EXHIBIT 10.110
LEASE AGREEMENT FOR CONVERGYS BUILDING
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease") is entered into as of August 29, 2000
(the "Effective Date"), by and between WESTPOINT BUILDING NO. 1, L.L.C., a
Delaware limited liability company "Landlord"), whose principal address is 000
X. Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and CONVRERGYS CUSTOMER
MANAGEMENT GROUP INC., an Ohio corporation ("Tenant"), whose principal address
is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
In consideration of the promises and covenants herein set forth and for
other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the parties mutually agree as
follows:
1. PREMISES AND PARKING. Landlord shall construct a new two-story building
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containing approximately 100,000 gross square feet (the "Building") in
accordance with the "Work Letter Construction Obligations" attached
hereto as Exhibit A (the "Work Letter"). Tenant shall occupy all of the
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100,000 gross square feet of the Building. The Building shall be
constructed on approximately 12.55 acres of land located in Westpointe
Centre, Tamarac, Florida, and more particularly described on Exhibit B
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attached hereto (the "Land"). The Building and Land are collectively
referred to below as the "Premises". Landlord, in consideration of the
rents, covenants, terms and conditions of this Lease, leases to Tenant
the Premises. In addition, throughout the Term, Tenant and its agents,
employees, and invitees shall be entitled to the unrestricted,
exclusive use of at least nine hundred seventy-four (974) parking
spaces as indicated on the Preliminary Building Shell and Site Plans
(as defined in the Work Letter) at no additional charge, which nine
hundred seventy-four (974) designated parking spaces will include, at
no additional charge, assigned visitor and handicap parking near
Tenant's visitor entrance as indicated on the Preliminary Building
Shell and Site Plans, including but not limited to the minimum number
of handicap spaces required by (and designed in compliance with)
applicable building codes and the Americans With Disabilities Act (the
"ADA"). Landlord will, at no additional cost to Tenant, assist Tenant
in securing a Commercial Boulevard bus stop at the building from the
applicable governmental authorities; provided, however, Landlord does
not guarantee or warrant that such bus stop will be approved.
2. INITIAL TERM AND RENEWAL TERMS.
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a. The initial term of this Lease (the `Initial Term") shall be
ten (10) Lease Years (defined below). The Initial Term will
commence on the date (the "Commencement Date") that is the
later of: (i) the date that is fifteen (15) days after
Substantial Completion of the Base Building Work and the
Tenant Improvements (as defined in the Work Letter), or (ii)
September 1, 2001, subject to the provisions of Section 7(d)
of the Work Letter. The first "Lease Year" shall begin on the
Commencement Date and shall end on the last day of the twelfth
(12th) full calendar month thereafter. Thereafter, each
succeeding twelve-month period shall be a "Lease Year".
b. If Tenant is not in default under this Lease beyond any
applicable cure period at the time of exercise, Tenant may, at
its option, extend the Initial Term for all of the premises
for up to three (3) additional periods of five (5) lease years
each (the "Renewal Term(s)"), upon written notice given to
Landlord at least nine (9) months prior to the end of the
Initial Term or Renewal Term then in effect of Tenant's need
to exercise such option(s). Failure by Tenants to so notify
Landlord in writing on or before nine (9) months before the
expiration of the Initial Term or Renewal Term then in effect
will be deemed to be a waiver by Tenant of its rights to
extend the Initial Term or the applicable Renewal Term. Except
for Base Rent, Tenant's lease of the applicable portion of the
Premises during the Renewal Terms shall be on the same terms
as provided in this Lease for the Initial Term.
c. In the event Tenant elects to extend the Terms for the first
Renewal Term, Tenant shall be entitled to a market
Refurbishment Allowance (as defined below) for the First
Renewal Term, and Landlord will pay Tenant such Market
Refurbishment Allowance as Tenant elects to receive on or
before the expiration of the Initial Term. That portion, if
any, of the Market Refurbishment Allowance not used by Tenant
shall be set off against Base Rent first coming due during the
First Renewal Term. As used herein, the term "Market
Refurbishment Allowance" means the then prevailing market
refurbishment allowance for tenants in buildings of comparable
size, age, use, location and quality in the Ft. Lauderdale,
Florida area (the "Market Area"). Within thirty (30) days of
Landlord's receipt of Tenant's notice of its intent to
exercise the First Renewal Term, Landlord shall provide Tenant
with its written proposal for the Market Refurbishment
Allowance. If the parties are unable to agree upon the Market
Refurbishment Allowance within sixty (60) days after Tenant
receives Landlord's written proposal, the Market Refurbishment
Allowance shall be determined by two (2) licensed real estate
appraisers, one appointed by Landlord and one appointed by
Tenant, who are members of the American Institute of
Appraisers are experienced in appraising commercial real
estate in the Ft. Lauderdale, Florida area. If the appraisers
are unable to agree on a Market Refurbishment Allowance for
the Premises within twenty (20) days of their appointment,
they shall select a third appraiser meeting the qualifications
outlined above and who has not previously worked for either
party within five (5) days after the last day of such twenty
(20) day period. Each party shall pay one-half (1/2) of the
third appraiser's fees. Within twenty (20) days after the
appointment of the third appraiser, a majority of the
appraisers will set the Market Refurbishment Allowance. If a
majority of the appraisers are unable to agree on a Market
Refurbishment Allowance within such twenty (20) day period,
the two closest appraisals will be averaged and the result
will be the Market Refurbishment Allowance for purposes of
this Section. The Market Refurbishment Allowance as determined
in accordance with this Section shall be binding on Landlord
and Tenant.
d. The Initial Term and the Renewal Terms shall be collectively
referred to as the "Term". Except as otherwise provided in
this Lease to the contrary, upon the
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expiration or termination of this Lease, the parties shall
be released of all obligations under this Lease accruing
from and after such expiration or termination.
3. DETERMINATION OF BASE RENT.
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Tenant shall pay Landlord base rent ("Base Rent") as follows:
a. For the initial Term, annual Base Rent, based upon the Budget
(as defined in the Work Letter), and a 10.80% lease constant,
shall be:
Lease Annual Base Rent
Years (2.5% annual increases) Monthly Base Rent
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1 $1,156,560.00 $ 96,380.00
2 $1,185,474.00 $ 98,789.50
3 $1,215,110.85 $101,259.24
4 $1,245,488.62 $103,790.72
5 $1,276,625.84 $106,385.49
6 $1,308,541.48 $109,045.12
7 $1,341,225.02 $111,771.25
8 $1,374,786.40 $114,565.53
9 $1,409,156.05 $117,429.67
10 $1,444,384.95 $120,365.41
b. For the First Renewal Term (Lease Years 11 through 15), annual
Base Rent shall equal 95% of "Market Rate" (as defined below;
provided, however, the annual Base Rent for the First Renewal
Term shall be no less than the annual Base Rent in Lease Year
10.
c. For the Second Renewal Term Lease Years 16 through 20), annual
Base Rent shall equal 95% of Market Rate; provided, however,
the annual Base Rent for the Second Renewal Term shall be no
less than the annual Base Rent in Lease Year 15.
d. For the Third Renewal Term (Lease Years 21 through 25), annual
Base Rent shall equal 95% of Market Rate; provided, however,
the annual Base Rent for the Third Renewal Term shall be no
less than the annual Base Rent in Lease Year 20.
e. The annual Base Rent set forth in Section 3.1. above has been
calculated by applying an agreed lease constant of 10/80% (the
"Lease Constant") to the amount of $10,70,898.00 set forth on
the Budget attached to the Work Letter. Such amount set forth
on the Budget is referred to herein and in the Work Letter as
the "Guaranteed Maximum Price" or "GMP". The GMP shall be
adjusted as set forth in the Work Letter (as so adjusted, the
"Adjusted "GMP"). Upon Substantial Completion, the annual Base
Rent for the first Lease Year shall be recalculated such that
same shall be equal to the result obtained by multiplying the
Lease Constant by the sum (the "Rent Calculation Amount") of
(i) the "Actual Total
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Landlord's Costs" (as defined in the Work Letter) and (ii)
thirty percent (30%) of the difference between the Adjusted
GMP and the Actual Total landlord's Costs; provided, however,
in no event shall the annual Base Rent for the first Lease
Year exceed the Adjusted GMP multiplied by the Lease Constant.
The annual Base Rent for each Lease Year after the first
Lease Year shall increase annually by 2.5%.
In addition, Landlord agrees to allow Tenant an additional
$848,437.00 (the "Financing Limit") of combined hard and soft
costs in "Finance Change Orders" (as defined in the Work
Letter), to be capitalized in the annual Base Rent at the
Lease Constant. Landlord and Tenant agree that Tenant will use
a portion of the Financing Limit for the installation of a
raised floor system in the Building, and Tenant may use any
portion of the Financing Limit not allocated to the raised
floor system for such other matters as Tenant may elect, in
Tenant's sold discretion. Any Change Orders which exceed the
Financing Limit are deemed "Cash Change Orders" (as defined in
the Work Letter), and shall be payable by Tenant in accordance
with Section 6(b) of the Work Letter.
f. As used herein, the term "Market Rate" means the then
prevailing market rate per rentable square foot for base rent
for tenants of comparable quality given by landlords for
leases with tenants in buildings of comparable size, age, use,
location and quality in the Market Area, taking into
consideration the extent of the availability of space as large
as the Premises in the Market Area and all other economic
terms then customarily prevailing in such leases with new
tenants in the Market Area. Within thirty (30) days of
Landlord's receipt of Tenant's notice of its intent to
exercise any of the Renewal Terms, Landlord shall provide
Tenant with its written proposal for the Market Rate. If the
parties are unable to agree upon the Market Rate within sixty
(60) days after Tenant receives Landlord's written proposal,
the Market Rate shall be determined by two (2) licensed real
estate appraisers, one appointed by Landlord and one appointed
by Tenant, who are members of the American Institute of
Appraisers and are experienced in appraising commercial real
estate in the Ft. Lauderdale, Florida area. In establishing
the Market Rate for an applicable Renewal Term, the appraisers
will produce a five (5) year schedule of Base Rent for such
Renewal Term. If the appraisers are unable to agree on a
Market Rate for the Premises within twenty (20) days of their
appointment, they shall select a third appraiser meeting the
qualifications outlined above and who has not previously
worked for either party within five (5) days after the last
day of such twenty (20) day period. Each party shall pay
one-half (1/2) of the third appraiser's fees. Within twenty
(20) days after the appointment of the third appraiser, a
majority of the appraisers will set the Market Rate. If a
majority of the appraisers are unable to agree on a Market
Rate within such twenty (20) day period, the two closest
appraisals will be averaged and the result will be the Market
Rate for purposes of this Section. The Market Rate as
determined in accordance with this Section shall be binding on
Landlord and Tenant.
g. Annual Base Rent shall be paid in equal monthly installments.
