of access to the Demised Premises as stated in the Primary Lease.
Subtenant agrees that, in addition, Sublessor shall have the same rights of
access to the Demised
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Premises under this Sublease as Owner has under the Primary Lease, except that
Sublessor may also enter the Demised Premises at any time following a default by
Subtenant under this Sublease after the lapse of the applicable grace or cure
period stated in Section M below. Sublessor agrees not to do or permit its
agents, contractors, or employees to do anything during the Term of this
Sublease that would constitute a breach or default by the tenant under the
Primary Lease.
J. Rights under Primary Lease. Subtenant acknowledges and agrees
--------------------------
that the only services, amenities and rights with respect to the Demised
Premises to which Subtenant is entitled under this Sublease are those belonging
to the tenant under the Primary Lease (subject to all the provisions,
restrictions and conditions imposed by the Primary Lease). Sublessor shall have
no liability to Subtenant for any failure of Owner to observe and perform its
obligations as the landlord under the Primary Lease, nor shall any such failure
by Owner entitle Subtenant to any abatement or setoff of any amount payable
under this Sublease, except and only to the extent provided in the Primary
Lease. Notwithstanding the foregoing, upon the reasonable request of subtenant,
Sublessor will demand performance by Owner of its obligations under the Primary
Lease and so long as Subtenant pays the costs and expenses thereof (including,
without limitation, attorneys' fees) Sublessor will commence and prosecute
appropriate judicial proceedings to enforce the tenant's rights and remedies
under the Primary Lease and available at law or in equity. Subtenant hereby
acknowledges that it has no privity of contract with Owner, and that Owner's
obligations under the Lease inure solely to the Sublessor.
K. Indemnification and Insurance. Subtenant agrees to indemnify,
-----------------------------
defend and hold Sublessor harmless from all claims, damages, losses, liabilities
and expenses in connection with loss of life, bodily or personal injury or
property damage occurring (a) on or about the Demised Premises during the Term
and any other period of Subtenant's occupancy of the Demised Premises or (b)
arising from or out of the use or occupancy of the Demised Premises by
Subtenant, its employees, contractors or agents. Subtenant shall provide
Sublessor with certificates evidencing the existence of the insurance coverages
required of the tenant under the Primary Lease prior to the date of Subtenant's
use or occupancy of the Demised Premises, which policies shall name Sublessor
and Owner as additional insureds. Such policies or certificates shall bear
endorsements by which the insurer agrees to notify Sublessor not less than ten
days in advance of any reduction or cancellation of coverage.
L. Surrender of Possession. Upon expiration of the Term or earlier
-----------------------
termination of this Sublease, Subtenant will quit and surrender the Demised
Premises to Sublessor or Owner, as applicable, in the condition required by the
Primary Lease.
M. Default. Each of the following shall constitute a default by
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Subtenant under this Sublease:
1. If Subtenant fails to pay Basic Rent or any other amount
payable by Subtenant under this Sublease or the Primary
Lease when due, and such failure continues for ten days
after receipt of written notice from Owner or Sublessor of
such nonpayment, or
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2. If Subtenant fails to observe or perform any of its
obligations under this Sublease or the Primary Lease when
due, and such failure continues for 20 days after receipt of
written notice from Owner or Sublessor thereof.
Upon the occurrence of any default, Sublessor may, in addition to exercising any
of its legal or equitable remedies, elect to: (1) terminate this Sublease,
whereupon Subtenant will immediately surrender possession of the Demised
Premises and remain liable for all outstanding amounts accrued and owed under
this Sublease and the Primary Lease, or (2) subject to Owner's rights under the
Primary Lease, without terminating this Sublease, re-enter the Demised Premises
and remove all persons and property, either by summary eviction proceedings or
by any other suitable action or proceeding at law, or by self-help lawfully
repossess the Demised Premises, without demand or notice except as required by
law, without being guilty of trespass, and without prejudice to any other right
or remedy of Sublessor or Owner. If this Sublease is terminated without the
Primary Lease being terminated, Sublessor may, at its option, relet the Demised
Premises or any portion thereof (subject to Owner's rights under the Primary
Lease to approve an assignment or subletting), and receive and collect the rents
therefor, applying the same first to the payment of such expenses as Sublessor
may incur in recovering possession of the Demised Premises, including attorneys'
fees, and for putting the Demised Premises into good order or condition, or
preparing or altering the same for re-rental, and all other expenses,
commissions and charges paid, assumed or incurred by Sublessor in or for
reletting the Demised Premises, and Subtenant shall remain liable for any
deficiency in amounts then due or thereafter payable under this Sublease and the
Primary Lease.
N. Limitation of Sublessor's Liability. Unless negligently or
-----------------------------------
intentionally caused by Sublessor or its agents, contractors or employees,
Sublessor shall not be liable for, and, to the extent permitted by law,
Subtenant hereby releases Sublessor and its agents and employees from, all
claims, damages, losses, liabilities and expenses in connection with loss of
life, bodily or personal injury or property damage sustained by Subtenant or its
agents, contractors, employees, invitees, or licensees on or about the Demised
Premises and resulting from any cause whatsoever. Without limiting the
foregoing, unless negligently or intentionally caused by Sublessor or its
agents, contractors or employees, Sublessor shall not be liable for any damage
to Subtenant's property caused by bursting, stoppages, or leaking of water, gas,
sewage or steam pipes, flooding, or by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, ice, frost, steam, excessive heat or cold,
broken glass, odor or noise, or any other cause. All property belonging to
Subtenant or any occupant of the Demised Premises shall be at the risk of
Subtenant, and Sublessor shall not be liable for loss or damage thereto by
reason of theft or misappropriation.
O. Accord and Satisfaction. No payment by Subtenant or receipt by
-----------------------
Sublessor or Owner of a lesser amount than any payment of rent or other charges
herein or in the Primary Lease stipulated shall be deemed to be other than on
Subtenant's account and applied to the earliest stipulated rent or charge, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction, and Sublessor may accept
such check or payment without
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prejudice to Sublessor's right to recover the balance due or pursue any other
remedy provided for in this Sublease or available at law or in equity.
P. Estoppel. Sublessor and Subtenant agree at any time, upon not
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less than 30 days' prior written request, to execute, acknowledge and deliver a
written statement certifying that this Sublease is unmodified and in full force
and effect (or, to the modifications if applicable), the dates to which Rent and
other charges have been paid pursuant to this Sublease, and whether it has any
known claim against the requesting party for a breach of this Lease (or
specifying the nature and extent of each known breach).
Q. Consents and Waivers. Subtenant agrees that it shall be obligated
--------------------
to obtain Sublessor's prior written consent (in addition to Owner's consent),
within the same time periods required for Owner's consent, to any action to
which Owner's consent or waiver would be required under the Primary Lease (this
includes not only matters stated in the Primary Lease as requiring Owner's
approval, but also any deviation from the terms of the Primary Lease requiring
Owner's consent or waiver); provided that where Owner is required not
unreasonably to withhold a consent, then Sublessor likewise agrees not
unreasonably to withhold its consent to the matter or request in question
(except as otherwise stated herein).
II. Subordination and Attornment by Subtenant.
-----------------------------------------
A. Subordination by Subtenant to Third Parties. Subtenant agrees
-------------------------------------------
that this Sublease shall be subordinate to the Primary Lease, any existing
ground leases, mortgages, conditions, easements, restrictions or encumbrances of
record. Subtenant agrees that, upon the request of Sublessor or Owner, it will
subordinate this Sublease, in writing, to any present or future ground lease or
to the lien of any present or future mortgage to a bank, insurance company or
similar commercial lender that may become necessary or desirable from time to
time irrespective of the time of execution hereof or the time of recording of
any such mortgage or ground lease on condition only that the holder of any such
mortgage or ground lease, or any other person claiming thereunder, agrees to
recognize that this Sublease and the rights of Subtenant hereunder shall
continue in full force and effect and that Subtenant's rights and possession of
the Demised Premises shall not be terminated or disturbed unless Subtenant
defaults under this Sublease.
B. Attornment by Subtenant. Subtenant agrees to attorn to Owner
-----------------------
under the Primary Lease as if it were a direct lease between Subtenant and
Owner. If a mortgagee or holder of any ground lease or any person claiming under
a mortgage or ground lease succeeds to the interest of Sublessor in this
Sublease or Owner in the Primary Lease, Subtenant shall recognize and attorn to
the mortgagee or person as landlord under this Sublease or landlord under the
Primary Lease. The word "mortgage" as used herein includes mortgages, deeds of
trust or other similar security instruments and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof.
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C. Acceptance of Payment or Performance and Reservation of Rights.
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Owner shall accept payment or performance of the tenant's obligations under the
Primary Lease from time to time from either or both of Subtenant and Sublessor.
Owner reserves the right to enforce Sublessor's liability as tenant under the
Primary Lease without any prior demand, proceeding or judgment against
Subtenant. Any failure or refusal of Subtenant to perform its obligations under
this Sublease will not constitute a defense or excuse for Sublessor's
nonperformance of the tenant's obligations under the Primary Lease.
III. Extension of Term; Sublessor's Cure Rights and Liabilities
----------------------------------------------------------
A. Assignment or Early Termination of Primary Lease. Sublessor
------------------------------------------------
agrees that if before May 15, 2003, Subtenant obtains Owner's consent to the
assignment of the Primary Lease by Sublessor to Subtenant and Owner's agreement
to release Sublessor and its guarantor from all liability under the Primary
Lease upon such assignment, Sublessor will, upon Subtenant's request, assign its
interest as tenant under the Primary Lease to Subtenant (without having
exercised its early termination right under the Primary Lease) and pay to
Subtenant the sum of $270,000.00.
In the alternative, if by no later than May 15, 2003, Sublessor
receives a written request from Subtenant for a 3-year extension of the Term of
this Sublease, Sublessor shall notify Subtenant on or before May 31, 2003 of
Sublessor's election and agreement to take one of the following two actions:
1. Sublessor will notify Subtenant that Sublessor will exercise
the early termination option in Section 1.3 of the Primary
Lease (the "Termination Option"), and the Term of this
Sublease will not be extended. If Sublessor makes this
election it shall be obligated to exercise the Termination
Option vis a vis Owner so that Subtenant will be free to
negotiate with Owner to continue its occupancy of the
Demised Premises.
2. Sublessor agrees to the 3-year extension of the Term of this
Sublease and Sublessor will not exercise the Termination
Option. Thereupon, the Term of this Sublease shall be
extended from December 31, 2003 to December 31, 2006, on all
the same terms and conditions of this Sublease and the
Primary Lease, including without limitation, rent as
provided in the Primary Lease.
Absent a timely request by Subtenant for a 3-year extension of the Term of this
Sublease, this Sublease shall expire as provided in Section D of Part I of this
Sublease and Sublessor may exercise or refrain from exercising its rights under
Section 1.3 of the Primary Lease in its sole discretion, without imparting any
rights or obligations on Subtenant as a result thereof.
B. Sublessor' Right to Cure. If Subtenant fails to make any payment
------------------------
or observe or perform any other obligation of Subtenant under this Sublease or
the Primary
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Lease before the lapse of the applicable cure period under Section M of Part I
of this Sublease, then Sublessor may (but shall not be obligated to Subtenant
to) make or perform the same, without waiving any default or releasing Subtenant
of any of its obligations under this Sublease. Provided Sublessor gives
Subtenant written notice thereof within 30 days after such performance by
Sublessor, Subtenant shall be liable for all reasonable costs so incurred by
Sublessor, together with interest at the rate of one percent (1%) above the
prime rate from time to time charged by Citibank, N.A. or its successor, to
corporate customers, which interest shall be deemed additional rent and shall be
due and payable to Sublessor within 30 days after demand.
C. Sublessor's Liability. Neither this Sublease nor the existence of
---------------------
this Sublease will relieve Sublessor from liability to Owner for the observance
and performance of the tenant's covenants, duties and obligations under the
Primary Lease. During the term of the Primary Lease, Sublessor will continue to
be directly and primarily liable to Owner for the full observance and
performance of all of the tenant's covenants, duties and obligations under the
Primary Lease, including, without limitation, the payment of rent and real
estate taxes as provided in the Primary Lease. Owner may enforce Sublessor's
liability as tenant under the Primary Lease without any prior demand, proceeding
or judgment against Subtenant. Any failure or refusal of Subtenant to perform
its obligations under this Sublease will not constitute a defense or excuse for
Sublessor's nonperformance of the tenant's obligations under the Primary Lease.
Any acts by Subtenant, its employees, agents, contractors, licensees, subtenants
and concessionaires which violate any of the terms or conditions of the Primary
Lease shall constitute a breach of the Primary Lease by Sublessor. Owner retains
all rights against Sublessor in the Primary Lease for the nonperformance of any
of the tenant's obligations thereunder.
IV. Notices.
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Any notice required or permitted hereunder to be delivered by Sublessor to
Subtenant, or vice versa, shall be in writing and shall be deemed given (a) when
delivered or refused, if delivered personally or by an overnight or other
courier service which verifies delivery, or (b) the second business day after
the postmark of a letter sent by registered or certified mail, return receipt
requested, to the addressee's notice address stated below or at such other U.S.
address as either party may designate by notice given as provided above. Copies
of all such notices and requests from Subtenant to Owner, and vice versa, shall
be concurrency sent as a courtesy to Owner.
To Sublessor: with a copy to:
Federated Department Stores, Inc. Federated Department Stores, Inc.
0 Xxxx Xxxxxxx Xxxxxx 0 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxx 00000
Attn: Real Estate Department Attn: Law Department
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To Subtenant:
Cheap Tickets Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxx Xxxxxx
V. Miscellaneous
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A. Brokers.
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(a) Subtenant warrants and represents to
Sublessor that, other than Paladin Group,
Inc., no other real estate broker and/or
consultant has been involved by Subtenant in
connection with this Sublease and Subtenant
further agrees to indemnify and hold
Sublessor harmless against any and all
claims of any real estate broker and/or
consultant resulting from a breach of the
foregoing warranty and representation.
(b) Sublessor warrants and represents to
Subtenant that, other than Xxxxxxx &
Wakefield, no other real estate broker
and/or consultant has been involved by
Sublessor in connection with this Sublease
and Sublessor further agrees to indemnify
and hold Subtenant harmless against any and
all claims of any real estate broker and/or
consultant resulting from a breach of the
foregoing warranty and representation.
(c) Within 15 days after the Effective Date,
Sublessor shall pay to Paladin Group, Inc.,
a commission equal to $2.50 multiplied by
the rentable square footage of the Demised
Premises (48,840 square feet). Any fees or
commissions payable to Xxxxxxx & Wakefleld
as a result of this Sublease shall be the
obligation of and paid by Sublessor.
B. Entire Agreement; Amendment. This Sublease and the Primary Lease
---------------------------
contain the entire agreement between the parties relating to the Demised
Premises, and there is no other statement, agreement or representation, either
oral or written. No present or past dealings or custom between the parties shall
be permitted to contradict or modify the terms hereof or of the Primary Lease.
No modification of this Sublease shall be binding unless in writing and signed
by both parties. Subtenant's approval (not to be unreasonably withheld) shall be
obtained before Sublessor agrees to any amendment of the Primary Lease while
this Sublease is in force.
C. Interpretation, Severability. The laws of the state of Florida shall
----------------------------
govern the validity, performance and enforcement of this Sublease. As used
herein, the word "including" is not limiting. If any part of this Sublease is
held by any court of competent jurisdiction to be invalid, such judgment shall
not affect or impair any other provision. Headings contained herein are for
convenience only and do not define, limit, construe or
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amplify the terms hereof. Capitalized terms used, but not defined in this
Sublease, shall have the meanings given them in the Primary Lease.
D. Successors and Assigns. The conditions, covenants and agreements
----------------------
contained in this Sublease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
(including successors by merger, reincorporation, or operation of law) and
permitted assigns. All covenants and terms of this Sublease shall run with the
land. This Sublease shall not be recorded.
E. Authority. Each party and the individual(s) executing this Sublease on
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its behalf represent and warrant to the other parties that such individual(s)
have full right, power and authority to execute this Sublease on behalf of the
party indicated and, if such party is an entity rather than a natural person,
that such entity has full corporate, partnership or other power and authority to
enter into this Sublease and has taken all corporate, partnership or other
organizational action necessary to carry out the transaction contemplated
hereby, so that when executed this Sublease constitutes a valid and binding
obligation enforceable against such corporation.
F. Attorney's Fees. If any party institutes legal proceedings in
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connection with the terms, conditions or covenants of this Sublease, the
party(ies) against whom judgment is entered shall pay, in the respective amounts
awarded by the court, all reasonable costs, charges and expenses relative
thereto, including reasonable attorney's fees at all trial and appellate levels,
of the prevailing party.
G. Counterparts. This Sublease may be signed in several counterparts
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with the same effect as if all parties signed the same document. The signature
of a party on any counterpart may be removed and attached to any other
counterpart to form a fully executed original of this Sublease.
Sublessor:
Witness/Attest: Customer Communications Center, Inc.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxx
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Xxxxx X. Xxxxxxxxx, Ass't. Secretary Xxxx X. Xxx, Vice President
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Witness/Attest: Subtenant:
Cheap Tickets, Inc.,
/s/ Xxxxx Xxxxxxxx a Delaware corporation
--------------------------------------
XXXXX XXXXXXXX
By:/s/ Xxx X. Xxxxxxxx
--------------------------------
Print Name: XXX X. XXXXXXXX
--------------------
Title: PRESIDENT & CEO
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Owner's Consent to Sublease
The undersigned ("Owner") is the current holder of the lessor's
interest in the Primary Lease referenced in the above Sublease. Owner hereby
consents to Sublessor subletting the Demised Premises to Subtenant as provided
in such Sublease, which Sublease shall be subject and subordinate in all
respects to the terms and conditions of the Primary Lease. Owner agrees to
accept payment or performance of the tenant's obligations under the Primary
Lease from time to time from either or both of Subtenant and Sublessor. Owner
reserves the right to enforce Sublessor's liability as tenant under the Primary
Lease without any prior demand, proceeding or judgment against Subtenant, and,
notwithstanding the Sublease, Sublessor shall remain liable for the tenant's
obligations under the Primary Lease. Any failure or refusal of Subtenant to
observe or perform the tenant's obligations under the Primary Lease pursuant to
the Sublease will not constitute a defense or excuse for Sublessor's breach of
such tenant's obligations under the Primary Lease.
Owner agrees to concurrently send to Subtenant at its notice address
pursuant to the Sublease courtesy copies of all notices it sends to Sublessor
pursuant to or concerning the Primary Lease. Owner hereby notifies Sublessor and
Subtenant that notices and rent payments to Owner under the Primary Lease
hereafter shall be sent to the following address:
Glenborough Properties, LP.
0000 Xxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Owner represents to Sublessor and Subtenant that: (a) the Primary Lease
currently is in full force and effect and has not been modified; (b) Owner has
given no notice to Sublessor of any breach of the Primary Lease by Sublessor
which has not been cured; (c) Sublessor is current in the payment of rent under
the Primary Lease, and (d) no consent or signature of any other person or entity
(including any mortgagee) is required for Owner to execute and deliver this
Consent to Sublease.
Owner:
Witness/Attest: Glenborough Properties, L.P.,
a California limited partnership
By:
------------------------------ --------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
12
STATE OF FLORIDA )
) SS:
COUNTY OF ____________)
The foregoing instrument was acknowledged before me on June __, 2001,
by general partner of Glenborough Properties, L.P., a California limited
partnership, on behalf of the partnership.
---------------------------------------------
Notary Public in and for the Xxxxx xx Xxxxxxx
00
XXXXX XX XXXX )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me on June 4, 2001, by
Xxxx X. Xxx, Vice President of Customer Communications Center, Inc., a Minnesota
corporation, on behalf of the corporation.
------------------------------------------
Notary Public in and for the Xxxxx xx Xxxx
00
XXXXX XX XXXXXX )
) SS:
COUNTY OF HONOLULU)
The foregoing instrument was acknowledged before me on June 4, 2001, by
Xxx X. Galeotes, President and CEO of Cheap Tickets, Inc., a Delaware
corporation, on behalf of the corporation.
--------------------------------------------
Notary Public in and for the State of Hawaii
15
EXHIBIT B
---------
[Legal Description]
16
EXHIBIT C
---------
Equipment and Furniture Transfer Inventory
I. Computer/Telephone Room/Emergency Power
---------------------------------------
II.
A. Two (2) fifteen (15) ton Liebert air-conditioning units with
connecting lines and roof-top condensers
B. One (1) 225 KVA UPS System with all batteries, connecting lines and
associated equipment
C. One (1) 750 KW Emergency Diesel Powered Generator with all
connecting lines, switch gear, 1,000 gallon diesel fuel tank and
associated equipment
III. Workstation Furniture
---------------------
A. Approximately (but not less than) 400 Steelcase modular
workstations, the majority of which are assembled in clusters of
six (6), including all existing wiring, data cables, chairs and
associated equipment, except that one hundred six (106) Steelcase
Rally chairs will not be included.
IV. Miscellaneous Furniture & Equipment Located in Various Offices,
---------------------------------------------------------------
Training Rooms and Break room throughout the Facility
-----------------------------------------------------
1. Modular Knoll - paneled walls
office chair
2. Modular Knoll
office chair and 2 side chairs
3. Modular Knoll - paneled walls
office chair
4. Raised Stations
modular work surface
2 chairs
2 door cabinet
5. Two modular Knoll workstations, with 2 additional desk and
panels, 4 chairs
6. Storage Room
steel and wood shelving
minimum of 18 four shelf units
17
7. Lobby
3 office chairs
2 glass display cabinets
8. Table and work surface for Applicants
Minimum of 11 chairs
9. 2 side chairs
1 office chair
10. Storage Room
1 - 4 drawer vertical
3 shelves for paper
11. 5 Modular Knoll Office Furniture
2 door steel cabinet
12. 1 - two ped desk
1 - two door shelf
1 desk chairs
13. 1 - 2 ped desk
1 - 2 drawer file
2 chairs
14. Storage Room
2 - four shelf modular units
15. 1 - 2 ped desk
16. Interview Room
1 round table
17. 8 - Knoll Modular panel systems
8 - chairs
2 - two door metal cabinets
1 - 4 shelves
1 - two drawer lateral
18. Knoll Module Office
1 desk chair
19. Storage
4 shelf unit
20. 13 training tables
18
21. 3 overhead projectors
Minimum of 24 chairs
1 - two door metal cabinet
22. 14 training tables
2 - two door metal cabinets
1 - four drawer vertical file
1 - stand
23. Conference Table
9 chairs
24. Conference Table
4 folding tables
6 chairs
25. 3 Knoll Modular desks and panels
2 - two ped desks
5 chairs
Misc. steel shelving units
2 - two door cabinets
2 - four shelf book
26. 21 round tables
72 lunchroom chairs
2 refrigerator
27. 7 - two pedestal desks
1 conference table
3 training room tables
1 bank of 18 personnel lockers
1 bank of 6 personnel lockers
6 chairs
2 Knoll Modular office furniture and multiple panel
systems
28. 9 tables - 8 chairs
29. Office
Knoll Modular office
cabinet and file
credenza
round table and four chairs
1 office chair
2 side chairs
30. 2 Knoll Modular Stations
2 chairs
2 drawer files
19
31. Storage
7 metal shelves
32. 1 - two ped desk
2 chairs
1 - two shelf book
33. 3 - two ped desks
2 - four drawer files
3 chairs
34. Knoll Modular Office
3 chairs
1 - six shelf steel book
1 - two shelf steel book
35. Existing white boards, easels and overhead projection
screens
20
Telecommunications Network/Equipment Inventory
PBX Equipment Inventory
Description Leased Owned
----------- ------ -----
Avaya/Lucent Definity G3r x
Currently configured for: 528 Digital Phones and 39
T1's MAPD/CVLAN x
Centigram/Bay/Point x
CMS and BCMS x
Music on Hold x
Paging System x
Installed Sets Phone Type Quantity Leased Owned
-------------- ---------- -------- ------ -----
Call Master 3 338 x
7406 54 x
7402 34 x
8410 14 x
8110 1 x
Switch Real Estate Board Type Quantity Leased Owned
------------------ ---------- -------- ------ -----
TN767 DS1 Interface 22 x
TN464 DS1 Interface 17 x
8 Port Digital Line 66 x
16 Port Digital Line 1 x
Analog Line 3 x
COT (Central Office Trunk) 1 x
Auxiliary Trunk 2 x
Map D 1 x
Announcement 3 x
Call Classifier 6 x
DS1 Interface 11 x
Miscellaneous Lock & Key - Model #615 x
-------------
Emergency Transfer Panel x
Monitor and Key Board x
Inter alia - Recording x
Equipment
(1) DDM1000 Multiplexor x
(52) Larsecom TNDS x
CSU's
Cabling infrastructure, x
equipment racks
Patch panels (for x
workstation cabling),
patch cables
LAN/WAN Equipment Inventory
(2) Cisco 3640's - 3600 4 slot mod router x
(2) Mem3640-32U128D - 32-128MB Dram upgrade x
(2) Mem3600-8U16FS - 8 to 16 Mb Flash Factory x
(4) NM - 1E1R2W 1 Ethernet, 1TR, 2 Wan x
(4) WIC-1T 1 Port Ser Wan Inter x
(2) NM-1FE-TX 1 Port Fst Eth Net Mod x
(2) Canary Transceiver racks and associated transceivers x
21
EXHIBIT D
---------
XXXX OF SALE
Customer Communications Center, Inc., a Minnesota corporation
("Seller"), for and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration paid by Cheap Tickets, Inc., a Delaware corporation
("Buyer"), the receipt and adequacy of which are hereby acknowledged, has
BARGAINED, SOLD and DELIVERED, and by these presents does BARGAIN, SELL and
DELIVER, unto Buyer all of the installations, furnishings, furniture, building
systems equipment, trade fixtures, lighting fixtures, showcases, mirrors,
carpets, and all other items of personal property not intended for retail sale
which are owned by Seller and are now attached to or located upon the real
property described in Exhibit A, or installed in any improvements situated upon
such real property (except for the Excluded Personalty, collectively the
"Personalty"), together with all assignable warranties relating thereto, if any.
