Florida-Fort Lauderdale-1415 Cypress Creek Road Lease - Fort Lauderdale Crown Center Inc. and Fusion Telecom International
LEASE AGREEMENT
BETWEEN
FORT LAUDERDALE CROWN CENTER, INC.
LANDLORD
AND
FUSION TELECOM INTERNATIONAL
TENANT
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TABLE OF CONTENTS
PAGE
ARTICLE I ................................................................... 1
DESCRIPTION OF PROPERTY; TERM ......................................... 1
1. Description of Property ................................... 1
2. Term ...................................................... 1
3. Renewal Option ............................................ 1
4. Expansion Option .......................................... 2
ARTICLE II .................................................................. 2
1. Base Rent; Late Charge; Sales Tax ......................... 2
2. Rental Adjustment ......................................... 2
3. Payment Without Notice or Demand .......................... 3
4. Place of Payment .......................................... 3
ARTICLE III ................................................................. 3
ADDITIONAL RENT ....................................................... 3
1. Additional Rent ........................................... 3
2. Tenant's Proportionate Share .............................. 5
3. Operating Expenses All Inclusive .......................... 5
ARTICLE IV .................................................................. 5
SECURITY/DAMAGE DEPOSIT ............................................... 5
ARTICLE V ................................................................... 6
USE OF PREMISES ....................................................... 6
ARTICLE VI .................................................................. 6
PARKING ............................................................... 6
ARTICLE VII ................................................................. 6
PREPARATION OF THE PREMISES ........................................... 6
1. Leasehold Improvement ..................................... 6
2. Acceptance of Premises .................................... 7
3. Access to Premises Prior to Commencement Date ............. 7
ARTICLE VIII ................................................................ 7
LANDLORD AND TENANT OBLIGATIONS ....................................... 7
1. Tenant's Obligations ...................................... 7
2. Landlord's Obligations .................................... 8
3. Floor Loads; Noise and Vibration .......................... 8
4. Services .................................................. 8
5. Energy Conservation ....................................... 8
6. Janitorial Services ....................................... 8
7. Antenna, Telephone and Cable .............................. 9
ARTICLE IX .................................................................. 9
LANDLORD'S AND TENANT'S PROPERTY ...................................... 9
1. Landlord's Property ....................................... 9
2. Tenant's Property ......................................... 9
3. Removal of Tenant's Property .............................. 9
4. [Deliberately Omitted] .................................... 9
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PAGE
ARTICLE X ................................................................... 10
INSURANCE ............................................................. 10
1. Tenant's Insurance ........................................ 10
2. Destruction of the Premises or Building ................... 11
ARTICLE XI .................................................................. 11
ALTERATIONS AND MECHANIC'S LIENS ...................................... 11
1. Alterations by Tenant ..................................... 11
2. Additional Alterations by Tenant .......................... 12
3. Mechanic's, Materialman's and Laborer's Liens ............. 13
ARTICLE XII ................................................................. 13
ASSIGNMENT AND SUBLETTING ............................................. 13
1. Tenant's Transfer ......................................... 14
2. Tenant's Liability ........................................ 14
3. Landlord's Right of Cancellation .......................... 14
4. Landlord's Transfer ....................................... 14
ARTICLE XIII ................................................................ 14
OBLIGATION TO COMPLY .................................................. 14
1. Obligations of Tenant ..................................... 14
2. Rules and Regulations ..................................... 15
3. Attorney's Fees ........................................... 15
ARTICLE XIV ................................................................. 15
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS ....................... 15
1. Payment or Performance .................................... 15
2. Reimbursement ............................................. 15
ARTICLE XV .................................................................. 16
NON-LIABILITY AND INDEMNIFICATION ..................................... 16
1. Non-Liability of Landlord ................................. 16
2. Indemnification by Tenant ................................. 16
3. Independent Obligations; Force Majeure .................... 16
ARTICLE XVI ................................................................. 17
DEFAULT ............................................................... 17
1. Events of Default ......................................... 17
2. Surrender of Premises ..................................... 17
3. Holdover .................................................. 17
ARTICLE XVII ................................................................ 17
REMEDIES .............................................................. 17
1. Remedies .................................................. 17
A. Termination ............................................ 18
B. Right of Re-Let ........................................ 18
C. Acceleration ........................................... 18
D. Additional Charges ..................................... 18
E. Waiver of Notice ....................................... 18
ARTICLE XVIII ............................................................... 19
EMINENT DOMAIN ........................................................ 19
1. Taking .................................................... 19
2. Award ..................................................... 19
3. Temporary Taking .......................................... 19
4. Partial Taking ............................................ 19
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PAGE
ARTICLE XIX ................................................................. 19
QUIET ENJOYMENT ....................................................... 19
ARTICLE XX .................................................................. 20
SUBORDINATION AND ATTORNMENT .......................................... 20
1. Subordination ............................................. 20
2. Notice to Landlord and Superior Mortgage .................. 20
3. Attornment ................................................ 20
ARTICLE XXI ................................................................. 20
LANDLORD'S RIGHT OF ACCESS ............................................ 20
1. Access for Maintenance and Repair ......................... 20
2. Access for Inspection and Showing ......................... 21
3. Landlord's Alterations and Improvements ................... 21
ARTICLE XXII ................................................................ 21
SIGNS AND OBSTRUCTION.................................................. 21
1. Signs ..................................................... 21
2. Obstruction ............................................... 21
ARTICLE XXIII ............................................................... 21
NOTICES ............................................................... 22
1. Notices ................................................... 22
ARTICLE XXIV ................................................................ 22
MISCELLANEOUS ......................................................... 22
1. [Deliberately Omitted] .................................... 22
2. Environmental Indemnity ................................... 22
3. Radon Gas ................................................. 23
4. Broker Commission ......................................... 23
5. Financial Statements ...................................... 23
6. Estoppel Certificates ..................................... 23
7. No Recordation ............................................ 23
8. Governing Law ............................................. 23
9. No Partnership or Joint Venture ........................... 24
10. Capacity to Execute Lease ................................. 24
11. Exculpation of Landlord ................................... 24
12. Waiver of Trial by Jury ................................... 24
13. Time of Essence ........................................... 24
14. Entire Agreement .......................................... 24
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter referred to as the "Lease") is made
and entered into as of the ____day of September, 1999, by and between FORT
LAUDERDALE CROWN CENTER, INC., a Florida corporation (hereinafter referred to as
"Landlord") and FUSION TELECOM INTERNATIONAL, a Delaware (hereinafter referred
to as "Tenant").