Base Rent is payable in advance on the first day of each month
and shall be prorated on a daily basis for
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any partial month. Each monthly payment of Base Rent shall
include applicable sales tax thereon, In the event the first
month of the Initial Term is a partial month, Base Rent for
such a partial month will be due and payable on the
Commencement Date. If Base Rent is not received by Landlord
by the tenth (10th) day of any month, then Tenant shall owe
Landlord interest accruing thereon at the Prime Rate then in
effect and as announced by The Wall Street Journal plus 3%
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per annum (the "Default Rate") from and including the firth
day after its due date until paid in full, provided,
however, if Tenant is late in the payment of Base Rent more
than twice in any Lease Year, interest as described above
shall accrue as of the date Base Rent was due until paid.
4. OPERATING COSTS, REAL PROPERTY TAXES AND ASSESSMENTS.
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a. For purposes of this Section and the Lease, the following
words and phrases shall have the meanings set forth below:
i. "Operating Costs" shall mean all actual costs and
expenses incurred by Landlord in connection with, the
ownership and maintenance of the Building, its
equipment, and the Land and related improvements
located thereon (the "Improvements"), other than the
performance by Landlord of its work under the Work
Letter and the obligations which are at the sole
expense of Landlord as more fully described at Section
6 below. In explanation of the foregoing, Operating
Costs shall include, but are not necessarily limited
to, all real property taxes and assessments imposed on
the Building and Premises; landscaping; common area
maintenance; snow removal; insurance; license, permit
and inspection fees; cost of services of independent
contractors; capital expenditures (amortized over the
item's useful life, as determined by generally accepted
accounting principles consistently applied), provided
any such capitalized item to be charged as a component
of Operating Costs is required because repair/
maintenance is no longer practical; property management
fees not in excess of three percent (3%) of the sum of
Base Rent and Additional Rent (as defined below); and
any operation and maintenance charges assessed against
the Premises pursuant to the Declaration of Protective
Covenants, Restrictions and Easements for Westpointe
Centre, a copy of which is attached hereto as Exhibit C
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(the "CCR"), which Tenant hereby consents to, and any
other covenants, conditions and restrictions,
reciprocal easement agreements or similar restrictions
and agreements hereafter affecting any portion of the
premises provided same have been consented to in
writing by the Tenant. Notwithstanding the foregoing,
Tenant shall not be bound by any modification or
amendment to the CCR that materially affects Tenant's
rights or obligations under this Lease unless Tenant
has consented in writing to such modification or
amendment. The foregoing notwithstanding, Operating
Costs shall not include utilities for the Premises;
depreciation on the Building and Improvements; amounts
paid toward principal or interest of loans of Landlord;
nor those costs as defined in Subsection 4.a.ii. below.
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ii. "Operating Costs" for the Building, its equipment, and
the Premises and Improvements shall not include:
1. mortgage principal payments
2. Mortgage interest payments
3. refinancing costs
4. ground rent and related costs
5. depreciation and amortization of the Building or
equipment (except as otherwise permitted in
Section 4.a.i, above)
6. interest or penalties resulting from late payments
by Landlord
7. advertising costs
8. brokerage leasing commissions
9. tenant alterations
10. capital improvements (except as otherwise
permitted in Section 4.a.i, above)
11. off-site management personnel and overhead
12. property management fees in excess of three
percent (3%) of the sum of Base Rent and
Additional Rent
13. those items specified in Section 6.b. below to be
performed by Tenant
14. any costs for which Landlord receives a credit,
refund or discount, to the extent of such credit,
refund or discount
15. any insurance costs to the extent such insurance
is not required to be maintained under this Lease
16. cost of replacing or adding improvements to the
Building or the Premises mandated by law or
governmental authority, and any repairs or
removals necessitated thereby
17. any costs covered by or reimbursable under a
contractor, manufacturer or supplier warranty or
service contract
18. any costs to remove and/or remediate Hazardous
Substances at, on or in the Premises not as a
result of any act or omission of the Tenant
Parties (as defined in Section 12.b.).
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b. The cost of any services performed by Landlord or by any of
its related parties will be comparable to those charged by
independent service providers (excluding property management
fees, which may not exceed three percent (3%) of the sum of
Base Rent and Additional Rent).
c. Landlord shall use its best efforts to provide Tenant with a
copy of Landlord's written Operating Cost budget and a written
statement of the estimated operating costs ("Estimated
Operating Costs") for the calendar year (or portion thereof)
in which Substantial Completion will occur at least thirty
(30) days prior to the Commencement Date, provided, however,
Landlord's failure to provide same within such time period
will not affect Tenant's obligation to pay Additional Rent. In
addition, Landlord shall furnish Tenant with the following
statements:
i. Landlord shall use its best efforts to furnish Tenant a
written statement of Operating Costs occurring during
the previous calendar year within ninety (90) days from
the expiration of each calendar year occurring during
the Term of this lease, provided, however, Landlord's
failure to provide same within such time period will
not affect Tenant's obligation to pay Additional Rent.
The written statement shall specify the amount by which
Tenant's Operating Costs exceed or are less than the
amounts paid by Tenant during the previous calendar
year pursuant to Subsection 4.c.ii below. Landlord will
furnish Tenant with any backup material supporting
Landlord's calculations within ten (10) days after
receipt of Tenant's reasonably written request
therefor.
ii. At the same time specified in Subsection 4.c.i above,
Landlord shall furnish Tenant a copy of Landlord's
written Operating Cost budget and a written statement
of the Estimated Operating Costs for the then current
calendar year.
d. During the Term, Tenant will pay as additional rent
("Additional Rent") the Operating Costs, and all applicable
sales tax thereon. Operating Costs will be paid as follows:
i. With each payment of Base Rent due pursuant to Section
3 above, Tenant will pay to Landlord one-twelfth (1/12)
of Operating Costs as determined by the budget
referenced in Section 4.c.ii, above.
ii. Within thirty (30) days after delivery of the written
statement referred to in Section 4c.i, above, Tenant
will pay to landlord the amount by which Operating
Costs, as specified in such written statement, exceeds
the aggregate of Estimated Operating Costs actually
paid by Tenant for the calendar at issue.
iii. If the annual statement of actual Operating Costs
indicates that Estimated Operating Costs paid by Tenant
pursuant to Section 4.d.i. above for any year exceeds
actual Operating Costs for the same calendar year,
Landlord, at its
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election, will either (i) promptly pay the amount of
such excess to Tenant within thirty (30) days, or (ii)
apply such excess against the next installment(s) of
Additional Rent next coming due hereunder.
e. Upon reasonable advance request, but in no event more than
once every Lease Year, Landlord shall grant Tenant reasonable
access to Landlord's books and records which reflect Operating
Costs for the purpose of verifying Operating Costs incurred by
Landlord for the past two (2) calendar years. Tenant shall
have the right to photocopy all such books and records.
Landlord will retain its books and records for a period of not
less than two (2) years.
f. Tenant shall pay, prior to the delinquency after receipt of
written request therefor from Landlord accompanied by a copy
of the applicable xxxx received by Landlord, all Taxes (as
defined below) on the Premises. Each such payment will be
accompanied by applicable sales tax thereon. For purposes
hereof, Taxes shall mean all real estate taxes , assessments,
and governmental charges or fees whether federal, state,
county or municipal, and whether they be by taxing districts
or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments
(including non-governmental assessments for common charges
under the CCR, or any other restrictive covenant or other
private agreement that are not treated as part of Operating
Costs consented to in writing by Tenant) now or hereafter
attributable to the Premises (or its operation), excluding,
however, penalties and interest thereon, and federal and state
taxes on income, capital, stock, succession, transfer,
franchise, gift, estate or inheritance. If the present method
of taxation changes so that in lieu of the whole or any part
of any Taxes, there is levied on Landlord a capital tax
directly on the rents received therefrom or a franchise tax,
assessment, or charge bases, in whole or in part, upon such
rents for the Premises, then all such taxes, assessments, or
charges, or the part thereof so based, shall be deemed to be
included within the term "Taxes" for purposes hereof. Taxes
shall include the reasonable costs of consultants retained in
an effort to lower Taxes and reasonable costs incurred in
disputing any Taxes or in seeking to lower the tax valuation
of the Premises. If any xxxx for Taxes covers a time period
which is outside the Term of this Lease, Tenant's obligation
to be responsible for such payment shall be appropriately
adjusted with Landlord so that Tenant is only paying for Taxes
attributable to the Term.