The items listed or described in Exhibit B are specifically excluded from this
Xxxx of Sale and are retained by Seller or the other owner(s) thereof
(collectively, the "Excluded Personalty").
Seller represents and warrants to Buyer that the Personalty is free of
all liens and encumbrances, and that Seller has full right, power and authority
to sell the Personalty.
THE PERSONALTY IS SOLD "AS IS, WHERE-IS", WITH ALL FAULTS, AND, EXCEPT
AS STATED ABOVE, SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS,
WARRANTIES OR GUARANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED,
CONCERNING THE PERSONALTY, INCLUDING, BUT NOT LIMITED TO, (I) THE VALUE,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE
PERSONALTY, (II) THE MANNER OF REPAIR, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF ANY PERSONALTY, AND (III) ANY WARRANTIES THAT MIGHT ARISE BY COMMON
LAW.
EXECUTED and delivered as of __________, 200__.
Customer Communications Center, Inc.
By:
--------------------------------------
Xxxx X. Xxx, Vice President
22
LONG TERM NET LEASE AGREEMENT
OPUS SOUTH CORPORATION - Landlord
CUSTOMER COMMUNICATIONS CENTER, INC. - Tenant
TABLE OF CONTENTS
ARTICLE I TERM OF LEASE........................................................................... 1
Section 1.1 Term of Lease........................................................................... 1
Section 1.2 Early Occupancy......................................................................... 1
Section 1.3 Early Term Expiration Date.............................................................. 2
Section 1.4 Option to Renew......................................................................... 2
Section 1.5 Arbitration............................................................................. 3
ARTICLE II CONSTRUCTION OF IMPROVEMENTS............................................................ 4
Section 2.1 Landlord's Improvements................................................................. 4
Section 2.2 Possession Date; Excused Delay.......................................................... 5
Section 2.3 Possession of Demised Premises.......................................................... 5
Section 2.4 Construction Guaranty................................................................... 6
Section 2.5 Tenant's Acceptance of Demised Premises................................................. 6
Section 2.6 Repair and Maintenance.................................................................. 7
ARTICLE III BASIC RENT.............................................................................. 7
Section 3.1 Basic Rent.............................................................................. 7
Section 3.2 Basic Rent Adjustment................................................................... 8
Section 3.3 Additional Rent......................................................................... 8
Section 3.4 Delinquent Rental Payments.............................................................. 8
ARTICLE IV USE OF DEMISED PREMISES................................................................. 9
Section 4.1 Permitted Use........................................................................... 9
Section 4.2 Preservation of Demised Premises........................................................ 9
Section 4.3 Hazardous Substances.................................................................... 9
Section 4.4 Hazardous Material Representation by Landlord........................................... 11
Section 4.5 Landlord's Hazardous Materials Indemnification.......................................... 11
Section 4.6 Discovery of Hazardous Materials Not Caused by Landlord or Tenant....................... 12
ARTICLE V PAYMENT OF TAXES, ASSESSMENTS, ETC...................................................... 12
Section 5.1 Payment of Impositions.................................................................. 12
Section 5.2 Tenant's Right to Contest Impositions................................................... 13
Section 5.3 Levies and Other Taxes.................................................................. 14
Section 5.4 Evidence of Payment..................................................................... 14
Section 5.5 Escrow for Taxes and Assessments........................................................ 14
Section 5.6 Landlord's Right to Contest Impositions................................................. 15
ARTICLE VI INSURANCE............................................................................... 15
Section 6.1 Tenant's Insurance Obligations.......................................................... 15
Section 6.2 Insurance Coverage...................................................................... 16
Section 6.3 Insurance Provisions.................................................................... 16
Section 6.4 Waiver of Subrogation................................................................... 16
Section 6.5 Tenant's Indemnification of Landlord.................................................... 17
Section 6.6 Unearned Premiums....................................................................... 17
i
Section 6.7 Blanket Insurance Coverage.............................................................. 17
Section 6.8 Landlord's Insurance Obligations........................................................ 17
ARTICLE VII UTILITIES............................................................................... 17
Section 7.1 Payment of Utilities.................................................................... 17
Section 7.2 Additional Charges...................................................................... 18
ARTICLE VIII REPAIRS................................................................................. 18
Section 8.1 Tenant's Repairs........................................................................ 18
Section 8.2 Maintenance............................................................................. 18
Section 8.3 Tenant's Waiver of Claims Against Landlord.............................................. 18
Section 8.4 Prohibition Against Waste............................................................... 19
Section 8.5 Landlord's Obligations with Respect to Roof or Structural Failure....................... 19
Section 8.6 Landlord's Obligation to Reimburse Tenant for Certain Repairs........................... 19
ARTICLE IX COMPLIANCE WITH LAWS AND ORDINANCES..................................................... 19
Section 9.1 Compliance with Laws and Ordinances..................................................... 19
Section 9.2 Compliance with Permitted Encumbrances.................................................. 20
Section 9.3 Tenant's Obligations.................................................................... 20
Section 9.4 Tenant's Right to Contest Laws and Ordinances........................................... 20
ARTICLE X MECHANIC'S LIENS AND OTHER LIENS........................................................ 21
Section 10.1 Freedom from Liens...................................................................... 21
Section 10.2 Landlord's Indemnification.............................................................. 22
ARTICLE XI INTENT OF PARTIES....................................................................... 22
Section 11.1 Net Lease............................................................................... 22
Section 11.2 Entry by Landlord....................................................................... 23
Section 11.3 Interest on Unpaid Amounts.............................................................. 23
ARTICLE XII DEFAULTS................................................................................ 24
Section 12.1 Event of Default........................................................................ 24
Section 12.2 Surrender of Demised Premises........................................................... 25
Section 12.3 Reletting by Landlord................................................................... 25
Section 12.4 Survival of Tenant's Obligations........................................................ 25
Section 12.5 Damages................................................................................. 26
Section 12.6 No Waiver............................................................................... 26
Section 12.7 Landlord's Remedies..................................................................... 26
Section 12.8 Bankruptcy.............................................................................. 27
Section 12.9 Landlord's Default - Offset Rights...................................................... 27
ARTICLE XIII DESTRUCTION AND RESTORATION............................................................. 28
Section 13.1 Destruction and Restoration............................................................. 28
Section 13.2 Application of Insurance Proceeds....................................................... 29
Section 13.3 Continuance of Tenant's Obligations..................................................... 29
Section 13.4 Availability of Insurance Proceeds...................................................... 30
Section 13.5 Completion of Restoration............................................................... 30
ii
Section 13.6 Termination of Lease.................................................................... 30
ARTICLE XIV CONDEMNATION............................................................................ 31
Section 14.1 Condemnation of Entire Demised Premises................................................. 31
Section 14.2 Partial Condemnation/Termination of Lease............................................... 31
Section 14.3 Partial Condemnation/Continuation of Lease.............................................. 32
Section 14.4 Continuance of Obligations.............................................................. 34
Section 14.5 Adjustment of Rent...................................................................... 34
ARTICLE XV ASSIGNMENT, SUBLETTING, ETC............................................................. 34
Section 15.1 Restriction on Transfer................................................................. 34
Section 15.2 Restriction From Further Assignment..................................................... 35
Section 15.3 Tenant's Failure to Comply.............................................................. 35
ARTICLE XVI SUBORDINATION, NONDISTURBANCE, NOTICE TO MORTGAGEE AND ATTORNMENT...................... 36
Section 16.1 Subordination by Tenant................................................................. 36
Section 16.2 Landlord's Default...................................................................... 36
Section 16.3 Attornment.............................................................................. 37
ARTICLE XVII SIGNS................................................................................... 37
Section 17.1 Tenant's Signs.......................................................................... 37
ARTICLE XVIII REPORTS BY TENANT....................................................................... 37
Section 18.1 Annual Statements....................................................................... 37
ARTICLE XIX CHANGES AND ALTERATIONS................................................................. 37
Section 19.1 Tenant's Changes and Alterations........................................................ 37
ARTICLE XX MISCELLANEOUS PROVISIONS................................................................ 40
Section 20.1 Entry by Landlord....................................................................... 40
Section 20.2 Exhibition of Demised Premises.......................................................... 40
Section 20.3 Indemnification......................................................................... 40
Section 20.4 Notices................................................................................. 41
Section 20.5 Quiet Enjoyment......................................................................... 42
Section 20.6 Landlord's Continuing Obligations....................................................... 42
Section 20.7 Estoppel................................................................................ 43
Section 20.8 Memorandum of Lease..................................................................... 43
Section 20.9 Severability............................................................................ 43
Section 20.10 Successors and Assigns.................................................................. 44
Section 20.11 Captions................................................................................ 44
Section 20.12 Relationship of Parties................................................................. 44
Section 20.13 Entire Agreement........................................................................ 44
Section 20.14 No Merger............................................................................... 44
Section 20.15 Possession and Use...................................................................... 44
Section 20.16 No surrender During Lease Term.......................................................... 44
Section 20.17 Surrender of Demised Premises........................................................... 45
iii
Section 20.18 Holding Over............................................................................ 45
Section 20.19 Survival................................................................................ 45
Section 20.20 Attorneys' Fees......................................................................... 45
Section 20.21 Landlord's Limited Liability............................................................ 46
Section 20.22 Radon Gas............................................................................... 46
Section 20.23 Broker's................................................................................ 46
Section 20.24 Waiver of Jury Trial.................................................................... 46
ARTICLE XXI GUARANTY BY FINGERHUT COMPANIES, INC.................................................... 46
Section 21.1 Guaranty................................................................................ 46
ARTICLE XXII OPTION TO PURCHASE...................................................................... 47
Section 22.1 Option to Purchase...................................................................... 47
Section 22.2 Purchase Price.......................................................................... 47
Section 22.3 Title Evidence.......................................................................... 47
Section 22.4 Phase I Environmental Report............................................................ 47
Section 22.5 Current Survey.......................................................................... 47
Section 22.6 Uniform Commercial Code................................................................. 48
Section 22.7 Cure of Title and Survey Defects........................................................ 49
Section 22.8 Permitted Exceptions.................................................................... 49
Section 22.9 Closing Date............................................................................ 49
Section 22.10 Landlord's Obligations at Closing....................................................... 49
Section 22.11 Tenant's Obligations at Closing......................................................... 50
Section 22.12 Closing Costs........................................................................... 51
Section 22.13 Prorations.............................................................................. 51
Section 22.14 Option Not to be Separated from Lease................................................... 51
ARTICLE XXIII EXTRA TENANT IMPROVEMENTS............................................................... 51
Section 23.1 Extra Tenant Improvements............................................................... 51
iv
EXHIBITS
Exhibit "A" Legal Description and Permitted Encumbrances
Exhibit "B" Plans and Outline Specifications
Exhibit "C" Construction Schedule
Exhibit "D" Absolute and Unconditional Lease Guaranty
Exhibit "E" EXTRAS
1
LONG TERM NET LEASE AGREEMENT
THIS AGREEMENT OF LEASE (the "Lease Agreement"), made this _____ day of
April, 1996, by and between OPUS SOUTH CORPORATION, a Florida corporation
("Landlord") and CUSTOMER COMMUNICATIONS CENTER INC., a Minnesota corporation
("Tenant").
WITNESSETH:
Landlord, for and in consideration of the rents, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, its
successors and assigns, to be paid, kept, observed and performed, has leased,
rented, let and demised, and by these presents does lease, rent, let and demise
unto Tenant, and Tenant does hereby take and hire, upon and subject to the
conditions and limitations hereinafter expressed, all that parcel of land
situated in the City of Tampa, County of Hillsborough and State of Florida,
described in Exhibit "A" attached hereto and made a part hereof, together with
any appurtenant easements described in said Exhibit "A" (the "Land"), together
with all improvements located on and to be constructed thereon. Landlord's
Improvements (as defined in Article II) and all other improvements, machinery,
equipment, fixtures and other property, real, personal or mixed (except Tenant's
trade fixtures) installed or located thereon, together with all additions,
alterations and replacements thereof are hereinafter referred to as the
"Improvements." The Land and the Improvements are hereinafter referred to as the
"Demised Premises." The Demised Premises are subject to the easements,
restrictions, reservations and other matters (collectively, the "Permitted
Encumbrances") set forth in said Exhibit "A". The structures located upon and
being a part of the Demised Premises which are constructed for human occupancy
or for storage of goods, merchandise, equipment, or other personal property are
collectively called the "Building."
ARTICLE I
TERM OF LEASE
Section 1.1 Term of Lease. The term of this Lease Agreement shall commence
on the later of (a) January 1, 1997, or (b) the date of substantial completion
(as hereinafter defined) of Landlord's Improvements and delivery of possession
of the Demised Premises and the substantially completed Landlord's Improvements
to Tenant (the "Commencement Date"), and shall end ten (10) years thereafter,
unless sooner terminated as provided herein or unless properly extended for the
Renewal Term (as hereinafter defined). The initial term of the Lease Agreement,
as set forth above, is sometimes hereinafter referred to as the "Initial Term."
Section 1.2 Early Occupancy. Without adjusting the Commencement Date of
this Lease Agreement or the Initial Term of this Lease Agreement, Tenant shall
be permitted to occupy and use the Demised Premises for the period from and
after the Possession Date (as hereinafter defined) to the Commencement Date (the
"Early Occupancy Period") subject to all terms and conditions of this Lease
Agreement, including, but not limited to Tenant's obligation to pay all
Additional Rent (as hereinafter defined) and all other amounts payable by Tenant
hereunder which may be payable or accrue during the Early Occupancy Period;
provided, however, during the Early Occupancy Period Tenant shall not be
obligated to pay Basic Rent (as
1
hereinafter defined) to Landlord. The Commencement Date shall remain the same
regardless of any change in the Possession Date from August 1, 1996.
Section 1.3 Early Term Expiration Date. Notwithstanding anything contained
in Section 1.1 of this Lease Agreement, Tenant may elect to accelerate the
expiration of the Initial Term of this Lease Agreement from the date specified
in Section 1.1 hereof to the last day of the eighty-fourth (84th) month
following the Commencement Date (the "Early Term Expiration Date"), so that the
Initial Term of this Lease Agreement shall expire on the Early Term Expiration
Date, by (a) providing Landlord with written notice on or before a date which is
one hundred eighty (180) days prior to the Early Term Expiration Date (the
"Early Term Expiration Notification Date") (time being of the essence with
respect to such notice), of Tenant's election to accelerate the expiration of
the Initial Term of this Lease Agreement to the Early Term Expiration Date, and
(b) paying a termination fee in consideration of Landlord's agreement to so
accelerate the expiration of the Initial Term of this Lease Agreement to the
Early Term Expiration Date in an amount equal to Two Hundred Seventy Thousand
and No/100ths Dollars ($270,000.00) (the "Early Term Expiration Fee"), which
amount shall be paid concurrently with the written notification delivered to the
Landlord on or before the Early Term Expiration Notification Date. The Early
Term Expiration Fee shall not be deemed to be rent payable by Tenant hereunder,
but rather, a payment by Tenant in consideration of Landlord's agreement to
accelerate the expiration of the Initial Term of this Lease Agreement as
provided in this Section 1.3.
Section 1.4 Option to Renew. Tenant shall have the right, to be exercised
as hereinafter provided, to extend the term of this Lease Agreement for one (1)
extension period of ten (10) years, such period sometimes hereinafter referred
to as the "Renewal Term" upon the following terms and conditions and subject to
the limitations hereinafter set forth:
(a) That at the time hereinafter set forth for the exercise of the
Renewal Term or the commencement of the Renewal Term, as the case may be,
this Lease Agreement shall be in full force and effect, and Tenant shall
not be in default in the performance of any of the terms, covenants and
conditions herein contained which has not been remedied within the cure
period in this Lease Agreement as of the exercise of the Renewal Term or
the commencement of the Renewal Term, as the case may be. It is provided,
however, that Landlord, at Landlord's sole option, may elect to waive this
condition and any default which may exist on the part of Tenant, as
Landlord may determine, in Landlord's sole and absolute discretion.
(b) Except as otherwise specifically provided in this Section 1.4,
the Renewal Term shall be upon the same terms, covenants and conditions
contained in this Lease Agreement except the Basic Rent for each year of
the Renewal Term shall be equal to the annual fair market Basic Rent for
the Demised Premises including all buildings, structures and fixtures
erected thereon, together with all additions, alterations and replacements
thereof (except Tenant's trade fixtures, machinery and equipment and except
all alterations constructed by Tenant at Tenant's sole cost and expense),
but in no event shall such annual fair market Basic Rent be less than the
annual Basic Rent payable by Tenant during the last year of the Initial
Term of this Lease Agreement. All other payments on the part of Tenant to
be made as provided in this Lease Agreement shall
2
continue to be paid during the Renewal Term including, but without
limitation, all payments of Additional Rent as required herein. Landlord
and Tenant shall endeavor to agree upon the fair market annual Basic Rent
for the entire Renewal Term for a period of thirty (30) days following the
date of Tenant's delivery of the Renewal Notice (as hereinafter defined).
Any agreement reached by the parties with respect to such annual fair
market Basic Rent for the Renewal Term shall be expressed in writing and
shall be executed by the parties and a copy thereof delivered to each of
the parties. Should Landlord and Tenant fail to agree within said thirty
(30) day period upon the annual fair market Basic Rent for the Renewal
Term, then such annual fair market Basic Rent shall be determined once for
the entire Renewal Term by arbitration in accordance with the provisions of
Section 1.5 hereof; provided, however, in no event shall the annual fair
market Basic Rent for any year in the Renewal Term as determined by such
arbitration be less than the annual Basic Rent paid by Tenant under this
Lease Agreement for the last year of the Initial Term hereof.
(c) The annual Basic Rent during the Renewal Term shall be payable in
equal monthly installments equal to one-twelfth (1/12th) of the annual
Basic Rent as established for the Renewal Term, in advance on the first day
of each calendar month during the Renewal Term.
(d) Tenant shall exercise its right to extend the term of this Lease
Agreement for the Renewal Term by notifying Landlord, in writing, of its
election to exercise the right to renew and extend the term of this Lease
Agreement for the Renewal Term on or before April 1, 2006, time being of
the essence with respect to such notice (the "Renewal Notice").
(e) There shall be no further additional right to renew this Lease
Agreement other than as herein set forth. Any termination of this Lease
Agreement shall terminate the right of renewal contained hereunder.
Section 1.5 Arbitration. Any determination of the annual fair market Basic
Rent for the Renewal Term required by or arising under the provisions of Section
1.4 hereof requiring arbitration shall be carried on and concluded in accordance
with the following provisions:
(a) In each case where it shall become necessary to resort to
arbitration, and the subject of the arbitration is to determine the annual
fair market Basic Rent for the Renewal Term, all arbitrators appointed by
or on behalf of either party or appointed pursuant to the provisions hereof
shall be MAI members of the American Institute of Real Estate Appraisers of
improved commercial industrial real estate in the Tampa, Florida,
metropolitan area and be devoting substantially all of their time to
professional appraisal work at the time of appointment and be in all
respects impartial and disinterested.
(b) The party desiring such arbitration shall give written notice to
that effect to the other party, specifying in such notice the name, address
and professional qualifications of the person designated to act as
arbitrator on its behalf. Within ten (10) days after service of such
notice, the other party shall give written notice to the party
3
desiring such arbitration specifying the name, address and professional
qualifications of the person designated to act as arbitrator on its behalf.
If the two arbitrators so selected cannot agree within fifteen (15)
business days after the appointment of the second arbitrator, the two
arbitrators shall, within ten (10) business days thereafter select a third
arbitrator. The three arbitrators as then so chosen shall undertake to
render a decision within thirty (30) days after the appointment of such
third arbitrator, and in the event that the three arbitrators cannot agree,
then the decision of any two of the three arbitrators shall be deemed
binding upon the parties. Each party shall pay the fees and expenses of the
arbitrator appointed by or on behalf of such party, and the fees and
expenses of the third arbitrator shall be borne equally by both parties. If
the party receiving a request for arbitration fails to appoint its
arbitrator within the time above specified, then either party on behalf of
both parties may request such appointment of such second or third
arbitrator, as the case may be, by application to any judge of the Circuit
Court of Hillsborough County, Florida, upon ten (10) days prior written
notice to the other party. The arbitrators so selected shall have all
rights and powers conferred on them by the Florida Arbitration Code, and,
except as otherwise provided herein, the arbitration proceeding shall be
carried and governed by such code.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS
Section 2.1 Landlord's Improvements. Landlord agree to furnish at
Landlord's sole cost and expense all of the material, labor and equipment for
the construction on the Land of the improvements specified on the Plans and
Outline Specifications (the "Plans and Specifications") which are attached
hereto or described on and made a part hereof as Exhibit "B" ("Landlord's
Improvements"). Landlord's Improvements shall be constructed in a good and
workmanlike manner in accordance with the Plans and Specifications and Landlord
agrees to complete the construction thereof in accordance with all applicable
federal, state, local and governmental codes (including building codes),
statutes, laws, rules and regulations as in effect and interpreted on the date
that all of the applicable building permits for Landlord's Improvements have
been received (the "Permit Date"). If there occurs any change in any such
applicable codes (including building codes) statutes, laws, rules or regulations
or the interpretation or enforcement thereof between the Permit Date and the
Possession Date then (i) if such change is not caused by any change requested in
Landlord's Improvements by Tenant and as a result of such change Landlord will
be unable to obtain a certificate of occupancy for Landlord's Improvements, then
Landlord shall undertake to comply with any such change at Landlord's sole cost
and expense, (ii) if such change results from a change in Landlord's
Improvements requested by Tenant and such change prevents the obtaining of a
certificate of occupancy for Landlord's Improvements, then the costs associated
with such change shall be borne by Tenant, and (iii) if such change does not
result in any inability to obtain a certificate of occupancy for Landlord's
Improvements, then Landlord shall have no obligation to cause Landlord's
Improvements to comply with any such change occurring after the Permit Date.
Construction of Landlord's Improvements shall take place in accordance with
the construction schedule attached hereto as Exhibit "C" (the "Construction
Schedule"). The Construction Schedule is based upon the following deliveries of
equipment by Tenant to Landlord on or before the following dates: UPS System,
May 10, 1996; Auto Transfer Switch,
4
May 15, 1996; TVSS, June 1, 1996; Emergency Generator, June 25, 1996. To the
extent that Tenant delays the delivery of any of the aforesaid items of
equipment beyond the date above specified, such delay shall entitle Landlord to
claim an "Excused Delay" (as hereinafter defined) equal to the number of days
which such delinquent delivery delays construction of Landlord's Improvements.