W I T N E S S E T H:
THAT LANDLORD, in consideration of the rents and agreements promised
and agreed by Tenant to be paid and performed, leases to Tenant, and Tenant
leases from Landlord, the Premises described herein, subject to the following
terms.
ARTICLE I
DESCRIPTION OF PROPERTY; TERM
1. DESCRIPTION OF PROPERTY. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the following space: Suite 200 consisting of
approximately 13,502 rentable square feet on the second (2nd) floor as shown on
EXHIBIT "A" and made a part of this Lease (the "Premises"), in the building now
known as Crown Center, located at 1415 Cypress Creek Road, Fort Lauderdale,
Florida 33309 (the "Building"), depicted on the site plan attached hereto as
EXHIBIT "B", together with the right to use in common with other tenants of the
Building, their invitees, customers and employees, the lobby areas, stairways,
elevators, hallways, lavatories and all other common facilities contained in the
Building, parking areas and common areas of the building at 1425 Cypress Creek
Road, Fort Lauderdale, Florida. All of the land and real property underlying or
adjacent to the Building, with all improvements, including the Building, and
used in connection with the operation of the Building shall be referred to as
the "Property". For purposes of determining Operating Expenses, the term
"Building" also includes 1425 Cypress Creek Road, Fort Lauderdale, Florida
33309.
2. TERM. Tenant shall have and hold the Premises for a term of seven
(7) years hereinafter referred to as the "Term" or "Lease Term"), commencing on
the date that a certificate of occupancy for the Premises is issued by the City
of Fort Lauderdale ("Commencement Date"), and expiring on the day preceding the
seventh (7th) anniversary of the Commencement Date (the "Expiration Date"). The
parties hereto agree that they will execute upon the Commencement Date, an
Estoppel Certificate in substantially the form attached hereto as EXHIBIT "C",
certifying said dates. Tenant's failure or refusal to execute said Estoppel
Certificate shall constitute a default hereunder.
For the purposes of this Lease, a "Lease Year" shall be defined as that
twelve (12) month period commencing on the Commencement Date or the annual
anniversary thereof, as may be applicable, and ending on the day before the next
succeeding anniversary of the Commencement Date; provided, however, that if the
Commencement Date is a day other than the first day of the calendar month, then
the first Lease Year shall end on the last day of the calendar month in which
occurs the first anniversary of the Commencement Date, and any subsequent Lease
Year shall be the twelve (12) month period beginning on the first day of the
immediately succeeding calendar month; and provided further that the last Lease
Year shall end on the Expiration Date or sooner termination or expiration of
this Lease, regardless of whether the last Lease Year is a full twelve (12)
month period. For the purpose of this Lease, a "Lease Month" shall be defined as
those successive calendar month periods beginning with the Commencement Date and
continuing through the Term or any extension of the Term of the Lease;
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provided, however, if the Commencement Date is a day other than the first day of
the calendar month, then the first Lease Month shall include that period of time
from the Commencement Date up to the first day of the next calendar month, and
each subsequent Lease Month shall be a calendar month period beginning on the
first day of such month.
3. RENEWAL OPTION. Provided that the Tenant is not in default of any of
the provisions of this Lease on the date that the Landlord receives the notice
from the Tenant described below in this paragraph and is still in occupancy of
the Premises, the Tenant shall have the option to extend the term of this Lease
for one five (5) year term upon all of the same terms and conditions in this
Lease, provided that Tenant gives notice in writing to the Landlord no later
than one hundred eighty (180) days prior to the Expiration Date that Tenant is
exercising such option. Upon exercising such option, any references in this
Lease to the "Expiration Date", shall thereafter mean the date which is the day
preceding the twelfth (12th) anniversary of the Commencement Date.
4. EXPANSION OPTION. Provided that Tenant is not then in default of any
of the provisions of this Lease and is still in occupancy of the Premises, and
subject to the expansion rights or rights of first refusal of existing tenants
in effect on the Commencement Date, the Landlord shall offer first to the Tenant
the right to lease adjacent space to the Premises on the second floor of the
Building or space that becomes available on the first floor of the Building at
the then market lease rate for the Crown Center complex. Landlord shall notify
Tenant in writing when any adjacent space to the Premises on the second floor or
space on the first floor of the Building becomes available, and Tenant shall
have ten (10) days after receipt of the Landlord's written notice to respond to
the Landlord of Tenant's intent to exercise its right to lease any such space.
If Tenant so notified Landlord, the parties shall enter into a new lease for
such expansion space within thirty (30) days of the Tenant's receipt from the
Landlord of a proposed lease, or amend this Lease to include the expansion space
and other applicable rental terms within thirty (30) days of Tenant's receipt
from Landlord of a proposed amendment. If Tenant fails to respond to the
Landlord within such ten (10) day period, or if a lease (or an amendment to this
Lease) is not entered into within such thirty (30) day period, then the Tenant's
first right of refusal shall expire with respect to such space.
