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Sample Business ContractsHome: Sample Business Contracts:
Lease
between
Blue Lake, Ltd.
and
DATABASE TECHNOLOGIES, INC.
Dated: January 22, 1998
<PAGE> 2
INDEX TO
BLUE LAKE CORPORATE CENTER
AGREEMENT OF LEASE
PAGE NO.
--------
LEASE
BASIC LEASE INFORMATION RIDER I
1. PREMISES; BUILDING; AND COMMON AREAS; EXPANSION SPACE 1
2. LEASE TERM; LEASE DATE 3
3. RENT 4
4. SECURITY DEPOSIT 7
5. USE 8
6. ACCEPTANCE OF PREMISES 8
7. PARKING 9
8. BUILDING SERVICES 9
9. SECURITY 11
10. REPAIRS, MAINTENANCE AND UTILITIES 12
11. TENANT'S ALTERATIONS 12
12. LANDLORD'S ADDITIONS AND ALTERATIONS 13
13. ASSIGNMENT AND SUBLETTING 14
14. TENANT'S INSURANCE COVERAGE 16
15. LANDLORD'S INSURANCE COVERAGE 17
16. WAIVER OF RIGHT OF RECOVERY 17
17. DAMAGE OR DESTRUCTION BY CASUALTY 17
18. CONDEMNATION AND EMINENT DOMAIN 18
19. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION 19
20. INTENTIONALLY OMITTED 20
21. COMPLIANCE WITH LAWS AND PROCEDURES 20
22. RIGHT OF ENTRY 21
23. DEFAULT 21
24. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT 22
25. RIGHT TO PERFORM FOR OTHER PARTY'S ACCOUNT 23
26. LIENS 23
27. NOTICES 24
28. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION 24
29. ATTORNMENT AND MORTGAGEE'S REQUEST 25
30. TRANSFER BY LANDLORD 25
31. SURRENDER OF PREMISES; HOLDING OVER 25
32. NO WAIVER, CUMULATIVE REMEDIES 25
33. WAIVER 26
34. CONSENTS AND APPROVALS 26
35. RULES AND REGULATIONS 26
36. SUCCESSORS AND ASSIGNS 26
37. QUIET ENJOYMENT 26
38. ENTIRE AGREEMENT 26
39. HAZARDOUS MATERIALS 26
40. BANKRUPTCY PROVISIONS 28
41. FIRE PREVENTION SYSTEMS 29
42. SPECIAL EVENTS 30
43. MISCELLANEOUS 30
44. DELIVERY OF GUARANTY 31
<PAGE> 3
45. CONFIDENTIALITY 31
46. SIGNAGE/ENTRY WAY FEATURE 32
47. CARPOOLING, MASS TRANSIT AND TRAFFIC CONTROL 32
48. LEASE CONTINGENCIES 32
49. ASSOCIATION 32
50. VENDING MACHINES 32
51. TELECOMMUNICATIONS 32
EXHIBIT(S)
Exhibit "A" Floor Plan*
Exhibit "B" Work Letter
Exhibit "C" Rules and Regulations
Exhibit "D-1" Corporate Resolutions of Tenant
Exhibit "D-2" Corporate Resolutions of Guarantor
Exhibit "E" Expansion Space Floor Plan*
Exhibit "F" Occupancy Agreement
Exhibit "G" Campus Sketch*
Exhibit "H" Guaranty
Exhibit "I" Legal Description(s)*
Exhibit "J" Entry-Way Feature Conceptual Sketch*
--------------
* THESE DOCUMENTS CAN NOT BE EDGARIZED BUT ARE AVAILABLE UPON REQUEST.
<PAGE> 4
BASIC LEASE INFORMATION RIDER
BLUE LAKE CORPORATE CENTER
AGREEMENT OF LEASE
THE FOLLOWING REFERENCES FURNISHED DATA TO BE INCORPORATED IN THE SPECIFIED
SECTIONS OF THIS AGREEMENT OF LEASE AND SHALL BE CONSTRUED TO INCORPORATE ALL OF
THE TERMS OF THE ENTIRE SECTION AS STATED IN THIS AGREEMENT OF LEASE:
PREAMBLE Commencement Date of Lease: As of January 22, 1998
PREAMBLE Landlord: BLUE LAKE, LTD., a Florida limited partnership.
PREAMBLE Tenant: DATABASE TECHNOLOGIES, INC., a Florida corporation,
authorized to do business in the State of Florida
SECTION 1 Premises A: All of 4530 Blue Lake Drive as shown on EXHIBIT
"A", of Blue Lake Corporate Center, Boca Raton, Florida Premises B:
A portion of 4800 Blue Lake Drive (Building 002), being Second Floor
Premises, as shown on Exhibit "A" of Blue Lake Corporate Center,
Boca Raton, Florida. The office building campus, (shown on Exhibit
"G") including parking spaces, driveways, walkways, drainage
systems, utility systems, greenspace areas and other elements of the
"Blue Lake Corporate Center" are hereinafter collectively referred
as the "Building"). The legal descriptions of 4530 Blue Lake Drive
and 4800 Blue Lake Drive are attached hereto and made a part hereof
as Exhibit "I".
Premises A and Premises B are hereinafter sometimes
collectively referred to as the "Premises".
SECTION 1 Net Rentable Area of Premises A: approximately 143,189
rentable square feet; of which Tenant will utilize approximately
70,000 rentable square feet during the Initial Term Free Rent Period
(as herein defined).
Net Rentable Area of Premises B: approximately 15, 000 square
feet.
Net Rentable Area of Premises: 158,189 rentable square feet. The Net
Rentable Area of Premises, as set forth above (in the aggregate), of
approximately 158,189 square feet is stipulated and agreed by the
parties; provided, however, that within ten (10) days after
substantial completion of the Improvements to the Premises, either
Landlord or Tenant shall be entitled to have the Premises measured
in accordance with BOMA Standards (ANSI Z65.1-1996). Following such
measurement, if it is determined that, in fact, the Premises contain
other than the Net Rentable Area set forth above, Base Rent,
Overhead Rent, Tenant's Share, and any other provision which is
based on the amount of square footage leased by Tenant shall be
ratably modified. The Net Rentable Area of the Premises includes
restrooms, electrical and mechanical rooms over which Tenant is
hereby granted exclusive control and dominion which are themselves
deemed part of the Premises.
SECTION 2 Rent Commencement Date: The earlier of (i) Ten (10) days
following the delivery of a temporary or final Certificate of
Occupancy for the Premises or (ii) One Hundred Fifty (150) days
following the date of the execution of this Lease regardless of a
non-issuance of a Certificate of Occupancy of the Premises (the
"Rent Commencement Date"). For purposes of this Section, the
Certificate of Occupancy shall be the document issued by the
Building Department of either the County of Palm Beach or City of
Boca Raton, whether termed a "Temporary Certificate of Occupancy",
"Final Certificate of Occupancy", or "Final Inspection" or such
other document or certification, the effect of which is to certify
that the Premises may be used and occupied, subject only to
punchlist items, for the use defined in Section 5 of this BLI. Upon
the execution of this Lease and all addenda hereto, and the delivery
by Tenant to Landlord of the appropriate insurance certificates
reflecting Tenant's securing of all insurance required by Tenant
hereunder and following the recordation of a Notice of Commencement
prepared and recorded in accordance Florida Statute 713.10 and
Landlord's reasonable approval of Tenant's construction contract for
the purpose of confirming the inclusion of a lien prohibition
provision in accordance with Section 26 of this Lease, Tenant and
Tenant's contractor and sub-contractors shall be provided access to
the Premises in order to make improvements to the Premises. All work
will be defined in the Work Letter attached hereto as Exhibit "B".
The Rent Commencement Date and the Expiration Date shall be
confirmed in writing by Landlord and Tenant.
Page I
<PAGE> 5
SECTION 2 Expiration Date: Ten (10) years after the Rent Commencement
Date
SECTION 2 Lease Term: From the date hereof to the Rent Commencement Date
plus Ten (10) Years Initial Term: The ten (10) year period
commencing on the Rent Commencement Date.
Renewal Terms: Two (2) of Five (5) Years Each
SECTION 3 Subject to the deferral and waiver of Base Rent during the
Initial Term Free Rent Period as herein provided in this Section 3
and Section 3 of the Lease, Base Rent in the First Lease Year, shall
be Six and 05/100 Dollars ($6.05) per square foot of Rentable Area
or Nine Hundred Fifty Seven Thousand Forty Three and 45/100 Dollars
($957,043.45) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Seventy Nine Thousand Seven Hundred Fifty
Three and 62/100 Dollars ($79,753.62) together with applicable sales
tax and applicable local taxes. Notwithstanding the foregoing,
provided that so long as no Event of Default (as said term is
defined in this Lease) shall have occurred from the time beginning
on the Rent Commencement Date and ending twelve (12) months
thereafter (such period hereinafter referred to as the "Initial Term
Free Rent Period"), Tenant shall not be obligated to pay Base Rent
with respect to the entire Premises. The waiver of Base Rent, as
detailed in the immediately preceding sentence, is specifically
conditioned on an Event of Default not having occurred during the
balance of the Initial Term of this Lease. The entire Base Rent
otherwise due and payable during the Initial Term Free Rent Period
shall become immediately due and payable upon the occurrence of an
Event of Default by Tenant under this Lease. Each year commencing on
the Rent Commencement Date (or commencing on the first day of the
first month following the Rent Commencement Date if the Rent
Commencement Date is other than the first day of the month, in which
event the First Lease Year shall include the period between the Rent
Commencement Date and the first month thereafter) or anniversary
thereof is hereafter referred to as a "Lease Year."
Overhead Rent for the First Lease Year shall be Four and 50/100
Dollars ($4.50) per square foot of Rentable Area or Seven Hundred
Eleven Thousand Eight Hundred Fifty and 50/100 Dollars ($711,850.50)
for the First Calendar Year of the Lease (based upon the
approximated Rentable Area set forth above) per year payable monthly
in advance, beginning on the Rent Commencement Date without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Fifty Nine Thousand Three Hundred Twenty and
87/100 Dollars ($59,320.87) each together with applicable sales tax
and applicable local taxes, beginning on the Commencement Date.
Notwithstanding the foregoing, provided that so long as no Event of
Default shall have occurred from the time beginning on the Rent
Commencement Date and ending twelve (12) months thereafter (such
period having previously been referred to as the "Initial Term Free
Rent Period"), Tenant shall not be obligated to pay Overhead Rent
with respect to an undivided portion of the Premises equal to 71,594
Rentable Square Feet. The Landlord's deferral and waiver of Overhead
Rent in the First Lease Year, to the extent detailed in the
immediately preceding sentence, is specifically conditioned upon an
Event of Default not having occurred during the balance of the
Initial Term of this Lease. The entire Overhead Rent otherwise due
and payable during the Initial Term Free Rent Period shall become
immediately due and payable upon the occurrence of an Event of
Default by Tenant under this Lease.
Base Rent in the Second Lease Year shall be Six and 05/100 Dollars
($6.05) per square foot of Rentable Area or Nine Hundred Fifty Seven
Thousand Forty Three and 45/100 Dollars ($957,043.45) per annum
(based upon the approximated Rentable Area set forth above) per year
payable monthly in advance, without deduction or offset, on the
first day of each calendar month together with applicable sales tax
and applicable local taxes, in equal installments of Seventy Nine
Thousand Seven Hundred Fifty Three and 62/100 Dollars ($79,753.62)
each together with applicable sales tax and applicable local taxes,
beginning on the first day of the Second Lease Year.
Base Rent in the Third Lease Year shall be Six and 22/100 Dollars
($6.22) per square foot of Rentable Area or Nine Hundred Eighty
Three Thousand Nine Hundred Thirty Five and 58/100 Dollars
($983,935.58) per annum (based upon the approximated Rentable Area
set forth above) per year
Page II
<PAGE> 6
payable monthly in advance, without deduction or offset, on the
first day of each calendar month together with applicable sales tax
and applicable local taxes, in equal installments of Eighty One
Thousand Nine Hundred Ninety Four and 63/100 Dollars ($81,994.63)
each together with applicable sales tax and applicable local taxes,
beginning on the Third Lease Year.