5. UTILITIES AND SERVICES. Landlord shall provide all mechanical and
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structural systems and equipment, including but not limited to
plumbing, heating, air conditioning, electrical systems, security,
lighting and similar equipment in accordance with the complete Final
Building Shell and Site Plans. Tenant shall procure in its name and
promptly pay when due all charges accruing during the Term for
telephone, electricity, gas, sanitary service, water and trash
collection for the Premises. If at any time during the Term the
Premises become untenantable because of the interruption of services to
the Building and such interruption is neither within Tenant's control
nor due to the fault of Tenant, its contractors, agents or employees,
Rent, Additional Rent, and any other charges due from Tenant hereunder
will xxxxx in proportion to the extent of the Building that is
untenantable,
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beginning with the second day of such untenantability until the
Premises again become tenenantable.
6. MAINTENANCE.
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a. Landlord will maintain, and make all necessary repairs and/or
replacement to, the Building and its structural elements, the
building systems, common areas, other tenant's premises (if
any) and the exterior walls, exterior doors, windows, roof,
corridors and structural portions of the Premises and the
Building, and will maintain the Building and the property
including all common areas, landscaping, exterior windows and
parking areas as a first-class, professional office building
consistent with other similar buildings in the Ft. Lauderdale,
Florida area and suitable for general office and/or
teleservicing use, and in compliance with all building and
zoning codes and all other applicable laws, ordinances, rules
and regulations. Landlord will keep the building systems in
good condition and repair and will make the building systems
available to Tenant twenty-four (24) hours per day, seven (7)
days per week, 365 (or 366 as the case may be) days per year.
Expenses incurred by Landlord in connection with the foregoing
will be included as Operating Costs under Section 4.a.i.,
subject to the exclusions listed in Section 4.a.ii., and
reimbursable by Tenant as part of Operating Costs. Landlord,
at its sole expense, will repair all defects (including latent
defects) in the construction of the Building and the Premises
(excluding any defects in the Tenant Improvements or
additional work constructed by Tenant in accordance with
Section 7), and such expenses will not be included as
reimbursable Operating Costs. All repairs and maintenance
performed by Landlord will be of a first-class quality and
done in a prompt, diligent and good workmanlike manner.
Landlord will use reasonable efforts to do any repairs and
maintenance, construction or any other work in such a manner
as not materially to interfere with or impair Tenant's use or
occupancy of the Premises. Landlord will be responsible for
compliance of the Premises, the Building, and the Property
with all applicable codes, laws, ordinances, rules, and
regulations, including without limitation the Environmental
Laws (defined below) and the ADA. If a violation of the ADA as
it was in effect as of the Effective Date is found to exist
which has not been caused by Tenant, Landlord at its expense
(and not as a component of Operating Cost) will promptly
correct such violation. Notwithstanding the foregoing, Tenant
shall be responsible and pay for any alterations,
modifications, additions or improvements to the interior of
the Premises which may be required by the ADA as a result of
(a) Tenant's alteration or modification of the Premises or
construction of the Tenant Improvements in accordance with
this Lease or (b) in order to make reasonable accommodations
to specific employees of Tenant with disabilities. In the
event Landlord fails to perform any of its obligations under
this Section 6.a., and such failure subjects persons or
property to an immediate risk of harm, Tenant will have the
right to perform such obligations and Landlord will reimburse
Tenant for the reasonable cost of performing such obligations
within thirty (30) days of receipt of an invoice for such
costs. In the event Landlord fails to reimburse Tenant for
such costs
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within such thirty (30) day period, interest will
accrue on such amount at the Default Rate from the day after
such payment was due.
b. Excluding the obligations of Landlord under Section 6.a.,
above, Tenant shall, at its own expense, maintain the
interior, nonstructural portions of the Building in good
condition and repair, reasonable wear and tear and casualty
damage excepted. Tenant shall provide for its own janitorial
services for the Building, including but not limited to
cleaning of window surfaces within the interior of the
Building. Upon the expiration or earlier termination of this
lease, Tenant shall surrender the Building to Landlord in good
condition, reasonable wear and tear and casualty damage
excepted. Notwithstanding anything to the contrary in this
Lease, Tenant shall have no obligation to restore the Building
to its original condition or to remove any tenant
improvements, including the Tenant Improvements, in the
Building upon the expiration or termination of this Lease.
c. If Tenant fails to perform any of its maintenance obligations
hereunder (including those obligations under this Section 6
and Section 11), Landlord shall have the right, after
providing Tenant with thirty (30) days' written notice and
opportunity to perform all necessary repairs, to perform such
repairs (and replacements, if necessary) on Tenant's behalf
and Tenant shall reimburse Landlord within thirty (30) days
for all of Landlord's costs in connection therewith. In the
event Tenant fails to reimburse Landlord for such costs within
such thirty (30) day period, interest will accrue on such
amount at the Default Rate from the day after such payment was
due.
7. ALTERATIONS. Tenant shall have the right to make such alterations to
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the Premises as may be necessary for the conduct of Tenant's business
after completion of the Tenant Improvements and reasonably approved by
Landlord; provided, however, that Tenant shall not make (a) any
structural alterations, any nonstructural alterations that affect the
integrity of the Building systems, or any nonstructural alterations a
single component of which costs in excess of $100,000 (and for which
Tenant has not agreed in writing to restore the Premises to the
condition immediately prior to such alteration at the expiration or
earlier termination of this Lease) without the written consent of
Landlord, which consent Landlord may withhold in its sole discretion;
of (b) any nonstructural alterations a single component of which costs
in excess of $100,000 (and for which Tenant has agreed in writing to
restore the Premises to the condition immediately prior to such
alteration at the expiration or earlier termination of this lease)
without the written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant shall obtain all necessary
building permits as are required for such alterations. Except as
provided herein (;particularly with respect to Tenant's machinery,
trade fixtures, furnishings, equipment and signs) such alterations made
by Tenant shall become part of the Premises and shall be returned to
Landlord as part of the Premises upon termination. Tenant shall also
have the right to install, attach, affix or otherwise place in or upon
the Premises, any and all machinery, equipment for teleservicing,
office or software development, trade fixtures, furnishings and
exterior signs necessary or desirable for Tenant's proper use of the
Premises. Notwithstanding anything to the contrary, Tenant will retain
ownership and shall remove any and all of Tenant's machinery,
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equipment for teleservicing, office or software development, trade
fixtures, furnishings and exterior signs (including without limitation
telecommunications equipment, computers, office furniture, office
equipment, disaster recovery backup equipment, cabling, wiring, signs,
etc.) at any time including at the termination or expiration of this
Lease, whether or not the same shall be deemed to be affixed to the
Premises or the Building. After removal, Tenant shall, at its expense,
restore the Premises to the same condition in which they were prior to
the installation, attachment or placement of such machinery, trade
fixtures, furnishings, equipment and exterior signs. Notwithstanding
the foregoing, Tenant shall have no obligation to remove the Tenant
Improvements or to restore the Premises to the condition existing prior
to the completion of the Tenant Improvements. All work performed and
all repairs made hereunder by Tenant shall be done in a good and
workmanlike manner which shall be consistent with industry standards,
using only first quality materials and labor and in compliance with all
applicable buildings and zoning laws and with all other laws,
ordinances, orders, rules, regulations, and requirements of all
federal, state, and municipal governments and the appropriate
departments, commissions, boards and officers thereof.
8. INSURANCE.
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a. Tenant shall, at its cost and expense, but for the mutual
benefit of Landlord and Tenant, maintain commercial general
(public) liability insurance covering any legal liability of
Tenant against claims for bodily injury, death and/or property
damage arising directly out of the Tenant's occupancy or use,
and/or operation of the Premises and/or the conduct of the
Tenant's business in such amounts as Landlord may reasonably
require, but in no event less than Three Million Dollars
($3,000,000) combined single limit for bodily injury or death
and/or property claims in one accident. The aforementioned
limit may be met under blanket or multiple policies. At
Tenant's options, Tenant may self-insure or retain, through
deductible or other retentions, all or a portion of the risks
described in this Subsection 8.a. under its corporate risk
management program. The Landlord and/or its designated
mortgagees or assignees are to be listed under such insurance
policy as additional insured(s) as respects their vicarious
legal liability caused by the actions or omissions of the
Tenant in relation to the Premises or the Building. Such
insurance shall contain a severability of interests provision.
Tenant agrees to insure, at its cost and expense, or at its
option to self-insure, its personal property, including trade
fixtures, furnishings, operating equipment and the leasehold
improvements for which it retains ownership.
Tenant shall maintain Worker's Compensation insurance as
required by applicable laws.
b. Notwithstanding the provisions of Subsection 8.a., above,
Landlord shall provide commercial general (public) liability
insurance covering Landlord, its employees, representatives,
officers, directors, agents, assignees, invitees and tenants
for claims arising out of the negligence or other actions or
omissions to act of the Landlord, its employees,
representatives, officers, directors, agents, assignees and
invitees. Such
11
commercial general (public) liability insurance policy shall
include the Tenant as an additional insured as respects its
vicarious legal liability caused by the actions or omissions
of the Landlord in relation to the Premises of the Building.
Such insurance shall contain a severability of interests
provision.
During the Term of this lease, Landlord shall keep its
personal property, the Premises, and leasehold improvements
for which it retains ownership (including the Premises),
including rent loss insurance, insured against loss or damage
by fire and all other risks of direct physical loss, only
excepting the customary exclusions that are contained in a
standard "all risks" policy, for not less than one hundred
percent (100%) of the replacement value thereof. Such policy
may at Landlord's election contain an endorsement for flood.