If Tenant does not exercise its right to lease adjacent space to the
Premises on the second floor of the Building or space that becomes available on
the first floor of the Building pursuant to the immediately preceding paragraph,
and Landlord subsequently offers to lease such space to another party at a net
effective rent that is less than the net effective rent initially offered to
Tenant, Landlord shall offer to Tenant a right of first refusal to lease such
space at the same net effective rent as is being offered to such other party.
Tenant shall have 72 hours after receipt of the Landlord's offer to respond to
the Landlord of Tenant's intent to exercise its right to lease such space at
such base rent. If Tenant so notifies Landlord, the parties shall enter into a
new lease for such expansion space within thirty (30) days of the Tenant's
receipt from the Landlord of a proposed lease, or amend this Lease to include
the expansion space and other applicable rental terms within thirty (30) days of
Tenant's receipt from Landlord of a proposed amendment. If Tenant fails to
respond to the Landlord within such 72 hour period, or if a lease (or an
amendment to this Lease) is not entered into within such thirty (30) day period,
then the Tenant's right of refusal shall expire with respect to such space.
ARTICLE II
BASE RENT
1. BASE RENT; LATE CHARGE; SALES TAX. Tenant agrees to pay Landlord as
rent for the first Lease Year sum of $162,024.00 (to wit: $12.00 prsf base rent
x 13,502 rsf) (the "Base Rent"), payable in twelve (12) equal monthly
installments of $13,502.00 in advance on the first day of each and every month
during the first year of the Lease Term. In addition, Tenant shall be
responsible for the payment of Additional Rent (hereinafter defined) as provided
in Article III below (the Base Rent and Additional Rent
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shall sometimes be collectively referred to as the "Rent"). In the event any
monthly Rent payment is not paid within five (5) days after it is due, Tenant
agrees to pay a late charge of five (5%) percent of the amount of the payment
due. Tenant further agrees that the late charge imposed is fair and reasonable,
complies with all laws, regulations and statutes, and constitutes an agreement
between Landlord and Tenant as to the estimated compensation for costs and
administrative expenses incurred by Landlord due to the late payment of Rent by
Tenant. Tenant further agrees that the late charge assessed pursuant to this
Lease is not interest, and the late charge assessed does not constitute a lender
or borrower/creditor relationship between Landlord and Tenant, and may be
treated by Landlord as Additional Rent owed by Tenant. Tenant shall also pay to
Landlord all sales, use or other taxes pertaining to the Rent, which Landlord
agrees shall be remitted by Landlord to the Florida Department of Revenue or
other appropriate taxing authority. Upon Tenant's execution of this Lease,
Tenant shall pre-pay the first month's gross rent (to wit: $18,784.66 =
$13,502.00 Base Rent + $4,219.38 Additional Rent + $1,063.28 sales tax) to
Landlord.
2. RENTAL ADJUSTMENT. Commencing with the first month of the second
Lease Year and each Lease Year thereafter during the Term of this Lease, the
annual Base Rental shall be increased by four percent (4%) per annum over the
annual Base Rental for the previous lease year.
3. PAYMENT WITHOUT NOTICE OR DEMAND. The Rent called for in this Lease
shall be paid to Landlord without notice (except notices expressly required in
this Lease) or demand, and without counterclaim, offset, deduction, abatement,
suspension, deferment, diminution or reduction. Tenant hereby waives all rights
now or hereafter conferred to any offset, deduction, abatement, suspension,
deferment, diminution or reduction of the Rent on account of any such
circumstances or occurrence.
4. PLACE OF PAYMENT. All payments of Rent shall be made and paid by
Tenant to Landlord at its offices at 1475 Cypress Creek Road, Fort Lauderdale,
Florida, 33309, or at such other place as Landlord may from time to time
designate in writing to Tenant. All Rent shall be payable in United States
currency. Any extension, indulgence or waiver permitted by Landlord in the time,
manner or mode of payment of Rent, upon any one (1) or more occasions, shall not
be construed as a continuing extension, indulgence or waiver and shall not
preclude Landlord from demanding strict compliance herewith.
ARTICLE III
ADDITIONAL RENT
1. ADDITIONAL RENT. In addition to the Base Rent, Tenant shall pay as
additional rent (hereinafter referred to as "Additional Rent") Tenant's
Proportionate Share (hereinafter defined) of the Operating Expenses (hereinafter
defined) of the Building and the Property which are attributable to the Lease
Term. Additional Rent shall be paid to Landlord in accordance with the following
provisions:
A. Landlord shall furnish to Tenant prior to thirty (30) days
after the beginning of each calendar year, including the first calendar year,
Landlord's estimate of Operating Expenses for the upcoming year. The Operating
Expenses shall be determined as though the Building were occupied at the actual
occupancy rate or at an occupancy rate of ninety-five (95%) percent, whichever
is higher. Tenant shall pay to Landlord, on the first day of each month starting
with the Commencement Date, as Additional Rent, an amount equal to one-twelfth
(1/12th) of Tenant's Proportionate Share of Landlord's estimate of the Operating
Expenses for the then applicable calendar year. If there shall be any increase
or decrease in the Operating Expenses for any year, whether during or after such
year, Landlord shall furnish to Tenant a revised estimate and the Operating
Expenses shall be adjusted and paid or refunded, as the case may be. For
purposes of determining Tenant's Proportionate Share of Operating Expenses,
annual increases in Operating Expenses (excluding increases in real estate taxes
and insurance premiums shall not exceed five percent (5%) of the Operating
Expenses (excluding real estate taxes and insurance premiums) for the preceding
calendar year. If a calendar year ends after the expiration or
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termination of this Lease, the Additional Rent payable hereunder shall be
prorated to correspond to that portion of the calendar year occurring within the
Term of this Lease.