Base Rent in the Fourth Lease Year shall be Six and 53/100 Dollars
($6.53) per square foot of Rentable Area or One Million Thirty Two
Thousand Nine Hundred Seventy Four and 20/100 Dollars
($1,032,974.20) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Eighty Six Thousand Eighty One and 18/100
Dollars ($86,081.18) each together with applicable sales tax and
applicable local taxes, beginning on the first day of the Fourth
Lease Year. Base Rent in the Fifth Lease Year shall be Six and
85/100 Dollars ($6.85) per square foot of Rentable Area or One
Million Eighty Three Thousand Five Hundred Ninety Four and 70/100
Dollars ($1,083,594.70) per annum (based upon the approximated
Rentable Area set forth above) per year payable monthly in advance,
without deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Ninety Thousand Two Hundred Ninety Nine and
55/100 Dollars ($90,299.55) each together with applicable sales tax
and applicable local taxes, beginning on the first day of the Fifth
Lease Year.
Base Rent in the Sixth Lease Year shall be Seven and 31/100 Dollars
($7.31) per square foot of Rentable Area or One Million One Hundred
Fifty Six Thousand Three Hundred Sixty One and 60/100 Dollars
($1,156,361.60) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of Ninety Six Thousand Three Hundred Sixty Three
and 46/100 Dollars ($96,363.46) each together with applicable sales
tax and applicable local taxes, beginning on the first day of the
Sixth Lease Year.
Base Rent in the Seventh Lease Year shall be Seven and 65/100
Dollars ($7.65) per square foot of Rentable Area or One Million Two
Hundred Ten Thousand One Hundred Forty Five and 90/100 Dollars
($1,210,145.90) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of One Hundred Thousand Eight Hundred Forty Five
and 49/100 Dollars ($100,845.49) each together with applicable sales
tax and applicable local taxes, beginning on the first day of the
Seventh Lease Year.
Base Rent in the Eighth Lease Year shall be Eight and NO/100 Dollars
($8.00) per square foot of Rentable Area or One Million Two Hundred
Sixty Five Thousand Five Hundred Twelve and NO/100 Dollars
($1,265,512.00) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of One Hundred Five Thousand Four Hundred Fifty
Nine and 33/100 Dollars ($105,459.33) each together with applicable
sales tax and applicable local taxes, beginning on the first day of
the Eighth Lease Year.
Base Rent in the Ninth Lease Year shall be Eight and 36/100 Dollars
($8.36) per square foot of Rentable Area or One Million Three
Hundred Twenty Two Thousand Four Hundred Sixty and NO/100 Dollars
($1,322,460.00) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of One Hundred Ten Thousand Two Hundred Five and
NO/100 Dollars ($110,205.00) each together with applicable sales tax
and applicable local taxes, beginning on the first day of the Ninth
Lease Year.
Base Rent in the Tenth Lease Year shall be Eight and 73/100 Dollars
($8.73) per square foot of Rentable Area or One Million Three
Hundred Eight Thousand Nine Hundred Ninety and 90/100 Dollars
($1,380,990.90) per annum (based upon the approximated Rentable Area
set forth above) per year payable monthly in advance, without
deduction or offset, on the first day of each calendar month
together with applicable sales tax and applicable local taxes, in
equal installments of One Hundred Fifteen Thousand Eighty Two and
49/100 Dollars ($115,082.49) each together with applicable sales tax
and applicable local taxes, beginning on the first day of the Tenth
Lease Year.
SECTION 3 Tenant's Share: 8.934%. Landlord and Tenant acknowledge that
Tenant's Share has been obtained by taking the Net Rentable
Area of the Premises and dividing such number by 1,770,600 square
feet, and multiplying such quotient by 100. In the event Tenant's
Share is changed during a calendar year by reason of a change in the
Net Rentable Area of the Premises, Tenant's Share shall thereafter
mean the result obtained by dividing the new Net Rentable Area of
the Premises by 1,770,600 and multiplying such quotient by 100.
SECTION 4 Security Deposit Received: WAIVED
Prepaid First Month's Rent: N/A
Page III
<PAGE> 7
Prepaid Last Month's Rent: N/A
Prepaid First Month's Overhead Rent: N/A
SECTION 5 Use of Premises: Corporate headquarters, Office space, light
manufacturing, assembly, research, and development.
Tenant's Address for Notices Prior to Rent Commencement Date:
100 East Sample Road
Pompano Beach, Florida 33064
ATTENTION: CHIEF FINANCIAL OFFICER
with a copy to: General Counsel
Tenant's Address for Notices After Rent Commencement Date:
Tenant
The Premises
ATTENTION: CHIEF FINANCIAL OFFICER
with a copy to: General Counsel
Landlord's Address for Notices:
Blue Lake, Ltd.
5000 Blue Lake Drive, Suite 100
Boca Raton, Florida 33431
Attention: Michael D. Masanoff
With copies to:
Mandel, Weisman & Kirschner, P.A.
2101 Corporate Boulevard, N.W., Suite 300
Boca Raton, Florida 33431
Attention: Mitchell B. Kirschner, Esquire
SECTION 8 Emergency Generator Assessment Fee: $600,000.00, to
be paid by Tenant to Landlord upon ten (10) days prior written
notice to Tenant. The Emergency Generator Assessment Fee has been
calculated on the basis of Landlord's charge of $500,000.00 per
mega-watt load requirement against the Tenant's load requirement of
1.2 mega-watts. The Tenant shall pay an Emergency Generator
Assessment Fee for the load requirement for the Expansion Premises
at the Emergency Generator Assessment Fee then in effect, subject,
however, to a credit, as applicable, and the rate as more fully
provided in Section 1.E. of the Lease.
SECTION 15 Amount of General Comprehensive Liability Insurance:
$1,000,000.00 per occurrence and $2,000,000.00 in the aggregate
amount.
SECTION 43 Tenant's Real Estate Broker:
Reichel Realty & Investments, Inc.
Attention: William B. Reichel
Landlord's Real Estate Broker:
Blue Lake Realty, Inc.
SECTION 44 Guarantor(s):
DBT Online, Inc., a Pennsylvania corporation
Attention: Chief Financial Officer
Page IV
<PAGE> 8
Work Letter:
Paragraph 1.3 Landlord's Contribution: $600,000.00; to be paid
concurrently with Tenant's payment to Landlord of the
Emergency Generator Assessment Fee as provided above.
Paragraph 1.7 Tenant's Construction Agent: SHARPE PROJECT
DEVELOPMENTS, INC.*
ATTENTION: ORLANDO SHARPE
*Tenant may, from time to time, identify a
substituted Tenant's Construction Agent from a list of persons
pre-approved by Landlord to act as a Tenant's Construction
Agent for the Building or such other person as requested by
Tenant having experience in construction of the type and
nature of the undertaking pursuant to the Work Letter and who
shall be reasonably acceptable to Landlord.
Certain of the information relating to the Lease, including
many of the principal economic terms, are set forth in the foregoing Basic Lease
Information Rider (the "BLI Rider"). The BLI Rider and the Lease are, by this
reference, hereby incorporated into one another. In the event of any conflict or
ambiguity between the terms of this BLI Rider and the terms of the Lease, the
provisions of the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI
Rider on January _____, 1998.
WITNESSES: "TENANT"
--------------------------------- DATABASE TECHNOLOGIES, INC., a
Florida corporation
--------------------------------
(As to Tenant)
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
(SEAL)
WITNESSES: "LANDLORD"
--------------------------------- BLUE LAKE, LTD., a Florida limited
partnership
--------------------------------- By: Blue Lake, Inc., a Florida
(As to Landlord) corporation, its general partner
By:
------------------------------
Michael D. Masanoff, Executive
Vice President
Page V
<PAGE> 9
Page VI
BLUE LAKE CORPORATE CENTER
AGREEMENT OF LEASE
THIS LEASE ("Lease") is made this 22nd day of January, 1998, by and
between BLUE LAKE, LTD., a Florida limited partnership ("Landlord") and DATABASE
TECHNOLOGIES, INC., a corporation organized under the laws of the State of
Florida ("Tenant").
W I T N E S S E T H:
1. PREMISES; BUILDING; AND COMMON AREAS; EXPANSION SPACE
A. PREMISES; BUILDING; AND COMMON AREAS. Landlord leases to Tenant
and Tenant leases from Landlord the Premises described in the Basic Lease
Information Rider (the "BLI Rider") attached to the front of this Lease and
incorporated into this Lease by this reference, and as more particularly shown
on the floor plan attached hereto as Exhibit "A" and by this reference
incorporated herein ("Premises") . The parties hereby agree that the Premises
contain the number of Net Rentable Area set forth in the BLI Rider. The Premises
constitute a portion of the office building campus, including parking spaces,
driveways, walkways, drainage systems, utility systems, greenspace areas, and
other elements of the Blue Lake Corporate Center (collectively the "Building").
In addition to the Premises, Tenant has the right to use, in common with others,
the lobby, public entrances, public stairways, public areas and public elevators
of the Building (the "Common Areas"). The Common Areas serving the Building,
will at all times be subject to Landlord's exclusive control and management in
accordance with the terms and provisions of this Lease.
B. EXPANSION PREMISES.
(i) INITIAL EXPANSION PREMISES OPTION. Provided that Tenant shall,
not have committed an Event of Default under this Lease, Tenant is granted the
option to lease not less than all of the adjacent 149,989 Rentable Square Feet
space located in 4680 Blue Lake Drive ("Building 004"), subject, however, to a
possible adjustment pursuant to the terms of Section 1.D. herein, shown on
Exhibit "E" (the "Expansion Premises"), by delivering written notice of Tenant's
exercise of this option on or before January 1, 1999 ("Initial Expansion
Premises Option"). Landlord waives any charge for the granting of the Initial
Expansion Premises Option to Tenant.
(a) TERMS OF INITIAL EXPANSION PREMISES OPTION. If Tenant
timely exercises the Initial Expansion Premises Option, then Tenant shall lease
the entire Expansion Premises on all of the terms and conditions of this Lease,
including, in specificity, except as otherwise provided in this Section 1.B.,
the provisions of this Lease and BLI Rider for Base Rent, Overhead Rent and
Additional Rent, which, as to the Expansion Premises, shall increase on the same
Rent change dates for the Premises, and all Base Rent and Overhead Rent and
other charges or payments of any kind shall be as set forth in this Lease
subject, however, to the deferral and waiver provisions of the Initial Expansion
Premises Free Rent Period as defined in Section 1.B.(i)(c) which shall be based
on the Rentable Area of the Expansion Premises. At such time as the Tenant shall
lease the Expansion Premises, in accordance with this Section 1.B., the Premises
and Expansion Premises shall hereinafter collectively be referred to as the
"Premises" and the Tenant's Share, as specified in the BLI Rider, shall be
correspondingly amended.
(b) INITIAL EXPANSION PREMISES RENT COMMENCEMENT DATE. Subject
to the provisions of Section 1.B.(i)(c), Base Rent, Overhead Rent and Additional
Rent for the Expansion Premises shall commence to accrue and be paid on the
"Expansion Premises Rent Commencement Date" which shall be the earlier to occur
of: (i) One Hundred Fifty (150) days following the execution of an addendum to
this Lease incorporating the Expansion Premises as a portion of the Premises
upon the terms herein, and (ii) the delivery of a temporary or final Certificate
of Occupancy for the Premises, as defined in Section 2 of the BLI Rider.
(c) INITIAL EXPANSION PREMISES FREE RENT PERIOD. Beginning on
the Initial Expansion Premises Rent Commencement Date and the twelve (12) months
thereafter, such period herein referred to as the "Initial Expansion Premises
Free Rent Period", no Base Rent with respect to the entire Expansion Premises
and no Overhead Rent with respect to an undivided 75,000 rentable square feet of
the Expansion Premises shall be paid or payable, provided that no Event of
Default shall have occurred during the Initial Expansion Premises Free Rent
Period, and, thereafter, the entire Base Rent and Overhead Rent otherwise due
and payable but deferred during the Initial Expansion Premises Free Rent Period
shall become immediately due and payable upon the occurrence of an Event of
Default by Tenant at any time during the Lease Term.