For purposes of this Section, "replacement value" shall be
deemed to be the cost of replacing the property less the cost
of excavation, foundations and footings of the Building.
Damages that are not insured and/or amounts for which the
Landlord becomes a co-insurer under its policy, including any
related costs, which occur due to the Landlord's failure to
maintain property insurance on the Premises at the most recent
replacement value shall be borne by the Landlord.
c. Deductibles or retained losses applicable to the property or
commercial general (public) liability insurance policies
specified in Subsections 8.a. and 8.b. above shall be borne by
the party listed as named insured on the respective policies.
d. Insurance maintained by Tenant and Landlord hereunder shall be
maintained with insurers licensed to do business in the State
of Florida and shall have a Best's Guide rating of at least
A-/IX. Tenant and Landlord will each furnish to the other a
true, correct and original certificate of such insurance
policies as are referenced in any and all Sections contained
in this Lease, within fifteen (15) days of the execution of
this Lease and, upon request, will provide evidence of the
renewal of such insurance upon expiration of the policies.
Such insurance policies shall provide that they will not be
materially changed, canceled, or not renewed without thirty
(30) days' prior written notice to the certificate holder by
the respective insurance company.
e. Under no circumstances shall Tenant be responsible for
insurance expenses over and above those directly related to
the operation or maintenance of the Premises and the Building,
e.g., excess or other insurance which primarily benefits the
Landlord, its shareholders, directors or officers or other
tenants. Landlord shall promptly pay when due all insurance
premiums on insurance policies required to be maintained by
Landlord hereunder.
f. Landlord and Tenant hereby expressly waive, and release each
other and their respective agents and employees from, any and
all claims it may have against each other or anyone claiming
through or under them by way of subrogation for any loss
caused by or resulting from risks insured against, whether
such insurance relates to property damage, public liability or
other risks (or which would have been insured against had that
party carried all insurance required under this Agreement),
provided that the insurance company issuing such policy shall
have
12
waived its right of subrogation with respect to all such
claims prior to such loss. Tenant and Landlord each shall
obtain a waiver from each and every insurance company with
which, in accordance with the insurance requirements of this
lease, they carry insurance, whether insuring the Building,
the Premises, improvements, personal property or liability
with respect to the Premises. Such waiver shall release the
insurance company's subrogation rights against the other
party. However, if at any time their respective insurers shall
refuse to permit waivers of subrogation, Landlord or Tenant
may in each instance revoke said waiver of subrogation
effective thirty (30) days from the date of notice to the
other unless, within such thirty (30) day period, the other is
able to secure and furnish, without additional expense,
insurance in other companies which provide such waiver of
subrogation. If such waiver can only be obtained at additional
expenses, the other party may agree to pay such additional
expense to maintain the waiver of subrogation.
g. Tenant will indemnify, defend and hold Landlord, and its
members, partners, officers, directors, subsidiaries,
affiliates, and employees, harmless from any and all loss or
damage which Landlord may sustain by reason of claims brought
against Landlord alleging bodily injury or death to any person
or damage to property to the extent that such loss or damage
is caused by (i) the negligence or willful misconduct of the
Tenant Parties in the use of the Premises, or (ii) Tenant's
default under the terms of this Lease. Nothing contained
herein will require Tenant to defend, indemnify or hold
harmless Landlord, or its members, partners, officers,
directors, subsidiaries, affiliates, and employees for losses
or damages related to claims of bodily injury or death to any
person or damage to property to the extent caused by the
negligence or willful misconduct of the Landlord Parties (as
defined in Section `12.c.).
h. Landlord will indemnify, defend, and hold Tenant, and its
members, partners, officers, directors, subsidiaries,
affiliates, and employees, harmless from any and all loss or
damage which Tenant may sustain by reason of claims brought
against Tenant alleging bodily injury or death to any person
or damage to property to the extent that such loss or damage
is caused by (i) the negligence or willful misconduct of the
Landlord Parties in connection with the Premises, or (ii)
Landlord's default under the terms of this Lease. Nothing
contained herein will require Landlord to defend, indemnify or
hold harmless Tenant, or its members, partners, officers,
directors, subsidiaries, affiliates, and employees, for losses
or damages related to claims of bodily injury or death to any
person or damage to property to the extent caused by the
negligence or willful misconduct of the Tenant Parties.
i. The indemnities set forth in this Section 8 shall survive
termination or expiration of this Lease and shall not
terminate or be waived, diminished or affected in any manner
by any abatement or apportionment of Rent under any provision
of this Lease. If any proceeding is filed fore which indemnity
is required hereunder, the indemnifying party agrees, upon
request therefor, to defend the indemnified party
13
in such proceeding at its sole cost utilizing counsel
reasonably satisfactory to the indemnified party.
9. DESTRUCTION OF PREMISES.
-----------------------
a. Definitions. For purposes of this Section, the following
-----------
definitions will apply.
i. "Casualty means the destruction of or damage to all or
any part of the Premises or the Building.
ii. "Architect" means an independent architect selected
jointly by Landlord and Tenant.
iii. "Insured Casualty" means a Casualty which (i) is
insured under Landlord's all risks policy described in
Section 8.b., above, or (ii) would have been insured
under such a policy had Landlord maintained such policy
in effect.
iv. "Uninsured Casualty" means a Casualty which (i) is not
insured under Landlord's all risks policy described in
Section 8.b. above, or (ii) would not have been insured
under such a policy had Landlord maintained such policy
in effect.
v. "Minor Casualty" means (1) a Casualty, if being the
destruction of or damage to all the Premises or
Building, which can be rebuilt or repaired, as
reasonably determined by the Landlord, within the
lesser of (i) two hundred seventy (170) days after the
date a building permit is issued for the
reconstruction, or (ii) the length of time remaining in
the then current Term, or (2) a Casualty, if being the
destruction of or damage to less than all of the
Premises or Building, which can be rebuilt or repaired,
as reasonably determined by Landlord, within the lesser
of (i) one hundred eighty (180) days after the date of
the Casualty, or (ii) the length of time remaining in
the then current Term.
vi. "Major Casualty" means (1) a Casualty, if being the
destruction of or damage to all the Premises or
Building, which cannot be rebuilt or repaired, as
reasonably determined by the Landlord, within the
lesser of (i) two hundred seventy (170) days after the
date a building permit is issued for the
reconstruction, of (ii) the length of time remaining in
the then current Term, or (2) a Casualty, if being the
destruction of or damage to less than all of the
Premises or Building, which cannot be rebuilt or
repaired, as reasonably determined by Landlord, within
the lesser of (i) one hundred eighty (180) days after
the date of the Casualty, or (ii) the length of time
remaining in the then current Term.
vii. "Dollar Limit" means the lesser of the following:
. Two Hundred Fifty Thousand Dollars ($250,000),
or
14
. During the last year of the then current Term, the total
Base Rent which would have been due from Tenant from the
date of the Casualty until the end of the then current
Term, had the Casualty not occurred.
b. Minor Insured Casualties. If an Insured Casualty occurs which is
------------------------
also a Minor Casualty, then Landlord will promptly commence
reconstruction or repair and diligently pursue the same toward
completion, unless such Casualty occurs during the last year of
the then current Term and the Lease is terminated pursuant to
Section 9.g.
c. Major Casualties - Tenant's Election. If a Major Casualty occurs
------------------------------------
and Tenant's ability to operate its business in the Premises is
materially hindered or impaired as reasonably determined by
Tenant, then Tenant may elect to terminate this Lease effective on
the tenth (10/th/) day after such election by providing written
notice to Landlord within ten (10) days after receipt of the
Architect's written estimate of the length of time necessary for
such reconstruction or repair. If Tenant does not elect to
terminate this lease, then Landlord will promptly commence
reconstruction or repair and diligently pursue the same toward
completion.
d. Uninsured Casualties - Landlord's Election. If an Uninsured
------------------------------------------
Casualty occurs and the estimated cost of the repair or
reconstruction as reasonably determined by Landlord is expected to
exceed the Dollar limit, then Landlord may elect to terminate this
Lease effective on the tenth (10th) day after such election by
providing written notice to Tenant within ten (10) days after
receipt of the Architect's written estimate of the cost for such
reconstruction or repair. If Landlord does not elect to terminate
this Lease, then Landlord will promptly commence reconstruction or
repair and diligently pursue the same toward completion.
e. Reconstruction or Repair. Upon commencement of reconstruction or
------------------------
repair after a Casualty, Landlord will rebuild or repair the
Building and Premises with all reasonable speed and promptness,
subject to excusable delay, to substantially the same condition
which existed immediately prior to the happening of the Casualty,
except that Landlord's obligation to rebuild or repair will not
include any personal property of Tenant, nor will Landlord be
required to spend for such work an amount in excess of the
insurance proceeds actually received by Landlord as a result of
the Casualty plus any applicable deductible, provided that
Landlord has maintained insurance on the Building and Improvements
as required in Section 8 above. Landlord will not be liable for
any inconvenience or annoyance to Tenant or injury to the business
of Tenant resulting in any way from such destruction or damage or
the reconstruction or repair thereof.
f. Rent Abatement. During any period of reconstruction or repair
--------------
after a Casualty, Base Rent, Additional Rent, and any other
charges due hereunder from Tenant will xxxxx in proportion to the
damage sustained, beginning on the date of the Casualty and
continuing until the reconstruction or repair is completed. In
addition, if any Casualty occurs and Tenant's ability to operate
its business in the Premises is materially hindered or impaired
due to the interruption of services to the Building,
15
as reasonably determined by Tenant, Tenant rent will xxxxx
commencing the first day of untentantability.
g. Casualties at the End of the Term. Notwithstanding anything to the
---------------------------------
contrary contained in this Section 9, if a Casualty occurs within
the last year of the then current Term and either (i) the estimated
cost of the repair or reconstruction as reasonably determined by
Landlord is expected to exceed the Dollar Limit, or (ii) the
Casualty is a Major Casualty, then, provided that in all in stances
the insurance proceeds are paid to Landlord, excluding those
proceeds payable to Tenant for its property, Landlord will not be
obligated to restore or repair such destruction or damage and the
Lease will be terminated effective on the date of the Casualty
unless Tenant agrees, within thirty (30) days after receipt of the
Architect's written estimate of the cost for such reconstruction or
repair and the time necessary to complete such reconstruction or
repair, to extend the Term for an additional period of time such
that at least five (5) years will remain in the Term following the
completion of such reconstruction or repair.
h. Landlord's Notice. Within thirty (30) days after a Casualty,
-----------------
landlord shall cause prepare and deliver to Tenant a written
estimate of the cost and time for reconstruction or repair.