Tenant shall pay to Landlord all increased costs or damages incurred by Landlord
attributable to delays caused by Tenant (provided, however, Tenant shall not be
liable for Landlord's increased costs or damages resulting from delays in
delivery of the aforesaid items of equipment).
Section 2.2 Possession Date; Excused Delay. Landlord shall diligently
proceed with the construction of the Landlord's Improvements and substantially
complete the same ready for Tenant's occupancy (provided, however, substantial
completion shall not require the delivery of a certificate of occupancy for
Landlord's Improvements if such certificate of occupancy is not obtainable
because of Tenant's delay in installing Tenant's furniture, fixtures or systems
within Landlord's Improvements) and deliver possession thereof to Tenant on or
before August 1, 1996 (the "Possession Date"); provided, however, if delay is
caused or contributed to by act or neglect of Tenant, or those acting for or
under Tenant, labor disputes, casualties, acts of God or the public enemy,
governmental embargo restrictions, shortages of fuel, labor or building
materials, action or non-action of public utilities, or of local, state or
federal governments affecting the work, or other causes beyond Landlord's
reasonable control, then the time of completion of said construction shall be
extended for the additional time caused by such delay, provided that Landlord
notifies Tenant of such delay as soon as possible, but not later than within
five (5) business days of the Landlord's becoming aware of such delay. Such
delays are each hereinafter referred to as an "Excused Delay."
Section 2.3 Possession of Demised Premises. Tenant shall, not later than
April 22, 1996, advise Landlord of required color selections. Tenant shall be
responsible for Landlord's increased cost of labor and materials if any, and
loss of rent, arising out of delay in the completion of the Demised Premises
caused by Tenant's failure to comply in a timely manner with the foregoing
schedule. Except as provided for in Section 2.2, if the Landlord's Improvements
are not substantially completed on January 1, 1997, subject to extension for
Excused Delays, Tenant may, but need not, terminate this Lease upon written
notice to Landlord or occupy the portion of same that is ready for occupancy,
and in the event of such occupancy Tenant shall pay to Landlord the pro rata
portion of the full Basic Rent and the pro rata portion of the full amount of
other obligations to be paid by Tenant hereunder equitably based upon the value
and area of the Demised Premises occupied by Tenant. If Tenant occupies any
portion of the Demised Premises prior to substantial completion of the
Landlord's Improvements the terms of this Lease shall apply to such occupancy or
use of the Demised Premises by Tenant. Basic Rent or a portion thereof provided
above shall commence on the Commencement Date, and the payment of other
obligations to be paid by Tenant, including, but not limited to, all Additional
Rent, shall commence upon the Possession Date. The failure of Tenant, to take
possession of or to occupy the Demised Premises or any portion thereof from and
after the Possession Date or the Commencement Date, as the case may be, shall
not, unless Tenant has terminated the Lease as provided in this Section 2.3,
serve to relieve Tenant of said obligations or delay payments by Tenant to
Landlord Tenant shall be allowed not less than 30 days prior to the Possession
Date to install its machinery, equipment, fixtures and other personal property
on the Demised Premises during the final stages of completion of construction
provided that Tenant does not thereby
5
materially interfere with the completion of construction or occasion any labor
dispute as a result of such installations and provided further that Tenant does
hereby agree to assume all risk of loss or damage to such machinery, equipment,
fixtures and other personal property, and to indemnify, defend and hold harmless
Landlord from any loss or damage to such machinery, equipment, fixtures and
personal property, and all liability, loss or damage arising from any injury to
the property of Landlord, or its contractors, subcontractors or materialmen, and
any death or personal injury to any person or persons to the extent arising out
of such installations, except for liability, loss or damage caused by Landlord's
gross negligence or willful misconduct. Delay in putting Tenant in possession of
the Demised Premises shall not serve to extend the term of this Lease Agreement
or to make Landlord liable for any damages arising therefrom.
In the event the Possession Date does not occur on or before Aug 21, 1996,
subject to extension for Excused Delays, then in such event Landlord, as
liquidated damages for such delay, shall provide to Tenant a credit against the
Basic Rent due under this Lease commencing on the Commencement Date equal to the
amount of $3,000 for each day after August 21, 1996, subject to extension for
Excused Delays, that the Possession Date is not achieved by Landlord, subject to
a maximum, aggregate credit of $396,000. The foregoing liquidated damages shall
be Tenant's sole and exclusive damages in the event of a delay in the Possession
Date or the Commencement Date, and Tenant shall not be entitled to any other
damages or remedies whatsoever (except for Tenant's right of termination as
contained in this Section 2.3), and the parties agree that said liquidated
damages are not a penalty and have been agreed upon because of the difficulty
and uncertainty of calculating Tenant's damages as of the date hereof.
Section 2.4 Construction Guaranty. Landlord guarantees the Landlord's
Improvements against defective workmanship and/or materials for a period of one
year from the date of substantial completion of Landlord's Improvements, and
Landlord agrees, at its sole cost and expense, to repair or replace any
defective item occasioned by poor workmanship and/or materials during said one-
year period. The Landlord's Improvements shall be considered substantially
completed at such time as the municipality having jurisdiction thereof issues a
certificate of occupancy permitting Tenant to occupy the Landlord's Improvements
or takes such other action as may be customary to permit occupancy or use
thereof, provided, however, the issuance of a certificate of occupancy or such
other action as may be customary to permit occupancy or use thereof shall not be
a condition to payment of rent or commencement of the term if failure to secure
such certificate or action is caused by the act or neglect of Tenant. From and
after the expiration of the one year guaranty of Landlord against defective
workmanship and materials, Landlord agrees to cooperate with Tenant in the
enforcement by Tenant, at Tenant's sole cost and expense, of, and at Tenant's
request to assign to Tenant, any express warranties or guaranties of workmanship
or materials given by subcontractors or materialmen that guarantee or warrant
against defective workmanship or materials for a period of time in excess of the
one-year period described above and to cooperate with Tenant in the enforcement
by Tenant at Tenant's sole cost and expense, of any service contracts that
provide service, repair or maintenance to any item incorporated in the Building
for a period of time in excess of such one-year period.
Section 2.5 Tenant's Acceptance of Demised Premises. Within a period of
120 days after the Possession Date, Tenant shall notify Landlord, in writing, of
all portions of the Landlord's Improvements which are incomplete, and Landlord
shall forthwith complete such items in good faith and with due diligence within
60 days of such notice.
6
Section 2.6 Repair and Maintenance. Save and except for (i) the one year
guaranty against defective items occasioned by poor workmanship and/or materials
referred to in Section 2.4 above, (ii) the incomplete items referred to in
Section 2.5 above, (iii) the obligations of Landlord to replace certain portions
of the Demised Premises as specifically contained in Section 8.5 of this Lease,
and (iv) the obligations of Landlord to reimburse Tenant for certain repairs
made by Tenant to the Demised Premises during the last three (3) years of the
Initial Term or the Renewal Term, as the case may be, as contained in Section
8.6 of this Lease, Tenant upon commencement of the term shall have and hold the
Demised Premises as the same shall then be without any liability or obligation
on the part of Landlord for making any alterations, improvements or repairs of
any kind in or about the Demised Premises for the term of this Lease Agreement,
or any extension or renewal thereof, except as specifically provided in Sections
2.4, 2.5, 8.5 and 8.6 hereof, Tenant agrees to maintain the Demised Premises and
all parts thereof in a good and sufficient state of repair as required by the
provisions of this Lease Agreement.
ARTICLE III
BASIC RENT
Section 3.1 Basic Rent. In consideration of the leasing of the Demised
Premises and the construction of the Landlord's Improvements referred to in
Article II hereof, Tenant covenants to pay Landlord, without previous demand
therefore and without any right of setoff or deduction whatsoever, at the office
of Landlord at:
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
or at such other place as Landlord may from time to time designate in writing, a
rental for the Initial Term of this Lease as follows (the "Basic Rent"):
(a) From the Commencement Date through and including the twelfth
(12th) month following the Commencement Date, an annual Basic Rent in the
amount of Three Hundred Eighty-Five Thousand Eight Hundred Thirty-Six and
00/100ths Dollars ($385,836.00) per year, payable monthly, in advance, in
equal installments of Thirty-Two Thousand One Hundred Fifty-Three and
00/100ths Dollars ($32,153.00);
(b) Commencing as of the thirteenth (13th) month following the
Commencement Date and continuing through and including the sixtieth (60th)
month following the Commencement Date, an annual Basic Rent in the amount
of Four Hundred Thirty-Four Thousand Six Hundred Seventy-Six and 00/100ths
Dollars ($434,676.00) per year, payable monthly, in advance, in equal
installments of Thirty-Six Thousand Two Hundred Twenty-Three and 00/100ths
Dollars ($36,223.00); and
(c) Commencing as of the sixty-first (61st) month following the
Commencement Date and continuing through and including the one hundred
twentieth (120th) month following the Commencement Date, an annual Basic
Rent in the amount of Five Hundred Thousand Six Hundred Ten and 00/100ths
Dollars($500,610.00) per year, payable monthly, in advance, in equal
installments of Forty-One Thousand Seven Hundred Seventeen and 50/100ths
Dollars ($41,717.50).
7
The Basic Rent shall be payable commencing on the Commencement Date and
continuing on the first day of each month thereafter for the succeeding months
during the balance of the Initial Term.
Section 3.2 Basic Rent Adjustment. If the term of this Lease Agreement
does not commence on the first clay of a calendar month or end on the last day
of a calendar month, the installment of Basic Rent for the partial calendar
month at the commencement or the termination of the term shall be prorated on
the basis of the number of days of the term within such calendar month.
Section 3.3 Additional Rent. Except as specifically provided herein, the
Basic Rent shall be absolutely net to Landlord so that this Lease Agreement
shall yield, not to Landlord, the Basic Rent specified in Section 3.1 in each
year of the term of this Lease Agreement and, except as specifically provided
herein, that all Impositions (a hereinafter defined), insurance premiums,
utility charges, maintenance, repair and replacement expenses, all expenses
relating to compliance with laws, other than laws governing the construction of
Landlord's Improvements to the extent that compliance with such is the
obligation of Landlord as provided in Section 2.1 hereof, and all other costs,
fees, charges, expenses, reimbursements and obligations of every kind and nature
whatsoever relating to the Demised Premises (excepting only Landlord's portion
of the proration of real estate taxes and special assessments for the first and
last years of the term of this Lease Agreement referred to in Section 5.1 and
certain taxes of Landlord referred to in the last sentence of Section 5.3 of
this Lease Agreement) which may arise or become due during the term (or the
Early Occupancy Period) or by reason of events occurring during the term (or the
Early Occupancy Period) of this Lease Agreement shall be paid or discharged by
Tenant (all such items being sometimes hereinafter collectively referred to as
"Additional Rent"). In the event Tenant fails to pay or discharge any
Imposition, which is Tenant's obligation hereunder, insurance premium, utility
charge, maintenance repair or replacement expense which it is obligated to pay
or discharge, Landlord may, but shall not be obligated to pay the same, and in
that event Tenant shall immediately reimburse Landlord therefore and pay the
same as Additional Rent, and Tenant hereby agrees to indemnify, defend and save
Landlord harmless from and against such Impositions, costs and expenses which
are Tenant's obligations hereunder.
Section 3.4 Delinquent Rental Payments. All payments of Basic Rent and
Additional Rent shall be payable without previous demand therefor and without
any right of setoff or deduction whatsoever, except as specifically provided in
Sections 2.3 and 12.9 hereof, and in case of nonpayment of any item of
Additional Rent by Tenant when the same is due, Landlord shall have, in addition
to all its other rights and remedies, all of the rights and remedies available
to Landlord under the provisions of this Lease Agreement or by law in the case
of nonpayment of Basic Rent. The performance and observance by Tenant of all the
terms, covenants, conditions and agreements to be performed or observed by
Tenant hereunder shall be performed and observed by Tenant at Tenant's sole cost
and expense. Any installment of Basic Rent or Additional Rent or any other
charges payable by Tenant under the provisions hereof which shall not be paid
when due or within ten days after notice of such delinquency shall bear interest
at an annual rate equal to two percentage points per annum in excess of the
published "prime rate" or "base rates" of interest charged by NationsBank, N.A.
(South) (or similar institution if said bank shall cease to exist or to publish
such a prime rate) from the date when the same is due hereunder until the same
shall be paid, but in no event in excess of the maximum
8
lawful rate permitted to be charged by Landlord against Tenant. Said rate of
interest is sometimes hereinafter referred to as the "Maximum Rate of Interest."
Notwithstanding the foregoing sentence, in no event shall Landlord be obligated
to provide Tenant with more than two (2) notices of Tenant's delinquency in the
payment of Basic Rent or Additional Rent under this Section 3.4 in any calendar
year, and after delivery by Landlord of two (2) such notices of delinquency in
any calendar year during the term of this Lease, any subsequent delinquency in
such calendar year shall not require the giving of notice prior to Landlord's
imposition of default interest as provided in this Section 3.4.
ARTICLE IV
USE OF DEMISED PREMISES
Section 4.1 Permitted Use. The Demised Premises including all buildings
or other improvements hereafter erected upon the same shall be used solely for
office and telemarketing purposes and purposes reasonably related thereto and no
other use or purpose. Tenant shall not use or occupy the same, or knowingly
permit them to be used or occupied, contrary to any statute, rule, order,
ordinance, requirement or regulation applicable thereto, or in any manner which
would violate any certificate of occupancy affecting the same, or which would
make void or voidable any insurance then in force with respect thereto or which
would make it impossible to obtain fire or other insurance thereon required to
be furnished hereunder by Tenant, or which would cause structural injury to the
improvements or cause the value or usefulness of the Demised Premises, or any
portion thereof, substantially to diminish (reasonable wear and tear expected),
or which would constitute a public or private nuisance or waste, and Tenant
agrees that it will promptly, upon discovery of any such use, take all necessary
steps to compel the discontinuance of such use.
Section 4.2 Preservation of Demised Premises. Tenant shall not use,
suffer, or permit the Demised Premises, or any portion thereof, to be used by
Tenant, any third party or the public in such manner as might reasonably tend to
impair Landlord's title to the Demised Premises, or any portion thereof, or in
such manner as might reasonably make possible a claim or claims of adverse usage
or adverse possession by the public, as such, or third persons, or of implied
dedication of the Demised Premises, or any portion thereof. Nothing in this
Lease Agreement contained and no action nor inaction by Landlord shall be deemed
or construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Demised Premises.
Section 4.3 Hazardous Substances. Tenant shall at all times and in all
respects comply with all federal, state and local laws, ordinances and
regulations ("Hazardous Materials Laws") relating to the industrial hygiene,
environmental protection or the use, analysis, generation, manufacture, storage,
presence, disposal or transportation of any oil, flammable explosives, asbestos,
urea formaldehyde, radioactive materials or waste, or other hazardous toxic,
contaminated or polluting materials, substances or wastes, including without
limitation any "hazardous substances," "hazardous wastes," "Hazardous materials"
or "toxic substances" under any such laws, ordinances or regulations
(collectively, "Hazardous Materials").
9
Tenant shall at its own expense procure, maintain in effect and comply with
all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Tenant's use of the Demised Premises,
including, without limitation, discharge of (appropriately treated) materials or
waste into or through any sanitary sewer system serving the Demised Premises,
but excluding conditions of any permits, licenses and other governmental
regulatory approvals required by reason of the condition of the Demised Premises
prior to Tenant's occupancy thereof. Except as discharged into the sanitary
sewer in strict accordance and conformity with all applicable Hazardous
Materials Laws, Tenant shall cause any and all Hazardous Materials to be removed
from the Demised Premises and transported solely by duly licensed haulers to
duly licensed facilities for final disposal of such Hazardous Materials and
wastes. Tenant shall in all respects, handle, treat, deal with and manage any
and all Hazardous Materials, deposited, stored or used on, in, under or about
the Demised Premises by or on behalf of Tenant in complete conformity with all
applicable Hazardous Materials laws and prudent industry practices regarding the
management of such Hazardous Materials. All reporting obligations with respect
to such Hazardous Materials imposed by Hazardous Materials Laws are solely the
responsibility of Tenant. Upon expiration or earlier termination of this Lease,
Tenant shall cause all Hazardous Materials, deposited, stored or used on, in,
under or about the Demised Premises by or on behalf of Tenant to be removed from
the Demised Premises and transported for use, storage or disposal in accordance
with and in complete compliance with all applicable Hazardous Materials Laws.
Tenant shall not take any remedial action in response to the presence of any
Hazardous Materials in, on, about or under the Demised Premises or in any
Improvement situated on the Land, nor enter into any settlement agreement,
consent decree or other compromise in respect to any claims relating to any
Hazardous Materials in any way connected with the Demised premises or the
Improvements on the Land without first notifying Landlord of Tenant's intention
to do so and affording Landlord ample opportunity to appear, intervene or
otherwise appropriately assert and protect Landlord's interest with respect
thereto. In addition, at Landlord's request, Tenant shall remove all tanks or
fixtures which contain or contained or are contaminated with Hazardous Materials
which were deposited on the Demised Premises by or on behalf of Tenant.
Tenant shall immediately notify Landlord in writing of (a) any enforcement,
clean-up, removal or other government or regulatory action instituted, completed
or threatened pursuant to any Hazardous Materials Laws; (b) any claim made or
threatened by any person against Landlord, or the Demised Premises, relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials; and (c) any reports made to
any environmental agency arising out of or in connection with any Hazardous
Materials in, on or about the Demised Premises or with respect to any Hazardous
Materials removed from the Demised Premises, including, any complaints, notices,
warnings, reports or asserted violations in connection therewith. Tenant shall
also provide to Landlord, as promptly as possible, and in any event within five
business days after Tenant first receives or sends the same, with copies of all
claims, reports, complaints, notices, warnings or asserted violations relating
in any way to Hazardous Materials on, in, under or about the Demised Premises or
Tenant's use thereof. Upon written request of Landlord (to enable Landlord to
defend itself from any claim or charge related to any Hazardous Materials Law),
Tenant shall promptly deliver to Landlord notices of hazardous waste manifests
reflecting the legal and proper disposal of all such Hazardous Materials
deposited, stored or present upon the Demised Premises by or on behalf of Tenant
and subsequently removed from the Demised Premises. All
10
such manifests shall list the Tenant or its agent as a responsible
party and in no way shall attribute responsibility for any such Hazardous
Materials to Landlord.
Tenant shall indemnify, defend (with counsel reasonably acceptable to
Landlord), protect and hold Landlord and each of Landlord's officers, directors,
partners, employees, agents, attorneys, successors and assigns free and harmless
from and against any and all claims, liabilities, damages, costs, penalties,
forfeitures, losses or expenses (including attorneys' fees) for death or injury
to any person or damage to any property whatsoever (including water tables and
atmosphere) arising or resulting in whole or in part, directly or indirectly,
from the presence or discharge of Hazardous Materials, in, on, under, upon or
from the Demised Premises or the Improvements located thereon or from the
transportation or disposal of Hazardous Materials to or from the Demised
Premises to the extent caused by Tenant whether knowingly or unknowingly, the
standard herein being one of strict liability. Tenant's obligations hereunder
shall include, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary repairs, clean-up or detoxification or
decontamination of the Demised Premises or the Improvements, and the presence
and implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration of or early termination
of the term of this Lease. For purposes of the indemnity provided herein, any
acts or omissions of Tenant, or its employees, agents, customers, sub-lessees,
assignees, contractors or sub-contractors of Tenant (whether or not they are
negligent, intentional, willful or unlawful) shall be strictly attributable to
Tenant.
If Landlord reasonably believes that there has been some failure of
Tenant to comply with its obligations under this Section 4.3, then Landlord
shall have the right to require Tenant to undertake and submit to Landlord an
environmental audit from an environmental company reasonably acceptable to
Landlord which audit shall evidence Tenant's compliance with this provision.
Landlord may, at its expense, commission an environmental audit of the Demised
Premises at any time after prior written notice to Tenant provided such audit
does not materially interfere with Tenant's use of the Demised Premises. For the
purposes of the covenants and agreements contained in Section 4.3, any acts or
omissions of Tenant, its employees, agents, customers, sublessees, assignees,
contractors or subcontractors shall be strictly attributable to Tenant.
Section 4.4 Hazardous Material Representation by Landlord. To
Landlord's knowledge, based upon that certain report of Phase I Environmental
Site Assessment as prepared by Law Engineering and Environmental Services, Inc.
dated March 1996 and any other information in Landlord's possession, if any,
Landlord is not aware of any Hazardous Materials which exist or are located on
or in the Demised Premises. Further, Landlord represents to Tenant that to the
Landlord's knowledge, Landlord has not caused the generation, storage or release
of hazardous materials upon the Demised Premises, except in accordance with all
applicable Hazardous Materials laws.
Section 4.5 Landlord's Hazardous Materials Indemnification. Landlord
shall indemnify, defend (with counsel reasonably acceptable to Tenant), protect
and hold Tenant and each of Tenant's officers, directors, partners, employees,
agents, attorneys, successors and assigns free and harmless from and against any
and all claims, liabilities, damages, costs, penalties, forfeitures, losses or
expenses (including attorneys' fees), death or injury to any person
11
or damage to any property whatsoever (including water tables and atmosphere)
arising or resulting in whole or in part, directly or indirectly from the
presence or discharge of Hazardous Materials in, or, under, upon or from the
Demised Premises or the Improvements located thereon or from the transportation
or disposal of Hazardous Materials to or from the Demised Premises to the extent
caused by Landlord whether knowingly or unknowingly. Landlord's obligations
hereunder shall include, without limitation, and whether foreseeable or
unforeseeable, all costs of any required or necessary repairs, clean-up or
detoxification or decontamination of the Demised Premises or the Improvements,
and the presence and implementation of any closure, remedial action or other
required plans in connection therewith and shall survive the expiration of the
term of this Lease. For the purposes of the indemnity provided herein any acts
and omissions of Landlord, or its employees, agents, contractors or
subcontractors (whether or not they are negligent, intentional, willful or
unlawful) shall be strictly attributable to Landlord.
Section 4.6 Discovery of Hazardous Materials Not Caused by Landlord or
Tenant. In the event (a) Hazardous Materials are discovered upon the Demised
Premises, (b) Landlord has been given written notice of the discovery of such
Hazardous Materials, and (c) the presence or existence of such Hazardous
Materials was not caused by Landlord or Tenant and neither Landlord nor Tenant
are required pursuant to the provisions of Sections 4.3 or 4.5 to clean-up or
remediate such Hazardous Materials or otherwise pay for the cost of compliance
with any applicable Hazardous Materials Laws related to such Hazardous
Materials, then and in that event, Landlord may, but shall not be obligated to,
voluntarily agree with Tenant to take all action necessary to bring the Demised
Premises into compliance with the Hazardous Materials Laws applicable to such
Hazardous Materials at Landlord's sole cost and expense. In the event that
Landlord fails to notify Tenant in writing within thirty days of the notice to
Landlord of the discovery of such Hazardous Materials that Landlord intends to
voluntarily take such action as is necessary to bring the Demised Premises into
compliance with the Hazardous Materials Laws applicable to such Hazardous
Materials, and in the event such notice is given, commences within such thirty
(30) day period and proceeds diligently thereafter to bring the Demised Premises
into compliance within a reasonable period of time, then Tenant may (i) bring
the Demised Premises into compliance with such Hazardous Material Laws as are
applicable to such Hazardous Materials at Tenant's sole cost and expense, or
(ii) provided such Hazardous Materials (A) endanger persons or property in, on
or about the Demised Premises, (B) materially interfere with Tenant's use and
enjoyment of the Demised Premises, or (C) may result in liability to Tenant for
any costs associated with remediation or cleanup of such Hazardous Materials,
terminate the term of this Lease upon a date not less than ninety (90) days
following Tenant's delivery of written notice to Landlord of Tenant's intent to
so terminate and (X) Landlord's failure to bring the Demised Premises into
compliance with the applicable Hazardous Materials Laws relating to such
Hazardous Materials within said ninety (90) days, or (Y) in the case of
potential termination of this Lease under subparagraph (ii)(C) above because of
liability to Tenant which does not exceed Five Hundred Thousand and No/100ths
Dollars ($500,000.00), Landlord's failure to agree in writing to fully indemnify
Tenant from such liability within said ninety (90) days.