B. Within 120 days after the end of each calendar year,
Landlord shall furnish to Tenant a statement showing a summary of the actual
Operating Expenses incurred for the preceding calendar year. Tenant shall either
receive a refund (in the manner set out below) or be assessed an additional sum
based upon the difference between Tenant's Proportionate Share of the actual
Operating Expenses (limited as provided in subsection A immediately above) and
the Additional Rent payments made by Tenant on account of said year. Any
additional sum owed by Tenant to Landlord shall be paid within thirty (30) days
of receipt of assessment. Any refund owed by Landlord to Tenant shall be
credited toward the next month's rental payment or, if such refund is due after
the Expiration Date, such amount shall be refunded directly to Tenant within
thirty (30) days of the date such refund becomes due. Each statement of
Operating Expenses given by Landlord shall be conclusive and binding upon Tenant
unless, within 30 days after Tenant's receipt thereof, Tenant shall notify
Landlord that it disputes the accuracy of said statement and describe in
reasonable detail what Operating Expenses are being disputed. Failure of
Landlord to submit the written statement referred to herein shall not waive any
rights of Landlord or Tenant nor excuse Tenant's obligation to pay Tenant's
Proportionate Share of the difference in actual Operating Expenses hereunder at
the time said statement is actually delivered to Tenant nor excuse Landlord from
giving any refund due, as the case may be.
C. "Operating Expenses" shall mean expenses relating to the
operation and maintenance of the Building and the Property, and all amenities
and appurtenances relating thereto as further defined by the Building Owners and
Managers Association (hereinafter referred to as "BOMA"), and shall include,
without limitation, the following:
(i) wages and salaries of all persons below the grade
of building manager engaged in the maintenance and operation
of the Building and Property;
(ii) social security taxes and all other taxes which
may be levied against Landlord for persons below the grade of
building manager engaged in the maintenance and operation of
the Building and Property;
(iii) medical and general benefits for all Building
employees, pension payments and other fringe benefits for
persons below the grade of building manager engaged in the
maintenance and operation of the Building and Property;
(iv) administrative expenses and charges;
(v) all insurance premiums;
(vi) stand-by sprinkler charges, water charges and
sewer charges;
(vii) electricity and fuel used in the heating,
ventilation, air-conditioning, lighting and all other
operations of the common areas of the Building and Property;
(viii) trash removal and recycling expenses;
(ix) painting of all common areas in the Building and
Property, including painting, striping and the provision of
signage on all pavement, curbs, walkways, driveways and
parking areas in the Building and upon the Property;
(x) window cleaning, janitorial services and related
equipment and supplies;
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(xi) management fees incurred in the operation of the
Building and Property not to exceed five percent (5%) of the
gross rent collected for the Crown Center building complex;
(xii) cleaning, maintenance and repair of the
Building and Property;
(xiii) maintenance and service contracts;
(xiv) tools, equipment and supplies necessary for the
performance of repairs and maintenance (which are not required
to be capitalized for federal income tax purposes);
(xv) maintenance and repair of all mechanical,
electrical and intrabuilding network cabling equipment in the
Building or upon the Property;
(xvi) cleaning, maintenance and repair of elevators,
restrooms, lobbies, hallways and other common areas of the
Building;
(xvii) cleaning, maintenance and repair of pavement,
curbs, walkways, lighting facilities, landscaping, driveways,
parking areas and drainage areas upon and adjacent to the
Property and the Building;
(xviii) personal property taxes;
(xix) real estate taxes assessed against the Building
and the Property. The term "real estate taxes: shall mean any
tax or assessment levied, assessed or imposed at any time by
any governmental authority upon or against the Building or the
Property or any part thereof, any tax or assessment levied, or
any franchise, income, profit or other tax or governmental
imposition levied, assessed or imposed against or upon
Landlord in substitution in whole or in part for any tax or
assessment against or upon the Building and the Property or
any part thereof;
(xx) assessments for public improvements imposed
against the Building and the Property;
(xxi) all other costs and expenses which would be
considered as an expense of cleaning, maintaining, operating
or repairing the Building and Property, including, without
limitation, any expense associated with administering,
managing and providing a government mandated transportation
demand management program;
(xxii) all amounts reasonably collected and held by
Landlord with respect to reserve accounts for those items
which Landlord has designated, which shall include painting,
refurbishing, re-carpeting, redecorating or landscaping any
portion of the Building and the Property and/or common and
public areas of the Building exclusive of any work done in any
Tenant's space, and which shall include (a) roof maintenance
or replacement; (b) repainting of the Building; and (c)
maintenance of the parking lot and garage;
(xxiii) a reasonable amortization cost due to any
capital expenditures incurred to reduce or limit operating
expenses of the Property and Building;
(xxiv) the amortized portion of any cost or expense
for any capital expenditure which may be required by
government authority for any reason, including, without
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limitation, compliance with laws referred to herein, or which
may be required by Landlord's insurance carrier;
(xxv) a reasonable amortization cost due to any
capital expenditures incurred to provide electronic security
for the Building.
The estimated Operating Expenses for 1999 are currently $3.75 per
rentable square foot, plus applicable sales tax and use taxes, provided,
however, Landlord and Tenant acknowledge that this is only an estimate and the
actual Operating Expenses may vary. Tenant acknowledges that the estimated
Operating Expenses are inclusive of janitorial service during normal business
hours. Tenant also acknowledges that electricity is separately metered and shall
be separately paid by Tenant.