10. CONDEMNATION.
------------
a. If all or any part of the Premises is appropriated by any local,
state or federal government or agency, whether by agreement or suit,
then this Lease shall terminate as to the part so taken on the date
of the appropriation, and Rent shall xxxxx proportionately from the
date of appropriation. If, during the term of the Lease, or any
extension or renewal thereof, less than the entire Premises but a
reasonable material portion thereof shall be taken in any such
appropriation, this lease shall, upon vesting of title in the
appropriation, terminate as to the portion of the Premises so taken,
and Tenant may at its option terminate this lease as to the
remainder of the Premises; provided that Tenant shall not have the
right to terminate this Lease pursuant to the preceding sentence
unless (a) twenty percent (20%) or more of the Building is taken and
Landlord and Tenant have not agreed upon the terms of Landlord's
construction or securing of substantially similar space to the space
so taken on the Premises within thirty (30) days of the date of
appropriation or (b) ten percent (10%) or more of Tenant's parking
spaces are taken and Landlord and Tenant have not agreed upon the
terms of Landlord" securing replacement parking spaces in the
Westpointe Centre within thirty (30) days of the date of
appropriation. Notwithstanding the foregoing, Tenant will not be
entitled to terminate the Lease or to an abatement of Rent, Tenant
shall be entitled the entire portion of any award made by the
condemning authority for such parking spaces.
b. In the event of an appropriation, Landlord shall be entitled to the
award made by the condemning authority, and Tenant shall have no
claim against Landlord; provided,
16
however, that Tenant shall be entitled to make a separate claim to
the extent such claim does not otherwise reduce the award to
Landlord for any award paid for or on account of: (i) the
unamortized portion of leasehold improvements, additions,
replacements or alterations paid for by Tenant; and (ii) cost of
removal and relocation.
11. USE OF PREMISES. Tenant may use and occupy the Premises for general office
---------------
and storage purposes, for Tenant's telephone marketing, research and
related services business and/or for any other purpose not prohibited by
applicable laws and regulations or the CCR ("Business Purposes"); provided
that Tenant shall be under no obligation to operate or conduct any
business in the Premises. Landlord represents to Tenant that the Premises
is properly zoned for a call center, including general office purposes.
Tenant shall not commit or suffer any waste on the Premises nor use the
Premises for any unlawful purpose. Tenant shall comply with and obey all
applicable laws, ordinances, rules, orders, regulations and requirements
which affect Tenant's use of the Premises, or Tenant's uses under this
Lease. Tenant and its agents and employees shall have access to, and
exclusive use of, the Premises at all times, subject to the rights of
Landlord hereunder.
12. ENVIRONMENTAL MATERS AND INDEMNIFICATION.
----------------------------------------
a. Each party agrees that it shall not do any act or omit to do any act
relating to the Premises during the Terms of this Lease which will
constitute a breach or violation of any Environmental Laws. Landlord
further agrees on an ongoing basis that if the Land, Building or
Premises is found to contain any Hazardous Substances, through
actions caused by Landlord, Landlord shall promptly remove such
materials and pay for all costs related to this removal, including,
but not limited to, any moving costs or temporary housing costs
required by Tenant. As used in this Lease: (1) the term "Hazardous
Substance" means all chemicals, substances, and/or materials listed
under or otherwise governed or regulated by any Environmental Laws,
including without limitation, hazardous or toxic substances, wastes
or materials, and petroleum and any fraction thereof; and (2) the
term "Environmental Laws" means any local, state or federal law,
rule, regulation or ordinance pertaining to environmental
regulation, contamination or cleanup, including without limitation
investigation and cleanup of Hazardous Substances.
b. Tenant will release, indemnify, defend and hold Landlord and its
members, partners, officers, directors, subsidiaries, affiliates,
and employees harmless from and against any and all claims, orders,
demands, causes of actin, proceedings, judgments, suits, damages,
liabilities, losses, costs or expenses (including, without
limitation, technical consultant fees, expert witness fees,
reasonable attorneys' fees, court costs and expenses paid to third
parties) arising out of the presence of any Hazardous Substances at,
on or in the Premises as a result of any act or omission of Tenant,
its directors, partners, officers, members, subsidiaries,
affiliates, employees, contractors and agents (collectively, the
"Tenant Parties") at the Premises from and after the Effective Date.
In no event will Tenant's indemnification obligations under this
Section 12.b. cover the acts or omissions of any parties other than
the Tenant Parties.
17
c. Landlord will release, indemnify, defend and hold Tenant harmless
from and against any and all claims, orders, demands, causes of
action, proceedings, judgments, suits, damages, liabilities, losses,
costs or expenses (including, without limitation, technical
consultant fees, expert witness fees, reasonable attorneys' fees,
court costs and expenses paid to third parties) arising out of the
presence of any Hazardous Substances at, on or in the Premises as a
result of any act or omission of Landlord, its members, directors,
partners, officers, subsidiaries, affiliates, contractors, employees
and agents (collectively, the "Landlord Parties"). In no event will
Landlord's indemnification obligations under this Section 12.c.
cover the acts or omissions of any parties other than the Landlord
Parties.
d. The indemnification agreements contained in this Section 12 are
continuing in nature and shall survive the termination or expiration
of this Lease.
13. ASSIGNMENT AND SUBLETTING.
-------------------------
a. Tenant may sublet the Premises or assign this Lease, subject to
Landlord's approval (which approval shall not be unreasonably
withheld, delayed, or conditioned); provided that Tenant shall
remain primarily .liable for all obligations of Tenant hereunder.
Tenant agrees to split equally with Landlord (on a monthly basis as
and when subtenant's rent is paid) Tenant's "net profit" from the
sublease, which shall be an amount equal to (a) the amount by which
the Base Rent and any additional amounts and consideration paid by
the subtenant exceeds the Base Rent and Additional Rent payable
hereunder, less (b) Tenant's reasonable and actual expenses in
connection with the sublease, including but not limited to brokerage
commissions, and reasonable and actual costs incurred by Tenant in
altering, dividing, repairing or otherwise making the space ready
for subtenant's occupancy; and any free rent, tenant construction
allowance (unless the amount of such construction allowance is being
recovered in subtenant's rental payments) or other financial
incentives provided to subtenant. If Tenant desires to assign its
interest in this Lease and the Premises or sublease all or a portion
of the Premises, Tenant shall deliver to Landlord written request
specifying the terms and conditions for such assignment or sublease
and requesting Landlord's consent, and Tenant shall supply such
additional information related to the proposed assignment or
subletting as Landlord reasonably requests in connection with its
review and evaluation of Tenant's request. Landlord shall respond in
writing to any request for approval of an assignment or sublease
within ten (10) business days of receipt of Tenant's request and
Landlord's failure to respond within such period shall constitute
approval.
b. Notwithstanding anything to the contrary contained in this Lease,
Tenant may, upon written notice to, but without the consent of
Landlord, assign this Lease or sublet all or any portion of the
Premises to: (i) any entity controlling, controlled by, or under
direct or indirect common control with Tenant, (ii) any person or
entity which acquires all or substantially all of Tenant's assets or
stock, or (iii) any organization resulting from a merger or
consolidation with Tenant; provided that in all such instances,
Tenant shall remain primarily liable hereunder.
18
14. TENANT'S DEFAULT AND LANDLORD'S REMEDIES. Tenant shall be in default
----------------------------------------
hereunder if during the term of this lease:
a. (a) Tenant makes an assignment for the benefit of creditors; or (b)
a voluntary petition is filed by Tenant under any law having for its
purpose the adjudication of Tenant a bankrupt or the extension of
the time or payment, composition, adjustment, modification,
settlement, or satisfaction of the liabilities of Tenant,
reorganization of Tenant, or liquidation of Tenant, or (c) an
involuntary petition is filed against Tenant under any law having
for its purpose the adjudication of Tenant a bankrupt or the
extension of the time of payment, composition, adjustment,
modification, settlement or satisfaction of the liabilities of
Tenant or to which any property of Tenant may be subject or the
reorganization or liquidation of Tenant and such petition is not
dismissed within sixty (60) days; or (d) a permanent receiver be
appointed for the property of Tenant by reason of the insolvency or
alleged insolvency of Tenant; or (e) Tenant shall default in the
performance of any of the covenants of this Lease (other than the
covenants for the payment of Base Rent and Additional Rent, or other
charges payable by Tenant hereunder) and such default is not cured
within thirty (30) days of receipt of notice thereof (provided if
such cure cannot be reasonably completed within such thirty (30) day
period, Tenant shall not be in default as long as Tenant commences
to cure such failure within such thirty (30) day period and
thereafter diligently pursues such cure to completion); or (f) if
Tenant shall default in the payment of any amount due hereunder and
such payment is not made within five (5) business days after receipt
of notice by Tenant of the non-receipt of such payment by Landlord.
b. Upon the occurrence of any of such events of default described in or
elsewhere in this Lease (and after applicable notice has been given
to Tenant and such default has not been used within the cure
period), Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
(i) Landlord may (a) terminate this Lease or (b) terminate
Tenant's right to possession only, without terminating the
Lease.