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 5.1 Payment of Impositions. Tenant covenants and agrees to pay
during the term of this Lease Agreement (and the Early Occupancy Period), as
Additional Rent, before any
12
fine, penalty, interest or cost may be added thereto for the nonpayment thereof,
all real estate taxes, special assessments, water rates and charges, sewer rates
and charges, including any sum or sums payable for present or future sewer or
water capacity, charges for public utilities, street lighting, excise levies,
licenses, permits, inspection fees, other governmental charges, and all other
charges or burdens of whatsoever kind and nature (including costs, fees, and
expenses of complying with any restrictive covenants, easements, declarations or
similar agreements to which the Demised Premises are subject) incurred in the
use, occupancy, ownership, operation, leasing or possession of the Demised
Premises, without particularizing by any known name or by whatever name
hereafter called, and whether any of the foregoing be general or special,
ordinary or extraordinary, foreseen or unforeseen (all of which are sometimes
herein referred to as "Impositions"), which at any time during the term (or the
Early Occupancy Period) may have been or may be assessed, levied, confirmed,
imposed upon, or become a lien on the Demised Premises, or any portion thereof,
or any appurtenance thereto, rents or income therefrom, and such easements or
rights as may now or hereafter be appurtenant or appertain to the use of the
Demised Premises. Tenant shall pay (and if Tenant shall elect over the longest
period allowed for such payment) all special (or similar) assessments for public
improvements or benefits which, during the term of this Lease Agreement (or the
Early Occupancy Period) shall be laid, assessed, levied or imposed upon or
become a lien upon the Demised Premises, or any portion thereof and which shall
be due and payable during the term of this Lease; provided, however, that if by
law any special assessment is payable (without default) or, at the option of the
owner, may be paid (without default) in installments (whether or not interest
shall accrue on the unpaid balance of such special assessment), Tenant may pay
the same, together with any interest accrued on the unpaid balance of such
special assessment in installments as the same respectively become payable
during the term hereof and before any fine, penalty, interest or cost may be
added thereto for the nonpayment of any such installment and the interest
thereon. Tenant shall pay all special assessments or installments thereof
(including interest accrued thereon), whether heretofore or hereafter laid,
assessed, levied or imposed upon the Demised Premises, or any portion thereof,
which are due and payable during the term of this Lease Agreement (or the Early
Occupancy Period). Landlord shall pay all installments of special assessments
(including interest accrued on the unpaid balance) which are payable prior to
the commencement of the Early Occupancy Period and after the termination date of
the term of this Lease Agreement regardless of when such assessments become a
lien upon the Demised Premises. Tenant shall pay all Impositions, whether
heretofore or hereafter levied or assessed upon the Demised Premises, or any
portion thereof, which are due and payable during the term of this Lease
Agreement (or the Early Occupancy Period). Landlord shall pay all Impositions
which are due and payable prior to the commencement of the Early Occupancy
Period of the term of this Lease Agreement. Provisions herein to the contrary
notwithstanding, Landlord shall pay that portion of Impositions accruing or
payable with respect to the Demised Premises during the year the Early Occupancy
Period commences and the year in which the term ends which the number of days in
said year not within the term of this Lease Agreement bears to 365, and Tenant
shall pay the balance of said Impositions during said years.
Section 5.2 Tenant's Right to Contest Impositions. Tenant shall have
the right at its own expense to contest the amount or validity, in whole or in
part, of any Imposition by appropriate proceedings diligently conducted in good
faith, and in the event of such contest, Tenant may postpone or defer payment of
such Imposition if (a) neither the Demised Premises nor any portion thereof
would, by reason of such postponement or deferment, be in danger of
13
being forfeited or lost, and (b) Landlord is not subjected to any criminal or
civil liability as a result of such postponement or deferment. Upon the
termination of any such proceedings, Tenant shall pay the amount of such
Imposition or part thereof, if any, as finally determined in such proceedings,
the payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, including attorney's fees, interest,
penalties, fines and other liability in connection therewith. Tenant shall be
entitled to the refund of any Imposition, penalty, fine and interest thereon
received by Landlord which have been paid by Tenant or which have been paid by
Landlord but for which Landlord has been previously reimbursed in full by
Tenant. Landlord shall not be required to join in any proceedings referred to in
this Section 5.2 unless the provisions of any law, rule or regulation at the
time in effect shall require that such proceedings be brought by or in the name
of Landlord, in which event Landlord shall join in such proceedings or permit
the same to be brought in Landlord's name upon compliance with such conditions
as Landlord may reasonably require. Landlord shall not ultimately be subject to
any liability for the payment of any fees, including attorney's fees, costs and
expenses in connection with such proceedings. Tenant agrees to pay all such fees
(including reasonable attorney's fees), costs and expenses or, on demand, to
make reimbursement to Landlord for such payment.
Section 5.3 Levies and Other Taxes. If, at any time during the term of
this Lease Agreement (or the Early Occupancy Period), any method of taxation
shall be such that there shall be levied, assessed or imposed on Landlord, or on
the Basic Rent or Additional Rent, or on the Demised Premises, or any portion
thereof, a capital levy, gross receipts tax, sales tax, use tax or other tax on
the rents received therefrom, or a franchise tax, or an assessment, levy or
charge measured by or based in whole or in part upon such rents, Tenant
covenants to pay and discharge the same, it being the intention of the parties
hereto that the rent to be paid hereunder shall be paid to Landlord absolutely
net without deduction or charge of any nature whatsoever foreseeable or
unforeseeable, ordinary or extraordinary, or of any nature, kind or description,
except as in this Lease Agreement otherwise expressly provided, without limiting
the foregoing, Tenant expressly agrees to pay all state and local sales taxes
payable upon the Basic Rent or Additional Rent hereunder. Nothing in this Lease
Agreement contained shall require Tenant to pay any municipal, state or federal
net income or excess profits taxes assessed against Landlord, or any municipal,
state or federal capital levy, estate, succession, inheritance or transfer taxes
of Landlord, or corporation franchise taxes imposed upon any corporate owner of
the fee of the Demised Premises.
Section 5.4 Evidence of Payment. Tenant covenants to furnish Landlord,
within 30 days after the date upon which any Imposition or other tax,
assessment, levy or charge is payable by Tenant, official receipts of the
appropriate taxing authority, or other appropriate proof satisfactory to
Landlord, evidencing the payment of the same unless Tenant is contesting the
same as provided in Section 5.2 hereof. The certificate, advice or xxxx of the
appropriate official designated by law to make or issue the same or to receive
payment of any Imposition or other tax, assessment, levy or charge may be relied
upon by Landlord as sufficient evidence that such Imposition or other tax,
assessment, levy or charge is due and unpaid at the time of the making or
issuance of such certificate, advice or xxxx.
Section 5.5 Escrow for Taxes and Assessments. At Landlord's written
demand after any monetary Event of Default and for as long as such monetary
Event of Default is uncured, Tenant shall pay to Landlord the known or estimated
yearly real estate taxes and assessments
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payable with respect to the Demised Premises in monthly payments equal to one-
twelfth of the known or estimated yearly real estate taxes and assessments next
payable with respect to the Demised Premises. From time to time Landlord may
reestimate the amount of real estate taxes and assessments, and in such event
Landlord shall notify Tenant, in writing, of such reestimate and fix future
monthly installments for the remaining period prior to the next tax and
assessment due date in an amount sufficient to pay the reestimated amount over
the balance of such period after giving credit for payments made by Tenant on
the previous estimate. If the total monthly payments made by Tenant pursuant to
this Section 5.5 shall exceed the amount of payments necessary for said taxes
and assessments, such excess shall be credited on subsequent monthly payments of
the same nature; but if the total of such monthly payments so made under this
paragraph shall be insufficient to pay such taxes and assessments when due, then
Tenant shall pay to Landlord such amount as may be necessary to make up the
deficiency. Payment by Tenant of real estate taxes and assessments under this
section shall be considered as performance of such obligation under the
provisions of Section 5.1 hereof.
Section 5.6 Landlord's Right to Contest Impositions. In addition to the
right of Tenant under Section 5.2 to contest the amount or validity of
Impositions, Landlord shall also have the right, but not the obligation, to
contest the amount or validity, in whole or in part, of any Impositions not
contested by Tenant, by appropriate proceedings conducted in the name of
Landlord or in the name of Landlord and Tenant. If Landlord elects to contest
the amount or validity, in whole or in part, of any Impositions, such contests
by Landlord shall be at Landlord's expense, provided, however, that if the
amounts payable by Tenant for Impositions am reduced (or if a proposed increase
in such amounts is avoided or reduced) by reason of Landlord's contest of
Impositions, Tenant shall reimburse Landlord for reasonable costs incurred by
Landlord in contesting Impositions, but such reimbursements shall not be in
excess of the amount saved by Tenant by reason of Landlord's actions in
contesting such Impositions.
ARTICLE VI
INSURANCE
Section 6.1 Tenant's Insurance Obligations. Tenant, at its sole cost
and expense, shall obtain and continuously maintain in full force and effect
during the term of this Lease Agreement (and the Early Occupancy Period),
commencing with the Possession Date policies of insurance covering the
Improvements constructed, installed or located on the Demised Premises naming
the Landlord, as an additional insured, against (a) loss or damage by fire; (b)
loss or damage from such other risks or hazards now or hereafter embraced by an
"Extended Coverage Endorsement," including, but not limited to, windstorm, hail,
explosion, vandalism, riot and civil commotion, damage from vehicles, smoke
damage, water damage and debris removal; (c) loss for flood if the Demised
Premises are in a designated flood or flood insurance area of Zone A or a more
flood prone zone designation (or any comparable designation that may
subsequently replace such Zone A or more flood prone zone designation). At all
times, such insurance coverage shall be in an amount equal to one hundred
percent (100%) of the then "full replacement cost" of the Improvements. "Full
Replacement Cost" shall be interpreted to mean the cost of replacing the
improvements without deduction for depreciation or wear and tear. If a sprinkler
system shall be located in the Improvements, sprinkler leakage insurance shall
be procured and continuously maintained by Tenant at Tenant's sole cost and
expense which
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sprinkler leakage insurance may be maintained as a component of Tenant's overall
casualty coverage.
Section 6.2 Insurance Coverage. During the term of this Lease Agreement
(and the Early Occupancy Period), Tenant, at its sole cost and expense, shall
obtain and continuously maintain in full force and effect the following
insurance coverage:
(a) Commercial general liability insurance against any loss,
liability or damage on, about or relating to the Demised
Premises, or any portion thereof, with limits of not less than
Two Million Dollars ($2,000,000.00) combined single limit, per
occurrence and aggregate, coverage on an occurrence basis. Any
such insurance obtained and maintained by Tenant shall name
Landlord as an additional insured therein and shall be obtained
and maintained from and with a reputable and financially sound
insurance company authorized to issue such insurance in the state
in which the Demised Premises are located.
(b) Boiler and pressure vessel (including, but not limited to,
pressure pipes, steam pipes and condensation return pipes)
insurance, provided the Building contains a boiler or other
pressure vessel or pressure pipes.
(c) To the extent Tenant generally undertakes to increase or expand
the insurance coverages which it maintains on a general, overall
or national basis, then Tenant shall provide Landlord with the
benefit of any such expanded or increased coverage during the
term of this Lease; provided, however, in no event shall the
coverages maintained by Tenant be reduced from those as contained
in this Article VI.
Section 6.3 Insurance Provisions. All policies of insurance required by
Section 6.1 shall provide that the proceeds thereof shall be payable to Tenant.
Each policy required under this Article VI shall have attached thereto (a) an
endorsement that such policy shall not be cancelled or materially changed
without at least 10 days prior written notice to Landlord, and (b) an
endorsement to the effect that the insurance as to the interest of Landlord
shall not be invalidated by any act or neglect of Landlord or Tenant. All
policies of insurance shall be written in companies authorized to do business in
the State of Florida with a Best's rating of B+, IX or better or equal or better
rating as determined by another nationally recognized rating agency. Tenant
shall provide Landlord with certificates evidencing such insurance on an ACCORD
Form 27 or similar form, which certificate shall be delivered to Landlord prior
to the Possession Date, with updated certificates of insurance to be delivered
to Landlord not less than twenty (20) days following the expiration of any then
current policy term; provided, however, Tenant shall not in any event permit
there to be any gap or lapse in coverage with respect to any insurance required
in Article VI.
Section 6.4 Waiver of Subrogation. Tenant shall cause to be inserted in
the policy or policies of insurance required by this Article VI hereof a so-
called "Waiver of Subrogation Clause" as to Landlord. Tenant hereby waives,
releases and discharges Landlord, its agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article VI notwithstanding
that
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such loss, claim, expense or damage may have been caused by Landlord, its agents
or employees, and Tenant agrees to look to the insurance coverage only in the
event of such loss, except for those claims arising from willful misconduct of
Landlord, its employees, agents, contractors or assigns.
Section 6.5 Tenant's Indemnification of Landlord. Tenant shall maintain
insurance coverage (including loss of use and business interruption coverage)
upon Tenant's business and upon all personal property of Tenant kept, stored or
maintained on the Demised Premises against loss or damage by fire, windstorm
(during the term hereof and the Early Occupancy Period) or other casualties or
causes for such amount as Tenant may desire, and Tenant agrees that such
policies shall contain a waiver of subrogation clause as to Landlord, except for
those claims arising from willful misconduct of Landlord, its employees, agents,
contractors or assigns.
Section 6.6 Unearned Premiums. Upon expiration of the term of this
Lease Agreement, the unearned premiums upon any insurance policies or
certificates thereof lodged with Landlord by Tenant shall, subject to the
provisions of Article XIII hereof, be payable to Tenant, provided that Tenant
shall not then be in default in keeping, observing or performing the terms and
conditions of this Lease Agreement.
Section 6.7 Blanket Insurance Coverage. Nothing in this Article shall
prevent Tenant from taking out insurance of the kind and in the amount provided
for under the preceding paragraphs of this Article under a blanket insurance
policy or policies (certificates thereof reasonably satisfactory to Landlord
shall be delivered to Landlord) which may cover other properties owned or
operated by Tenant as well as the Demised Premises; provided, however, that any
certificate of blanket insurance of the kind provided for shall specify therein
the amounts thereof applicable to the Demised Premises or Tenant shall furnish
Landlord and the holder of any fee mortgage with a written statement from the
insurers under such policies specifying the amounts of the total insurance
applicable to the Demised Premises; and further provided, however, that such
policies of blanket insurance shall, as respects the Demised Premises, contain
the various provisions required of such an insurance policy by the foregoing
provisions of this Article VI.
Section 6.8 Landlord's Insurance Obligations. During the period of
construction of Landlord's Improvements and for all periods prior to the
Possession Date, Landlord shall maintain builder's risk insurance coverage on
Landlord's Improvements as then under construction as well as Worker's
Compensation insurance as required by law and general liability insurance
coverage of not less than $2,000,000.00 combined single limit, per occurrence
and aggregate, coverage on an occurrence basis. Further, from and after the
Possession Date, Landlord shall maintain comprehensive general liability
coverage with limits of not less than $2,000,000.00 combined single limit, per
occurrence and aggregate, coverage on an occurrence basis.
ARTICLE VII
UTILITIES
Section 7.1 Payment of Utilities. During the term of this Lease
Agreement (and the Early Occupancy Period), Tenant will pay, when due, all
charges of every nature, kind or
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description for utilities furnished to the Demised Premises or chargeable
against the Demised Premises, including all charges for water, sewage, heat,
gas, light, garbage, electricity, telephone, steam, power, or other public or
private utility services.
Section 7.2 Additional Charges. In the event that any charge or fee is
required after the Possession Date by the state in which the Demised Premises
are located, or by any agency, subdivision, or instrumentality thereof, or by
any utility company furnishing services or utilities to the Demised Premises, as
a condition precedent to furnishing or continuing to furnish utilities to the
Demised Premises, such charge or fee shall be deemed to be a utility charge
payable by Tenant. Nothing contained in this Section 7.2 shall be construed to
relieve Landlord of the obligation to finish Landlord's Improvements described
in Exhibit "B", and Landlord shall pay all book up or other installation charges
with respect to the initial installation of utilities to the Demised Premises as
provided therein.
ARTICLE VIII
REPAIRS
Section 8.1 Tenant's Repairs. Save and except for the one-year guaranty
against defective materials and workmanship or other guaranties provided for in
Section 2.4 hereof, Landlord's obligations as contained in Section 8.5 and 8.6
hereof, and the completion of incomplete items provided for in Section 2.5
hereof, Tenant, at its sole cost and expense, throughout the term of this Lease
Agreement, shall take good care of the Demised Premises (including any
improvements hereafter erected or installed on the Land), and shall keep the
same in good order and condition, and irrespective of such guaranty shall make
and perform all routine maintenance thereof and all necessary repairs thereto,
interior and exterior, structural and nonstructural, ordinary and extraordinary,
foreseen and unforeseen, of every nature, kind and description. When used, in
this Article VII, "repairs" shall include all necessary replacements, renewals,
alterations, additions and betterments. All repairs made by Tenant shall be at
least equal in quality and cost to the original work and shall be made by Tenant
in accordance with all laws, ordinances and regulations whether heretofore or
hereafter enacted. The necessity for or adequacy of maintenance and repairs
shall be measured by the standards which are appropriate for improvements of
similar construction and class, provided that Tenant shall in any event make all
repairs necessary to avoid any structural damage or other damage (subject to
Landlord's obligations under Sections 2.4, 2.5, 8.5 and 8.6 hereof) or injury to
the Improvements.
Section 8.2 Maintenance. Tenant, at its sole cost and expense (subject
to Landlord's obligations under Sections 2.4, 2.5, 8.5 and 8.6 hereof), shall
take good care of, repair and maintain all driveways, pathways, roadways,
sidewalks, curbs, spur tracts, parking areas, loading areas, landscaped areas,
entrances and passageways in good order and repair and shall promptly remove all
accumulated snow, ice and debris from any and all driveways, pathways, roadways,
sidewalks, curbs, parking areas, loading areas, entrances and passageways, and
keep all portions of the Demised Premises, including areas appurtenant thereto,
in a clean and orderly condition free of snow, ice, dirt, rubbish, debris and
unlawful obstructions. Further, Tenant shall keep the Demised Premises safe for
human occupancy and use.
Section 8.3 Tenant's Waiver of Claims Against Landlord. Except as
expressly provided in Sections 2.4, 2.5, 8.5 and 8.6 hereof, Landlord shall not
be required to furnish any
18
services or facilities or to make any repairs or alterations in, about or to the
Demised Premises or any improvements hereafter erected thereon. Except as
expressly provided in Sections 2.4, 2.5, 8.5 and 8.6 hereof, Tenant hereby
assumes the full and sole responsibility for the condition, operation, repair,
replacement, maintenance and management of the Demised Premises and all
improvements hereafter erected thereon, and Tenant hereby waives any rights
created by any law now or hereafter in force to make repairs to the Demised
Premises or improvements hereafter erected thereon at Landlord's expense except
as expressly provided in Sections 2.4, 2.5, 8.5 and 8.6 hereof.
Section 8.4 Prohibition Against Waste. Tenant shall not do or suffer
any waste or damage, disfigurement or injury to the Demised Premises, or any
improvements hereafter erected thereon, or to the fixtures or equipment therein
or permit or suffer any overloading of the floors or other use of the
Improvements that would place an undue stress on the same or any portion thereof
beyond that for which the same was designed.
Section 8.5 Landlord's Obligations with Respect to Roof or Structural
Failure. Should the roof on the Demised Premises, the parking lot for the
Demised Premises or the structural walls of the Demised Premises fail in such a
manner as to require replacement or major repair or major reworking of such
roof, parking lot or structural walls (except if such failure results from
Tenant's failure to maintain the roof, parking lot or structural walls as
required in this Lease), then Landlord, at its sole cost and expense shall
undertake to so replace the roof, parking lot or structural walls of the Demised
Premises within a reasonable period following Tenant's notice to Landlord of
such failure.
Section 8.6 Landlord's Obligation to Reimburse Tenant for Certain
Repairs. Should the roof, structural walls or parking lot for the Demised
Premises require major repair or replacement (for which Landlord is not
otherwise obligated to make replacement under Section 8.5 hereof) during the
last three (3) years of the Initial Term or Renewal Term, as the case may be,
then to the extent that (a) Tenant undertakes such major repair or replacement
and (b) the reasonable useful life of such repair or replacement extends beyond
the expiration of the Initial Term or the Renewal Term, as the case may be, then
Landlord agrees that within fifteen (15) days following Landlord's receipt of an
invoice from Tenant detailing such major repairs or replacements undertaken by
Tenant, together with reasonable evidence of the payment by Tenant of such
amounts, Landlord shall reimburse Tenant for its prorata share of the cost of
such repair or replacement based upon the percentage that the portion of the
useful life of such major repair or replacement following the end of the Initial
Term or the Renewal Term, as the case may be, bears to the total useful life of
such major repair or replacement.
ARTICLE IX
COMPLIANCE WITH LAWS AND ORDINANCES
Section 9.1 Compliance with Laws and Ordinances. Except for those laws,
ordinances, orders, rules, regulations and requirements which are applicable to
the construction of Landlord's Improvements and Landlord's repairs and are the
responsibility of Landlord as provided in Sections 2.1, 2.5 and 8.5 hereof,
Tenant shall, throughout the term of this Lease Agreement (and the Early
Occupancy Period), and at Tenant's sole cost and expense, promptly comply or
cause compliance with or remove or cure any violation of any and all present and
19
future laws, ordinances, orders, rules, regulations and requirements of all
federal, state, municipal and other governmental bodies having jurisdiction over
the Demised Premises and the appropriate departments, commissions, boards and
officers thereof, and the orders, rules and regulations of the Board of Fire
Underwriters where the Demised Premises are situated, or any other body now or
hereafter constituted exercising lawful or valid authority over the Demised
Premises, or any portion thereof, or the sidewalks, curbs, roadways, alleys,
entrances or railroad tract facilities adjacent or appurtenant thereto, or
exercising authority with respect to the use or manner of use of the Demised
Premises, or such adjacent or appurtenant facilities, and whether the
compliance, curing or removal of any such violation and the costs and expenses
necessitated thereby shall have been foreseen or unforeseen, ordinary or
extraordinary, and whether or not the same shall be presently within the
contemplation of Landlord or Tenant or shall involve any change of governmental
policy, or require structural or extraordinary repairs, alterations or additions
by Tenant and irrespective of the costs thereof.
Section 9.2 Compliance with Permitted Encumbrances. Tenant, at its sole
cost and expense, shall comply with all agreements, contracts, easements,
restrictions, reservations or covenants, if any, set forth in Exhibit "A"
attached, or hereafter created by Tenant or consented to, in writing, by Tenant
or requested, in writing, by Tenant. Tenant shall also comply with, observe and
perform all provisions and requirements of all policies of insurance at any time
in force with respect to the Demised Premises and required to be obtained and
maintained by Tenant under the terms of Article VI hereof and shall comply with
all development permits issued by governmental authorities issued in connection
with development of the Demised Premises.
Section 9.3 Tenant's Obligations. Notwithstanding that it may be usual
or customary for Landlord to assume responsibility and performance of any or all
of the obligations of Tenant set forth in this Article IX, and notwithstanding
any order, rule or regulation directed to Landlord to perform, except as
provided in Section 9.1 above, Tenant hereby assumes such obligations because,
by nature of this Lease Agreement the rents and income derived from this Lease
Agreement by Landlord are net rentals not to be diminished by any expense
incident to the ownership, occupancy, use, leasing, or possession of the Demised
Premises or any portion thereof.
Section 9.4 Tenant's Right to Contest Laws and Ordinances. After prior
written notice to Landlord, Tenant, at its sole cost and expense and without
cost or expense to Landlord, shall have the right to contest the validity or
application of any law or ordinance referred to in this Article IX in the name
of Tenant or Landlord, or both, by appropriate legal proceedings diligently
conducted but only if the term of any such law or ordinance, compliance
therewith pending the prosecution of any such proceeding may legally be delayed
without the incurrence of any lien, charge or liability of any kind against the
Demised Premises, or any portion thereof, and without subjecting Landlord or
Tenant to any liability, civil or criminal, for failure so to comply therewith
until the final determination of such proceeding; provided, however, if any
lien, charges or civil liability would be incurred by reason of any such delay,
Tenant nevertheless, on the prior written consent of Landlord, may contest as
aforesaid and delay as aforesaid, provided that such delay would not subject
Tenant or Landlord to criminal liability and Tenant (a) furnishes Landlord
security, reasonably satisfactory to Landlord, against any loss or injury by
reason of any such contest or -delay, (b) prosecutes the contest with due
diligence
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and in good faith and (c) agrees to indemnify, defend and hold harmless Landlord
and the Demised Premises from any charge, liability or expense whatsoever. The
security furnished to Landlord by Tenant shall be in the form of a cash deposit
or a Certificate of Deposit issued by a national bank or federal savings and
loan association payable to Landlord. Said deposit shall be held, administered
and distributed in accordance with the provisions of Section 5.2 hereof relating
to the contest of the amount or validity of any Imposition.