(d) FAILURE TO EXERCISE INITIAL EXPANSION PREMISES OPTION. If
Tenant timely notifies Landlord of its election not to exercise the Initial
Page VI
<PAGE> 10
Expansion Premises Option, or fails to timely notify Landlord of its exercise of
the Initial Expansion Premises Option, then Tenant's right under this Initial
Expansion Premises Option shall automatically and permanently terminate and the
terms of Second Expansion Premises Option, as hereinafter provided in Section
1.B.(ii) shall be substituted in its place and stead according to terms therein
provided.
(ii) SECOND EXPANSION PREMISES OPTION. In the event that the
Tenant shall not have timely or properly exercised the Initial Expansion
Premises Option on or before January 1, 1999, and further provided that the
Second Expansion Premises Option Consideration, as provided in Section
1.B.(ii)(a) hereinbelow has been timely paid to Landlord, and further provided
that no Event of Default shall have been committed by Tenant under this Lease,
Tenant shall be granted the option to lease the Expansion Premises by delivering
written notice of Tenant's exercise of this option on or before December 31,
1999 ("Second Expansion Premises Option").
(a) SECOND EXPANSION PREMISES OPTION CONSIDERATION. The
granting of the Second Expansion Premises Option to Tenant is made specifically
conditioned upon the payment by Tenant to Landlord of the sum of One Hundred
Fifty Thousand and NO/100 Dollars ($150,000.00), ("Second Expansion Premises
Option Consideration) not later than January 1, 1999. The Second Expansion
Premises Option Consideration is acknowledged to be earned by Landlord upon
receipt by Landlord and is neither returnable in the event the Tenant shall not
exercise the Second Expansion Premises Option nor to be treated as a credit in
the event Tenant exercises the Second Expansion Premises Option.
(b) TERMS OF SECOND EXPANSION PREMISES OPTION. If Tenant
timely exercises the Second Expansion Premises Option, Tenant shall lease the
entire Expansion Premises on all of the terms and conditions of this Lease,
including, in specificity, except as otherwise provided in this Section, the
provisions of this Lease and BLI Rider for Base Rent, Overhead Rent and
Additional Rent, which, as to the Expansion Premises, shall increase on the same
Rent change dates for the Premises, and all Base Rent and Overhead Rent and
other charges or payments of any kind shall be as set forth in this Lease and
shall be based on Rentable Area of the Premises subject, however, in specificity
the Second Expansion Premises Rent Free Period as defined in Section 1.B.(iii)
herein. At such time as the Tenant shall lease the Expansion Premises, in
accordance with this Section 1.B., the Premises and Expansion Premises shall
hereinafter collectively be referred to as the "Premises" and Tenant's Share as
specified in the BLI Rider shall be correspondingly amended.
(c) SECOND EXPANSION PREMISES COMMENCEMENT DATE. Subject
to the provisions of Section 1.B.(iii), Base Rent, Overhead Rent and Additional
Rent for the Second Expansion Premises shall commence to accrue and be paid on
the Second Expansion Premises Rent Commencement Date which shall be the earlier
to occur of: (i) One Hundred Fifty (150) days following the execution of an
addendum to this Lease incorporating the Second Expansion Premises as a portion
of the Premises upon the terms herein, and (ii) the delivery of a temporary or
final Certificate of Occupancy for the Expansion Premises, as defined in Section
2 of the BLI Rider.
(iii) SECOND EXPANSION PREMISES FREE RENT PERIOD. The parties
agree that, with respect to an exercise by Tenant of the Second Expansion
Premises Option, so long as no Event of Default shall have occurred for the
first seven (7) months after the Second Expansion Premises Rent Commencement
Date, no Base Rent with respect to the entire Expansion Premises shall for said
seven (7) months shall be paid or payable. Notwithstanding the provisions of the
immediately preceding sentence, the Overhead Rent for the Entire Expansion
Premises shall be payable on a monthly basis initiating on the Second Expansion
Premises Commencement Date and is not herein waived. The entire Base Rent
otherwise due and payable for the Second Expansion premises Rent Free Period
shall become immediately due and payable upon the occurrence of an Event of
Default by Tenant under this Lease.
(IV) RIGHT OF FIRST REFUSAL. In the event that the Tenant
shall not have timely exercised either the Initial Expansion Premises Option or
the Second Expansion Premises Option within the time limits and pursuant to the
terms contained in Sections 1.B.(i) or 1.B.(ii), respectively, subject, however,
to marketing limitations on the Landlord as contained in Section 1.C. and
provisions of Section 1.F., and further provided that no Event of Default shall
have been committed by Tenant under this Lease, the Landlord grants to the
Tenant a right of first refusal, for the balance of the Initial Lease Term,
subject, however, to a termination of the Right of First Refusal should Tenant
commit an Event of Default at any time, to lease the Expansion Premises upon the
terms herein provided (the "Right of First Refusal Term"). If during the Right
of First Refusal Term the Landlord shall receive a BONA-FIDE third-party offer
to lease premises which shall include all or a portion of the Expansion Premises
("Third Party Offer"), then Landlord shall advise Tenant, in writing, of
Landlord's intention to accept such Third Party Offer and shall furnish to
Tenant all of the basic terms and conditions of such Third Party Offer (the
"Landlord's Notice"). Tenant shall thereafter have the option, within seven (7)
business days following Tenant's receipt of Landlord's Notice, to exercise its
Right of First Refusal to lease not less than the entire Expansion Premises
(notwithstanding a Third Party Offer for the lease of less than all of the
Expansion Premises) upon the terms contained in the BONA-FIDE third party offer
that is recited in the Landlord's notice, by giving notice of its election to
exercise its Right of First Refusal in writing to Landlord (the "Tenant's
Acceptance"). If Tenant timely exercises the right of first refusal, Landlord
and Tenant shall, within five (5) business days thereafter, enter into an
amendment to this Lease affirming the covenants and conditions contained in this
Lease, except that the
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amendment, with respect to the Expansion Premises shall contain the applicable
business terms and conditions as contained in the Third Party Offer, Tenant
shall also deliver to Landlord an original signed re-affirmation of the
Guarantor's Guaranty in form and substance reasonably prescribed by Landlord. If
Tenant waives or fails to exercise its Right of First Refusal herein granted in
strict compliance with the terms for said exercise, the Landlord may then lease
such portion of the Expansion Premises as set forth in such offer to any other
party, including the third party offerer and the Right of First Refusal shall
thereafter be terminated on a self-effectuating basis and be of no further force
or effect with respect to such space which is leased to such third-party.
Notwithstanding the immediately preceding sentence, Landlord may, additionally,
request the Tenant to execute a written certification of the lapse and
termination of the Right of First Refusal as herein contained with respect to
such space. Notwithstanding the foregoing, and in the absence of an Event of
Default by Tenant, the Right of First Refusal herein granted to Tenant shall
continue in full force and effect as to the remaining balance of the Expansion
Premises not otherwise leased to third-parties following a failure or waiver on
the part of Tenant to exercise the Right of First Refusal herein granted, said
Right of First Refusal in all other manners remaining subject to the terms and
limitations contained in this Section 1.B.(iv).
C. NO RESERVATION. Except as herein specifically provided in
Section 1.B. and this Section 1.C., nothing herein shall constitute a
reservation or other rights in or to the Expansion Premises or shall impose an
obligation on the Landlord to abstain or refrain from marketing the Expansion
Premises for lease to third-parties. Subject to those specific rights granted
Tenant in Sections 1.B. and 1.C. the Landlord shall, during the first twelve
(12) months of the Right of First Refusal, reasonably limit its primary
marketing of the Expansion Premises for lease to only prospective tenants
expressing an interest in leasing a minimum of 100,000 rentable square feet
notwithstanding which Landlord may accept a bona-fide offer for the Lease of not
less than 50,000 rentable square feet from any such prospective Tenant. However,
in the event that Landlord does not, from time to time, have an inventory of
equivalent rentable area of approximately 100,000 rentable square feet in
Buildings 012, 013, 021, 022, or 023, the Landlord may primarily market the
Expansion Premises without limitations hereinabove contained.
D. REDUCTION/SUBSTITUTION OF EXPANSION PREMISES. At any time
prior to an exercise by the Tenant of the Initial Expansion Premises Option, or
Second Expansion Premises Option, the Landlord reserves the right to reduce the
square footage of the Expansion Premises by approximately 27,000 usable square
feet in the northern portion of the Expansion Premises. Such reduction shall be
effectuated in order to permit the Landlord to enter into a lease or leases to
other entities. In the event that the Landlord exercises its right to reduce a
portion of the Expansion Premises as hereinabove provided, the Landlord shall
designate equivalent square footage which designated substitute space shall be
contiguous space to other space occupied by Tenant. For purposes of the
immediately preceding sentence, the term "contiguous space" shall be defined as
such rentable square footage which is not subject to the tenancy of an
intervening tenant or other occupant but may, however, be subject to an
intervening corridor separating the existing space occupied by tenant and the
substituted space. Landlord's obligation to substitute Expansion Premises during
the pendency of the First Expansion Premises Option and the Second Expansion
Premises Option shall terminate on December 31, 1999.
E. STAND-BY EMERGENCY GENERATOR ASSESSMENT FEE.
Tenant may contract with Landlord, its assigns or Landlord's designated
provider to supply the Expansion Premises with emergency electric generator
power through the auspices of one or more stand-by emergency generators (as more
specifically defined and discussed in Section 8.A.(2)) upon the payment of an
Emergency Generator Assessment Fee for the Expansion Premises. The Landlord
represents and warrants that it shall be capable of providing the necessary load
but that the obligation of the Landlord to provide emergency generator power
shall be conditioned upon the economic feasibility of the cost of availing
Tenant's load requirements to the cost of providing the load requirement. By way
of example, but not limitation, if, in order to meet the Tenant's load
requirement of .5 mega-watts, the smallest generator available to be purchased
by the Landlord is for 1.5 mega-watts, the Landlord will not be responsible for
providing such additional emergency generator unless Tenant agrees to pay the
capital cost of acquiring the 1.5 mega-watt generator.
Notwithstanding the preceding paragraph, provided Tenant notices
Landlord of its exercise of the Option to lease the Expansion Premises not later
than June 30, 1999, the Landlord will provide Tenant with an improvement
allowance credit of $500,000.00 which credit shall be applied to the cost of
providing up to 1.0 mega-watts of emergency electrical generator service to the
Expansion Premises. In the event that the Expansion Premises require an
emergency generator load of in excess of 1.0 mega-watts, any such overage shall
be payable by Tenant at the rate of $500,000.00 per mega-watt. In the event that
Tenant provides the herein required notice of its option to lease all of the
Expansion Premises on June 30, 1999 so as to avail the allowance provided for in
this Section, the Expansion Premises Rent Commencement Date may, at the option
of the Tenant, be calculated pursuant to the terms of Section 1.B.(i)(b) or
1.B.(ii)(c), as applicable.
F. WAIVER OF OPTION AND RIGHT OF FIRST REFUSAL. In the event
that the Tenant shall either (i) commit an Event of Default as defined in
Section 23 hereof, or (ii) vacate, abandon or surrender all or any part of the
Premises prior to the expiration date notwithstanding the Tenant's continuing to
pay Rent and in all other manners honoring this Lease, or (iii) assign
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this Lease or sublease any portion of the Premises to a party which is not an
affiliate as defined in Section 13, then and in that event the First Expansion
Premises Option, the Second Expansion Premises Option and the Right of First
Refusal as contained in this Section 1.B., shall hereinafter terminate and be of
no further force and/or effect.