2. TENANT'S PROPORTIONATE SHARE. "Tenant's Proportionate Share" shall,
at any given time, be defined as that fraction having as a numerator the total
rentable square footage (13,502 sq. ft.) leased hereunder at said time, and
having as a denominator the total rentable square footage of the Building
(140,183 sq. ft.) as determined by Landlord using the standard for square
footage calculation at said time (to wit: 13,502/140,183 = 10.38%). The amounts
to be included in Tenant's Proportionate Share as described shall be based upon
the actual cost per rentable square foot paid by Landlord for those items of
expense. Operating Expenses shall not include leasing commissions and expenses
for Tenant improvements, incurred for other Building tenants.
3. OPERATING EXPENSES ALL INCLUSIVE. The examples set forth in
Subparagraph C, above are not intended to limit the operating expenses for which
Tenant is responsible, it being the intention of the parties for Tenant to pay
Tenant's Proportionate Share of all expenses of Landlord in the operation,
maintenance, cleaning and repair of the Building and the Property.
ARTICLE IV
SECURITY/DAMAGE DEPOSIT
SECURITY/DAMAGE DEPOSIT. Simultaneously with the execution of this
Lease, Tenant shall (i) pay a sum equal to two (2) months' gross rent (not
including sales tax) (to wit: $35,442.76); and (ii) provide Landlord with a
$250,000.00 letter of credit issued by a financial institution and in a form
acceptable to Landlord, both to be held by Landlord as security for the
performance by Tenant of all of the terms, covenants and conditions hereof and
the payment of Rent or any other sum due Landlord hereunder. It is expressly
understood that such deposit shall not be considered an advance payment of Rent
or a measure of Landlord's damages in the event of default by Tenant. Landlord
shall have the right to apply all or any part of the security deposit against
any costs or expenses incurred or to be incurred by Landlord as a result of any
damage, injury, expense or liability caused by Tenant's default, including, but
not limited to: (a) unreasonable wear and tear of the Premises; (b) loss or
damage to the Premises or other property of the Landlord caused by Tenant,
Tenant's officers, employees, agents, invitees, or licenses, reasonable wear and
tear excepted; (c) the cost of restoring the Premises, except for reasonable
wear and tear, to the same condition it was in at the time Tenant began
occupancy thereof; (d) Rent or Additional Rent payments which remain due and
owing beyond any applicable grace period. Landlord shall not be limited in
pursuing Landlord's remedies against Tenant for costs, losses or damages to the
Premises or to any other property of Landlord for any such costs, losses or
damages which are in excess of the above described security deposit. Such money
shall bear no interest and may be commingled with other security deposits or
funds of Landlord. Tenant shall promptly replenish any security deposit used by
Landlord for any of the items set forth in this Article IV. Tenant's failure to
do so shall be deemed a default under this Lease. Provided that Tenant is not
then in default under any provision of this Lease, Tenant has the option of
replacing the letter of credit with a substitute letter of credit, issued by a
financial institution reasonably acceptable to Landlord and in a form comparable
to the original letter of credit provided hereunder, in the following amounts at
the times indicated: (i) $150,000.00 at the end of the fourth (4th) lease year;
(ii) $100,000.00 at the end of the fifth (5th) lease year; and (iii) $50,000.00
at the end of the sixth (6th) lease year.
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ARTICLE V
USE OF PREMISES
Tenant shall use the Premises for general business and office purposes,
and for no other purpose without first obtaining the written consent of
Landlord, such consent not to be unreasonably withheld or delayed. Tenant will
not use or permit the use of the Premises or any part thereof for any unlawful
purpose, or in violation of any ordinances, laws, rules or regulations of any
governmental body or the rules and regulations attached hereto as EXHIBIT "D".
Tenant shall not do or permit any act which would constitute a public or private
nuisance or waste or which would be a nuisance or annoyance or cause damage to
Landlord or Landlord's other tenants or which would invalidate any policies of
insurance or increase the premiums thereof, now or hereafter written on the
Building and/or Premises.
ARTICLE VI
PARKING
There shall be available at the Building up to four (4) parking spaces
for each 1000 square feet of rentable square feet contained in the Premises (to
wit: fifty four (54) nonreserved spaces), for the nonexclusive use of Tenant,
free of charge. Five (5) of these fifty four (54) parking spaces will be
designated reserved for Tenant and located in close proximity to the west
entrance of the Premises.
ARTICLE VII
PREPARATION OF THE PREMISES
1. LEASEHOLD IMPROVEMENT. Landlord shall build out the leasehold
improvements for the Premises in accordance with the plans and specifications
approved by Tenant and described on EXHIBIT "E" attached hereto. Landlord shall
pay the cost of the leasehold improvements set forth in the plans and
specifications described on Exhibit "E: attached hereto, including any
architectural and engineering services related to the leasehold improvements and
any construction management fees. Any costs associated with Tenant change orders
shall be the responsibility of Tenant and shall be paid by Tenant to the
Landlord at the time of such change orders. The Premises shall be in compliance
with applicable laws and regulations under the Americans with Disabilities Act
of 1990, as amended upon delivery to Tenant.
The leasehold improvements shall be deemed "substantially completed" on
the date due Landlord delivers to Tenant a copy of the certificate of occupancy
issued by the City of Fort Lauderdale for the Premises. "Substantial completion"
of the leasehold improvements shall occur within sixty (60) days of the date of
the issuance of a building permit by the City of Fort Lauderdale for the
construction of the leasehold improvements, which sixty (60) day period shall be
extended (i) in the event Tenant requests a change order which causes or may
cause the construction of the leasehold improvements to take longer than would
be expected if such change order had not been given, or (ii) in the event that a
force majeure (as more fully described in Article XV, Section 3 below) occurs.