If necessary or proper to permit Tenant so to contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorneys' fees incurred by landlord, execute
and deliver any appropriate papers or other documents; provided, Landlord shall
not be required to execute any document or consent to any proceeding which would
result in the imposition of any cost, charge, expense or penalty on Landlord or
the Demised Premises.
ARTICLE X
MECHANIC'S LIENS AND OTHER LIENS
Section 10.1 Freedom from Liens. Tenant shall not suffer or permit any
mechanic's lien or other lien to be filed against the Demised Premises, or any
portion thereof, by reason of work, labor, skill, services, equipment or
materials supplied or claimed to have been supplied to the Demised Premises at
the request of Tenant, or anyone holding the Demised Premises, or any portion
thereof, through or under Tenant. If any such mechanic's lien or other lien
shall at any time be filed against the Demised Premises, or any portion thereof,
Tenant shall cause the same to be discharged of record within 45 days after the
date of filing the same. If Tenant shall fail to discharge such mechanic's lien
or liens or other lien within such period, then, in addition to any other right
or remedy of Landlord, after fifteen days prior written notice to Tenant,
Landlord may, but shall not be obligated to, discharge the same by paying to the
claimant the amount claimed to be due or by procuring the discharge of such lien
as to the Demised Premises by deposit in the court having jurisdiction of such
lien, the foreclosure thereof or other proceedings with respect thereto, of a
cash sum sufficient to secure the discharge of the same, or by the deposit of a
bond or other security with such court sufficient in form, content and amount to
procure the discharge of such lien, or in such other manner as is now or may in
the future be provided by present or future law for the discharge of such lien
as a lien against the Demised Premises. Any amount paid by Landlord, or the
value of any deposit so made by Landlord, together with all costs, fees and
expenses in connection therewith (including reasonable attorneys' fees of
Landlord), together with interest thereon at the Maximum Rate of Interest set
forth in Section 3.4 hereof, shall be repaid by Tenant to Landlord on demand by
Landlord and if unpaid may be treated as Additional Rent. Tenant shall indemnify
and defend Landlord against and save Landlord and the Demised Premises, and any
portion thereof, harmless from all losses, costs, damages, expenses,
liabilities, suits penalties, claims, demands and obligations, including,
without limitation, reasonable attorneys' fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
All materialmen, contractors, artisans, mechanics, laborers and any
other person now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to the Demised Premises, or any
portion thereof, are hereby charged with notice that they must look exclusively
to Tenant to obtain payment for the same. Notice is hereby given that Landlord
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shall not be liable for any labor, services, materials, supplies, skill,
machinery, fixtures or equipment furnished or to be furnished to Tenant upon
credit, and that no mechanic's lien or other lien for any such labor, services,
materials, supplies, machinery, fixtures or equipment shall attach to or affect
the state or interest of Landlord in and to the Demised Premises, or any portion
thereof.
Section 10.2 Landlord's Indemnification. The provisions of Section 10.1
above shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Demised
Premises in the performance of Landlord's obligation to construct the Landlord's
Improvements required by the provisions of Article 11 hereof, and Landlord does
hereby agree to indemnify and defend Tenant against and save Tenant and the
Demised Premises, and any portion thereof, harmless from all losses, costs,
damages, expenses, liabilities and obligations, including, without limitation,
reasonable attorneys' fees resulting from the assertion, filing, foreclosure or
other legal proceedings with respect to any such mechanic's lien or other lien.
ARTICLE XI
INTENT OF PARTIES
Section 11.1 Net Lease. Landlord and Tenant do each state and represent
that it is their respective intention that this Lease Agreement be interpreted
and construed as an absolute net lease and all Basic Rent and Additional Rent
shall be paid by Tenant to Landlord without abatement, deduction, diminution,
deferment, suspension, reduction or setoff (except as provided in Sections 2.3
and 12.9 hereof), and the obligations of Tenant shall not be affected by reason
of damage to or destruction of the Demised Premises from whatever cause (except
as provided for in Section 13.6 hereof); nor shall the obligations of Tenant be
affected by reason of any condemnation, eminent domain or like proceedings
(except as provided in Article XIV hereof); nor shall the obligations of Tenant
be affected by reason of any other cause whether similar or dissimilar to the
foregoing or by any laws or customs to the contrary. It is the further express
intent of Landlord and Tenant that (a) the obligations of Landlord and Tenant
hereunder shall be separate and independent covenants and agreements and that
the Basic Rent and Additional Rent, and all other charges and sums payable by
Tenant hereunder, shall commence at the times provided herein and shall continue
to be payable in all events unless the obligations to pay the same shall be
terminated pursuant to in express provision in this Lease Agreement; (b) all
costs or expenses of whatsoever character or kind, general or special, ordinary
or extraordinary, foreseen or unforeseen, and of every kind and nature
whatsoever that may be necessary or required in and about the Demised Premises,
or any portion thereof, and Tenant's possession or authorized use thereof during
the term of this Lease Agreement (and the Early Occupancy Period), shall be paid
by Tenant, except as provided in this Section 11.1 above, and all provisions of
this Lease Agreement are to be interpreted and construed in light of the
intention expressed in this Section 11.1; (c) the Basic Rent specified in
Section 3.1 shall be absolutely net to Landlord, except as provided in this
Section 11.1 above, so that this Lease Agreement shall yield net to Landlord the
Basic Rent specified in Section 3.1 in each year during the term of this Lease
Agreement (unless extended or renewed at a different Basic Rent); (d) all
Impositions, insurance premiums, utility expense, repair and maintenance
expense, and all other costs, fees, interest, charges, expenses, reimbursements
and obligations of every kind and nature whatsoever relating to the Demised
Premises, or any portion thereof, which may arise or become due during the term
22
of this Lease Agreement (and the Early Occupancy Period), or any extension or
renewal thereof, shall be paid or discharged by Tenant as Additional Rent,
except for those obligations of Landlord expressly provided herein; and (e)
Tenant hereby agrees to indemnify, defend and save Landlord harmless from and
against such costs, fees, charges, expenses, reimbursements and obligations, any
interest thereon, except those obligations of Landlord expressly provided
herein.
Section 11.2 Entry by Landlord. If Tenant shall at any time fail to pay
any Imposition in accordance with the provisions of Article V, or to take out,
pay for, maintain and deliver any of the insurance policies or certificates of
insurance provided for in Article VI, or shall fail to make any other payment or
perform any other act on its part to be made or performed, then Landlord, after
prior written notice to Tenant as provided In Section 12.1 (or without notice in
case of emergency), and without waiving or releasing Tenant from any obligation
of Tenant contained in this Lease Agreement, may, but shall be under no
obligation to do so, (a) pay any Imposition payable by Tenant pursuant to the
provisions of Article V; (b) take out, pay for and maintain any of the insurance
policies provided for in this Lease Agreement; or (c) make any other payment or
perform any other act on Tenant's part to be paid or performed as in this Lease
Agreement provided, and Landlord may enter upon the Demised Premises for any
such purpose without materially interfering with Tenant's use of the Demised
Premises and take all such action therein or thereon as may be necessary
therefor. Nothing herein contained shall be deemed as a waiver or release of
Tenant from any obligation of Tenant in this Lease Agreement contained.
Section 11.3 Interest on Unpaid Amounts. If Tenant shall fail to
perform any act required of it, Landlord may perform the same, but shall not be
required to do so, in such manner and to such extent as Landlord may deem
necessary or desirable, and in exercising any such right to employ counsel and
to pay necessary and incidental costs and expenses, including reasonable
attorneys' fees. All sums so paid by Landlord and all necessary and incidental
costs and expenses, including reasonable attorneys' fees, in connection with the
performance of any such act by Landlord, together with interest thereon at the
Maximum Rate of interest provided for in Section 3.4 hereof from the date of
making such expenditure by Landlord, shall be deemed Additional Rent hereunder
and, except as is otherwise expressly provided herein, shall be payable to
Landlord on demand or, at the option of Landlord, may be added to any monthly
rental then due or thereafter becoming due under this Lease Agreement, and
Tenant covenants to pay any such sum or sums, with interest as aforesaid, and
Landlord shall have, in addition to any other right or remedy of Landlord, the
same rights and remedies in the event of nonpayment thereof by Tenant as in the
case of default by Tenant in the payment of monthly Basic Rent. Landlord shall
not be limited in the proof of any damages which Landlord may claim against
Tenant arising out of or by reason of Tenant's failure to provide and keep in
force insurance as aforesaid, to the amount of the insurance premium or premiums
not paid or not incurred by Tenant, and which would have been payable upon such
insurance, but Landlord shall be entitled to recover as damages for such breach
the uninsured amount of any loss (to the extent of any deficiency between the
dollar limits of insurance required by the provisions of this Lease Agreement
and the dollar limits of the insurance actually carried by Tenant), damages,
costs and expenses of suit, including reasonable attorneys' fees, suffered or
incurred by reason of damage to or destruction of the Demised Premises, or any
portion thereof or other damage or loss which Tenant is required to insure
against hereunder, occurring during any period which Tenant shall have failed or
neglected to provide insurance as aforesaid.
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ARTICLE XII
DEFAULTS
Section 12.1 Event of Default. If any one or more of the following
events (in this Article sometimes called "Events of Default" shall happen:
(a) If default shall be made by Tenant, by operation of law or
otherwise, under the provisions of Article XV hereof relating
to assignment, sublease, mortgage or other transfer of
Tenant's interest in this Lease Agreement or in the Demised
Premises or in the income arising therefrom;
(b) If default shall be made in the due and punctual payment of
any Basic Rent or Additional Rent payable under this Lease
Agreement or in the payment of any obligation to be paid by
Tenant, when and as the same shall become due and payable, and
such default shall continue for a period of ten days after
written notice thereof given by Landlord to Tenant;
(c) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement
which are Tenant's obligations to perform, other than those
referred to in Subparagraphs (a) and (b) of this Section 12.1,
which does not expose Landlord to criminal liability, and such
default shall continue for a period of 30 days after written
notice thereof given by Landlord to Tenant, or in the case of
such a default or contingency which cannot with due diligence
and in good faith be cured within 30 days, and Tenant fails to
proceed promptly and with due diligence and in good faith to
cure the same and thereafter to prosecute the curing of such
default with due diligence and in good faith, it being
intended that in connection with a default which does not
expose Landlord to criminal liability, not susceptible of
being cured with due diligence and in good faith within 30
days, that the time allowed Tenant within which to cure the
same shall be extended for such period as may be necessary for
the curing thereof promptly with due diligence and in good
faith;
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease Agreement
which are Tenant's obligations to perform, other than those
referred to in Subparagraphs (a), (b) and (c) of this Section
12.1, and which exposes Landlord to criminal liability, and
such default shall continue after written notice thereof given
by Landlord to Tenant, and Tenant fails to proceed timely and
promptly with all due diligence and in good faith to cure the
same and thereafter to prosecute the curing of such default
with all due diligence, it being intended that in connection
with a default which exposes Landlords to criminal liability
that Tenant shall proceed immediately to cure or correct such
condition with continuity and with all due diligence and in
good faith;
then, and in any such event, Landlord, at any time thereafter during the
continuance of any such Event of Default, may give written notice to Tenant
specifying such Event of Default or Events of Default and stating that this
Lease Agreement and the terms hereby demised shall expire and
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terminate on the date specified in such notice, and upon the date specified in
such notice this Lease Agreement and the terms hereby demised, and all rights of
Tenant under this Lease Agreement, including all rights of renewal whether
exercised or not, shall expire and terminate, or in the alternative or in
addition to the foregoing remedy, Landlord may assert and have the benefit of
any other remedy allowed herein, at law, or in equity.
Section 12.2 Surrender of Demised Premises. Upon any expiration or
termination of this Lease Agreement, Tenant shall quit and peaceably surrender
the Demised Premises, and all portions thereof, to Landlord and Landlord, upon
or at any time after any such expiration or termination, may, without further
notice, enter upon and reenter the Demised Premises, and all portions thereof,
and possess and repossess itself thereof, by force, summary proceedings
ejectment or otherwise, and may dispossess Tenant and remove Tenant and all
other persons and property from the Demised Premises, and all portions thereof,
and my have, hold and enjoy the Demised Premises and the right to receive all
rental and other income of and from the same.
Section 12.3 Reletting by Landlord. At any time, or from time to time
after any such expiration or termination, Landlord may relet the Demised
Premises, or any portion thereof, in the name of Landlord or otherwise, for such
term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease Agreement) and
on such conditions (which way include concessions or free rent) as Landlord, in
its uncontrolled discretion, may determine and may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Demised Premises, or any part thereof, or for any failure to collect
any rent due upon any such reletting.
Section 12.4 Survival of Tenant's Obligations. No such expiration or
termination of this Lease Agreement shall relieve Tenant of its liabilities and
obligations under this Lease Agreement (as if this Lease Agreement had not been
so terminated or expired), and such liabilities and obligations shall survive
any such expiration or termination. In the event of any such expiration or
termination, whether or not the Demised Premises, or any portion thereof, shall
have been relet, Tenant shall pay to Landlord a sum equal to the Basic Rent, and
the Additional Rent and any other charges required to be paid by Tenant, up to
the time of such expiration or termination of this Lease Agreement, and
thereafter Tenant, until the end of what would have been the term of this Lease
Agreement in the absence of such expiration or termination, shall be liable to
Landlord for, and shall pay to Landlord, as and for liquidated and agreed
current damages for Tenant's default:
(a) The equivalent of the amount of the Basic Rent and Additional
Rent which would be payable under this Lease Agreement by
Tenant if this Lease Agreement were still in effect, less
(b) The net proceeds of any reletting effected pursuant to the
provisions of Section 12.3 hereof after deducting all of
Landlord's reasonable expenses in connection with such
reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable
attorneys' fees, alteration costs, and expenses of preparation
of the Demised Premises, or any portion thereof, for such
reletting.
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Tenant shall pay such current damages in the amount determined in accordance
with the terms of this Section 12.4, as set forth in a written statement thereof
from Landlord to Tenant (hereinafter called the "Deficiency"), to Landlord in
monthly installments on the days on which the Basic Rent would have been payable
under this Lease Agreement if this Lease Agreement were still in effect, and
Landlord shall be entitled to recover from Tenant each monthly installment of
the Deficiency as the same shall arise.
Section 12.5 Damages. At any time after an Event of Default, whether or
not Landlord shall have previously collected any monthly Deficiency as set forth
in Section 12.4, Landlord shall, at its option, be entitled to recover from
Tenant in lieu of the collection of any further monthly Deficiencies, and Tenant
shall pay to Landlord, on demand, as and for final damages for Tenant's default,
an amount equal to the difference between the then present worth of the
aggregate of the Basic Rent and Additional Rent (excluding items of Additional
Rent that are incurred only as a direct result of occupancy) and any other
charges to be paid by Tenant hereunder for the unexpired portion of the term of
this Lease Agreement from and after the date through which any previously
collected monthly Deficiencies have been paid, and the then present worth of the
then aggregate fair and reasonable fair market rent of the Demised Premises for
the same period. In the computation of present worth, a discount at the rate
equal to the then existing Federal Reserve Discount Rate shall be employed.
Nothing herein contained or contained in Section 12.4 shall limit or prejudice
the right of Landlord to prove for and obtain, as damages by reason of such
expiration or termination, an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings in
which, such damages are to be proved, whether or not such amount be greater,
equal to or less than the amount of the difference referred to above.
Section 12.6 No Waiver. No failure by Landlord or by Tenant to insist
upon the performance of any of the terms of this Lease Agreement or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance by
Landlord of full or partial rent from Tenant or any third party during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any of the terms of this Lease Agreement. None of the terms of this Lease
Agreement to be kept, observed or perforated by Landlord or by Tenant, and no
breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord and/or by Tenant, as the case may be. No waiver
of any breach shall affect or alter this Lease Agreement, but each of the terms
of this Lease Agreement shall continue in full force and affect with respect to
any other then existing or subsequent breach of this Lease Agreement. No waiver
of any default of Tenant herein shall be implied from any omission by Landlord
to take any action on account of such default, if such default persists or is
repeated and no express waiver shall affect any default other than the default
specified in the express waiver and that only for the time and to the extent
therein stated. One or more waivers by Landlord shall not be construed as a
waiver of a subsequent breach of the same covenant, term or condition.
Section 12.7 Landlord's Remedies. In the event of any breach or
threatened breach by Tenant of any of the terms contained in this Lease
Agreement, Landlord shall be entitled to enjoin such breach or threatened breach
and shall have the right to invoke any right or remedy allowed at law or in
equity or by statute or otherwise as though entry, reentry, summary proceedings
and other remedies were not provided for in this Lease Agreement. Each remedy or
right of Landlord provided for in this Lease Agreement shall be cumulative and
shall be in
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addition to every other right or remedy provided for in this Lease Agreement, or
now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or the beginning of the exercise by Landlord of any one or more of
such rights or remedies shall not preclude the simultaneous or later exercise by
Landlord of any or all other rights or remedies.
Section 12.8 Bankruptcy. If, during the term of this Lease Agreement,
(a) Tenant shall make an assignment for the benefit of creditors, (b) a
voluntary petition be filed by Tenant under any law having for its purpose the
adjudication of Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to
an involuntary petition in bankruptcy, (c) a receiver be appointed for the
property of Tenant, or (d) any department of the state or federal government, or
any officer thereof duly authorized, shall take possession of the business or
property of Tenant, the occurrence of any such contingency shall be deemed it
breach of the Lease Agreement and this Lease Agreement shall, ipso facto upon
the happening of any of said contingencies, be terminated and the same shall
expire as fully and completely as if the day of the happening of such
contingency were the date hereon specifically fixed for the expiration of the
term, and Tenant will then quit and surrender the Demised Premises, but Tenant
shall remain liable as hereinafter provided. Notwithstanding other provisions of
this lease Agreement, or any present or future law, Landlord shall be entitled
to recover from Tenant or Tenant's estate (in lieu of the equivalent of the
amount of all rent and other charges unpaid at the date of such termination) as
damages for loss of the bargain and not as a penalty, an aggregate sum which at
the time of such termination represents the difference between the then present
worth of the aggregate of the Base Rent and Additional Rent and any other
charges payable by Tenant hereunder that would have accrued for the balance of
the term of this Lease Agreement (assuming this Lease Agreement had not been so
terminated), over the then present worth of the aggregate fair market rent of
the Demised Premises for the balance of such period, unless any statute or rule
of law covering the proceedings in which such damages are to be proved shall
limit the amount of such claim capable of being so proved, in which case
Landlord shall be entitled to prove as and for damages by reason of such breach
and termination of this Lease Agreement the maximum amount which may be allowed
by or under any such statute or rule of law without prejudice to any rights of
Landlord against any guarantor of Tenant's obligations herein. In the
computation of present worth, a discount rate equal to the then existing Federal
Reserve Discount Rate shall be employed. Nothing contained herein shall limit or
prejudice Landlord's right to prove and obtain as damages arising out of such
breach and termination the maximum amount allowed by any such statute or rule of
law which may govern the proceedings in which such damages are to be proved,
whether or not such amount be greater equal to, or less than the amount of the
excess of the present value of the rent and other charges required herein over
the present value of the fair market rents referred to above. Specified remedies
to which Landlord my resort under the terms of this Section 12.8 are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which Landlord my be lawfully entitled.
Section 12.9 Landlord's Default - Offset Rights. In the event that
Landlord should default in its obligations with respect to Landlord's
construction guaranty under Section 2.4 hereof, Landlord's obligation to
complete incomplete items of Landlord's Improvements as provided in Section 2.5
hereof, Landlord's obligations to undertake certain replacements, major repairs
or major reworkings as provided in Section 8.5 hereof or Landlord's obligations
to reimburse Tenant as provided in Section 8.6 hereof, and Landlord has failed
to commence to cure such default (or in the case of a default under Section 8.6
reimburse Tenant for amounts
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owed) within thirty (30) days of Tenant's notice to Landlord of such default and
thereafter proceed in good faith with reasonable diligence to complete such
cure, then Tenant, upon a second notice to Landlord of such default and the
failure of Landlord to commence to cure such default (or in the case of a
default by Landlord under Section 8.6 to reimburse Tenant for amounts owed)
within five (5) days following the date of such notice and thereafter proceed in
good faith and with reasonable diligence to complete such cure, may elect, at
Tenant's option, but without obligation, to undertake to perform such acts and
pay such amounts as are reasonably necessary to cure such default, and Landlord
reimburse Tenant for amounts owed. If such amounts are not so paid by Landlord
within said fifteen (15) day period (or immediately after the expiration of said
five (5) day notice period as referenced above, in the case of a default by
Landlord under Section 8.6 to reimburse Tenant for amounts owed), then Tenant
shall have the right to offset such sums from the Basic Rent payable by Tenant
hereunder; provided, however, the amount of such offset for any given month
shall not exceed the greater of (i) 30% of the Basic Rent payable for such
month, or (ii) a percentage of monthly Basic Rent as is necessary to fully
amortize the amount of such amounts expended by Tenant over the remaining term
of the Lease. In addition, amounts expended by Tenant hereunder shall bear
interest at the Maximum Rate of Interest from the date such amounts are expended
by Tenant, except in the case of amounts owed to Tenant as reimbursement
pursuant to Section 8.6, which shall bear interest at the Maximum Rate of
Interest from a date which is fifteen (15) days after Tenant's initial invoice
to Landlord for such amounts.
ARTICLE XIII
DESTRUCTION AND RESTORATION
Section 13.1 Destruction and Restoration. Tenant covenants and agrees
that in case of damage to or destruction of the Improvements after the
commencement date of the term of this Lease Agreement, by fire or otherwise,
Tenant, at its sole cost and expense, shall promptly restore, repair, replace
and rebuild the same as nearly as possible to the condition that the same were
in immediately prior to such damage or destruction with such changes or
alterations (made in conformity with Article XIX hereof) as may be reasonably
acceptable to Landlord or required by law. Tenant shall forthwith give Landlord
written notice of such damage or destruction upon the occurrence thereof and
specify in such notice, in reasonable detail, the extent thereof. Such
restoration, repairs, replacements, rebuilding, changes and alterations,
including the cost of temporary repairs for the protection of the Demised
Premises, or any portion thereof, pending completion thereof are sometimes
hereinafter referred to as the "Restoration." The Restoration shall be carried
on and completed in accordance with the provisions and conditions of Section
13.2 and Article XIX hereof. If the net amount of the insurance proceeds (after
deduction of all costs, expenses and fees related to recovery of the insurance
proceeds) recovered by Tenant are reasonably deemed insufficient by Landlord to
complete the restoration of such Improvements (exclusive of Tenant's personal
property and trade fixtures which shall be restored, repaired or rebuilt out of
Tenant's separate funds), Tenant shall, upon request of Landlord, deposit in the
Restoration Account (as hereinafter defined) a cash deposit (or a completion
bond or letter credit in form and substance reasonably acceptable to Landlord)
equal to the reasonable estimate of the amount necessary to complete the
restoration of such Improvements after taking into account the amount of such
insurance proceeds available. Without limiting the foregoing, Tenant shall be
responsible for all costs of Restoration including, but not limited to, all
construction,
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architectural, engineering, legal, administrative and supervisory fees connected
with the Restoration.