2. LEASE TERM; LEASE DATE
A. GENERAL. The lease term ("Lease Term") is for the period of
time set forth in the BLI Rider and ending on the Lease expiration date set
forth in the BLI Rider ("Expiration Date"). Tenant's obligation to pay all rent,
including Base Rent, Overhead Rent and Additional Rent, (collectively, "Rent"),
as such terms are hereafter defined, will commence on the Rent Commencement
Date, as set forth in the BLI Rider, subject, however, to the Initial Term Free
Rent Period as defined in Section 3.H.
Tenant shall observe and perform all of its obligations under
this Lease from the earlier to occur of the date that the Premises are delivered
to Tenant for the purpose of commencement of the Tenant's improvements to the
Premises or the date Tenant otherwise takes possession of the Premises until the
Commencement Date in the same manner as though the Lease Term began when the
Premises were so delivered to Tenant. Under no circumstances, however, may
Tenant enter into possession of the Premises prior to the earlier to occur of
the date that the Premises are delivered to Tenant for the purpose of
commencement of Tenant's improvements to the Premises. However, notwithstanding
the foregoing, Tenant shall pay for all utilities, as either measured by a
separate meter or as fairly estimated by Landlord, and services consumed by or
on behalf of Tenant prior to the Rent Commencement Date.
B. RENEWAL OPTION(S). Landlord grants to Tenant the options
(the "Option(s)") to extend the term of this Lease for two (2) additional
periods of five (5) years each (the "Renewal Term(s)") under the terms set forth
below. Tenant shall not be entitled to exercise the Option(s) unless each of the
following conditions shall be fully satisfied at the time of its exercise: (i)
the Lease shall be in full force and effect; (ii) the Tenant originally named in
this Lease, or a permitted assignee pursuant to Section 13, shall be in
possession of the entire Premises; and (iii) no Event of Default shall have
occurred under any of the material terms, provisions, covenants or conditions of
the Lease. In order to exercise a Renewal Option, Tenant must first make written
demand upon Landlord not less than nine (9) months prior to the expiration date
of the initial Lease Term or the initial Renewal Term, as applicable. Base Rent
for each year of each Renewal Term shall increase by Five Percent (5%) over the
previous year during the Lease or the initial Renewal Term, as applicable and
shall continue to increase in each year thereafter by Five Percent (5%) above
the previous Lease Year until the Expiration Date. In the event that the Tenant
shall fail to timely deliver written demand, as hereinabove provided, this
Renewal Option shall expire on a self-effectuating basis and be of no further
force or effect.
3. RENT
A. BASE RENT. During the Lease Term, Tenant will pay to
Landlord in lawful United States Currency as the base rent for the Premises
("Base Rent") the amounts set forth in the BLI Rider, beginning on the Rent
Commencement Date with same being payable without demand, setoff or deduction,
in advance, on or before the first day of each month, in equal monthly
installments of the amounts set forth in the BLI Rider plus applicable sales and
other such taxes as are now or later enacted. All payments of Base Rent,
Overhead Rent, (and Security Deposits if subsequently applicable during the
Lease Term), and any other sums due from Tenant under this Lease shall be made
by automated clearing house transfer to such account as may be designated (or
re-designated from time to time) by Landlord's written notice. Tenant shall
deliver to Landlord any documents, instrument, authorizations or certificates
required by Landlord to give effect to an automated debiting system whereby any
and all payments by Tenant of Rent shall be debited monthly from Tenant's
account in a bank or financial institution designated by Tenant and credited to
Landlord's bank account as Landlord shall designate from time to time by written
notice. Tenant shall promptly pay all service fees and other charges connected
therewith, including, without limitation, any charges resulting from
insufficient funds in Tenant's bank account or any charges imposed upon
Landlord. In the event that Tenant elects to designate a different bank or
financial institution from which any Rent under the Lease is automatically
debited, notification of such change and required documents, instruments,
authorizations and certificates must be received by Landlord not later than
thirty (30) days prior to the date such change is to become effective. Tenant
agrees that it shall remain responsible to Landlord for all payments of Rent and
any other charges pursuant to this Lease, even if Tenant's bank account is
incorrectly debited in any given month. Such Rent shall be immediately payable
to Landlord upon written demand and any failure to so pay subject to the grace
provisions set forth in Section 3 shall constitute an Event of Default.
B. OVERHEAD RENT. Beginning on the Rent Commencement Date, and
continuing thereafter during the term of this Lease, Tenant shall pay Tenant's
Share, as defined in the BLI Rider, of (i) the total amount of the annual
Operating Expenses (as hereafter defined) and (ii) the total amount of Taxes (as
hereafter defined). As used herein, "Overhead Rent" means the total of Tenant's
allocated Share of Operating Expenses and Taxes. The Overhead Rent for the first
calendar year hereunder, or portion thereof, shall be set at Four and 50/100
Dollars ($4.50) per square foot of Rentable Area ("Base Year Overhead Rent").
However, in no event shall the Tenant's Share of the Controllable Operating
Expenses be increased by more than Eight Percent (8%) on an on-going cumulative
basis from that charged to Tenant as part of Overhead Rent, for the immediately
preceding calendar year. Increases in Operating Expenses
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that are not deemed controllable as defined hereunder shall not be limited by
the foregoing sentence. Controllable Operating Expenses do not include (i)
Taxes, (ii) utility charges and fees (including, but not limited to, water,
sewer, electrical, telephone, chilled water and ventilation and air-conditioning
charges, cable communications and the like), (iii) premiums for insurance, (iv)
minimum wage changes, and (v) costs resulting from changes in law. In no event
shall the Overhead Rent to be paid by Tenant in any calendar year be less than
the First Lease Year Overhead Rent (i.e., $4.50 per rentable square foot). For
purposes of example of the manner of calculating the maximum increase in the
non-controllable Overhead Rent on an accumulative on-going basis: if the
increase in the Controllable Overhead Rent in the Second Lease Year is Five
Percent (5%) (as opposed to the maximum of Eight Percent (8%)), then, in the
Third Lease Year the maximum increase in the Controllable Overhead Rent shall be
Eleven Percent (11%). Prior to each subsequent calendar year, beginning with the
calendar year immediately following the Base Year, Landlord shall, in advance,
reasonably estimate for each such calendar year the total amount of the Overhead
Rent. In no event shall the Overhead Rent to be paid by the Tenant in any
calendar year be less than the Base Year Overhead Rent. One-twelfth (1/12) of
the estimated Overhead Rent shall be payable monthly, along with the monthly
payment of the Base Rent. On or before March 31 following a calendar year for
which Overhead Rent is payable hereunder, Landlord shall provide Tenant with a
reconciliation statement showing the amount of the actual components of Overhead
Rent for the previous calendar year. If the reconciliation statement reflects an
underpayment in either component of Overhead Rent, Landlord shall also deliver
to Tenant an invoice which Tenant shall pay within thirty (30) days following
receipt of such invoice or with the due date of its next monthly payment of
Rent, whichever shall first occur. If the reconciliation statement reflects an
overpayment in either component of Overhead Rent, Tenant shall be entitled to
either, at Landlord's option, a credit against the next payment(s) of Rent in an
amount equal to the overpayment or a refund check from Landlord for such
overpayment. In no event shall the Base Rent under this Lease be reduced by
virtue of this Section (except in the event a credit may be due Tenant under
this Section). For a period of ninety (90) days after receipt of the
reconciliation statement, Tenant shall have the right, upon reasonable advance
notice, to visit Landlord's office in the Building during Business Hours, as
hereafter defined, to inspect its books and records concerning the Overhead
Rent, and within such ninety (90) day period to deliver any specific written
objections to Landlord with respect to any actual overpayment. If Tenant fails
to deliver a specific written objection within such ninety (90) day period,
Tenant shall have waived Tenant's right to object to or make any claim for
return of any overpayment and shall have waived its right to perform any further
inspection of the Landlord's book and records. When calculating annual Taxes,
such calculation shall, with respect to ad valorem taxes, be calculated with
reference to the gross amount set forth in the official tax bill issued by the
appropriate taxing authorities, however, when calculating annual Taxes, such
calculations shall take into account the amount actually paid by Landlord for
such calendar year, subject, however, to an off-set and credit against any such
lesser amount equal to reasonable expenses and costs incurred by Landlord in any
proceeding reducing the annual Taxes from the gross amount set forth in the
official tax bill. In the event the Taxes for any calendar year are in fact
contested by Landlord, however, ultimately the amount payable for that calendar
year shall be the amount found to be payable in a final determination, whether
such final determination is in the form of a pronouncement from the appropriate
tribunal or a settlement, together with attorneys' fees and costs, appraisal
costs and other fees and costs incurred by the Landlord utilizing a standard of
commercially reasonable management decision in protesting or contesting the
amount of such Taxes. Further, all such fees and costs incurred in the
immediately preceding sentence shall be commercially reasonable in the market
place. The delivery of the aforedescribed projection statement after January 1
and/or the reconciliation after March 31 shall not be deemed a waiver of any of
Landlord's or Tenant's rights to collect monies and/or a waiver of any of the
duties and obligations of Tenant or Landlord as described in this section or as
provided elsewhere in the Lease. As used in this paragraph 3., the following
terms shall have the following meanings:
(1) The term "Operating Expenses" shall mean
(i) any and all costs of ownership, management, operation, repair and
maintenance of the Building, and its services, including, without limitation,
wages, salaries, professionals' fees, taxes, insurance, benefits and other
payroll burdens of all employees to the extent that such employees are directly
involved with the management or maintenance of the Building, Building Management
fees (which Building Management Fees shall not exceed Five Percent (5%) of the
gross receipts for such calendar year.) For purposes of this provision, Gross
Receipts for any calendar year shall mean an amount equal to the product of (i)
the average annual gross rents, charges and fees per rentable square foot
payable under all leases in effect for the Building for the calendar year, and
(ii) the number of rentable square feet in the Building actually rented against
a minimum of Ninety Five Percent (95%) of the rentable square feet in the
Building, Common Area janitorial, maintenance, guard and other services,
building management office rent or rental value, power, life safety equipment
and systems, fuel, water, waste disposal, chilled water, ventilating and air
conditioning charges, stand-by emergency generator maintenance, leases or
financing for the acquisition of furniture and/or equipment, upkeep, monitoring,
refueling charges, landscaping care, lighting, garbage removal, window cleaning,
system maintenance, parking area care, fees and assessments paid to or on behalf
of the "Association" (as later defined herein), and any and all other utilities
not separately metered for the Premises or a portion thereof, materials,
supplies, maintenance, repairs, insurance applicable to the Building and
Landlord's personal property and depreciation on personal property, and (ii) the
cost (amortized, with interest at the rate of Ten Percent (10%) per annum, over
the lesser of (a) the
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balance of the Lease (but in no event longer than ten (10) years), or (b) the
useful life of the asset per GAAP); provided, however, that if the balance of
the term of the Lease is less than five (5) years the amortization shall be over
the shorter of the useful life of the item, in accordance with GAAP or five (5)
years, unless, however, the Lease is subsequently renewed in which event the
amortization shall be recalculated during the renewal period on a pro-rata basis
with interest on all amortized periods at the rate of Ten Percent (10%) per
annum of any capital improvements made to the Building by Landlord after the
date of this Lease that reduce in a commercially reasonable manner Operating
Expenses or made to the Building by Landlord after the date of this Lease that
are required under any governmental law or regulation; provided, however, that
Operating Expenses shall not include real property taxes, depreciation on the
Building other than depreciation on carpeting and wallcovering in public
corridors and Common Areas, costs of tenants' improvements, real estate broker's
commissions, initial acquisition and installation costs of the stand-by
emergency generator and related systems, interest and debt service, capital
items other than those referred to in subsection (ii) above. Landlord shall
maintain accounting books and records in accordance with generally accepted
accounting principles. In determining the amount of Operating Expenses for any
calendar year, if less than Ninety Five Percent (95%) of the Building shall have
been occupied by tenants and fully used by them, Operating Expenses shall be
increased to an amount equal to the like operating expenses which would normally
be expected to be incurred had such occupancy been Ninety Five (95%) and had
such full utilization been made during the entire period. Landlord hereby agrees
to deduct each calendar year from the amount of the Operating Expenses the total
amount of any and all sums, amounts or charges paid by Tenant or other tenants
of the Building directly to Landlord or its agent for specific tenant requested
services or specific utility charges, if applicable. In no event shall Tenant be
responsible for the payment, as part of its share of Operating Expenses for
services rendered by Landlord or Landlord's Agent's exclusively to any other
tenant or occupant in the Building. Notwithstanding anything contained in this
Section to the contrary, prior to the separate metering for electricity,
air-conditioning, air-handlers and chilled water services of Tenant's Premises,
instead of including certain utility charges or services in Overhead Rent,
Landlord may, at its option, bill Tenant and Tenant shall pay for those
utilities or services in any one or a combination of the following manners: (i)
direct charges for services provided for the exclusive benefit of the Premises
that are subject to quantification; (ii) based on a formula that takes into
account the relevant intensity or quantity of use of utilities or services by
Tenant and all other recipients of the utilities, as reasonably determined by
Landlord; or pro-rata based on the proportion that the rentable area of Premises
bears to the total rentable area of the tenant premises within the Building that
receive the applicable utilities or services. In addition, Landlord may, instead
of including certain utility charges in Overhead Rent, provide for direct
delivery of the applicable utility services to Tenant by the utility providers.