In either such case, the date of completion of the leasehold improvements shall
be extended the appropriate number of days for the delay caused by the Tenant
change order or the force majeure event.
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Other than the foregoing, Landlord shall have no other responsibilities
to improve the Premises unless specifically set out elsewhere in this Lease.
2. ACCEPTANCE OF PREMISES. Tenant acknowledges that, except as
otherwise expressly provided in this Lease, Landlord has not made any
representations or warranties with respect to the condition of the Premises and
neither Landlord nor any assignee of Landlord shall be liable for any latent
defect therein if Landlord has corrected such latent defect or has commenced
correcting such latent defect and is diligently pursuing such correction to
completion. The taking of possession of the Premises by Tenant shall be
conclusive evidence that the Premises were in good and satisfactory condition at
the time such possession was taken. If Landlord shall give Tenant permission to
enter into possession of the Premises prior to the Commencement Date, such
possession or occupancy shall be deemed to be upon all the terms, covenants,
conditions, and provisions of this Lease.
3. ACCESS TO PREMISES PRIOR TO COMMENCEMENT DATE. Landlord gives
Tenant, its agents, contractors and architects, permission to enter the Premises
prior to the Commencement Date for the purpose of preparing and completing the
Premises for Tenant's occupancy, provided, however, that any work to be done by
the Tenant and/or Tenant's contractors (i) shall have received the prior written
approval of Landlord, which approval shall not be unreasonably withheld or
delayed, and (ii) shall be performed in full accordance with the terms and
conditions of a building permit therefore issued by the City of Fort Lauderdale
for such work and all applicable municipal or regulatory building rules,
regulations and ordinances, and (iii) shall be scheduled so as not to interface
with or hinder the build out of the leasehold improvements. The right of entry
granted to Tenant in this paragraph shall include access to and use of the
elevator and stairs leading to the Premises, parking at the Building and use of
the electrical systems servicing the Premises without charge during the normal
operating hours of the Building. Prior to beginning any such work, Tenant and
Tenant's contractors shall provide to Landlord certificates to evidence that the
Tenant and the Tenant's contractor has obtained and will be maintaining during
such work insurance in such amounts and containing such coverages as the
Landlord shall request, including, without limitation, builder's risk, worker's
compensation and general liability. All such insurance shall name Landlord as an
additional insured.
ARTICLE VIII
LANDLORD AND TENANT OBLIGATIONS
1. TENANT'S OBLIGATIONS. At Landlord's sole and exclusive discretion,
Landlord may perform, at Tenant's expense throughout the Lease Term, any repairs
to the fixtures and appurtenances within the Premises and Tenant's property if
Tenant has failed to make such repairs and such failure continues for a period
of ten (10) days after written notice thereof. Said expenses shall be reasonable
and are above and beyond the Operating Expenses. Tenant shall be responsible for
all repairs, the need for which arises out of: (a) the performance or existence
of Tenant's Work or alterations;(b) the installation, use or operation of
Tenant's property in the Premises; (c) the moving of Tenant's property in or out
of the Building; (d) the act, omission, misuse or neglect of Tenant or any of
its officers, employees, agents, contractors or invitees. Tenant shall also be
responsible for the replacement of all scratched, damaged or broken doors and
glass in and about the Premises, the maintenance and replacement of window, wall
and floor coverings in the Premises, and for the repair and maintenance of all
sanitary and electrical fixtures therein. All such repairs shall be performed at
such times and in such a manner as shall minimize interference with the
operation of the Building and the use of the Building by other occupants.
2. LANDLORD'S OBLIGATIONS. Landlord shall be obligated to keep and
maintain, as part of the services covered by the Operating Expenses, the common
areas of the Building, and the systems and facilities serving the Premises in
good working order and shall make all repairs as and when needed in or about the
common areas, except for those repairs for which Tenant is responsible pursuant
to any of the provisions of this Lease. Tenant waives all claims against
Landlord for damage to person or property arising for any reason except due to
Landlord's gross negligence or willful misconduct. Landlord shall not
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be liable for any damage to Tenant's property caused by (a) water from bursting
or leaking pipes or waste-water about the Property; (b) from an intentional or
negligent act of any other tenant or occupant of the Building or the Property;
(c) fire, hurricane or other acts of God; (d) riots or vandals; or (e) from any
other cause except due to Landlord's gross negligence or willful misconduct; all
such risks shall be assumed by Tenant. Landlord shall not be required to furnish
any services or facilities to, or to make any repairs to or replacements or
alterations of the Premises where necessitated due to the fault of Tenant, its
officers, agents, invitees and employees, or other tenants and their agents or
employees. Additionally, Tenant waives any and all claims of any kind, nature or
description against Landlord arising out of the failure of Landlord from time to
time to furnish any of the services requested to be furnished hereunder
including, without limitation, air conditioning, heat, electricity, elevator
service, and restroom facilities, except to the extent such failure was actually
caused by the gross negligence or willful misconduct of Landlord.
3. FLOOR LOADS; NOISE AND VIBRATION. Tenant shall not place a load upon
any floor of the Premises which exceeds the load per square foot, which such
floor was designed to carry or which is allowed by law. Business machines and
mechanical equipment belonging to Tenant which cause noise, electrical
interference or vibration that may be transmitted to the structure of the
Building or to the Premises to such a degree as to be objectionable to Landlord
shall, at Tenant's expense, be placed and maintained by Tenant in settings of
cork, rubber or spring-type vibration eliminators sufficient to eliminate such
noise, electrical interference or vibration.