Section 13.2 Application of Insurance Proceeds. All insurance monies
recovered by Tenant shall, to the extent paid to Tenant, be held by Tenant in a
segregated account (the "Restoration Account") and shall be applied only to the
payment of the costs of the Restoration and shall be paid out from time to time
as the Restoration progresses with a simultaneous delivery to Landlord of a
certificate of the architect or a qualified professional engineer in charge of
the Restoration stating that as of the date, of such certificate (a) the sum
disbursed is justly due to the contractors, subcontractors, materialmen,
laborers, engineers, architects, or persons, firms or corporations furnishing or
supplying work, labor, services or materials for such Restoration, or is justly
required to reimburse Tenant for any expenditures made by Tenant in connection
with such Restoration; (b) except for the amount, if any, stated in such
certificates to be due for work, labor, services or materials, there is no
outstanding indebtedness known to the person signing such certificate, after due
inquiry, which is then due for work, labor, services or materials in connection
with such Restoration, which, if unpaid, might become the basis of a mechanic's
lien or similar lien with respect to the Restoration or a lien upon the Demised
Premises, or any portion thereof, and (c) the costs, as estimated by the person
signing such certificate, of the completion of the Restoration required to be
done subsequent to the date of such certificate in order to complete the
Restoration do not exceed the amount remaining in the Restoration Account.
Tenant shall furnish Landlord at the time of any such payment with
evidence reasonably satisfactory to Landlord that there are no unpaid bills in
respect to any work, labor, services or materials performed, furnished or
supplied in connection with such Restoration. If the insurance monies and such
other sums, if any, deposited by Tenant in the Restoration Account pursuant to
Section 13.1 hereof, shall be insufficient to pay the entire costs of the
Restoration, Tenant agrees to pay any deficiency promptly upon demand. Upon
completion of the Restoration and payment in full thereof by Tenant, Tenant may
disburse to itself the balance remaining, if any, in the Restoration Account
upon submission of proof reasonably satisfactory to Landlord that the
Restoration has been paid for in full and the damaged or destroyed Building and
other improvements repaired, restored or rebuilt as nearly as possible to the
condition they were in immediately prior to such damage or destruction, or with
such changes or alterations as may be made in conformity with Section 13.1 and
Article XIV hereof.
Section 13.3 Continuance of Tenant's Obligations. Except as provided
for in Section 13.6, no destruction of or damage to the Demised Premises, or any
portion thereof, by fire, casualty or otherwise shall permit Tenant to surrender
this Lease Agreement or shall relieve Tenant from its liability to pay to
Landlord the Base Rent and Additional Rent payable under this Lease Agreement or
from any of its other obligations under this Lease Agreement, and Tenant waives
any rights now or hereafter conferred upon Tenant by present or future law or
otherwise to quit or surrender this Lease Agreement or the Demised Premises, or
any portion thereof, to Lease Agreement, and Tenant waives any rights now or
hereafter conferred upon Tenant by present or future law or otherwise to quit or
surrender this Lease Agreement or the Demised Premises, or any portion thereof,
to Landlord or to any suspension, diminution, abatement or reduction of rent on
account of any such damage or destruction.
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Section 13.4 Availability of Insurance Proceeds. To the extent that any
insurance monies which would otherwise be payable to Tenant and used in the
Restoration of the damaged or destroyed improvements are paid to any mortgagee
of Landlord and applied in payment of or reduction of the sum or sums secured by
any such mortgagee or mortgages made by Landlord on the Demised Premises,
Landlord shall make available, for the purpose of Restoration of such
improvements, an amount equal to the amount payable to its mortgagee out of such
proceeds and such sum shall be applied in the manner provided in Section 13.2
hereof.
Section 13.5 Completion of Restoration. The foregoing provisions of
this Article XIII apply only to damage or destruction of the Improvements by
fire, casualty or other cause occurring after the Possession Date. Any such
damage or destruction occurring prior to such time shall be restored, repaired,
replaced and rebuilt by Landlord and during such period of construction Landlord
shall obtain and maintain the builder's risk insurance coverage referred to in
Section 6.1 hereof. All monies received by Landlord under its builder's risk
insurance coverage shall be applied by Landlord to complete the Restoration of
such damage or destruction and if such insurance proceeds are insufficient
Landlord shall provide all additional funds necessary to complete the
Restoration of the Improvements.
Section 13.6 Termination of Lease.
(a) If within twelve (12) months prior to the expiration of
the term of this Lease Agreement, the Improvements shall be destroyed
or damaged to such an extent that (i) the Restoration thereof will cost
an amount in excess of the net proceeds of the insurance required to be
and maintained by Tenant, hereinafter referred to as the "Excess
Funds", (ii) the amount of Excess Funds exceeds Five Hundred Thousand
Dollars ($500,000.00), and (iii) Tenant shall be unable or unwilling to
expend out of its own funds such Excess Funds for the purpose of
Restoration of such damage or destruction for occupancy by Tenant,
Tenant shall, with reasonable promptness, notify Landlord, in writing,
of such fact, which notice shall be accompanied by a detailed statement
of the nature and extent of such damage or destruction and detailed
estimates of the total cost of Restoration. Within 30 days after the
giving of such notice, Landlord shall notify Tenant either that (a) it
will furnish, at its sole cost and expense, the Excess Funds which are
necessarily required in connection with the Restoration (to be
disbursed in conformity with the requirements of Section 13.2 and
Article XIX hereof), or (b) it is unwilling to expend the Excess Funds
for such purpose. Failure to give such notice within such 30-day period
shall be deemed an election by Landlord not to make such expenditure.
In the event that Landlord elects not to expend the Excess Funds, as
aforesaid, then Tenant shall have the option, within 15 days after the
expiration of said 30-day period, to terminate this Lease Agreement and
surrender the Demised Premises to Landlord by a notice, in writing,
addressed to Landlord, specifying such election accompanied by Tenant's
payment of the balance of the Base Rent and Additional Rent and other
charges apportioned as hereafter specified in this Section 13.6. Upon
the giving of such notice and the payment of such amounts, the term of
this Lease Agreement shall cease and come to an and on a day to be
specified in Tenant's notice, which date shall not be more than 30 days
after the date of delivery of such notice by Tenant to Landlord. Tenant
shall accompany such notice with its payment of all Base Rent and
Additional Rent and other charges payable by Tenant hereunder, justly
apportioned to the date of such damage,
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together with the dollar amount of Landlord's reasonable estimate of
the Excess Funds. In such event Landlord shall be entitled to the
proceeds of all property or casualty insurance on the Demised Premises
required to be carried by Tenant under 6.1 hereof, and Tenant shall
execute all documents reasonably requested by Landlord to allow such
proceeds to be paid to Landlord.
(b) If within six (6) months prior to the expiration of the
term of this Lease Agreement, the Improvements shall be completely
destroyed or there shall occur major damage (as hereinafter defined) to
the Improvements, then within thirty (30) days after the event causing
such destruction or major damage, either Landlord or Tenant upon giving
written notice to the other may elect to terminate the term of the
Lease as of the date of such destruction or major damage. Upon such
termination, Landlord shall be entitled to the proceeds of all
insurance upon the Demised Premises required to be carried by Tenant
under Section 6.1 hereof, and Tenant shall execute all documents
reasonably requested by Landlord to allow such proceeds to be paid to
Landlord. In addition, Tenant shall simultaneously with Tenant's notice
of termination (if Tenant is the terminating party) or within ten (10)
days following Tenant's receipt of Landlord's notice of termination (if
Landlord is the terminating party) pay to Landlord all Base Rent and
Additional Rent and other charges payable by Tenant hereunder, justly
apportioned to the date of such destruction or major damage of the
Demised Premises, together with the dollar amount of Landlord's
reasonable estimate of the Excess Funds.
ARTICLE XIV
CONDEMNATION
hereunder shall cease and come to an end on the date of vesting of title
pursuant to such Proceedings and Landlord shall be entitled to and shall receive
the total award made in such Proceedings, Tenant hereby assigning any interest
in such awards, damages, consequential damages and compensation to Landlord and
Tenant hereby waiving any right Tenant has now or may have under present or
future law to receive any separate award of damages for its interest in the
Demised Premises, or any portion thereof, or its interest in this Lease
Agreement; provided, however, the foregoing shall not prevent Tenant from
maintaining a separate action to recover damages for moving expenses, loss of
business and loss of trade fixtures, provided, in no event shall Tenant be
permitted to maintain any action with respect to the loss of its leasehold
estate.
Section 14.2 Partial Condemnation/Termination of Lease. If, during the
Initial Term of this Lease Agreement, or any extension or renewal thereof, less
than the entire Demised Premises, but more than 15% of the floor area of the
Building, or more than 25% of the land area of the Demised Premises, shall be
taken in any such Proceedings, this Lease Agreement shall, upon vesting of title
in the Proceedings, terminate as to the portion of the Demised Premises so
taken, and Tenant may, at its option, terminate this Lease Agreement as to the
remainder of the Demised Premises. Tenant shall not have the right to terminate
this Lease pursuant to the preceding sentence unless (a) the business of Tenant
conducted in the portion of the Demised Premises taken cannot reasonably be
carried on with substantially the same utility and efficiency in the remainder
of the Demised Premises (or any substitute space securable by Tenant pursuant
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to clause [b] hereof) and (b) Tenant cannot construct or secure substantially
similar space to the space so taken, on the Demised Premises. Such termination
as to the remainder of the Demised Premises shall be effected by notice in
writing given not more than 60 days after the date of vesting of title in such
Proceedings, and shall specify a date not more than 60 days after the giving of
such notice as the date for such termination. Upon the data specified in such
notice, the term of this Lease Agreement, and all right, title and interest of
Tenant hereunder, shall cease and come to an end. If this Lease Agreement is
terminated as in this Section 14.2 provided, Landlord shall be entitled to and
shall receive the total award made in such Proceedings, Tenant hereby assigning
any interest in such award, damages, consequential damages and compensation to
Landlord, and Tenant hereby waiving any right Tenant has now or may have under
present or future law to receive any separate award of damages for its interest
in the Demised Premises, or any portion thereof, or its interest in this Lease
Agreement except as otherwise provided in Section 14.1. In the event that Tenant
elects not to terminate this Lease Agreement as to the remainder of the Demised
Premises, the rights and obligations of Landlord and Tenant shall be governed by
the provisions of Section 14.3 hereof.
Section 14.3 Partial Condemnation/Continuation of Lease. If 15%, or
less, of the floor area of the Building, or 25 %, or less, of the land area of
the Demised Premises, shall be taken in such Proceedings, or if more than 15% of
the floor area of the Building or more than 25% of the land area of the Demised
Premises is taken (but less than the entire Demised Premises), and this Lease
Agreement is not terminated as in Section 14.2 hereof provided, this Lease
Agreement shall, upon vesting of title in the Proceedings, terminate as to the
parts so taken, and Tenant shall have no claim or interest in the award,
damages, consequential damages and compensation, or any part thereof except as
otherwise provided in Section 14.1. Landlord shall be entitled to and shall
receive the total award made in such Proceedings, Tenant hereby assigning any
interest in such award, damages, consequential damages and compensation to
Landlord, and Tenant hereby waiving any right Tenant has now or may have under
present or future law to receive any separate award of damages for its interest
in the Demised Premises, or any portion thereof, or its interest in this Lease
Agreement except as otherwise provided above in Section 14.1. The net amount of
the award (after deduction of all costs and expenses, including attorneys' fees)
that may be received by Landlord in any such proceedings for physical damage to
the Improvements as the result of such taking shall be deposited by Landlord in
Tenant's Restoration Account. Tenant, in such case, covenants and agrees, at
Tenant's sole cost and expense (subject to reimbursement to the extent
hereinafter provided), promptly to restore that portion of the Improvements on
the Demised Premises not so taken to a complete architectural and mechanical
unit for the use and occupancy of Tenant as in this Lease Agreement provided. In
the event that the net amount of the award (after deduction of all costs and
expenses, including attorneys' fees) that may be received by Landlord in any
such Proceedings for physical damage to the Improvements as a result of such
taking is insufficient to pay all costs of such restoration work, Landlord shall
deposit in the Restoration Account such additional sum as may be required to
update the Restoration as the Restoration progresses upon the written request of
Tenant. The provisions and conditions in Article XIX applicable to changes and
alterations shall apply to Tenant's obligations to restore that portion of the
Improvements to a complete architectural and mechanical unit. Tenant shall apply
so much of the net amount of any award (after deduction of all costs and
expenses, including attorneys' fees) that may be received by Landlord in any
such Proceedings for physical damage to the Improvements as a result of such
taking and deposited by Landlord in the Restoration Account to the costs of such
restoration work thereof and such
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amounts in the Restoration Account shall be paid out from time to time to
Tenant, or on behalf of Tenant, as such restoration work progresses with the
simultaneous delivery to Landlord of a certificate of the architect or the
registered professional engineer in charge of the restoration work stating that
(a) the sum requested is justly due to the contractors, subcontractors,
materialmen, laborer, engineers, architects or other persons, firms or
corporations furnishing or supplying work, labor, services or materials for such
restoration work or as is justly required to reimburse Tenant for expenditures
made by Tenant in connection with such restoration work; and (b) the net amount
of any such award for physical damage to the Improvements as a result of such
taking remaining in the Restoration Account, together with the sums, if any,
deposited by Landlord pursuant to the provisions hereof, will be sufficient upon
the completion of such restoration work to pay for the same in full. If payment
of the award for physical damage to the Improvements as a result of such taking,
as aforesaid, shall not be received by Landlord in time to permit payments as
the restoration work progresses, Tenant shall, perform such work without delay
(except such delays as are referred to in Article XIX hereon, and Landlord shall
deposit in the Restoration Account such amounts damage to the Improvements as a
result of such taking, as aforesaid, shall not be received by Landlord in time
to permit payments as the restoration work progresses, Tenant shall, perform
such work without delay (except such delays as are referred to in Article XIX
hereof), and Landlord shall deposit in the Restoration Account such amounts
required to undertake the restoration work as the restoration work progresses
pursuant to this Section 14.3. In which event Landlord shall be entitled to
retain an amount equal to the sum disbursed to Tenant pursuant to the preceding
sentence out of any award for physical damages to the Improvements as and when
payment of such award is received by Landlord. Tenant shall also furnish
Landlord with each certificate hereinabove referred to, together with evidence
reasonably satisfactory to Landlord that there are no unpaid bills in respect to
any work, labor, services or materials performed, furnished or supplied, or
claimed to have been performed, furnished or supplied, in connection with such
restoration work, and that no liens have been filed against the Demised
Premises, or any portion thereof. Tenant shall not pay out any funds from the
Restoration Account when there are unpaid bills for work, labor, services or
materials performed, furnished or supplied in connection with such restoration
work (other than bills to be paid by the amount being disbursed from the
Restoration Account), or where a lien for work, labor, services or materials
performed, furnished or supplied has been placed against the Demised Premises,
or any portion thereof. Upon completion of the restoration work and payment in
full therefor by Tenant, and upon submission of proof reasonably satisfactory to
Landlord that the restoration work has been paid for in full and that the
Improvements have been restored or rebuilt to a complete architectural and
mechanical unit for the use and occupancy of Tenant as provided in this Lease
Agreement, the amount remaining in the Restoration Account shall be disbursed to
Landlord. To the extent that any award, damages or compensation which would
otherwise be payable to Landlord and applied to the payment of the cost of
restoration of the Improvements is paid to any mortgagee of Landlord and applied
in payment or reduction of the sum or sums secured by any such mortgage or
mortgages made by Landlord on the Demised Premises, Landlord shall make
available for the use of Tenant, in connection with the payment of the cost of
restoring the Improvements an amount equal to the amount of such net award
payable to the mortgagee. From and after the date of delivery of petition to the
condemning authority pursuant to the Proceedings, a just and proportionate part
of the Basic Rent, according to the extent and nature of such taking, shall
xxxxx for the remainder of the term of this Lease Agreement.
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Section 14.4 Continuance of Obligations. In the event of any
termination of this Lease Agreement, or any part thereof, as a result of any
such Proceedings, Tenant shall pay to Landlord all Basic Rent and all Additional
Rent and other charges payable hereunder with respect to that portion of the
Demised Premises so taken in such Proceedings with respect to which this Lease
Agreement shall have terminated justly apportioned to the date of such
termination. If this Lease is not terminated from and after the date of vesting
of title in such Proceedings, Tenant shall continue to pay the Basic Rent and
Additional Rent and other charges payable hereunder, as in this Lease Agreement
provided, to be paid by Tenant subject to an abatement of a just and
proportionate part of the Basic Rent according to the extent and nature of such
taking as provided for in Paragraphs 14.3 and 14.5 hereof in respect to the
Demised Premises remaining after such taking.
Section 14.5 Adjustment of Rent. In the event of a partial taking of
the Demised Premises under Paragraph 14.3 hereof, or a partial taking of the
Demised Premises under Paragraph 14.2 hereof, followed by Tenant's election not
to terminate this Lease Agreement, the fixed Basic Rent payable hereunder during
the period from and after the date of vesting of title in such Proceedings to
the termination of this Lease Agreement shall be reduced to a sum equal to the
product of the Basic Rent provided for herein multiplied by a fraction, the
numerator of which is the value of the Demised Premises after such taking and
after the same has been restored to a complete architectural unit, and the
denominator of which is the value of the Demised Premises prior to such taking.
ARTICLE XV
ASSIGNMENT, SUBLETTING, ETC.
Section 15.1 Restriction on Transfer. Tenant shall not sublet the
Demised Premises, or any portion thereof, nor assign, mortgage, pledge, transfer
or otherwise encumber or dispose of this Lease Agreement, or any interest
therein, or in any manner assign, mortgage, pledge, transfer or otherwise
encumber or dispose of its interest or estate in the Demised Premises, or any
portion thereof, without obtaining Landlord's prior written consent in each and
every instance, which consent shall not be unreasonably withheld or delayed,
provided the following conditions are complied with:
(a) Any assignment of this Lease Agreement shall transfer to the
assignee all of Tenant's right, title and interest in this Lease
Agreement and all of Tenant's estate or interest in the Demised
Premises.
(b) At the time of any assignment or subletting, and at the time
when Tenant requests Landlord's written consent thereto, this
Lease Agreement must be in full force and effect, without any
breach of default thereunder on the part of Tenant.
(c) Any such assignee shall assume, by written, recordable
instrument, in form and content satisfactory to Landlord, the
due performance of all of Tenant's obligations under this Lease
Agreement, including any accrued obligations at the time of the
effective date of the assignment, and such assumption agreement
shall state that the same is made by the assignee for the
express benefit of Landlord as a third party beneficiary
thereof. A copy of the assignment and assumption
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agreement, both in form and content satisfactory to Landlord,
fully executed and acknowledged ________________________________
(d) In the case of a subletting, a copy of any sublease fully
executed and acknowledged by Tenant and the sublessee shall be
mailed to Landlord ten days prior to the effective date of such
subletting, which sublease shall be in form and content
acceptable to Landlord.
(e) Such assignment or subletting shall be subject to all the
provisions, terms, covenants and conditions of this Lease
Agreement, and Tenant-assignor (and the guarantor or guarantors
of this Lease Agreement, if any) and the assignee or assignees
shall continue to be and remain liable under the Lease
Agreement, as it may be amended from time to time without notice
to any assignor of Tenant's interest or to any guarantor.
(f) Each sublease permitted under this Section 15.1 shall contain
provisions to the effect that (i) such sublease is only for
actual use and occupancy by the sublessee; (ii) such sublease is
subject and subordinate to all of the terms, covenants and
conditions of this Lease Agreement and to all of the rights of
Landlord thereunder; and (iii) in the event this Lease Agreement
shall terminate before the expiration of such sublease, the
sublessee thereunder will, at Landlord's option, attorn to
Landlord and waive any rights the sublessee may have to
terminate the sublease or to surrender possession thereunder, as
a result of the termination of this Lease Agreement.
(g) Tenant agrees to pay on behalf of Landlord any and all costs of
Landlord, including reasonable attorney's fees paid or payable
to outside counsel, occasioned by such assignment or subletting.
Section 15.2 Restriction From Further Assignment. Notwithstanding
anything contained in this Lease Agreement to the contrary and notwithstanding
any consent by Landlord to any sublease of the Demised Premises, or any portion
thereof, or to any assignment of this Lease Agreement or of Tenant's interest or
estate in the Demised Premises, no sublessee shall assign its sublease nor
further sublease the Demised Premises, or any portion thereof, and no assignee
shall further assign its interest in this Lease Agreement or its interest or
estate in the Demised Premises, or any portion thereof, nor sublease the Demised
Premises, or any portion thereof, without Landlord's prior written consent in
each and every instance which consent shall not be unreasonably withheld or
unduly delayed. No such assignment or subleasing shall relieve Tenant or any
guarantor of this Lease from any of their respective obligations with respect to
this Lease Agreement contained.
Section 15.3 Tenant's Failure to Comply. Tenant's failure to comply
with all of the foregoing provisions and conditions of this Article XV shall
(whether or not Landlord's consent is required under this Article), at
Landlord's option, under any purported assignment or subletting null and void
and of no force and effect. Notwithstanding anything herein to the contrary,
Landlord hereby consents to an assignment of this Lease in connection with the
merger or restructuring of Tenant or the sale of all or substantially all of
Tenant's assets or to any entity
35
controlled by, which controls or which is under common control with Tenant, such
as any parent, subsidiary or affiliate of Tenant; provided that (i) any such
assignment shall not in any way relieve or release Tenant or any guarantor of
this Lease from any of their respective obligations with respect to this Lease
Agreement, and (ii) Tenant shall provide Landlord with prompt notice of such
assignment, together with all copy of all assignment documents related thereto.
ARTICLE XVI
SUBORDINATION, NONDISTURBANCE,
NOTICE TO MORTGAGEE AND ATTORNMENT
Section 16.1 Subordination by Tenant. This Lease Agreement and all
rights of Tenant therein (including, but not limited to the Option to Purchase,
as hereinafter defined), and all interest or estate of Tenant in the Demised
Premises, or any portion thereof, shall be subject and subordinate to the lien
of any mortgage, deed of trust, security instrument or other document of like
nature ("Mortgage"), which at any time may be placed upon the Demised Premises,
or any portion thereof, by Landlord, and to any replacements, renewals,
amendments, modifications, extensions or refinancing thereof, and to each and
every advance made under any Mortgage. Tenant agrees at any time hereafter, and
from time to time on demand of Landlord, to execute and deliver to Landlord any
instruments, releases or other documents that may be reasonably required for the
purpose of subjecting and subordinating this Lease Agreement to the lien of any
such Mortgage. It is agreed, nevertheless, and all instruments and documents
executed by Tenant shall reflect that so long as Tenant be not in default in the
payment of Basic Rent and Additional Rent and the performance and observance of
all covenants, conditions, provisions, terms and agreements to be performed and
observed by Tenant under this Lease Agreement, that such subordination agreement
or other instrument, release or document and any prior mortgage or other lien
upon the Demised Premises shall not interfere with, hinder or molest any and all
of Tenant's rights and interests under this Lease including, but not limited to,
Tenant's right to quiet enjoyment under this Lease Agreement, nor the right of
Tenant to continue to occupy the Demised Premises, and all portions thereof, and
to conduct its business thereon in accordance with the covenants, conditions,
provisions, terms and agreements of this Lease Agreement. The lien of any such
Mortgage shall not cover Tenant's trade fixtures or other personal property
located in or on the Demised Premises.
Section 16.2 Landlord's Default. In the event of any act of omission of
Landlord constituting a default by Landlord, Tenant shall not exercise any
remedy until Tenant has given Landlord prior written notice of such act or
omission and until a 30-day period of time to allow Landlord or the mortgagee to
remedy such act or omission shall have elapsed following the giving of such
notice; provided, however, if such act or omission cannot, with due diligence
and in good faith, be remedied within such 30-day period, the Landlord and/or
mortgagee shall be allowed such further period of time as may be reasonably
necessary provided that it shall have commenced remedying the same with due
diligence and in good faith within said 30-day period and provided Tenant's
rights and interests hereunder and Tenant's use of the Demised Premises are not
materially interfered with during such period. Notwithstanding the foregoing
provisions of this Section 16.2, the thirty (30) day grace period provided in
this Section 16.2 shall be concurrent with and not in addition to the thirty
(30) day grace period provided in Section 12.9 and shall not in any way limit
Tenant's rights under Section 12.9. In the event Landlord's act or omission
which constitutes a Landlord's default hereunder results in an immediate threat
of
36
bodily harm to Tenant's employees, agents or invitees, or damage to Tenant's
property Tenant may proceed to cure the default without prior notice to Landlord
provided, however, in that event Tenant shall give written notice to Landlord as
soon as possible under commencement of such cure. Nothing herein contained shall
be construed or interpreted as requiring any mortgagee to remedy such act or
omission.