If so, all costs and expenses, including all applicable utility deposits,
incurred in connection with provision of the applicable utility services to
tenants, including all costs associated with the provision of separate meters to
tenant premises, shall be includible in Overhead Rent or paid by Tenant and the
other tenants receiving the meters in amounts as reasonably allocated by
Landlord, and, after the direct provision of the utility services has been
effective, the applicable utility charges for ongoing service shall not be
included in Operating Expenses.
Notwithstanding anything to the contrary in the definition of
"Operating Expenses", Operating Expenses shall not include any of the following:
(a) Legal fees, brokerage fees, leasing commissions, advertising costs
and other fees paid to third-party professionals associated with the renting of
the Premises or other space in the Building.
(b) Damage and/or repairs necessitated by the negligence or wilful
misconduct of Landlord or any agent of Landlord.
(c) Legal fees, accounting fees or other expenses related to the
defense of Landlord's title to or interest in the Premises or the Building.
(d) Payment of debt service on loans secured by a mortgage or lien
encumbering the Building or any portion or interest of or in the Building.
(e) All costs and expenses which have been paid by Landlord and
reimbursed directly to Landlord by third-parties, including other tenants in the
Building, rather than through Operating Expenses.
(2) The term "Taxes" shall mean the gross amount of
all impositions, taxes, assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by Landlord as a separate
tax-paying entity without regard to Landlord's income source as arising from or
out of the Building and/or the land on which it is located) attributable in any
manner to the Building, and the approximately 350 acre portion of the property
surrounding the building, shown on Exhibit "G" hereto (but excluding the
assessed value of any new building(s) and the land allocated to such new
building(s) constructed on such campus), or the rents (however the term may be
defined) receivable therefrom, or any part thereof, or any use thereon, or any
facility located therein or used in conjunction therewith or any charge or other
amount required to be paid to any governmental authority, whether or not any of
the foregoing shall be designated "real estate tax", "sales tax", "rental tax",
"excise tax",
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"business tax", or designated in any other manner. For purposes hereof, until
such time as a separate tax folio is established for the Building and the
approximate 350 acre campus, the taxes on the land which encompasses the 350
acre campus and other improvements shall be calculated in a fair and equitable
manner by determining the assessed value of the 350 acres based upon the present
total assessment on the tax folio of which the 350 acres are a constituent part.
Tenant hereby agrees that the Overhead Rent from time to time computed
by Landlord shall be final and binding for all purposes of this Lease unless,
within ninety (90) days after Landlord provides Tenant with written notice of
the amount thereof, Tenant provides Landlord with written notice (i) disputing
the mathematical accuracy of such amount (the "Disputed Amount"), (ii)
designating an attorney or accountant, reasonably acceptable to Landlord, and
appointed by Tenant, at its sole cost and expense, to review the mathematical
accuracy of the Disputed Amount with Landlord and/or its designated
representatives and (iii) confirming that the Disputed Amount shall not be
subject to adjustment and agreeing to pay all of Landlord's third party costs
and expenses in connection with such review, including attorneys' fees and
accountants' fees, unless as a result thereof the Disputed Amount is
demonstrated to reflect a mathematical error of Five Percent (5%) or more. In
the event, to the contrary, as a result thereof the Disputed Amount is
demonstrated to reflect a mathematical error in excess of Five Percent (5%), the
Landlord shall pay Tenant's reasonably incurred third-party costs and expenses
in connection with such review, including attorney's fees and accounting fees.
In all cases, the costs and expenses to be reimbursed by either party to the
other above shall be at commercially reasonable and competitive rates. Landlord
hereby agrees, in the event it receives such notice from Tenant, to cooperate in
promptly completing such review and each party agrees respectively to correct
any discrepancy (i.e., a refund by the Landlord in the event of a Tenant
overpayment or an additional payment by the Tenant in the event of an
underpayment promptly upon the completion of the review). Tenant shall have no
right to audit Overhead Rent unless such is in excess of Base Year Overhead
Rent. Such an audit may be conducted at any time within ninety (90) days after
Landlord's annual statement is delivered to Tenant for such calendar year,
provided, that Tenant shall give Landlord not less than ten (10) days prior
written notice of any such audit and sign a confidential non-disclosure
agreement prior to the audit which confidential non-disclosure agreement shall,
however, notwithstanding any provisions to the contrary, allow for the
disclosure of information received during the audit in the event such disclosure
is required by a governmental rule or regulation, or in the event of discovery
in the course of litigation under this Lease.
C. LATE CHARGE. Tenant covenants and agrees to pay a late
charge in the amount of Five Percent (5%) of any payment of Rent not received by
Landlord on or before the date when same is due in the event that Rent is not
received more than two (2) times during any calendar year. Tenant shall also pay
Landlord interest at a rate equal to Twelve Percent (12%) per annum accruing on
any Rent(s) outstanding. Tenant shall pay Landlord any such late charge(s) or
interest within five (5) days after Landlord notifies Tenant of same.
D. DEFINITION OF RENT. The term "Rent" shall refer
collectively to Base Rent, Overhead Rent and Additional Rent. The term
"Additional Rent" is sometimes used herein to refer to any and all other sums
payable by Tenant hereunder, including, but not limited to, parking charges for
other than surface parking for which there is no charge (if, in the future, the
Landlord shall construct a parking structure in which Tenant wishes to lease
parking spaces) and sums payable on account of default by Tenant. All Rent shall
be paid by Tenant without offset, demand or other credit, and shall be payable
only in lawful money of the United States of America which shall be legal tender
in payment of all debts and dues, public and private, at the time of payment.
All sums payable by Tenant hereunder, to the extent not required to be paid by
automated clearinghouse transfer as provided in Sections 3.A. and 3.B. herein,
shall be paid by check against a financial institution located in the United
States of America. Such Rent shall be paid by Tenant at the Building management
office located in the Building or elsewhere as designated by Landlord in writing
to Tenant. Any Rent payable for a portion of a month shall be prorated based
upon the number of days in the applicable calendar month. Unless otherwise
expressly provided, all monetary obligations of Tenant to Landlord under this
Lease, of any type or nature, other than Base Rent (i.e., Overhead Rent, or
Additional Rent) shall be subject to the same rights and remedies reserved to
Landlord in the case of an Event of Default in the payment of same as provided
in this Lease for Events of Default in the payment of Base Rent.
E. RENT TAXES. In addition to Base Rent and Overhead Rent,
Tenant shall and hereby agrees to pay to Landlord each month a sum equal to any
sales tax, tax on rentals and any other similar charges now existing or
hereafter imposed, based upon the privilege of leasing the space leased
hereunder or based upon the amount of rent collected therefor.
F. RENT COMMENCEMENT OTHER THAN FIRST DAY. If the Rent
Commencement Date occurs on any day other than the first day of the month, or if
the Lease Term ends on a date other than the last day of a calendar month,
Tenant shall occupy the Premises under the terms of this Lease and the pro rata
portion of the Rent shall be paid by Tenant; provided, however, that in such an
event the Lease Commencement Date, for the purposes of this Lease, shall be
deemed to be the first day of the month immediately following the month in which
possession is given.
G. OVERHEAD RENT AFTER EXPIRATION DATE. Overhead Rent for the
final months of this Lease is due and payable even though it may not be
calculated until subsequent to the Expiration Date of the Lease. Tenant
expressly agrees that in the event the Tenant shall
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have delivered a Security Deposit under this Lease, the parties acknowledging
however that a Security Deposit is waived at the time of the execution of this
Lease, Landlord, at Landlord's sole discretion, may apply the Security Deposit,
as defined in the BLI Rider, in full or partial satisfaction of any Overhead
Rent due for the final months of this Lease. If said Security Deposit is greater
than the amount of any such Overhead Rent and there are no other sums or amounts
owed Landlord by Tenant by reason of any other terms, provisions, covenants or
conditions of this Lease, then Landlord shall refund the balance of said
Security Deposit to Tenant as provided herein. Nothing herein contained shall be
construed to relieve Tenant, or imply that Tenant is relieved, of the liability
for or the obligation to pay any Overhead Rent due for the final months of this
Lease by reason of the provisions of this paragraph, nor shall Landlord be
required first to apply said Security Deposit to such Overhead Rent if there are
any other sums or amounts owed Landlord by Tenant by reason of any other terms,
provisions, covenants or conditions of this Lease.
H. INITIAL TERM FREE RENT PERIOD. Beginning on the Rent
Commencement Date and ending twelve (12) months thereafter (such period herein
referred to as the "Initial Term Free Period"), Tenant shall not be obligated to
pay Base Rent with respect to the entire Premises and no Overhead Rent, with
respect to an undivided portion of the Premises equal to 71,594 Rentable Square
Feet of the Premises. Tenant hereby acknowledges and agrees that Landlord's
waiver of Base Rent and Overhead Rent, as herein provided, are conditioned upon
an Event of Default not having occurred during the Initial Term Free Rent Period
and thereafter during the Initial Term of this Lease. The entire Base Rent and
Overhead Rent otherwise due and payable during the Initial Term Free Rent Period
shall become immediately due and payable upon the occurrence of an Event of
Default by Tenant under this Lease.
4. SECURITY DEPOSIT
No Security Deposit is initially required by the Landlord to be funded
by the Tenant in consideration and reliance of financial documentation submitted
by the Tenant. However, in the event that, subsequent to the execution of this
Lease, the Tenant shall have delivered a Security Deposit, the Security Deposit
shall not be considered an advance payment of rent and is not intended to serve
as liquidated damages nor to be a measure of Landlord's damages for any default
by Tenant. If a Security Deposit is later stipulated to be delivered by Tenant,
in any instance by way of example where the Landlord is willing to extend the
time for the cure of a default or the delivery of a Security Deposit is in
consideration for a concession delivered by Landlord, and such Security Deposit
will be retained by Landlord as security for the payment by Tenant of the Rent
and Additional Rent and for the faithful performance by Tenant of all the other
terms and conditions of this Lease. In the event Tenant fails to faithfully
perform the terms and conditions of this Lease, Landlord, at Landlord's option,
may at any time apply the Security Deposit or any part thereof toward the
payment of the Rent and/or Additional Rent and/or toward the performance of
Tenant's obligations under this Lease; in such event, within five (5) days after
notice, Tenant will deposit with Landlord funds sufficient to restore the
Security Deposit to its original amount. The Security Deposit is not liquidated
damages. Landlord will return the unused portion of the Security Deposit to
Tenant within sixty (60) days after the Expiration Date if Tenant is not in
violation of any of the provisions of this Lease. Landlord may (but is not
obligated to) exhaust any or all rights and remedies against Tenant before
resorting to the Security Deposit. Landlord will not be required to pay Tenant
any interest on the Security Deposit nor hold same in a separate account. If
Landlord sells or otherwise conveys the Building, Landlord will deliver the
Security Deposit or the unapplied portion thereof to the new owner. Tenant
agrees that if Landlord turns over the Security Deposit or the unapplied portion
thereof to the new owner Tenant will look to the new owner only and not to
Landlord for its return upon expiration of the Lease Term. If Tenant assigns
this Lease with the consent of Landlord, the Security Deposit will remain with
Landlord for the benefit of the new tenant and will be returned to such tenant
upon the same conditions as would have entitled Tenant to its return.