4. SERVICES. Landlord shall furnish to the Premises reasonable
quantities of heat, ventilation, and air conditioning at all times during the
Term of this Lease from 7:00 a.m. to 6:00 p.m. on weekdays, and on Saturdays
from 7:00 a.m. to 12:00 p.m. On Sundays and days observed by the Federal
Government or the State of Florida as legal holidays, and such other days as
shall be designated by them as holidays, such service to the common areas of the
Building shall not be provided by Landlord. Landlord shall furnish elevator
service and water to the Premises 24 hours a day, seven days a week.
Tenant shall not, without Landlord's prior written consent, which shall
not be unreasonably withheld or delayed, in each instance, connect any fixtures,
appliances or equipment (other than computers, printers, UPS systems, lamps,
typewriters and similar small office machines) to the Building's electrical
system. Should Landlord grant such consent, all additional risers or other
equipment required shall be provided by Landlord and the cost thereof shall be
paid by Tenant within 10 days after being billed therefore.
In order to insure that capacity is not exceeded and to avert possible
adverse effects upon the Building's electrical service, Tenant shall not,
without the Landlord's prior written consent (not to be unreasonably withheld or
delayed) in each instance, connect appliances or equipment to the Building,
electric distribution system, telephone system or make any alteration or
addition to the electric system of the Demised Premises existing on the
Commencement Date. Tenant's electrical usage under this Lease contemplates only
the use of normal and customary office equipment for the conduct of Tenant's
business, such as typewriters, calculators, personal computers, adding machines,
telephone equipment, copiers during Business Hours for Business Days. In the
event Tenant installs any office equipment which uses substantial additional
amounts of electricity, then Tenant shall request Landlord's consent which shall
not be unreasonably withheld. Should Landlord grant his consent, all additional
risers or other equipment required therefore shall be provided by Landlord and
its cost thereof shall be paid by Tenant upon Landlord's demand.
5. ENERGY CONSERVATION. Tenant shall take affirmative action to ensure
that it will utilize energy-efficient equipment in the Premises, and shall
notify Landlord of said specific affirmative action, including equipment
specifications, in writing at Landlord's request from time to time.
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6. JANITORIAL SERVICES. Landlord shall cause the Premises, including
the exterior and interior of the windows thereof, to be cleaned in a manner
standard to the Building. Tenant shall pay to Landlord on demand, the additional
cost of janitorial services incurred by Landlord for: (a) extra cleaning work in
the Premises required because of (i) misuse or neglect on the part of Tenant or
subtenants or its employees or visitors; (ii) the use of portions of the
Premises for purposes requiring greater or more difficult cleaning work than
normal office areas; (iii) interior glass partitions or unusual quantity of
interior glass surfaces, and (iv) non-building standard materials or finishes
installed by Tenant or at its request; (b) removal from the Premises and the
Building of any refuse and rubbish of Tenant in excess of that ordinarily
accumulated in business office occupancy or at times other than Landlord's
standard cleaning times; and (c) the use of the Premises by Tenant other than
during business hours on business days if extra janitorial services are required
or requested by Tenant.
7. ANTENNA, TELEPHONE AND CABLE. Tenant shall be solely responsible for
all telephone, television, cable and other communication expenses incurred in
connection with Tenant's use of the Premises.
ARTICLE IX
LANDLORD'S AND TENANT'S PROPERTY
1. LANDLORD'S PROPERTY. All fixtures, equipment, improvements and
appurtenances attached to or built into the Premises at the commencement of, or
during the Term of this Lease, including carpeting or other similar personal
property, whether or not by or at the expense of Tenant, shall be and remain a
part of the Premises and shall be deemed the property of Landlord (Landlord's
Property") and shall not be removed by Tenant except as set forth herein.
2. TENANT'S PROPERTY. All business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Premises, which are installed in the Premises by
or for the account of Tenant without expense to Landlord and which can be
removed without permanent damage to any fixture or Tenant Improvement nor
structural damage to the Building, and all furniture, furnishings and other
articles of moveable personal property owned by Tenant and located in the
Premises (hereinafter collectively referred to as "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed by Tenant at any time
during the Term of this Lease. In the event Tenant's Property is so removed,
Tenant shall repair or pay the cost of repairing any damage to the Premises or
to the Building resulting from the installation and/or removal thereof and
restore the Premises to the same physical condition and layout as they existed
at the time Tenant was given possession of the Premises, normal wear and tear
excepted. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord, shall not be
considered Tenant's Property and shall be deemed the property of Landlord.
3. REMOVAL OF TENANT'S PROPERTY. At or before the Expiration Date of
this Lease, or the earlier termination hereof, Tenant, at its expense, shall
remove from the Premises all of Tenant's Property (except such items thereof as
Landlord shall have expressly permitted to remain, which property shall become
the property of Landlord), and Tenant shall repair any damage to the Premises or
the Building resulting from any installation and/or removal of Tenant's
Property, and shall restore the Premises to the same physical condition and
layout as they existed at the time Tenant was given possession of the Premises,
reasonable wear and tear excepted. Any other items of Tenant's Property which
shall remain in the Premises after the Expiration Date of this Lease, or the
earlier termination thereof, may, at the option of Landlord, be deemed to have
been abandoned, and in such case, such items may be retained by, or otherwise
disposed of by Landlord. Landlord may request Tenant to remove and pay to
Landlord the cost of repairing any damage to the Premises or the Building
resulting from any installation and/or removal of Tenant's Property and the cost
of restoring the Premises to the same physical condition and layout as they
existed at the time Tenant was given possession of the Premises, reasonable wear
and tear excepted.