Section 16.3 Attornment. If any mortgagee shall succeed to the rights
of Landlord under this Lease Agreement or to ownership of the Demised Premises,
whether through possession or foreclosure or the delivery of a deed to the
Demised Premises, then, upon the written request of such mortgagee so succeeding
to Landlord's rights hereunder, Tenant shall attorn to and recognize such
mortgagee as Tenant's Landlord under this Lease Agreement, and shall promptly
execute and deliver any instrument that such mortgagee may reasonably request to
evidence such attornment (whether before or after making of the mortgage). In
the event of any other transfer of Landlord's interest hereunder, upon the
written request of the transferee and Landlord, Tenant shall attorn to and
recognize such transferee as Tenant's Landlord under this Lease Agreement and
shall promptly execute and deliver any instrument that such transferee and
Landlord may reasonably request to evidence such attornment.
ARTICLE XVII
SIGNS
Section 17.1 Tenant's Signs. Tenant may erect signs on the exterior
doors or windows or interior of the Improvements or on the landscaped area
adjacent thereto, provided that such sign or signs (a) do not cause any
structural damage or other damage to the Improvements; (b) do not violate
applicable governmental laws, ordinances, rules or regulations; (c) do not
violate any existing restrictions affecting the Demised Premises; and (d) are
compatible with the architecture of the Improvements and the landscaped area
adjacent thereto. Without limiting the foregoing, Tenant shall not be permitted
to install signage on the roof or structure of the Demised Premises.
ARTICLE XVIII
REPORTS BY TENANT
Section 18.1 Annual Statements. Upon request by Landlord at any time
after 135 days after the end of the applicable fiscal year of Fingerhut
Companies, Inc., a Minnesota corporation, Tenant shall cause Fingerhut
Companies, Inc. to deliver to Landlord a copy of Fingerhut Companies, Inc.'s
audited financial statement for such fiscal year.
ARTICLE XIX
CHANGES AND ALTERATIONS
Section 19.1 Tenant's Changes and Alterations. Tenant shall have the
right at any time, and from time to time during the term of this Lease
Agreement, to make such changes and alterations, structural or otherwise, to the
Improvements and fixtures hereafter erected on the Demised Premises as Tenant
shall deem necessary or desirable in connection with the requirements of its
business, which such changes and alterations (other than changes or alterations
of Tenant's movable trade fixtures and equipment) shall be made in all cases
subject to the following conditions, which Tenant covenants to observe and
perform:
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(a) Permits. No change or alteration shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required from time
to time, all municipal, state and federal permits and authorizations of
the various governmental bodies and departments having jurisdiction
thereof, and Landlord agrees to join in the application for such permits
or authorizations whenever such action is necessary, all at Tenant's sole
cost and expense, provided such applications do not cause Landlord to
become liable for any cost, fees or expenses.
(b) Compliance with Plans and Specifications. Before commencement of any
change, alteration, restoration, repairs or construction (hereinafter
sometimes referred to as "Work") requiring a building permit and involving
in the aggregate an estimated cost of more than Ten Thousand and No/100ths
Dollars ($10,000.00) or which in Landlord's reasonable judgment would
materially alter or impact the roof, parking lot, mechanical, structural,
or electrical systems of Improvements or which is undertaken by Tenant
pursuant to Section 8.6 hereof, Tenant shall furnish Landlord with
detailed plans and specifications of the proposed change or alteration,
obtain Landlord's prior written consent, which consent shall not be
withheld (but such consent may be withheld if the change or alteration
would, in the reasonable judgment of Landlord, impair the value or
usefulness of the Land or Improvements, or any substantial part thereof to
Landlord); (iii) furnish Landlord the name and address of the licensed
architect or licensed professional engineer selected and paid for by
Tenant, who shall supervise any such work (hereinafter referred to as
"Alterations Architect or Engineer"); and (iv) obtain Landlord's prior
written approval of detailed plans and specifications prepared and
approved in writing by said Alterations Architect or Engineer, and of each
amendment and change thereto. Work which does not require a building
permit or materially alter or impact the roof, parking lot, mechanical,
structural or electrical system of the Improvements or which is not
undertaken by Tenant pursuant to Section 8.6 hereof shall not be subject
to the provisions of this subparagraph (b) or require Landlord's prior
written consent; provided, however, such Work shall be subject to the
remaining provisions of this Article XIX.
(c) Value Maintained. Any change or alteration shall, when completed, be of
such character as not to reduce the value or utility of the Demised
Premises or the Improvements to which such change or alteration is made
below its value or utility to Landlord immediately before such change or
alteration, nor shall such change or alteration reduce the area or cubic
content of the Building, nor change the character of the Demised Premises
or the Improvements as to use without Landlord's express written consent.
(d) Compliance with Laws. All Work done in connection with any change or
alteration shall be done promptly and in a good and workmanlike manner and
in compliance with all building and zoning laws of the place in which the
Demised Premises are situated, and with all laws, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof, and in accordance with
38
the orders, rules and regulations of the Board of Fire Underwriters where
the Demised Premises are located, or any other body exercising similar
functions. The cost of any such change or alteration shall be paid so that
the Demised Premises and all portions thereof shall at all times be free
of liens for labor and materials supplied to the Demised Premises, or any
portion thereof. The Work of any change or alteration shall be prosecuted
with reasonable dispatch, delays due to strikes, lockouts, acts of God,
inability to obtain labor or materials, governmental restrictions or
similar causes beyond the control of Tenant excepted. Tenant shall obtain
and maintain or cause its contractors and subcontractors to obtain and
maintain, at its or their sole cost and expense, during the performance of
the Work, workers' compensation insurance covering all persons employed in
connection with the Work and with respect to which death or injury claims
could be asserted against Landlord or Tenant or against the Demised
Premises or any interest therein, together with comprehensive general
liability insurance for the mutual benefit of Landlord and Tenant with
limits of not less than One Million Dollars ($1,000,000.00) in the event
of injury to one person, Two Million Dollars ($2,000,000.00) in respect to
any one accident or occurrence, and One Hundred Thousand Dollars
($100,000.00) for property damage, and the fire insurance with "extended
coverage" endorsement required by Section 6.1 hereof shall be supplemented
with "builder's risk" insurance on a completed value form or other
comparable coverage on the Work. All such insurance shall be in a company
or companies authorized to do business in the state in which the Demised
Premises are located with a Best's rating of B+, IX or similar and
certificates of insurance on ACCORD Form 27 shall be delivered to Landlord
prior to the commencement of any Work.
(e) Property of Landlord. All improvements and alterations (other than
Tenant's movable trade fixtures and equipment) made or installed by Tenant
shall immediately upon completion or installation thereof, become the
property of Landlord without payment therefor by Landlord, and shall be
surrendered to Landlord on the expiration of the term of this Lease
Agreement.
(f) Location of Improvements. No change, alteration, restoration or new
construction shall be in or connect the Improvements with any property,
building or other improvement located outside the boundaries of the parcel
of land described in Exhibit "A" attached, nor shall the same obstruct or
interfere with any existing easement.
(g) Removal of Improvements. As a condition to granting approval for any
changes or alterations, Landlord may require Tenant to agree that
Landlord, by written notice to Tenant, given at or prior to the time of
granting such approval, may require Tenant to remove any improvements,
additions or installations installed by Tenant in the Demised Premises at
Tenant's sole cost and expense, and repair and restore any damage caused
by the installation and removal of such improvements, additions, or
installations; provided, however, the only improvements, additions or
installations which Tenant shall remove shall be those specified in such
notice. All improvements, additions or installations installed by
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Tenant which did not require Landlord's prior approval shall be
removed by Tenant as provided for in this Section 19.1(g), unless
Tenant has obtained a written waiver of such condition from
Landlord.
ARTICLE XX
MISCELLANEOUS PROVISIONS
Section 20.1 Entry by Landlord. Tenant agrees to permit Landlord and
authorized representatives of Landlord to enter upon the Demised Premises at all
reasonable times upon twenty-four (24) hours prior notice during ordinary
business hours for the purpose of inspecting the same and making any ordinary
repairs to comply with any laws, ordinances, rules, regulations or requirements
of any public body, or the Board of Fire Underwriters, or any similar body.
Nothing herein contained shall imply any duty upon the part of Landlord to do
any such work which, under any provision of this Lease Agreement, Tenant may be
required to perform and the performance thereof by Landlord shall not constitute
a waiver of Tenant's default in failing to perform the same. Landlord may,
during the progress of any work, keep and store upon the Demised Premises all
necessary materials, tools and equipment. Landlord shall not in any event be
liable for inconvenience, annoyance, disturbance, loss of business or other
damage to Tenant by reason of making repairs or the performance of any work in
or about the Demised Premises, or on account of bringing material, supplies and
equipment into, upon or through the Demised Premises during the course thereof,
and the obligations of Tenant under this Lease Agreement shall not be thereby
affected in any manner whatsoever.
Section 20.2 Exhibition of Demised Premises. Landlord is hereby given
the right during usual business hours at any time during the term of this Lease
Agreement upon twenty-four (24) hours prior notice to enter upon the Demised
Premises and to exhibit the same for the purpose of mortgaging or selling the
same. During the final year of the term, Landlord shall be entitled to display
on the Demised Premises, in such manner as to not unreasonably interfere with
Tenant's business, signs indicating that the Demised Premises are for rent or
sale and suitably identifying Landlord or its agent. Tenant agrees that such
signs may remain unmolested upon the Demised Premises and that Landlord may
exhibit said premises to prospective Tenants during said period.
Section 20.3 Indemnification.
(a) To the fullest extent allowed by law, Tenant shall at all times
indemnify, defend and hold Landlord harmless against and from any
and all claims by or on behalf of any person or persons, firm or
firms, corporation or corporations, arising from the conduct or
management, or from any work or things whatsoever done in or about
the Demised Premises from and after the Possession Date by or on
behalf of Tenant not resulting directly from Landlord's negligence
(or the negligence of Landlord's employees, agents, contractors or
subcontractors), and will further indemnify, defend and hold
Landlord harmless against and from any and all claims arising from
and after the Possession Date during the term of this Lease
Agreement, from any condition of the Improvements (except for such
conditions as are Landlord's obligations under Sections 2.1, 2.5
and 8.5 of this Lease), or of any passageways or space therein or
appurtenant thereto, or arising from any
40
breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed,
pursuant to the terms of this Lease Agreement, or arising from any
act or negligence of Tenant, its agents, servants, employees or
licensees, or arising from any accident, injury or damage
whatsoever caused to any person, firm or corporation occurring
from and after the Possession Date during the term of this Lease
Agreement, in or about the Demised Premises, or upon the sidewalk
and the land adjacent thereto, and from and against all costs,
attorney's fees, expenses and liabilities incurred in or about any
such claim or action or proceeding brought thereon; and in case
any action or proceeding be brought against Landlord by reason of
any such claim, Tenant, upon notice from Landlord, covenants to
defend such action or proceeding by counsel reasonably
satisfactory to Landlord.
(b) To the fullest extent allowed by law, Landlord shall at all times
indemnify, defend and hold Tenant harmless against and from any
and all claims by or on behalf of any person or persons, firm or
firms, corporation or corporations, arising from the conduct or
management, or from any work or things whatsoever done in and
about the Demised Premises prior to the Possession Date (except
for matters arising from the act, omission or negligence of Tenant
or Tenant's employees, agents, contractors or subcontractors
present on the Demised Premises prior to the Possession Date) and
will further indemnify, defend and hold Tenant harmless against
and from any and all claims arising from any breach or default on
the part of Landlord in the performance of any covenant or
agreement on the part of Landlord to be performed, pursuant to the
terms of this Lease Agreement, arising from any act or negligence
of Landlord, its agents, servants, employees or licensees, arising
from any accident, injury or damage whatsoever caused to any
person, firm or corporation, occurring prior to the Possession
Date (except for matters arising from the act, omission or
negligence of Tenant or Tenant's employees, agents, contractors or
subcontractors present on the Demised Premises prior to the
Possession Date) in or about the Demised Premises or upon the
sidewalk and land adjacent thereto, and from and against all
costs, attorney's fees, expenses, liabilities incurred in or about
any such claim or action or proceeding brought thereon, and in
case any action or proceeding be brought against Tenant by reason
of such claim, Landlord upon notice from Tenant, covenants to
defend such action or proceeding by counsel reasonably
satisfactory to Tenant.
Section 20.4 Notices. All notices which are required or permitted
hereunder must be in writing and shall be deemed to have been given, delivered
or made, as the case may be (notwithstanding lack of actual receipt by the
addressee) (i) when delivered by personal delivery or (ii) three (3) business
days after having been deposited in the United States Mail, certified or
registered, return receipt requested, sufficient postage affixed and prepaid, or
(iii) one (1) business day after having been deposited with an expedited
overnight courier service (such as by way of example, but not limitation, U.S.
Express Mail, Federal Express or Purolator), addressed to the party to whom
notice is intended to be given at the address set forth below:
To Landlord: Xxxx Xxxxx Xxxxxxxxxxx
Xxxxx 000, 0000 Xxxx Xxxxxxx Xxxxxx
00
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, President
With a copy to: Opus U.S. Corp.
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Law Department
To Tenant: Customer Communications Center, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxx X. Xxxxxx,
Manager-Facilities Planning
With a copy to: Fingerhut Companies, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attn: Legal Department
or at such other place as Landlord or Tenant may from time to time designate by
written notice to the other party.
Section 20.5 Quiet Enjoyment. Landlord covenants and agrees that
Tenant, upon paying the Basic Rent and Additional Rent, and upon observing and
keeping the covenants, agreements and conditions of this Lease Agreement on its
part to be kept, observed and performed, shall lawfully and quietly hold, occupy
and enjoy the Demised Premises (subject to the provisions of this Lease
Agreement) during the term of this Least Agreement without hindrance or
molestation by Landlord or by any person or persons claiming under Landlord.
Section 20.6 Landlord's Continuing Obligations. The term "Landlord," as
used in this Lease Agreement so far as covenants or obligations on the part of
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the fee of the Demised Premises, and in the
event of any transfer or transfers or conveyance the then grantor shall be
automatically freed and relieved from and after the date of assumption by
grantee of all obligations under this Lease and of such transfer or conveyance
of all liability as respects the performance of any covenants or obligations on
the part of Landlord contained in this Lease Agreement thereafter to be
performed, provided that any funds in the hands of such Landlord or the then
grantor at the time of such transfer, in which Tenant has in interest, shall be
turned over to the grantee, and any amount then due and payable to Tenant by
Landlord or the then grantor under any provision of this Lease Agreement shall
be paid to Tenant. The covenants and obligations contained in this Lease
Agreement on the part of Landlord shall, subject to the aforesaid, be binding on
Landlord's successors and assigns, during and in respect of their respective
successive periods of ownership. Nothing herein contained shall be construed as
relieving Landlord of its obligations under Article II of this Lease Agreement,
or releasing Landlord from any obligation to complete the cure of any breach by
Landlord during the period of its ownership of the Demised Premises or releasing
Landlord from any other of its obligations under this Lease during the term of
its ownership of the Demised Premises including, without
42
limitation, Landlord's obligation of indemnity for hazardous materials to the
extent caused by Landlord during its term of ownership of the Demised Premises.
Section 20.7 Estoppel. Landlord and Tenant shall, each without charge at
any time and from time to time, within ten days after written request by the
other party, certify by written instrument, duly executed, acknowledged and
delivered to any mortgagee, assignee of a mortgagee, proposed mortgagee, or to
any purchaser or proposed purchaser, or to any other person dealing with
Landlord, Tenant or the Demised Premises:
(a) That this Lease Agreement (and all guaranties, if any) is unmodified
and in full force and effect (or, if there have been modifications,
that the same is in full force and effect, as modified, and stating
the modifications);
(b) The dates to which the Basic Rent or Additional Rent have been paid in
advance;
(c) Whether or not there are then existing any breaches or defaults by
such party or the other party known by such party under any of the
covenants, conditions, provisions, terms or agreements of this Lease
Agreement, and specifying such breach or default, if any, or any
setoffs or defenses against the enforcement of any covenant,
condition, provision, term or agreement of this Lease Agreement (or of
any guaranties) upon the part of Landlord or Tenant (or any
guarantor), as the case may be, to be preformed or complied with (and,
if so, specifying the same and the steps being taken to remedy the
same); and
(d) Such other statements or certificates as Landlord or any mortgagee may
reasonably request.
It is the intention of the parties hereto that any statement delivered
pursuant to this Section 20.7 may be relied upon by any of such parties dealing
with Landlord, Tenant or the Demised Premises.
Section 20.8 Memorandum of Lease. Upon not less than ten days prior written
request by either party, the parties hereto agree to execute and deliver to each
other a Memorandum and Short Form of Lease, in recordable form, setting forth
the follows:
(a) The date of this Lease Agreement;
(b) The parties to this Lease Agreement;
(c) The term of this Lease Agreement;
(d) The legal description of the Demised Premises; and
(e) Such other matters reasonably requested by Landlord or Tenant to be
stated therein.
Section 20.9 Severability. If any covenant, condition, provision, term or
agreement of this Lease Agreement shall, to any extent, be held invalid or
unenforceable, the remaining
43
covenants, conditions, provisions, terms and agreements of this Lease Agreement
shall not be affected thereby, but each covenant, condition, provision, term or
agreement of this Lease Agreement shall be valid and in force to the fullest
extent permitted by law. This Lease Agreement shall be construed and be
enforceable in accordance with the laws of the state in which the Demised
Promise are located.
Section 20.10 Successors and Assigns. The covenants and agreements herein
contained shall bind and inure to the benefit of Landlord, its successors and
assigns, and Tenant and its permitted successors and assigns.
Section 20.11 Captions. The caption of each article of this Lease Agreement
is for convenience and reference only, and in no way defines, limits or
describes the scope of intent of such article or of this Lease Agreement.
Section 20.12 Relationship of Parties. This Lease Agreement does not create
the relationship of principal and agent, or of partnership, joint venture, or of
any association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of Landlord and Tenant.
Section 20.13 Entire Agreement. All preliminary and contemporaneous
negotiations are merged into and incorporated in this Lease Agreement. This
Lease Agreement together with the Exhibits contains the entire agreement between
the parties and shall not be modified or amended in any manner except by an
instrument in writing executed by the parties hereto.
Section 20.14 No Merger. There shall be no merger of this Lease Agreement
or the leasehold estate created by this Lease Agreement with any other estate or
interest in the Demised Premises by reason of the fact that the same person,
firm, corporation or other entity may acquire, hold or own directly or
indirectly, (a) this Lease Agreement or the leasehold interest created by this
Lease Agreement of any interest therein, and (b) any such other estate or
interest in the Demised Premises, or any portion thereof. No such merger shall
occur unless and until all persons, firms, corporations or other entities having
an interest (including a security interest) in (1) this Lease Agreement or the
leasehold estate created thereby, and (2) any such other estate or interest in
the Demised Premises, or tiny portion thereof, shall join in a written
instrument expressly effecting such merger and shall duly record the same.
Section 20.15 Possession and Use. Tenant acknowledges that the Demised
Premises are the property of Landlord and that Tenant has only the right to
possession and use thereof upon the covenants, conditions, provisions, terms and
agreements set forth in this Lease Agreement.
Section 20.16 No surrender During Lease Term. No surrender to Landlord of
this Lease Agreement or of the Demised Premises, or any portion thereof, or any
interest therein, prior to the expiration of the term of this Lease Agreement
shall be valid or effective unless agreed to and accepted in writing by Landlord
and consented to in writing by all contract vendors and mortgagees, and no act
or emission by Landlord or any representative or agent of Landlord, other than
such a written acceptance by Landlord consented to by all contract vendors and
the mortgagees, as aforesaid, shall constitute an acceptance of any such
surrender.
44
Section 20.17 Surrender of Demised Premises. At the expiration of the term
of this Lease Agreement, Tenant shall surrender the Demised Premises in the same
condition as the same were in upon delivery of possession thereto at the
commencement date of the term of this Lease Agreement, reasonable wear and tear
excepted, and shall surrender all keys to the Demised Premises to Landlord at
the place then fixed for the payment of Basic Rent and shall inform Landlord of
all combinations on locks, safes and vaults, if any. Tenant shall at such time
remove all to its property therefrom and all alterations and improvements placed
thereon by Tenant if so requested by Landlord as provided herein. Tenant shall
repair any damage to the Demised Premises caused by such removal, and any and
all such property not so removed shall, at Landlord's option, become the
exclusive property of Landlord or be disposed of by Landlord, at Tenant's cost
and expense, without further notice to or demand upon Tenant. If the Demised
Premises be not surrendered as above set forth, Tenant shall indemnify, defend
and hold Landlord harmless against loss or liability resulting from the delay by
Tenant in so surrendering the Demised Premises, including, without limitation
any claim made by any succeeding occupant founded on such delay. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this Lease Agreement.
All property of Tenant not removed within 30 days after the last day of the
term of this Lease Agreement shall be deemed abandoned. Tenant hereby appoints
Landlord its agent to remove all property of Tenant from the Demised Premises
upon termination of this Lease Agreement and to cause its transportation and
storage for Tenant's benefit, all at the sole cost and risk of Tenant and
Landlord shall not be liable for damage, theft, misappropriation or loss thereof
and Landlord shall not be liable in any manner in respect thereto. Tenant shall
pay all costs and expenses of such removal, transportation and storage. Tenant
shall reimburse Landlord upon demand for any expenses incurred by Landlord with
respect to removal or storage of abandoned property and with respect to
restoring said Demised Premises to good order, condition and repair.
Section 20.18 Holding Over. In the event Tenant remains in possession of
the Demised Premises after expiration of this Lease, and without the execution
of a new lease, it shall be deemed to be occupying the Demised Premises as a
Tenant from month to month, subject to all the provisions, conditions and
obligations of this Lease insofar as the same can be applicable to a month-to-
month tenancy, except that the Basic Rent shall be escalated to 150% of the then
current Basic Rent for the Demised Premises.
Section 20.19 Survival. All obligations (together with interest on money
obligations at the Maximum Rate of Interest) accruing prior to expiration of the
term of this Lease Agreement shall survive the expiration or other termination
of this Lease Agreement.
Section 20.20 Attorneys' Fees. In the event of any litigation or judicial
action in connection with this Lease or the enforcement thereof, the prevailing
party in any such litigation or judicial action shall be entitled to recover all
costs and expenses of any such judicial action or litigation (including, but not
limited to, reasonable attorneys' and paralegals' fees) from the other party,
including, but not limited to all such fees and costs incurred at any pretrial,
trial, appellate or bankruptcy proceedings.
45
Section 20.21 Landlord's Limited Liability. Except as specifically provided
in this Section 20.21, Tenant agrees to look solely to Landlord's interest in
the Demised Premises for recovery of any judgment from Landlord, it being agreed
that Landlord (and if Landlord is a partnership, its partners, whether general
or limited, and if Landlord is a corporation, its directors, officers or
shareholders) shall never be personally liable for any personal judgment or
deficiency decree or judgment against it, and none of Landlord's assets, other
than Landlord's interest in the Demised Premises, shall ever be subject to any
judgment against Landlord. Notwithstanding the foregoing, the limitation on
Landlord's liability as contained herein shall not apply to any judgment against
Opus South Corporation, a Florida corporation, rising out of Opus South
Corporation's construction guaranty as contained in Section 2.4 hereof or Opus
South Corporation's environmental indemnity as contained in Section 4.5 hereof.
Section 20.22 Radon Gas. Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, my present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
Section 20.23 Broker's. Tenant represents that Tenant has dealt with and
only with Xxxxxx Xxxxxxx, as broker, in confection with this Lease Agreement and
that no other broker has negotiated or participated in negotiations of this
Lease Agreement or submitted or showed the Demised Premises or is entitled to
any commission in connection therewith. Tenant shall indemnify and hold Landlord
harmless from and against any and all commissions, fees and expenses and all
claims therefor, by any broker, salesman or other party in connection with or
rising out of Tenant's action in entering into this Lease Agreement, except for
the commissions of Xxxxxx Xxxxxxx, which commissions Landlord shall be obligated
to pay pursuant to its agreement with Xxxxxx Xxxxxxx.
Section 20.24 Waiver of Jury Trial. Landlord and Tenant, each waive trial
by jury in connection with proceedings and or counterclaims brought by either of
the parties against the other arising out of related to this Lease Agreement.
This waiver of jury trial by each of the parties is made by the parties
voluntarily and with full knowledge and understanding of the rights which they
are waiving.