5. USE
A. GENERAL. Tenant will use and occupy the Premises solely
for the operation of the business set forth in the BLI Rider and for no other
use whatsoever. Tenant acknowledges that its type of business, as above
specified, is a material consideration for Landlord's execution of this Lease.
Tenant will not commit waste upon the Premises nor suffer or permit the Premises
or any part of them to be used in any manner, or suffer or permit anything to be
done in or brought into or kept in the Premises or the Building, which would:
(i) violate any law or requirement of public authorities, (ii) cause injury to
the Building or any part thereof, (iii) interfere with the peaceful use or
occupancy of any other tenant in the Building or their patrons or interfere with
the normal operations of air-conditioning, plumbing or other mechanical or
electrical systems of the Building or the elevators installed therein, (iv)
constitute a public or private nuisance, or (v) alter the appearance of the
exterior of the Building or of any portion of the interior other than the
Premises pursuant to the provisions of this Lease. Landlord represents that the
property on which the Building is located is currently zoned Light Industrial
Research Park (LIRP) by the City of Boca Raton and that the use of the Premises
set forth in the BLI Rider is not in violation of such zoning.
B. PROHIBITED USES. Notwithstanding anything to the contrary
in this Lease or the BLI Rider, including but not limited to, the "Use of
Premises" Section of the BLI Rider, Tenant hereby represents, warrants and
agrees that Tenant's business is not and shall not be, and that Tenant shall not
use the Premises or any part thereof, or permit the Premises or any part thereof
to be used, (i) for the business of photographic, multilith or
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multigraph reproductions or offset printing; (ii) for a retail banking, trust
company, depository, guarantee or safe deposit business open to the general
public, or indoor automated teller machines, (iii) as a savings bank, a savings
and loan company open to the general public, (iv) for the sale to the general
public of travelers checks, money orders, drafts, foreign exchange or letters of
credit or for the receipt of money for transmission, (v) as a stock broker's or
dealer's office or for the underwriting or sale of securities open to the
general public, (vi) as a restaurant, cafeteria, bar, or an establishment for
the sale of confectionery, soda, beverages, sandwiches, ice cream or baked goods
or for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, (vii) as a news or cigar stand, (viii) as an employment
agency, labor union office, physician's or dentist's office, dance or music
studio, school (except for the training of employees of Tenant), (ix) as a
barber shop or beauty salon, (x) for the business of (a) operating a shared
office facility, that is, a business which subleases space and/or offers
centralized services to subtenants or customers on a shared basis, such as
secretarial, receptionist, telephone, etc., or (b) for a fee to persons inside
or outside of the Building, providing as a service word processing, secretarial,
video conferencing, conference services, telephone answering, receptionist or
mail receipt services, (xi) for any services or uses to the general public to be
conducted on the Premises, (xii) amateur recreational uses or movie theaters,
(xiii) retail sales, including but not limited to drug stores or florists, or
(xiv) showroom and wholesale uses. Nothing in this Section shall preclude Tenant
from using any part of the Premises for photographic, multilith or multigraph
reproductions to the extent that such uses are incidental to Tenant's own
business or activities.
6. ACCEPTANCE OF PREMISES
Tenant has examined the Premises and accepts delivery of the Premises
in an "As-Is" condition. However, in the event that during the course of the
Tenant performing the Tenant's Work, in accordance with the Work Letter, the
Tenant notices the Landlord of any violations of building code or other
applicable governmental regulations in regard to the Premises or the Building,
Tenant will not be responsible for any costs or expenses incurred in the
remediation of any such violations and any said costs shall likewise not be
included in, Operating Expenses as the term is defined in Section 3.B.(1) of
this Lease. Landlord will promptly correct any such violation at Landlord's sole
cost and expense. Notwithstanding the foregoing, the Tenant hereby acknowledges
that any items provided to the Premises by Landlord shall remain the property of
the Landlord and, at the termination of this Lease, be returned to the Landlord
in working condition, normal wear and tear excepted, subject to the useful life
of any such item ending during the Lease Term. All existing ceiling system and
demountable partitions are to remain in the Premises at the time of the delivery
of the Premises and may be utilized by Tenant without charge. Improvements, if
any, to be made to the Premises by Tenant shall be made in accordance with the
Work Letter. Landlord shall provide Tenant with Landlord's pre-approved list of
architects for purposes of preparation of plans in accordance with the Work
Letter. In addition thereto, and in accordance with that certain Letter
Agreement, dated November 12, 1997, between Blue Lake, Ltd. and William B.
Reichel. Landlord has stipulated Nichols Page Architect, Inc. as a permitted
architect for said purposes. All leasehold improvements (as distinguished from
trade fixtures and apparatus) installed in the Premises at any time, whether by
or on behalf of Tenant or by or on behalf of Landlord, shall not be removed from
the Premises at any time, unless such removal is consented to in advance by
Landlord; and at the expiration of this Lease (either on the Termination Date or
upon such earlier termination as provided in this Lease), all such leasehold
improvements shall be deemed to be part of the Premises, shall not be removed by
Tenant when it vacates the Premises, and title thereto shall vest solely in
Landlord without payment of any nature to Tenant. All trade fixtures and
apparatus (as distinguished from leasehold improvements) owned by Tenant and
installed in the Premises shall remain the property of Tenant and shall be
removable at any time, including upon the expiration of the Term; provided
Tenant shall not at such time have committed an Event of Default, and provided
further, that Tenant shall repair any damage to the Premises caused by the
removal of said trade fixtures and apparatus and shall restore the Premises to
substantially the same condition as existed prior to the installation of said
trade fixtures and apparatus. The taking of possession by Tenant (or any
permitted assignee or subtenant of Tenant) of all or any portion of the Premises
for the conduct of business will be deemed, subject to provisions of other
Sections of this Lease and this Section 6, conclusive evidence that Tenant has
found the Premises, and all of their fixtures and equipment, acceptable.
Notwithstanding anything contained in this Section 6 to the contrary,
the Landlord shall be and remain responsible for, as of the date of delivery of
the Premises, (i) structural defects, and (ii) the Premises' compliance with all
applicable and governing laws, rules and regulations as to the Premises as of
the date of the delivery of possession of the Premises. The responsibility of
Landlord may, however, be subject to being diminished or terminated in the event
of an exacerbation of any of the foregoing by virtue of acts or omissions by the
Tenant following knowledge of the Tenant of any such defects or noncompliance.
As of the date hereof the Premises comply in all material respects with all
applicable Environmental Laws.
7. PARKING
A. RESERVED SURFACE PARKING. Twenty (20) surface parking
spaces shall be reserved for Tenant's employees and guests, at a mutually
agreeable location reasonably proximately located to the east side of the
portion of the Building containing Premises "A".
B. RESERVATIONS. Subject to the applicable provisions of
Section 7.A. above, Landlord has and reserves the right to alter the methods
used to control parking and the right to establish such controls and rules
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and regulations (such as parking stickers to be affixed to vehicles) regarding
parking that Landlord may deem desirable. Without liability, Landlord will have
the right to tow or otherwise remove vehicles improperly parked, blocking
ingress or egress lanes, or violating parking rules, at the expense of the
offending tenant and/or owner of the vehicle.
C. CONDITIONS. Tenant's right to use, and its right to permit
its principals and guests to use, the parking facilities pursuant to this Lease
are subject to the following conditions: (i) Landlord has made no
representations or warranties with respect to the parking area, except as set
forth in (ii) hereof, the number of spaces located therein or access thereto;
(ii) Landlord reserves the right to reduce the number of spaces in the parking
area, but, in no event, to less than three (3) spaces per 1,000 rentable square
feet, further provided that the parking spaces shall be unreserved, used in
common with other tenants, readily accessible to the Premises and at no charge
to Tenant, but, in no event shall Landlord impose any such permitted reduction
so as to adversely effect Tenant unilaterally other than in a manner equally
impacting all tenants to the extent reasonable; and none of the foregoing shall
entitle Tenant to any claim against Landlord or to any abatement of Rent (or any
part thereof); (iii) Landlord has no obligation to provide a parking lot
attendant and Landlord shall have no liability on account of any loss or damage
to any vehicle or the contents thereof, Tenant hereby agreeing to bear the risk
of loss for same; (iv) Tenant, its agents, employees and invitees, shall park
their automobiles and other vehicles only where and as designated from time to
time by Landlord within the parking area; and (v) if and when so requested by
Landlord, Tenant shall furnish Landlord with the license numbers of any vehicles
of Tenant, its agents and employees.
D. COVERED PARKING. So long as no condition referred to in
Section 1.F. shall have occurred, Tenant may, subject to the restrictions and
conditions herein contained, at its sole expense, contract with the Landlord to
construct ten (10) to twelve (12) parking spaces, the number of parking spaces
being based upon existing parking lot configuration, at a mutually agreed upon
location on the south side of the portion of the Building containing the
Premises, which may be covered by canopies or other Landlord approved form of
covering for parking spaces, which approval shall not be unreasonably withheld
or delayed, which will thereupon be reserved to the Tenant. The design and
manner of construction of the covering of the parking spaces shall be in
conformance with the design of the Building and in conformance with the
structure of the Building (formed concrete) subject to the reasonable approval
of Landlord in addition to the approval of the Building Departments of the City
of Boca Raton and/or the County of Palm Beach, as applicable. The design and
construction of the covering structure shall be exclusively placed to bid by
approved architects and contractors of Blue Lake Corporate Center whose bids
shall be competitive with the market. Tenant shall, at its sole expense, be
solely responsible for, in addition to the construction, the maintenance, upkeep
and repair of any improvement to the parking spaces so as to avail covering of
same. Tenant may contract with Landlord to have Landlord contract for
maintenance and repair, the expense of which shall be that of Tenant. The
covered parking spaces shall be relocated, at Landlord's expense, to a location
reasonably proximate to the southern end of the Premises, upon notice from
Landlord that such relocation is necessitated by any law or regulation or by
virtue of the location of a raised parking facility to be constructed at a
location proximate to the Building.
8. BUILDING SERVICES
A. GENERAL. In general, the services set forth below will be
provided by Landlord at a service level set, defined and regulated by Landlord
consistent with office buildings of similar quality to and in the same immediate
geographic area as the Building. During the Lease Term, the regular business
hours ("Business Hours") of the Building will be 8:00 a.m. to 6:00 p.m., Monday
through Friday, except holidays generally recognized by state and federal
governments or as may be shortened in accordance with applicable policies or
regulations adopted by any utility company servicing the Building or government.
Landlord reserves the right to increase the Business Hours. The Building will be
accessible to Tenant, its subtenants, agents, servants, employees, contractors,
invitees or licensees (collectively, "Tenant's Agents") twenty-four hours per
day, seven days per week except in the case of temporary closure due to
emergencies, repairs, casualty, governmental or quasi-governmental requirements
or as Landlord reasonably deems necessary in order to prevent damage or injury
to person or property.
(1) ELECTRICITY: Tenant shall, as part of Tenant's
initial improvements build-out, (all as more specifically provided for in the
Work Letter attached hereto and made a part hereof), pay all applicable security
deposits for electrical services and cause to be installed separate metering to
the Premises, at Tenant's sole cost and expense for electric usage, including,
by sub-meter, air-conditioning, air-handlers and chilled water pursuant to plans
approved by Landlord. It is acknowledged that such separate metering may not
available until completion of all demising work for the Premises by Tenant.