(ii) Upon any termination of this Lease, whether by lapse of time
or otherwise, or upon termination of Tenant's right to
possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and
deliver possession thereof to Landlord, and Tenant hereby
grants to Landlord full and free license to enter into and
upon the Premises, to the extent permitted by applicable law,
to repossess Tenant of the Premises and to expel or remove
Tenant and any others who may be occupying or be within the
Premises and to remove any and all property therefrom without
relinquishing Landlord's right to rent or any other right
given to Landlord hereunder or by operation of law.
(iii) Upon termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover all
appropriate damages, including the acceleration of all Rent
due hereunder for the remainder of the term
19
(including only those options as previously exercised by
Tenant) discounted to its present value and as offset by the
market rent of the Premises similarly discounted to its
present value.
(iv) Upon any termination of Tenant's right to possession only
without termination of this Lease, Landlord may, at
landlord's option, enter into the Premises, remove Tenant's
signs and other evidences of tenancy, and take and hold
possession thereof as provided in subparagraph (ii) above,
without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from any obligation,
including Tenant's obligation to pay the Rent for the
remainder of the term (including only those options as
previously exercised by Tenant).
(v) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any
other remedies provided by law (all such remedies being
cumulative), nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any Rent or other
payments due to Landlord hereunder or of any of the terms
provision and covenants herein contained. No act or thing
done by Landlord or its agents during the term of this lease
shall be deemed a termination of this Lease or an acceptance
of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of the Premises
shall be valid unless in writing signed by Landlord. No
waiver by Landlord of any violation or breach of any of the
terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the
occurrence of a default shall not be construed as a waiver of
such default, unless Landlord so notifies Tenant in writing.
Forbearance by Landlord in enforcing one or more of the
remedies herein provided upon a default shall not be deemed
or construed to constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect to
such default or any subsequent default.
15. LANDLORD'S DEFAULT AND TENANT'S REMEDIES. The following will be considered
----------------------------------------
a default by Landlord: (i) failure to pay any economic allowances due from
Landlord hereunder for more than thirty (30) days after receipt of written
demand from Tenant, or (ii) failure to keep and perform any of the terms,
covenants or conditions of this Lease to be kept and performed by Landlord
and such failure continues for thirty (30) days after receipt of written
notice from Tenant (provided that if such cure cannot be completed within
such 30-day period, Landlord will not be in default as long as Landlord
commences to cure such failure within such 30-day period and thereafter
diligently pursues such cure to completion). If Landlord's failure results
in, or is reasonably likely to result in, a material adverse effect on
Tenant's operations within the Premises, then Tenant may elect to pay such
sum or perform such covenant or condition and Landlord
20
will reimburse Tenant for the cost of performing such obligations within
thirty (30) days of receipt of an invoice for such costs. In the event
Landlord fails to reimburse Tenant for such costs within such thirty (30)
day period, interest will accrue on such amount at the Default Rate from
the day after such payment was due. Forbearance by Tenant to enforce any
remedy upon any default by Landlord will not constitute a waiver of such
default. The failure of Tenant to insist at any time upon the strict
performance of any covenant or agreement or to exercise any options,
right, power or remedy contained in this Lease will not be construed as a
waiver or a relinquishment thereof for the future. The remedies set forth
in this Section are in addition to and not in limitation of any other
rights and remedies of Tenant contained in this Lease, or at law or in
equity. Tenant agrees that it will give concurrent notice of any default
by Landlord under this lease to Landlord's mortgagee (provided that Tenant
has actually received written notice of such mortgagee and the address to
which such notices are to be sent) and such mortgage will have a period of
thirty (30) days in addition to the time periods given to Landlord in this
Section to effect a cure before Tenant may exercise its rights hereunder.
16. MEMORANDUM OF LEASE. Landlord and Tenant each agree that they will execute
-------------------
a memorandum or short form of this Lease in recordable form for recording
and that such memorandum or short form Lease will be recorded immediately
after the deed for the Premises to Landlord is recorded and prior to any
mortgage on the Premises.
17. QUIET ENJOYMENT. Landlord covenants and agrees that, in the absence of a
---------------
failure beyond any cure period to pay Rent and to observe and keep the
terms, covenants and conditions of this lease on Tenant's part to be paid,
observed and kept, Tenant shall lawfully, peaceably and quietly hold,
occupy and enjoy the Premises during the term of this lease without
hindrance or molestation by Landlord or any person or persons claiming
under Landlord.
18. NOTICES. All notices shall be given in writing, postage prepaid, by
-------
certified or registered mail, return receipt requested, by personal
delivery, regular U.S. mail, facsimile transmission followed by regular
U.S. mail, or by reputable national overnight courier, at the addressed
listed in the first paragraph of this Lease (if to Landlord, to the
attention of Xxxxxx X. Pienka, with a copy to Xxx Xxxxxxx, and if to
Tenant, to the attention of Xxxxxxx X. Xxxxxxxx, Esq., with a copy to
Frost & Xxxxxx LLP, 2500 PNC Center, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.). Notices will be deemed
delivered and effective on the date received or refused. Notice addresses
may be changed by notice to the parties in the manner set forth in this
Section 18.
19. BROKER. Each party represents to the other that no real estate broker,
------
consultant, finder or like agent other than Xxxxx Xxxx LaSalle Americas,
Inc. (whose commissions shall be paid by Landlord pursuant to an agreement
between Landlord and such broker) has any interest in this transaction
under any an agreement with such party. Each party agrees to indemnify and
hold the other party, and its members, partners, officers and directors
harmless from and against all claims, losses, liabilities and expenses,
including reasonable attorneys' fees, arising out of any claim relating to
this lease or the Premises by any other broker, consultant, finder or like
agent with whom the indemnifying party has dealt or negotiated.
21
20. HOLDING OVER. If Tenant holds over after the expiration of the Term, then
------------
it shall be construed as a month-to-month tenancy on the same terms and
conditions herein specified, except the holdover Base Rent shall be one
hundred fifty percent (150%) of the Base Rent owed by Tenant under this
Lease for the month immediately preceding the holdover period. This
holdover Base Rent shall be deemed Landlord's exclusive right and remedy
for damages against Tenant for holding over; provided, however, Landlord
reserves the right to evict Tenant in accordance with Florida law.
21. SUBORDINATION. Subject to the mutual execution and delivery of a
-------------
subordination, nondisturbance and attornment agreement reasonably
acceptable to Tenant (the "SNDA"), Landlord reserves the right to subject
and subordinate this Lease to the lien of any mortgage(s) or ground or
underlying lease(s) placed upon Landlord's interest in the Property after
the Effective Date and after a memorandum of this Lease is recorded.
Tenant agrees, upon thirty (30) days' advance written request, to execute
the SNDA as is reasonably requested by Landlord's lender subordinating its
interest and/or attorning to such mortgagees and lessors, provided that:
(i) such mortgagees and/or lessors attorn in writing, agreeing to
recognize Tenant's possession and rights under this lease and agreeing not
to disturb or impair Tenant's rights to quiet enjoyment of the Premises as
long as Tenant is not in default beyond any applicable cure period, and
(ii) any default by Landlord under such mortgage or ground lease will not
affect Tenant's rights under this Lease as long as Tenant is not in
default beyond any applicable cure period.
22. ENTIRE AGREEMENT. This Lease, including the attached exhibits, constitutes
----------------
the entire agreement between Landlord and Tenant with respect to the
Premises, the Building and the Premises, and supersedes any other prior
oral or written communications, representations or statements with respect
to the transaction contemplated in this lease. This Lease may not be
modified, altered or amended in any manner except by an agreement in
writing executed by the parties. This Lease shall be interpreted and
governed by the laws of the State where the Premises are located. This
Lease shall inure to the benefit of, and be binding upon, Landlord and
Tenant, and their respective heirs, successors and assigns.
23. ATTORNEYS' FEES. Unless otherwise provided in this Lease, the
---------------
nonprevailing party in any litigation, claim or action under this Lease
shall promptly reimburse the prevailing party for all costs, including
reasonable attorneys' fees, incurred by the prevailing party up to and
including all trial and appellate levels.
24. AUTHORITY. Each party represents to the other that it has full right and
---------
authority to enter into this Lease and by doing so violates no existing
agreement or indenture to which it is a party or which it is bound or
affected, and that the execution and delivery of this Lease has been duly
authorized by each party's board of directors, general partners, members
and/or managers, as the case may be.
25. BUILDING NAME, GRAPHICS AND SIGNAGE. Tenant will have the exclusive right
-----------------------------------
to name the Building and to use its standard graphics on the Premises and
the Building, subject to Landlord's reasonable approval that shall not be
unreasonably withheld or delayed. Tenant will have the exclusive right to
install building signage on the exterior of the Building and exclusive
monument signage on the exterior of the Building and interior
22
lobby areas of the Building, at Tenant's expense and at locations
reasonably selected by Tenant, subject to Landlord's reasonable approval
which shall not be unreasonably withheld or delayed. Landlord at its
expense will provide Tenant with sufficient lines on the Building lobby
directory, appropriate signage for Tenant's suite, and signage outside of
the Building or on an exterior sign. All signage hereunder shall be
subject to the CCR, applicable local code requirements and the approval of
applicable governmental authorities. Landlord does not represent nor
warrant that any particular type or amount of signage is available for the
Building and the Premises, and availability of any particular type or
amount of signage is not a condition to Tenant's obligations under this
Lease; provided, however, Landlord represents to Tenant that a monument
sign for the Premises and a building mounted sign for the Building are
permitted under the CCR and applicable local code requirements.