ARTICLE XXI
GUARANTY BY FINGERHUT COMPANIES, INC.
Section 21.1 Guaranty. Tenant's obligations under this Lease Agreement
shall be absolutely and unconditionally guaranteed by Fingerhut Companies, Inc.,
a Minnesota corporation, and Tenant shall cause Fingerhut Companies, Inc. to
deliver that certain Absolute and Unconditional Lease Guaranty in the form of
Exhibit "D" attached hereto simultaneously with Tenant's execution of this Lease
Agreement.
46
ARTICLE XXII
OPTION TO PURCHASE
Section 22.1 Option to Purchase. Tenant shall have the option to purchase
the Demised Premises (the "Option to Purchase") upon the terms and conditions as
set forth in this Article XXII. Tenant may -exercise the Option to Purchase by
giving written notice to Landlord of Tenant's election to exercise the Option to
Purchase (the "Option Notice") at any time within the within the later of (i)
the period ending September 30, 1996, or (ii) the thirty (30) day period
following the Possession Date, time being of the essence with respect to such
Option Notice. It is provided, however, that Tenant may exercise its Option to
Purchase only if (i) this Lease Agreement is in full force and effect at the
time the Option to Purchase is exercised, and (ii) Tenant is not in default
under any of the terms. covenants or conditions contained in this Lease
Agreement at the time of the exercise. The exercise of the Option to Purchase
may only be made by Tenant in accordance with the terms and conditions of this
Article XXII. If Tenant should fail to properly exercise the Option to Purchase
within the thirty (30) day period following the Possession Date, then the Option
to Purchase contained herein shall automatically terminate and be of no further
force or effect. The closing date for the purchase of the Demised Premises by
Tenant pursuant to the Option to Purchase as contained herein shall be the date
as established for the same by Tenant in the Option Notice, which date shall be
no earlier than sixty (60) days following the date of the Option Notice and no
later than January 31, 1997 (time being of the essence with respect to such
Closing).
Section 22.2 Purchase Price. Purchase Price for the Demised Premises
pursuant to the Option to Purchase shall be $5,137,112.00 (the "Purchase Price")
(which Purchase Price includes $307,379.00 of "EXTRAS" as described in Section
23.1 of this Lease). The Purchase Price shall be payable by Tenant, in cash, by
wire transfer, to Landlord at the closing of the Option to Purchase. The
Purchase Price shall be subject to closing prorations and adjustments as
hereinafter set forth in this Article XXII.
Section 22.3 Title Evidence. Within thirty (30) days after Landlord's
receipt of the Option Notice, Landlord shall furnish to Tenant a commitment for
title insurance covering the Demised Premises and issued by Chicago Title
Insurance Company or other title company reasonably acceptable to Tenant (the
"Title Company") in the amount of the Purchase Price and showing fee simple
title to the Demised Premises vested in Landlord, together with legible copies
of all instruments and documents affecting title to the Demised Premises and
listed in the commitment. The commitment shall agree to issue Tenant, upon the
closing of the Option to Purchase, a title insurance policy in the full amount
of the Purchase Price, without exception for any matters other than the
Permitted Exceptions as hereinafter set forth in Section 22.6.
Section 22.4 Phase I Environmental Report. Within thirty (30) days after
Landlord's receipt of the Option Notice, Landlord shall furnish to Tenant a
Phase I Environmental Site Assessment addressed to Tenant and prepared by an
independent environmental engineering firm acceptable to Tenant in form and
content acceptable to Tenant and in conformance with ASTM standard E1527-93 and
covering the Demised Premises (the "Plan I").
Section 22.5 Current Survey. Within thirty (30) after Landlord's receipt of
the Option Notice, Landlord shall furnish to Tenant a survey of the Demised
Premises prepared by
47
surveyors reasonably acceptable to Tenant. The survey shall be certified to
Tenant and the title company within ninety (90) days prior to the closing of the
Option to Purchase and shall:
(a) Set forth an accurate description of the Demised Premises;
(b) Locate all existing easements and rights-of-way (setting forth
the book and page number of the recorded instruments creating the same),
alleys, streets and roads;
(c) Show any encroachments upon or by the Land and Improvements;
(d) Show all existing Improvements (such as buildings, power lines,
fences, etc.);
(e) Contain a surveyor's certification in favor of Tenant and the
Title Company and such other parties as Tenant may designate;
(f) Show all dedicated and maintained public streets providing access
to the Demised Premises and whether such access is paved to the property
line of the Land;
(g) Set forth the square footage of the Land and Improvements;
(h) State whether the Demised Premises is located in a flood zone
and, if so, the specific flood zone designation of the Demised Premises;
(i) Show all applicable set-back lines with reference to the source
of the setbacks; and
(j) Be prepared in conformity with minimum standard detail
requirements for land title surveys of the American Land Title Association
and the American Congress on Surveying and Mapping; and
(k) Show the location of all utility lines servicing the Demised
Premises.
In the event the survey shows any encroachment of any improvement upon,
from or onto the Property, on or between any building setback line, a property
line or any easement, or any other unacceptable matter, said encroachment or
unacceptable matter shall be deemed to be a title defect and shall be treated as
an objection to title by Tenant under Section 22.5 hereof.
Prior to the closing of the Option to Purchase, Tenant may elect to have
the survey recertified in order to cause the certification date to be closer to
the closing date of the Option to Purchase, and any subsequent change in the
required survey which my appear in the recertified survey, other than the
certification date, shall be subject to the terms and provisions of Section 22.5
hereof.
Section 22.6 Uniform Commercial Code. Uniform Commercial Code searches
("UCC Searches") in the name of Landlord from the appropriate filing office in
Florida showing no security interests in the Demised Premises, the Improvements
or any personal property thereon, other than those that will be released at the
closing of the Option to Purchase.
48
Section 22.7 Cure of Title and Survey Defects. If the title commitment
and/or survey and/or Phase I or UCC Searches reveal any defects or any matters
that are unacceptable to Tenant, Tenant shall provide written notice thereof to
Landlord within thirty (30) Days following Tenant's receipt of the last of the
title commitment, survey, UCC Searches or Plan 1. Any matters of title, survey,
the Phase I or UCC Searches not referenced in such notice shall be deemed
accepted by Tenant. Upon receipt of such notice. Landlord shall use reasonable
efforts to eliminate all such unacceptable matters to the reasonable
satisfaction of Tenant and the Title Company. Landlord agrees to satisfy at
closing any mortgage financing placed upon the Demised Premises by Landlord. In
the event Landlord is unable or unwilling to satisfy such objections within
sixty (60) days after said notice, Tenant may, at its option, (a) accept title
subject to the objections raised by Tenant in which event said objections shall
be deemed to be waived for all purposes or (b) rewind and cancel the Option to
Purchase, whereupon the Option to Purchase shall be of no further force or
effect or cure such defect and Landlord will contribute up to but not in excess
of $50,000 to the cost thereof. Notwithstanding the foregoing in no event shall
Landlord be obligated to undertake to cure any matters related to the Phase I or
expend any amounts in connection therewith; provided, however, the foregoing
clause shall not in anyway be deemed to relieve Landlord of any of its
obligations as Landlord with respect to Hazardous Materials as provided in
Article IV hereof.
Section 22.8 Permitted Exceptions. The Demised Premises shall be conveyed
to Tenant subject to no liens, charges, encumbrances, easements, restrictions,
reservations or other matters of any kind or character other than the following
exceptions (collectively, the "Permitted Exceptions").
(a) Ad valorem taxes and assessments for the year of closing and
subsequent years, provided the same are not then due and payable;
(b) Zoning ordinances;
(c) This Lease Agreement; and
(d) Any easements, restrictions or other matters of record or
survey matters which may be accepted by Tenant pursuant to Section 22.4
hereof.
Section 22.9 Closing Date. The consummation of the Option to Purchase
shall take place on the closing date as specified in the Option Notice at the
offices of Landlord's counsel located in Tampa, Florida, or at such other place
as Landlord and Tenant may mutually agree to in writing.
Section 22.10 Landlord's Obligations at Closing. At the closing of the
Option to Purchase, Landlord shall do the following:
(a) Execute, acknowledge and deliver to Tenant a special
warranty deed conveying good. insurable and marketable title to the Demised
Premises to the Tenant subject only to the Permitted Exceptions, which
special warranty deed shall be in statutory form for recording;
49
(b) Furnish and deliver to Tenant an ALTA Form 1992 owner's
title insurance policy or "marked up" title commitment insuring fee simple
title to the Demised Property in a face amount equal to the Purchase Price
and containing no exceptions other than the Permitted Exceptions and other
exceptions, if any, which Tenant may, in Tenant's sole discretion consent
to in writing.
(c) Execute and deliver to Tenant and the Title Company a
mechanic's lien and possession affidavit in sufficient form and substance
so as to allow the Title Company to remove the mechanic's lien exception
and parties in possession exception from the title policy (excepting only
the Lease Agreement);
(d) Execute and deliver to Tenant to affidavit (as required to
insure the "gap" at closing) that there have been no changes in the
condition of title from that shown in the title commitment delivered to
Landlord and containing any statements needed for the Title Company to
delete all standard exceptions in the title insurance policy to be
delivered to Tenant.
(e) Execute and deliver to Tenant a warranty xxxx of sale for
any and all personal property being transferred to Tenant, which personal
property shall be transferred in "AS IS" condition, but which shall be free
and clear of all encumbrances;
(f) Furnish all available keys to any door or lock on the
Demised Premises;
(g) Execute and deliver to Tenant an assignment of the Lease
Agreement together with all guarantees thereof;
(h) To the extent available, furnish an assignment of Landlord's
warranties and guarantees obtained by Landlord from Landlord's architect,
engineer, contractors and subcontractors and from other persons or entities
supplying equipment or materials or performing work in connection with
Landlord's construction of Landlord's Improvements;
(i) Execute and deliver instruments satisfactory to Tenant and
the Title Company reflecting the proper power, good standing and
authorization for the sale of the Demised Premises from Landlord to Tenant
hereunder,
(j) Execute and deliver to Tenant and the Title Company a FIRPTA
affidavit in form and substance acceptable to Tenant and the Title Company;
and
(k) Execute and deliver to Tenant and the title company all
other documents as may be reasonably required by this Option to Purchase.
Section 22.11 Tenant's Obligations at Closing.
(a) Contemporaneously with the performance by Landlord of its
obligations set forth in Section 22.8 at closing, Tenant shall deliver to
Landlord a wire transfer to be received no later than 2:00 p.m. on the
closing date for the Option to Purchase, the cash due at closing as set
forth in Section 22.2 above.
50
(b) At the closing of the Option to Purchase, Tenant shall
execute and deliver to Landlord an assumption by Tenant of all obligations
of Landlord under the Lease Agreement. Such assumption shall include an
indemnity indemnifying and agreeing to defend Landlord from and against all
claims under the Lease Agreement accruing from and after closing or at the
election of Tenant a termination of the Lease.
Section 22.12 Closing Costs.
(a) Landlord shall pay the following costs and expenses in
connection with the closing on the Option to Purchase:
(i) all documentary stamps in connection with the
conveyance of the Demised Premises including a deed or conveyance
tax;.
(ii) the premium and all search fees payable for the
owner's policy of title insurance;
(iii) recording of fees in connection with those
instruments necessary to render title acceptable to Tenant;
(iv) survey costs; and
(v) Landlord's cost of document preparation and
attorneys' fees.
(b) Tenant shall pay the following costs and expenses in
connection with the closing:
(i) recording fees in connection with the special
warranty deed; and
(ii) its cost of document preparation and its attorneys'
fees.
Section 22.13 Prorations. In light of Tenant's obligations under the Lease
Agreement, the prorations to be made in connection with the Option to Purchase
shall be limited to prorating those items of real estate taxes and operating
expenses for the Demised Premises, if any, which are payable by Landlord in
connection with the Demised Premises prior to the possession date as provided in
the Lease Agreement, and prorating rents due under the Lease Agreement.
Section 22.14 Option Not to be Separated from Lease. The Option to
Purchase shall not be separable from the Lease Agreement, nor may the Option to
Purchase be assigned by Tenant separate from the Lease Agreement.
ARTICLE XXIII
EXTRA TENANT IMPROVEMENTS
Section 23.1 Extra Tenant Improvements. Tenant has requested Landlord
to install certain extra improvements within the Demised Premises as more
particularly described on Exhibit "E" incorporated by reference herein
("EXTRAS"). Landlord and Tenant have agreed that the price for the EXTRAS shall
be $307,379.00 (the "Price of the EXTRAS"). Landlord
51
shall undertake to construct and install the EXTRAS as a portion of Landlord's
Improvements. Tenant shall pay to Landlord the Price of the EXTRAS in full on or
before January 31, 1997, together with interest thereon which shall accrue at
the rate of 10% per annum from and after the Possession Date. The parties agree
that Tenant's payment of the Price for the EXTRAS shall not be deemed to be rent
or additional rent payable hereunder, but rather shall be payment to Landlord
for amounts incurred by Landlord in connection with the construction and
installation of the EXTRAS. Landlord shall not have the right to demand
possession of the Demised Premises in the event Tenant should fail to timely pay
the Price of the EXTRAS to Landlord; provided, however, Landlord shall have all
other rights and remedies against Tenant as contained in this Lease Agreement or
against any guarantor of this Lease Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Agreement to be duly executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of OPUS SOUTH CORPORATION, a Florida
corporation
/s/ Xxxxxx X. Xxxxx By: /s/ [Signature illegible]
----------------------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxx Name: ______________________________________
----------------------------------------
(Print or Type Name) Title: President & CEO
------------------------------------
/s/ [Signature illegible]
-----------------------------------------------
Name: [Signature illegible] (Corporate Seal)
----------------------------------------
(Print or Type Name)
"Landlord"
CUSTOMER COMMUNICATIONS CENTER, INC. a Minnesota
corporation
/s/ C. Xxx Xxxxx By: /s/ Xxxxxx X. X'Xxxxx
----------------------------------------------- ---------------------------------------
Name: C. Xxx Xxxxx Name: Xxxxxx X. X'Xxxxx
---------------------------------------- --------------------------------------
(Print or Type Name) Title: President
-------------------------------------
/s/ June X. Xxxxx
-----------------------------------------------------
Name: June X. Xxxxx Attest: /s/ X. X. Xxxxxxx
---------------------------------------------- -----------------------------------
(Print or Type Name) Name: X. X. Xxxxxxx
-----------------------------------
Title: Secretary
-----------------------------------
(Secretary or Assistant Secretary)
"Tenant"
52
EXHIBIT A
---------
[Legal Description]
PERMITTED ENCUMBRANCE
1. Taxes for the year 1996 and subsequent years.
2. Easement reserved in instruments recorded in Official Records Book 4709, at
Page 1432, Official Records Book 5046, at Page 465 and Official Records
Book 5246, at Page 34, of the Public Records of Hillsborough County,
Florida.
3. Easement granted to Tampa Electric Company, a Florida corporation, recorded
August 6, 1986, in Official Records Book 4880, at Page 663, of the Public
Records of Hillsborough County, Florida (as to the easements only).
4. Terms and conditions of that certain Agreement for Access and Utility
Easement recorded in Official Records Book 5246, at Page 40, of the Public
Records of Hillsborough County, Florida.
5. Notice of Modification to Adopted Development Order recorded in Official
Records Book 6026, Page 665 and Official Records Book 7589, at Page 1955,
of the Public Records of Hillsborough County, Florida.
6. Notice of Commencement recorded February 16, 1996, in Official Records Book
8049, Page 1663, of the Public Records of Hillsborough County, Florida
7. Mortgage and Security Agreement by Opus South Corporation, a Florida
corporation, dates April 2, 1996, recorded in Official Records Book 8100,
at Page 0744, of the Public Records of Hillsborough County, Florida.
8. Notice of Commencement recorded in Official Records Book 8100, at Page
0766, of the Public Records of Hillsborough County, Florida.
53
"EXHIBIT E"
EXTRAS
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THE FOLLOWING LIST OF ITEMS HAVE BEEN DESCRIBED IN THE BASE
BUILDING SPECIFICATIONS, BUT SHALL BE CONSIDERED EXTRAS
----------------------------------------------------------------------------------------------------------------------------------
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FINGERHUT @ UBC 48,840 SF
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TOTAL AS
UNIT UNIT AGREED TO ON
QTY UNIT PRICE TOTAL APR. 3, 1998
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SITE COSTS $0
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PAVING $0
----------------------------------------------------------------------------------------------------------------------------------
CURB $0
----------------------------------------------------------------------------------------------------------------------------------
STRIPING & TRAFFIC SIGNS $0
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CLEAR, STRIP, GRADE & CUT $0
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STORMWATER FOR 1.5 ACRES $0
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LANDSCAPE $0
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MILLWORK $7,294
----------------------------------------------------------------------------------------------------------------------------------
DELETE RECEPTION DESK 1 ALW $0.00 $0
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SUPERVISOR PLATFORM 8'X13' 88 SF $57.18 $6,004
----------------------------------------------------------------------------------------------------------------------------------
PLAS, LAM, COUNTER IN APPLICANT WTG. RM. 26 LF $65.00 $1,690
----------------------------------------------------------------------------------------------------------------------------------
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OPERABLE PARTITIONS $21,360
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1' 18' & 1' X 32' MODERNFOLD "PACESETTER" #202 50 LF $450.00 $22,500
----------------------------------------------------------------------------------------------------------------------------------
DELETE PARTITIONS WHERE OPER. PARTITIONS 50 LF ($23.00) ($1,150)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
1
----------------------------------------------------------------------------------------------------------------------------------
TOTAL AS
UNIT UNIT AGREED TO ON
QTY UNIT PRICE TOTAL APR. 3, 1998
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PATIO FOR SMOKERS $6,761
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CONCRETE PAD 640 SF $3.00 $1,820
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ALUMINUM CANOPY 540 SF $9.15 $4,941
----------------------------------------------------------------------------------------------------------------------------------
WOOD PICNIC TABLES 2 EA $100.00 $200
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
AUTO DOORS $4,300
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DOORS W/PUSH BUTTON ACTIVATION 1 PR $4,300.00 $4,300
----------------------------------------------------------------------------------------------------------------------------------
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EXTRA CARD READER @ SERVICE DOOR 1 LS $1,500.00 $1,500 $1,500
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SOUND INSULATION $0
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OPUS SHALL INSULATE ALL WALLS, INDICATED ON THE DRAWINGS
TO RECEIVE INSULATION. THE WALLS SEPARATING THE CALL
FLOOR FROM THE OFFICES ALONG WITH THOSE REQUIRED BY CODE
SHALL BE BUILT TO THE DECK
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----------------------------------------------------------------------------------------------------------------------------------
POLYMIX PAINT $24,311
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POLY/VINYL/ROLLED PAINT COMBO 1 LS $38,261.00 $38,261
----------------------------------------------------------------------------------------------------------------------------------
ROLLED PAINT @ $.30/SF X 46600 SF 45,500 SF ($0.30) ($13,950)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
CARPET ALLOWANCE $37,673
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$18.50/SY VS $11/SY 5,023 SY $7.50 $37,673
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
CEILING TILE $17,080
----------------------------------------------------------------------------------------------------------------------------------
$1,10/SF VS $.75/SF 48,800 SF $0.35 $17,080
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2
----------------------------------------------------------------------------------------------------------------------------------
TOTAL AS
UNIT UNIT AGREED TO ON
QTY UNIT PRICE TOTAL APR. 3, 1998
----------------------------------------------------------------------------------------------------------------------------------
CERAMIC TILE IN LOBBY $3,824
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$6/SF VS $1.22/SF 800 SF $4.78 $3,824
----------------------------------------------------------------------------------------------------------------------------------
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HVAC $81,994
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OLD LESS NEW
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$260 [$187(RTU's + $25[LIEBERTS] 1 LS $48,000.00 $48,000
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
DELETE TON, PER NEW CRITERIA OF 518 OCC. LOAD 1 LS ($28,000.00) ($28,000)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
ADD FOR INCREASED LIEBERT COMP, ROOM LOAD 15 TON $2,000.00 $30,000
----------------------------------------------------------------------------------------------------------------------------------
UPGRADE EMS TO TRACER SYSTEM 1 LS $7,500.00 $7,500
----------------------------------------------------------------------------------------------------------------------------------
CURBS FOR 2 UNITS 6' X 10' W/INSULATED CAP 2 EA $2,247.00 $4,494
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
PLUMBING $4,800
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6 FIXTURES 6 EA $800.00 $4,800
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----------------------------------------------------------------------------------------------------------------------------------
FIRE PROTECTION $22,013
----------------------------------------------------------------------------------------------------------------------------------
FM 200 W/ 8 FOOT HIGH CLG 9,248 CF $2.11 $19,513
----------------------------------------------------------------------------------------------------------------------------------
DELETE VESDA E-70D 0 LS $0
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CELLUNOID VALVE 1 EA $2,500.00 $2,500
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ELECTRICAL & SECURITY $74,050
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OLD BUDGET $364,730
----------------------------------------------------------------------------------------------------------------------------------
NEW BUDGET $660,620
----------------------------------------------------------------------------------------------------------------------------------
3
----------------------------------------------------------------------------------------------------------------------------------
TOTAL AS
UNIT UNIT AGREED TO ON
QTY UNIT PRICE TOTAL APR. 3, 1998
----------------------------------------------------------------------------------------------------------------------------------
DIFFERENCE (NEW-OLD) $295,890 $295,890
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
1 DELETE 600 KW GENERATOR 1 ($131,900) $(131,900)
----------------------------------------------------------------------------------------------------------------------------------
2 DELETE UPS 1 ($89,940) ($89,940)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
ELECTRICAL ADDS PER CONVERSATION ON 4/1/85 W/ B. PIANO &
X. XXXXXXXX
----------------------------------------------------------------------------------------------------------------------------------
1. ALL ELECTRICAL SUBMITTALS, PRINTS SHALL BE IN 3-RING $0
BINDER
----------------------------------------------------------------------------------------------------------------------------------
2. ALL TRANSFORMERS SHALL BE RATED K20 OR HIGHER $4,830
----------------------------------------------------------------------------------------------------------------------------------
3. SWITCHGEAR SHALL BE GENERAL ELECTRIC, NOT SIEMENS OR $0
SQUARE D
----------------------------------------------------------------------------------------------------------------------------------
4. THE ELECTRICAL SERVICE SHALL CONSIST OF A MAIN $0
FUSIBLE DISCONNECT SWITCH. IT SHALL WITHSTAND FULL
AVAILABLE FAULT CURRENT W/OUT A SERIES RATING. IT SHALL
HAVE A FULL SIZE, 100%, NEUTRAL BUS.
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5. FINGERHUT TO BUY CURRENT TECH. POWER SIFTER, OPUS TO $0
INSTALL
----------------------------------------------------------------------------------------------------------------------------------
6. INSTALL 20' OF 3/0 BARE COPPER WIRE IN THE BOTTOM OF $7,619
THE CONCRETE EVERY 200 FEET AROUND THE PERIMETER OF THE
BUILDING AND ACROSS THE CENTER OF THE BUILDING. BOND
CONDUCTORS TO THE
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4
----------------------------------------------------------------------------------------------------------------------------------
TOTAL AS
UNIT UNIT AGREED TO ON
QTY UNIT PRICE TOTAL APR. 3, 1998
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
BUILDING GROUND SYSTEM.
----------------------------------------------------------------------------------------------------------------------------------
7. POWER PANELS SHALL HAVE 200 % NEUTRAL BAR AND MAIN $300
BREAKERS
----------------------------------------------------------------------------------------------------------------------------------
8. PROVIDE CABINET FOR SPARE FUSES. PROVIDE IN CABINET $0
3 SPARE FUSES OF EACH TYPE USED IN THE BUILD
----------------------------------------------------------------------------------------------------------------------------------
9. LOW PEAK FUSES SHALL BE USED THROUGHOUT THE PROJECT $0
----------------------------------------------------------------------------------------------------------------------------------
10. ALL GROUND WIRES IN BRANCH CIRCUITS SHALL BE $0
PROVIDED PER LOCAL CODES
----------------------------------------------------------------------------------------------------------------------------------
11. NEUTRAL CONDUCTORS SHALL BE INSTALLED FOR EACH $7,680
SINGLE PHASE BRANCH CIRCUIT
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
GRAND TOTAL $307,379
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COST PER SF $6.29
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5