During the Lease Term, separately metered electric power will be available
through the auspices of the Landlord or the exclusive contractor for electric
power at the Building for the purpose of lighting and general office equipment
use in amounts consistent with Building Standard Electric Capacities. Landlord
reserves the right after business hours to turn off all unnecessary lighting in
the unoccupied areas of the Building to minimize the energy consumption of the
Building. Tenant will not, without written consent of Landlord connect with
electric current except through existing electrical outlets in the Premises, any
major apparatus or major device for the purpose of using electric current,
except for Tenant's ability to add a supplemental package air-conditioning unit
as provided in this Section 8. Landlord has advised Tenant that presently,
Florida
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Power & Light ("Electric Service Provider") is the utility company selected by
Landlord to provide electricity service for the Building. Notwithstanding the
foregoing, if permitted by law, Landlord shall have the right at any time and
from time to time during the Lease term to either contract for service from a
different company or companies providing electric service (each such company
shall hereinafter be referred to as an "Alternative Service Provider") or
continue to contract for service from the Electric Service Provider. Tenant
shall cooperate with Landlord, the Electric Service Provider, and any
Alternative Service Provider at all times and, as reasonably necessary, shall
allow Landlord, Electric Service Provider or any Alternative Service Provider
reasonable access to the Building's electric lines, feeders, risers, wiring and
any other machinery within the Premises.
(2) STAND-BY EMERGENCY GENERATOR SERVICE.
Landlord will construct and operate a Stand-By Emergency Generator on
the grounds of the Building for emergency electrical power on a short-term
emergency basis to those tenants of Blue Lake Corporate Center who, subject to
availability and load requirement, contract to be supplied stand-by emergency
electrical service in the event of a power failure. Tenant has indicated its
desire to have the Premises serviced by the Stand-By Emergency Generator service
effective as of the initiation of the operation of the Stand-By Emergency
Generator. Landlord agrees to provide the services of 1.2 mega-watts of the
Stand-By Emergency Generator to the Premises in consideration for the payment by
the Tenant of the Emergency Generator Assessment Fee in the amount prescribed in
the BLI Rider and to the Expansion Premises, in accordance with the provisions
of Section 1.E. In the event that the Stand-By Emergency Generator is not
operational and in service as of the Rent Commencement Date, the Tenant may, at
its expense, place a temporary/removable emergency electric service generator at
a mutually agreed location on an exterior portion of the Building which location
shall be selected by Landlord subject, however, to the reasonable satisfaction
of Tenant. The location of the placement of Tenant's temporary electrical
generator shall comply with the prescriptions of such agencies of the City of
Boca Raton, Florida, and the County of Palm Beach, Florida, as have jurisdiction
over same. Tenant shall be responsible for all costs incurred by Tenant,
together with all reasonably necessary and verifiable out-of-pocket expenses of
Landlord incurred in the review of plans, licenses and the like for the
electrical generator fuel tanks and other components. In the event Tenant shall
elect to utilize a temporary emergency generator then Tenant shall indemnify and
hold Landlord harmless from and against any claim relating to Tenant's generator
and deliver to Landlord an all-risk comprehensive insurance policy naming
Landlord as an additional insured and loss payee as its interest appear, said
policy having a deductible of not more than Ten Thousand and NO/100 Dollars
($10,000.00), together with an endorsement for boiler and machine insurance
likewise naming Landlord as an additional insured and loss payee as its interest
appears in the minimum amount of Seven Million and NO/100 Dollars
($7,000,000.00), together with an Environmental Pollution Liability Insurance
Policy underwritten by an insurer and in an amount both reasonably acceptable to
Landlord providing coverage for claims of bodily injury, death, property damage
and corrective action.
(3) AIR-CONDITIONING SERVICES.
Landlord and Tenant agree that Building's air-conditioning
system is not designed to cool machinery and equipment. Tenant shall not
re-direct, or in any manner modify, the air-conditioning duct distribution to
accommodate Tenant's build-out unless any such modifications are first approved
in writing by the Landlord, which modifications shall be designed only by an
engineer pre-approved by the Landlord. Until such time as the Premises are
separately metered for air-conditioning services, if Tenant requires additional
air-conditioning services for comfort control at times other than during
Business Hours, Landlord will bill Tenant as Additional Rent for the number of
hours used at the Landlord's then standard prevailing rate for after-hours use
of air-conditioning subject, however, to minimum charges prescribed by Landlord
from time-to-time. At the execution of this Lease, the Landlord's after-hours
charge for air-conditioning is $.0006 per square foot of Rentable Area per hour
but, in no event less than Thirty and NO/100 Dollars ($30.00) per hour. This
rate may be subject to change during the Lease Term in Landlord's discretion as
evaluated by FPL Services or a similar services. If Tenant requires additional
air-conditioning services for comfort control at times during or other than
during Business Hours, or in capacities beyond the Building Standard, Tenant
may, at its election, have installed an independent roof-mounted air-to-air unit
to be installed at Tenant's sole cost and expense (including the cost and
expense of additional support for the roof structure) in any portion of the
Premises in which Tenant requires air conditioning on a basis other than during
Business Hours. Tenant acknowledges that Tenant shall pay Landlord or its agents
for any roof installation or removal of the roof-mounted air-to-air system. The
independent unit shall be screened from view. All roof penetration shall be
performed by Landlord at Tenant's expense at charges normal and customary for
such work. Tenant shall submit all plans for any such installation with the
Landlord, who shall not unreasonably withhold approval of any such plans as well
as to the City of Boca Raton or any other authority having jurisdiction relating
to said installation. The Tenant shall deliver a mechanic's lien waiver from all
materialmen, laborers or other potential lienors claiming by or through Tenant
pursuant to F.S. Chapter 713 within ten (10) business days after completion of
the installation. Other than the independent unit, the chilled water and control
systems will remain under the control of Landlord, who will regulate the
systems' setting and adjustment. At Landlord's option, Landlord may secure
air-conditioning controls (thermostats) in lockable metal boxes to regulate the
efficiency and use of the system. The Landlord may, at its
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option, contract with FPL Services, or such other provider of chilled-water
distribution system sources as the Landlord may elect.
(4) WATER AND SEWER:
Landlord agrees to provide municipally supplied cold water and
sewer services to the Premises and the Common Areas for lavatory purposes.
Landlord reserves the right to separately meter water and sewer services.
(5) ELEVATOR SERVICE:
If applicable, Landlord will provide elevator service.
B. INTERRUPTION OF SERVICES. It is understood and agreed that
Landlord does not warrant that any of the services referred to above, or any
other services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more of such services may be suspended by reason of
accident or repairs, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or other causes beyond
the control of Landlord. No such interruption or discontinuance of service will
be deemed an eviction or a disturbance of Tenant's use and possession of the
Premises or any part thereof, or render Landlord liable to Tenant for damages or
abatement of Rent or relieve Tenant from the responsibility of performing any of
Tenant's obligations under this Lease. If, as a result of Landlord's gross
negligence or willful misconduct, Tenant is unable to operate its business in
the Premises as a result of a cessation of a major service to be provided to the
Premises by Landlord as set forth herein for more than five (5) business days,
Rent shall abate until that major service is restored. If, a cessation of a
major service rendering Tenant unable to operate its business in the Premises
for more than five (5) business days is not a result of Landlord's gross
negligence or willful misconduct, the Rent shall abate on a proportionate basis
until that major service is restored. If, as a result of Landlord's gross
negligence or willful misconduct, as set forth herein, the material services are
unavailable for more than ninety (90) continuous days, the Tenant may, upon
thirty (30) days written notice to Landlord, terminate this Lease (unless such
material service is restored within such thirty (30) day period). If such
cessation of a major service is the result of other than Landlord's gross
negligence or willful misconduct, the provisions of Section 17 shall apply.
C. FIBER OPTICS. Tenant may contract with BellSouth, which has
been provided exclusive access through the underlying property by Landlord for
telecommunication service wiring and installation and which has been designated
by the Landlord as the vendor of choice at the Blue Lake Building, for voice and
data telecommunication wiring and services, and installing any telecommunication
products and, specifically, dual access points for Tenant's fiber optic lines,
at Tenant's sole expense. To the extent that such installation requires the
digging of a trench through the Property in order to gain dual access points,
the Tenant shall provide the Landlord with plans and schematics for the
referenced installation which plans and schematics shall be subject to the
reasonable satisfaction of the Landlord and which installation shall be further
subject to the approval, as necessary, of the City of Boca Raton or other
agencies having jurisdiction thereon.
D. CONDUIT CONNECTION. Landlord shall, in accordance with the
Work Letter dig a trench, in a location to be determined by Landlord, so as to
enable Tenant to install conduits connecting telecommunications and data between
Premises A and Premises B. All conduits and connections shall be made, installed
and thereafter maintained by Tenant at Tenant's sole cost. Tenant shall install
equipment, at the sole cost, expense and risk of Tenant, and shall do so in a
good, workmanlike manner and in compliance with all federal, state, and local
building, zoning, electric, telecommunications and safety codes, ordinances,
standards, regulations, laws, and requirements, including, without limitation,
those of the Federal Communications Commission (FCC). Tenant, at its sole cost
and expense, shall obtain any permits, licenses, variances or other approvals
required with respect to the installation or operation of the equipment to be
installed by Tenant or to the alterations to be performed by Tenant. Tenant
shall deliver true and correct copies thereof to Landlord prior to commencing
any installation or alterations.
9. SECURITY
With respect to security for the Building and the parking lot,
Landlord and Tenant hereby agree as follows: Security of the Premises is the
sole responsibility of the Tenant and that the Landlord has no liability for
breach of security to the Premises. Tenant may at Tenant's expense install a
security system to the Premises; provided, however, that Tenant, in addition to
access otherwise required hereunder, will provide Landlord adequate access to
the Premises in case of emergencies particularly regarding Premises that contain
fire sprinkler risers and equipment. All repairs required to the Premises caused
solely as a result of security breaches are the responsibility of the Tenant,
however, Landlord may elect to effect such repairs, if appropriate to insure
continued security, protection of property, or safety of life. The cost of such
repairs shall be Additional Rent.
A. TENANT'S RESPONSIBILITY. Tenant shall: (1) abide by all
policies, procedures and rules and regulations for use of the access system, (2)
report promptly the loss or theft of all keys which would permit unauthorized
entrance to the Premises, Building or parking lot, (3) promptly report to
Landlord door-to-door solicitation or other unauthorized activity in the
Building or parking lot, and (4) promptly inform the Landlord's security
contractor in the event of a break-in or other emergency. In addition, Tenant
may, at its option and sole cost and expense, install its own interior security
system pursuant to plans to be submitted to Landlord for
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Landlord's approval, which approval shall not be unreasonably withheld.
B. INTERRUPTION OF SECURITY. Tenant acknowledges that the
above security provisions may be suspended or modified at Landlord's sole
discretion or as a result of causes beyond the reasonable control of Landlord.
No such interruption, discontinuance or modification of security service will
constitute an eviction, constructive eviction, or a disturbance of Tenant's use
and possession of the Premises, and further, no interruption, discontinuance or
modification of security service will render Landlord liable to Tenant or
third-parties for damages, abatement of Rent, or otherwise, or relieve Tenant of
the responsibility of performing Tenant's obligations under this Lease.
C. HURRICANE SHUTTERS. Tenant may, at Tenant's sole cost and
expense (which shall include all expenses reasonably incurred by Landlord unless
plans for hurricane shutters were incorporated as part of the initial
construction document review process) install protective hurricane shutters on
the interior of the windows of the Premises. Any such installation of hurricane
shutters shall be subject to the prior approval of the Landlord, which approval
shall not be unreasonably withheld. The hurricane shutters shall be approved by
the Landlord as to size, color, type of shutter, mode of attachment and such
other criteria as Landlord shall from time-to-time determine. The Tenant must
also receive the approval of the City of Boca Raton, Florida prior to the
installation of hurricane shutters.