26. COMPETITORS. Landlord agrees during the Initial Term not to knowingly,
-----------
after due inquiry, directly lease or sell any property within the
Westpointe Centre (as indicated on Exhibit E) to any competitor of Tenant
---------
as listed on Exhibit D ("Named Competitor") or to any real estate entity
---------
who is acting as an intermediary, nominee or agent for such Named
Competitor which entity intends to directly enter into a sale or lease
transaction with such Named Competitor at the Westpointe Centre.
27. ESTOPPEL CERTIFICATES. Within twenty (20) days of receipt of a written
---------------------
request from Landlord, Tenant will execute and deliver to Landlord and
such persons as Landlord will reasonably request, a statement certifying
that this lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as so
modified), stating the dates to which Base Rent, Additional Rent, and
other charges payable under this Lease have been paid, stating that
Landlord is not in default hereunder (or if Tenant alleges a default
stating the nature of such alleged default), and stating that Tenant is
not entitled to any credits, offsets, defenses or deductions against
payment of rent hereunder (or if they exist, describing them)
(collectively, the "Estoppel Items"). If Tenant fails to execute and
deliver an estoppel certificate as required hereunder, and such failure
shall continued uncured for five (5) days after receipt of a second
written notice from Landlord delivered after the expiration of the initial
twenty (20) day period, then such failure shall be deemed a statement by
Tenant that the Estoppel Items are true and correct to the best of
Tenant's knowledge without exception and that Base Rent and Additional
Rent have been paid current and not more than thirty (30) days in advance
of the due date.
28. TELECOMMUNICATIONS. Landlord will provide Tenant with sufficient rooftop
------------------
access on the Building for placement of two (2) telecommunication
receivers and related transmission equipment (including satellite dishes).
Installation, repair, and maintenance of such equipment will be performed
by Tenant at Tenant's expense, and Tenant will promptly repair any damage
to the roof by reason of any such work (and such work will be coordinated
with Landlord and/or performed by Landlord, at Tenant's expense, so as to
comply with the terms of Landlord's roof warranty). Landlord will not
allow any other equipment on the roof of the Building or on the Premises
that may, as reasonably determined by Tenant, denigrate, distort or
otherwise interfere with or affect the
23
performance of Tenant's roof top equipment. Landlord will notify Tenant
before any other equipment is located on the roof of the Building or on
the Premises. At the expiration or termination of this Lease, Tenant will
remove all of its equipment from the roof and shall promptly repair any
damage occasioned to the roof by reason of the removal of such equipment.
In addition, all such usage shall be subject to applicable local code
requirements.
29. EMERGENCY POWER SOURCE. Tenant will have the right to install a diesel
----------------------
generator outside the Building for emergency backup power. The generator
will be situated in the area shown generally on Exhibit A. If Tenant
---------
desires to locate the generator in a different area, the new location
shall be subject to Landlord's reasonable approval. Landlord shall be
responsible for installing the generator and UPS System. Tenant will be
responsible for the cost of installing the generator and UPS System. At
the expiration or termination of this lease, Tenant will remove the
generator from the Premises and shall promptly repair any damage
occasioned to the premises by reason of the removal of the generator.
30. FORCE MAJEURE. In the event that either party is delayed or hindered in,
-------------
or prevented from, the performance of any act by reason of restrictive
governmental laws or regulations, riots, insurrections, labor disputes not
caused by Landlord, inability to secure materials, supplies or labor
through ordinary sources by reason of unusually inclement weather or
regulation or order of any governmental agency, the act, failure to act,
or default of the other party, war or other reason beyond its reasonable
control (including unusually inclement weather), then performance of such
act will be excused for the period for the delay and the period of the
performance of such act will be extended for a period equivalent to the
period of such delay. Notwithstanding the foregoing, lack of funds will
not be deemed to be a cause beyond the control of either party.
Notwithstanding anything to the contrary contained in this Lease, force
majeure will not apply as a defense for the nonperformance of either
party's obligations under this Lease unless the nonperforming party has
given the other party written notice that an event of force majeur has
occurred, such notice to be given within a reasonable period of time as is
practical under the circumstances after the date such event first
occurred.
31. CANCELLATION OPTION. Tenant shall have the right to terminate this Lease
-------------------
effective on the first day of the eighth (8/th/) Lease Year ("Cancellation
Date") by providing Landlord with written notice ("Tenant's Termination
Notice") at least twelve (12) months prior to the Cancellation Date. If
Tenant elects to terminate the Lease pursuant to this section, Tenant
shall pay to Landlord a termination fee (the "Termination Fee") equal to
twelve (12) months of Base Rent for the Lease Year immediately preceding
the Cancellation Date payable as follows: (i) fifty percent (50%) of the
Termination Fee within thirty (30) days after receipt of written notice
from Landlord delivered to Tenant anytime after Landlord's receipt of
Tenant's Termination Notice, and (ii) fifty percent (50%) of the
Termination Fee within thirty (30) days after receipt of written notice
from Landlord delivered to Tenant no sooner than one hundred twenty days
prior to the Cancellation Date. Upon termination of this Lease effective
as of the Cancellation Date, and pursuant to this section, Landlord and
Tenant shall thereafter have no obligations to each other, with the
exception that either party
24
shall indemnify the other for any acts or occurrences which arose prior to
the Cancellation Date in accordance with the provisions of Section 12.
32. OPTION TO PURCHASE.
------------------
a. Tenant will have the exclusive option to purchase the Premises (the
"Option") for an amount equal to the product of the Actual Total
Project Costs and 1.15 (the "Purchase Price"). In order to exercise
the Option, Tenant shall give Landlord written notice of such
exercise ("Exercise Notice") in accordance with Section 18 of this
lease on or before 5:00 p.m. eastern time on the day which is six
months following the Commencement Date (the "Exercise Date"). In the
event Tenant exercises the Option, Tenant shall deliver to a
national title insurance company selected by Tenant (the "Title
Company") within thirty (30) days after receipt of written notice
from Landlord an initial cash deposit in the amount of $400,000.00
(the "Deposit"), to be held by the Title Company pursuant to the
terms and conditions of this Lease and an escrow agreement
reasonably acceptable to Landlord, Tenant and the Title Company (the
"Escrow Agreement"). In the event the Exercise Notice is not timely
given, the Option shall expire and be of no further force or effect.
The Option may not be exercised if Tenant is in default under this
Lease beyond any applicable cure period at the time of giving the
Exercise Notice. The closing on the purchase and sale (the
"Closing') shall occur on the first business day which is at least
thirty (30) days after the expiration of eighteen (18) months from
the Commencement Date.
b. If Tenant properly exercises the Option, Landlord shall convey to
Tenant marketable fee simple title to the Premises, by special
warranty deed (the "Deed"), free and clear of all liens and
encumbrances whatsoever, except the following (the "Permitted
Exceptions"): (a) real estate taxes and assessments not then due and
payable; (b) easements, covenants, conditions and restrictions of
record as of the date hereof; (c) zoning, building and other laws,
ordinances and regulations; and (d) all encumbrances and other
matters on or affecting the Premises created by Tenant. Tenant may,
at its sole options, upon written notice to Landlord, waive any of
the title requirements set forth in the preceding sentence.
c. Within thirty (30) days after Tenant's exercise of its Option,
Tenant shall obtain (and deliver a copy to Landlord) a commitment
(the "Commitment") for an owner's policy of title insurance issued
by the Title Company in the amount of the Purchase Price. The
Commitment shall show in Landlord marketable fee simple title to the
Premises, free and clear of all liens and encumbrances except the
Permitted Exceptions and liens or encumbrances to be satisfied by
Landlord at Closing out of the sale proceeds. Tenant shall pay all
examination and commitment fees and premiums in connection with the
Commitment and policy to be issued.
d. If the Commitment shows that Landlord's title to the Premises is
subject to any liens, encumbrances, easements, conditions,
restrictions or encroachments other
25
than the Permitted Exceptions (any of these matters being referred
to as a "Title Defect"), Landlord, within thirty (30) days after
written notice of the Title Defect, shall use reasonable efforts to
remedy or remove the Title Defect. If Landlord is unable to remedy
or remove the Title Defect within the thirty (30) day period, Tenant
may, at its option, by written notice to Landlord, either (i) accept
such title to the Premises as Landlord is able to convey or (ii)
cancel the Closing in which event the Lease shall remain in full
force and effect except that there shall no longer be any Options
rights of Tenant.
e. At the Closing, Tenant will pay the Purchase Price in case,
certified or cashier's check, or by wire transfer of immediately
available funds. The Deposit shall be applied to the Purchase Price
at the Closing. At Closing, Landlord will deliver to Tenant fully
executed counterparts of each of the following instruments: (i) the
Deed; (ii) a Foreign Investment in Real Property Tax Act ("FIRPTA")
certification in conformance with the requirements of FIRPTA; (iii)
evidence reasonably satisfactory to the Title Company of the
existence and good standing of Landlord and the authority of the
individual(s) acting on behalf of Landlord at Closing; (iv) title
affidavit from Landlord in the form customarily required by the
Title Company; (v0 information from Landlord necessary for reporting
the sale of the Premises to tax authorities; (vi) all transferable
drawings, plans and specifications in respect to the Premises which
are in the possession or control of Landlord; and (vii) such other
documents reasonably necessary to effectuate the Closing as required
by the Title Company. At the Closing, there shall be no proration or
real estate taxes, insurance premiums or utility charges. The cost
of documentary stamps on the deed, any transfer charges and
recording fees shall be the obligation of Tenant, it being the
intent of the parties that the Purchase Price is "net" to Landlord.