10. REPAIRS, MAINTENANCE AND UTILITIES
A. LANDLORD'S RESPONSIBILITIES. During the Lease Term,
Landlord shall define, set, and maintain the level of repairs and maintenance
for the Building, the Common Areas, and all other areas serving the Building, in
a manner comparable to office buildings of similar quality to and in the
immediate geographic area of the Building and perform or have performed all such
repairs and maintenance. Landlord's responsibilities for repairs and maintenance
with respect to this paragraph are as follows: (1) the structural and roof
systems of the Building and the surface parking lot, (2) the Building standard
electrical and mechanical systems, (3) the water and sewer systems of the
Building and to the Premises (excluding, however, those systems which are
installed by Tenant for Tenant's sole use), (4) the Building Common Areas and
the common area furniture, fixtures, and equipment, (5) the landscaped areas in
and about the Building, (6) the parking lot, and (7) replacement of Building
standard fluorescent light bulbs in the Common Areas.
B. TENANT'S RESPONSIBILITIES. During the Lease Term, Tenant
will repair and maintain the following at Tenant's expense:
(i) The interior portion of the demising walls, the
interior partition walls of the Premises and their wall-covering, and the entry
door to the Premises.
(ii) The electrical, plumbing, air-conditioning,
mechanical systems and all telecommunication systems which have been installed
by either Landlord or Tenant, for the exclusive use and benefit of Tenant,
whether installed in the interior or exterior of the Building.. The following
examples are for clarification and are not all inclusive: (a) electrical
services for computers or similar items, (b) projection room equipment such as
dimmers, curtains, or similar items, (c) water closet plumbing, kitchen plumbing
or similar items, (d) air-conditioning for other than comfort cooling in the
Premises, and (e) other similar systems and related items, (f) plumbing,
plumbing fixtures and related equipment, (g) heating (to the extent installed by
Tenant), ventilating and air conditioning equipment, (h) security systems for
the Premises, (i) telephone system for the Premises, (j) fire sprinkler
alterations made exclusively for the Premises and under the Tenant's control,
and (k) all fire extinguishers, including inspection of same.
(iii) Except for the janitorial services to be
provided by Landlord to the Common Area only, the repair and maintenance of the
floor covering of the Premises, including carpeting, VAT flooring, ceramic
tiles, marble, wood flooring, or similar coverings, shall be performed by
Tenant.
(iv) The removal and clean-up of any environmentally
hazardous situation caused by Tenant or Tenant's Agents in strict compliance
with the rules, regulations, ordinances, statutes, laws, and codes of any local,
state or federal government or quasi-governmental authority.
(v) All cabinets and millwork (regardless of
ownership) so long as said cabinets and millwork are for the exclusive use and
benefit of Tenant.
(vi) All other personal property, improvements or
fixtures located within the Premises or otherwise placed in or about the
Building with the prior consent of Landlord, except any of same expressly
designated in this Lease as those which Landlord shall maintain. Those items to
be repaired and maintained by Tenant include, but are not limited to, the
following: (a) ceiling tiles and ceiling grid, (b) molding or other woodwork and
paneling, (c) light fixtures and bulbs, (d) draperies, blinds or wallhangings,
(e) glass partition walls, (f) water closets and kitchen areas, (g) doors and
locksets, and (h) vaults, safes, or secured areas.
C. REPAIRS AND MAINTENANCE; MISCELLANEOUS. Notwithstanding
anything to the contrary in this Lease, Landlord shall have no responsibility to
repair or maintain the Building, any of its components, the Common Areas, the
Premises, or any fixture, improvement, trade fixture, or any item of personal
property contained in the Building, the Common Areas, and/or the Premises if
such repairs or maintenance are required because of the occurrence of the acts,
misuse,
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improper conduct, omission or neglect of Tenant or Tenant's Agents. Should
Landlord elect to make repairs or maintenance occasioned by the occurrence of
any of the foregoing, Tenant shall pay as Additional Rent all such costs and
expenses incurred by Landlord. Landlord shall have the right to approve in
advance all work, repair, maintenance or otherwise, to be performed under this
Lease by Tenant and all of Tenant's repairmen, contractors, subcontractors and
suppliers performing work or supplying materials. Tenant shall be responsible
for all permits, inspections and certificates for accomplishing the above.
Tenant shall obtain lien waivers for all work done in or to the Premises.
11. TENANT'S ALTERATIONS
A. GENERAL. During the Lease Term, Tenant will make no
alterations, additions or improvements in or to the Premises or the Building
envelope, structure, roof, mechanical, plumbing systems, electrical systems, or
any area in which asbestos has been located and will perform no work, the cost
of which is in excess of $20,000.00 (any and all of such alterations, additions
or improvements other than those set forth in the Work Letter attached hereto
are collectively referred to in this Lease as the "Alteration(s)", and the
foregoing Alterations are referred to as "Major Alterations"), without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Tenant shall submit to Landlord detailed drawings and plans of the
proposed Major Alterations at the time Landlord's consent is sought. Should
Landlord consent to any proposed Major Alterations by Tenant, such consent shall
be conditioned upon Tenant's agreement to comply with the requirements
established by Landlord, including safety requirements and the matters
referenced in Section 22 of this Lease. All Alterations shall be done in
compliance with all other applicable provisions of this Lease and with all
applicable laws, ordinances, directives, rules and regulations of government or
authorities having jurisdiction, including, without limitation, the Americans
for Disabilities Act (ADA), the Florida Accessibility Code, and all laws dealing
with the storage, transportation and disposal of asbestos or other hazardous
materials, which work, shall be effected by contractors and consultants approved
by Landlord and in compliance with all applicable laws and with Landlord's
reasonable rules and regulations. Notwithstanding anything to the contrary
contained in this Section, Tenant shall not penetrate or alter the structural
columns of the Building located within the Premises or any area within three (3)
feet of any structural column in performing any Alterations. All work shall be
performed by those pre-qualified architects and contractors designated by
Landlord, conditioned upon each of such architects and contractors offering to
Tenant competitive prices in the market place in the absence of which Tenant may
use architects and/or contractors selected by Tenant who shall, however, be
licensed and insured. As stated herein, all Major Alterations made hereunder
will become Landlord's property when incorporated into or affixed to the
Building. Specifically exempted from Major Alterations, however, shall be
Tenant's trade fixtures and personal property. However, at Landlord's option
Landlord may, at the expiration of the Lease Term, require Tenant, at Tenant's
expense, to remove special use Alterations made by or on behalf of Tenant and to
restore the Premises to their original condition.
Prior to the commencement of any Major Alterations by or for
Tenant, Tenant shall furnish to Landlord certificates evidencing the existence
of builder's risk, comprehensive general liability, and worker's compensation
insurance complying with the requirements of Insurance Section of this Lease.
Prior to the commencement of any Alternation, Tenant shall furnish to Landlord a
Certificate of Insurance evidencing insurance in an amount reasonably acceptable
to Landlord and naming Landlord as an additional insured.
Any damage to any part of the Building that occurs as a result
of any Alterations shall be promptly repaired by Tenant to the reasonable
satisfaction of Landlord.
Tenant and its contractor and all other persons performing any
Alterations shall abide by the Landlord's reasonable job site rules and
regulations and fully cooperate with Landlord's construction representative in
coordinating all of the work in the Building including, without limitation, the
hours of work, parking, and use of the construction elevator.
All alterations will comply with the requirements of any
energy efficiency program offered by the electric service provided to the
Building.
All materials used in any Alterations, including, without
limitation, paint, carpet, wall or window coverings, carpet glues, and any other
chemicals shall be subject to Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed.
All Alterations shall be performed in a good and workman like
manner. Tenant shall, prior to the commencement of any Alterations, and if
required by law, obtain and exhibit to Landlord a recorded Notice of
Commencement together with any governmental permit required for the Alterations.
Within ten (10) days after completion of any Alterations, Tenant shall deliver
to Landlord copies of any plans and specifications for such Alterations, in
accordance with CAD storage maintenance standards.
B. ALTERATION FEE. Tenant shall pay to Landlord as Additional
Rent (or to its nominee or designated contractor, as Landlord may direct) in
connection with all Major Alterations a fee (the "Alteration Fee") for overhead
and administrative costs in connection with each such Major Alteration, for
Landlord's review and approval of all plans and specifications for such Major
Alteration, for Landlord's construction coordination and monitoring of such
Major Alteration, and for all other reasonable costs and expenses
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incurred by Landlord as a result of or in connection with each such Major
Alteration, based on a commercially reasonable hourly fee and reasonable and
customary hours expended for each Major Alteration. The Alteration Fee shall be
paid in monthly installments during the course and performance of the Major
Alterations within twenty (20) days from receipt of Landlord's reasonably
detailed invoice. Within twenty (20) days after completion of the Major
Alterations, Tenant shall pay to Landlord the entire balance of the Alteration
Fee if not theretofore paid in full. There shall be excluded from the
computation of the construction cost of each Major Alteration the cost of
furniture, removable furnishings, draperies, office equipment, painting,
carpeting, removable cabinetry, items of special decoration and telephone
installation and engineer's, architects', space planners' and other
professionals' fees. All Major Alterations shall be done in a good and
workmanlike manner. Tenant shall, prior to the commencement of any Alterations,
obtain and exhibit to Landlord any governmental permit required for the
Alterations. The Alteration Fee provided for in this Section B. shall not be
applicable to incurred pursuant to or applicable to the initial build-out of the
Premises or the initial build-out to the Expansion Premises, if applicable,
pursuant specifically to the Work Letter attached hereto and made a part hereof
and pursuant to construction plans initialed by Landlord pursuant to the Work
Letter. All Alterations made by Tenant, other than those herein described as a
Major Alteration, may be undertaken without the prior written consent of
Landlord and shall not be subject to any fees payable to Landlord.
12. LANDLORD'S ADDITIONS AND ALTERATIONS
Landlord has the right to make changes in and about the Building and ,
subject to the provisions of Section 7, parking areas (provided, however, that
the number of the reserved parking spaces provided to Tenant shall be otherwise
reasonably relocated and not be lost to Tenant), including, but not limited to,
signs, entrances, address or name of Building. Such changes may include, but not
be limited to, rehabilitation, redecoration, refurbishment and refixturing of
the Building and expansion of or structural changes to the Building. The right
of Tenant to quiet enjoyment and peaceful possession given under the Lease will
not be deemed breached or interfered with by reason of Landlord's actions
pursuant to this paragraph so long as such actions do not materially deprive
Tenant of its use and quiet enjoyment of the Premises. During the Term of this
Lease, and any extensions of the Initial Term, Landlord shall not, without the
written approval of Tenant, which shall not be unreasonably withheld or delayed,
construct a second story upon any single-story portion of the Building in which
Tenant is leasing a minimum of 50,000 square feet.
13. ASSIGNMENT AND SUBLETTING
A. LANDLORD'S CONSENT REQUIRED. Except as provided below,
neither Tenant, nor Tenant's legal representatives or successors-in-interest by
operation of law or otherwise will effect a Transfer (as hereinafter defined)
without first obtaining the consent of Landlord, which consent Landlord shall
not unreasonably withhold provided that all of the requirements of paragraph B.
of this Section 13 are satisfied. As used in this Section 13, any of the
following shall be deemed to be a Transfer: assignment of this Lease, in whole
or in part; sublet of all or any part of the Premises; any license allowing
anyone other than Tenant to use or occupy all or any part of the Premises; a
pledge or encumbrance by mortgage or other instrument of Tenant's interest in
this Lease; or any transfer of partnership interest as described in paragraph D.
of this Section 13, as applicable. Consent by Landlord to any transfer shall not
constitute a waiver of the requirement for such consent to any subsequent
transfer. In lieu of approving any transfer, Landlord may elect to terminate
this Lease as to the portion of the Premises affected by such transfer (together
with such limited additional portion of the Premises needed by Landlord to
render the terminated portion marketable) by giving Tenant notice of such
election, in which event this Lease and the rights and obligations of the
parties hereunder shall cease as of a date set forth in such notice which date
shall not be less than thirty (30) days after the date of such notice. If any
improvements and expenditures are needed to the space so recaptured by Landlord
to separate it from the remaining Premises, Tenant |