Any prepaid Rent shall be credited against the Purchase Price at the
Closing. Except for the indemnification contained in Section 12
hereof that will survive the Closing, Tenant acknowledges that it
will take the Premises "as is" at the Closing and Landlord will make
no additional representations or warranties as to the condition of
the premises. Landlord's successors and assigns will take the
Premises subject to the Option rights of Tenant.
f. If Landlord fails or refuses to convey title to the Premises to
Tenant in accordance with, and by the time required by, this lease
(other than as the results of an uncured Title Defect not waived by
Tenant) then Tenant's sole remedy shall be to enforce specific
performance of Landlord's obligations to convey the Premises to
Tenant; alternatively, Tenant may terminate its obligation to
purchase the Premises, in which event the Option shall expire and
the Lease shall otherwise remain in full force and effect.
Notwithstanding the foregoing, in the event that, at the time
scheduled for Closing, there exists a violation of Environmental
Laws with respect to the Premises, then
(1) if the violation is other than as the result of an act of
one of the Landlord Parties or Tenant Parties, Tenant shall have the
option to either (i) proceed to close on the purchase of the
Premises with no diminution in the
26
Purchase Price, in which event Landlord shall be released by Tenant
from any liability with respect to such breach of Environmental Laws
or (ii) extend the Closing for up to six (6) months in order to
provide Landlord with time to remedy the breach, which Landlord
shall diligently and in good faith pursue. In the event Landlord has
not remedied the breach during such six-month period to the
reasonable satisfaction of Tenant, then Tenant shall either (i)
proceed to close on the purchase of the Premises with no diminution
in the Purchase Price, in which event Landlord shall be released by
Tenant from any liability with respect to such breach of
Environmental Laws or (ii) cancel the Closing in which event the
Lease shall remain in full force and effect except that there shall
no longer be any Option rights of Tenant;
(2) if the violation is as the result of an act of one of the
Landlord parties, Tenant shall have the option to either (i) proceed
to close on the purchase of the Premises with no diminution in the
Purchase Price, in which event landlord shall remain liable with
respect to such breach of Environmental Laws and Landlord shall
diligently pursue the remediation thereof at Landlord's sole cost
and expenses or (ii) cancel the Closing in which event the Lease
shall remain in full force and effect except that there shall no
longer be any Option rights of Tenant; or
(3) If the violation is the result of an act of one of the
Tenant parties, Tenant shall proceed to close on the purchase of the
Premises with no diminution in the Purchase Price and landlord shall
be released by Tenant from any liability with respect to such breach
of Environmental Laws.
g. In the event that following its exercise of the Option, Tenant
defaults in its obligation to acquire the premises as herein
provided and fails to cure such default within five (5) days of
receipt from Landlord of notice of such default, then the Title
Company shall deliver the Deposit to Landlord and Landlord's sole
and exclusive remedy at law or in equity shall be to terminate
Tenant's Option and to retain the Deposit as liquidated damages.
THE PARTIES ACKNOWLEDGE THAT LANDLORD'S ACTUAL DAMAGES, IN THE EVENT
TENANT DEFAULTS IN ITS OBLIGATION TO ACQUIRE THE PREMISES AS HEREIN
PROVIDED, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION BELOW,
THE PARTIES ACKNOWLEDGE THAT THE LIQUIDATED DAMAGES AMOUNT HAS BEEN
AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE
OF LANDLORD'S ACTUAL DAMAGES IN THE EVENT TENANT DEFAULTS IN ITS
OBLIGATION TO ACQUIRE THE PREMISES AS HEREIN PROVIDED. BY THEIR
SEPARATELY EXECUTING THIS SECTION BELOW, LANDLORD AND TENANT
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THIS PROVISION
COVERING THE LIQUIDATED DAMAGES AMOUNT AND THAT EACH PARTY WAS
REPRESENTED BY
27
COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES
PROVISION AT THE TIME THE LEASE WAS EXECUTED.
Landlord: ______ (initials) Tenant: [ILLEGIBLE] (initials)
-----------
33. GUARANTY. Upon execution and delivery of this Lease, Tenant will cause
--------
Covergys Corporation, an Ohio corporation, to execute and deliver to
Landlord a guaranty in the form attached hereto as Exhibit F.
---------
34. EXHIBITS. This lease includes the following Exhibits, each of which is
--------
incorporated herein as if fully rewritten:
Exhibit A Work Letter
Exhibit B Legal description for the Land
Exhibit C CCR
Exhibit D List of Competitors
Exhibit E Westpointe Centre
Exhibit F Form of Guaranty
35. MISCELLANEOUS.
-------------
A. Tenant agrees to permit Landlord and the authorized representatives
of Landlord to enter the Premises at all times during usual business
hours upon prior notice, emergency situation excepted (at which time
Landlord shall have the immediate right to enter the premises).
B. Tenant agrees that no disposition of Landlord's interest in the
Premises shall of itself operate in any way to terminate Tenant's
obligation to perform its undertakings under this lease in
accordance with its terms.
C. The covenants and agreements herein contained shall bind and inure
to the benefit of Landlord, its successors and assigns, and Tenant,
its successors and assigns, provided that any required consent to
any assignment hereof shall be had and obtained as hereinbefore set
forth and subject to the provisions of Section 12.
D. Time is of the essence of this lease and all of its provisions.
E. Tenant shall not suffer or permit any mechanics' lien to be filed
against the Premises or any part thereof by reason of work, labor,
services, or materials performed or supplied or claimed to have been
performed or supplied, whether prior to or subsequent to the date of
this Lease, to Tenant or anyone holding the premises or any part
thereof through or under Tenant. If any such mechanics' lien shall
at any time be filed against the Premises, Tenant shall post a bond
in the amount thereof or cause the same to be discharged of record
within thirty (30)
28
days after the date of filing the same and notice thereof has been
given to Tenant. If Tenant shall fail to discharge or bond over such
mechanics' lien within such period, then, in addition to any other
right or remedy of Landlord, Landlord may, but shall not be
obligated to, discharge the same by bond or by paying the amount
claimed to be due without inquiry into the validity of the same and
Tenant shall, immediately upon notice from landlord, reimburse
Landlord for all such reasonable amounts paid. Tenant, however,
shall have the right to contest such lien or liens provided that,
within thirty (30) days after any such lien attaches to the
Premises, and notice has been given to Tenant, it shall post a bond
in the amount thereof and give notice to Landlord of its intention
to contest the same and provided further that Tenant shall proceed
to contest the validity or amount of such lien or liens by
appropriate legal proceedings. Tenant hereby indemnifies Landlord
from any cost, damage, loss or expense (including reasonable
attorneys' fee) incurred by Landlord as a result of any mechanics'
lien placed upon the Premises arising out of Tenant's work or
actions or contested by Tenant. In accordance with the terms of the
Lease and Section 713.10, Florida Statues, the interest of Landlord
in the Premises shall not be subject to liens for improvements made
by Tenant and Tenant shall so advise all contractors performing work
at the request of Tenant at the Premises.
F. Landlord may transfer the Premises and any of its rights under this
Lease. If Landlord assigns its rights under this Lease, then
Landlord shall thereby be released from any further obligations
hereunder arising after the date of transfer, provided that the
assignee assumes Landlord's obligations hereunder in writing.
G. The liability of Landlord (and its partners, shareholders or
members) to Tenant (or any person or entity claiming by, through or
under Tenant) for any default by Landlord under the terms of this
lease or any matter relating to or arising out of the occupancy or
use of the Premises and/or the Building shall be recoverable only
from the interest of Landlord in the Premises, and Landlord (and its
partners, shareholders or members) shall not be personally liable
for any deficiency.
H. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD AND TENANT EACH
WAIVE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR
WITH RESPECT TO THIS LEASE.
I. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a structure in sufficient quantities, may present
health risks to persons who are exposed to it. Levels of radon that
exceed Federal and State guidelines have been found in buildings in
the State of Florida. Additional information regarding radon and
radon testing may be obtained from the county public health unit.
J. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause
or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be legal,
valid, and enforceable.
29
K. This Lease has been a collaborative effort of Landlord, Tenant and
their respective consultants and counsel. Then normal rule of
construction that any ambiguities be resolved against the drafting
party shall not apply to the interpretation of this lease or any
exhibits or amendments hereto.
The undersigned have executed this Lease as of the date first above set forth.
LANDLORD:
WESTPOINT BUILDING NO. 1, L.L.C.
a Delaware limited liability company
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Piertka
------------------------------------- ---------------------------------
Print Name: Xxxxxxx X. Xxxxxxxxx Print Name: Xxxxxx X. Piertka
------------------------- -------------------------
Title: Member
------------------------------
/s/ Marc Poggid
-------------------------------------
Print Name: Marc Poggid
-------------------------
TENANT:
CONVERGYS CUSTOMER MANAGEMENT GROUP,
INC. An Ohio corporation
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------------- ---------------------------------
Print Name: XXXXX XXXXX Print Name: XXXXXX XXXXXXX
------------------------- -------------------------
Title: PRESIDENT, CMC
------------------------------
/s/ Xxxxxxx Xxxxx
-------------------------------------
Print Name: Xxxxxxx Xxxxx
-------------------------
30