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4. [DELIBERATELY OMITTED]
ARTICLE X
INSURANCE
1. TENANT'S INSURANCE.
A. Tenant shall, during the Term of this Lease, maintain
insurance against public liability, including that from personal injury or
property damage in or about the Premises resulting from the occupation, use or
operation of the Premises, insuring both Landlord and Tenant, in an amount of
not less than One Million Dollars ($1,000,000) Combined Single Limit for both
bodily injury and property damage.
B. Tenant shall maintain insurance upon all property in the
Premises owned by Tenant, or for which Tenant is legally liable, and shall
provide Landlord with evidence of same. The insurance specified herein shall
provide protection against perils included within the standard Florida form of
fire and extended coverage insurance policy, together with insurance against
vandalism and malicious mischief.
C. All policies of insurance provided for herein, shall be
issued in a form acceptable to Landlord by insurance companies with general
policyholder's rating of "A" as rated in the most current available "Best's
Insurance Reports", and qualified to do business in Florida. Each and every such
policy:
(i) shall be issued in the names of Landlord and
Tenant and any other parties in interest designated in writing by
notice from Landlord to Tenant and named as additional insured as their
interests may appear;
(ii) shall be for the mutual and joint benefit and
protection of Landlord and Tenant and any such other parties in
interest as additional insureds as their interests may appear;
(iii) shall (or a certified copy thereof or an
original certificate of insurance shall) be delivered to Landlord and
any such other parties in interest designated by Landlord on or before
delivery of possession of the Premises to Tenant and thereafter, within
30 days prior to the expiration of each policy, and as often as any
such policy shall expire or terminate, renewal or additional policies
shall be procured and maintained in like manner and to like extent;
(iv) shall contain a provision that the insurer will
give to Landlord and such other parties in interest designated by
Landlord at least 30 days notice in writing in advance of any
cancellation, termination or lapse, or the effective date of any
reduction in the amount of insurance;
(v) shall be written as a primary policy which does
not contribute to and is not in excess of coverage which Landlord may
carry; and
(vi) shall contain a provision that Landlord and any
such other parties in interest, although named as an insured, shall
nevertheless be entitled to recover under said policies for any loss
occasioned to it, its servants, officers, agents, invitees and
employees by reason of the negligence of Tenant.
D. Any insurance provided for herein may be maintained by
means of a policy or policies of blanket insurance, provided, however,
that: (i) Landlord and any other parties in interest from time to time
designated by Landlord to Tenant shall be named as an additional
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insured thereunder as their respective interest may appear; (ii) the
coverage afforded Landlord and any such other parties in interest will
not be reduced or diminished by reason of the use of such blanket
policy of insurance; and (iii) the requirements set forth in this
Article are otherwise satisfied.
E. These insurance requirements are subject to modification in
the event, and to the extent any mortgagee of Landlord requires
different insurance. In such event, the requirements of such mortgagee
shall control.
2. DESTRUCTION OF THE PREMISES OR BUILDING. If the Premises or the
Building are totally or substantially destroyed by fire or other casualty during
the Term of this Lease, the Landlord shall have the option of terminating this
Lease or any renewal thereof, upon giving written notice at any time within
sixty (60) days from the date of such destruction. The termination herein
mentioned shall be evidenced in writing. If this Lease is so terminated, all
Rent shall abate as of the date of such destruction and any prepaid Rent shall
be refunded except as otherwise provided in this Lease.
In the event that Landlord does not elect to Terminate this Lease as
permitted hereinabove in this Article or if less than a substantial portion of
the Building or the Premises are destroyed, then Landlord shall render the
Premises tenantable by repairs within one-hundred eighty (180) days from the
date of such destruction. Prior to beginning such repairs and within thirty (30)
days of the date of such destruction (which thirty (30) day period shall be
extended as appropriate under the circumstances if the destruction is due to a
major destructive event such as a hurricane, flood, tornado or similar
occurrence causing an unavailability of contractors or construction personnel),
Landlord shall deliver to Tenant an estimate from Landlord's contractor of the
amount of time it will take to render the Premises tenantable. If such estimate
shows that the repairs necessary to render the Premises tenantable shall take
more than 180 days from the date of such destruction to be completed, Tenant
shall have the right to terminate this Lease upon written notice to Landlord
within ten (10) days of the date the Landlord delivered such estimate to Tenant.
If said Premises are not rendered tenantable within the aforesaid 180 days, it
shall be optional with either party hereto to then terminate this Lease upon
written notice to the other party.
During any time that the Premises are untenable due to causes set forth
in this paragraph, the Rent or a just and fair proportion thereof shall be
abated. In such case, all Rent paid in advance shall be proportioned as of the
date of damage or destruction and all Rent thereafter accruing shall be
equitably and proportionately suspended and adjusted according to the nature and
extent of the destruction or damage, pending completion of rebuilding,
restoration or repair. The Landlord shall not be liable for any inconvenience or
interruption of business of the Tenant occasioned by the fire or other casualty.
Notwithstanding the foregoing, should damage, destruction or injury
occur by reason of the intentional act of Tenant, of Tenant's employee(s), or of
Tenant's agent(s), Landlord shall have the option of terminating this Lease,
upon giving written notice at any time within sixty (60) days from the date of
such destruction or to render the Premises tenantable within 360 days of the
date of damage, destruction or injury; and no abatement of Rent shall occur.
Landlord shall not be liable to carry fire, casualty or extended damage
insurance on the person or property of the Tenant or any person or property
which may now or hereafter be placed in the Premises.
ARTICLE XI
ALTERATIONS AND MECHANIC'S LIENS
1. ALTERATIONS BY TENANT. No alterations to the Premises (other than
decorative items) shall be made by Tenant unless the following conditions are
met:
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A. Tenant shall provide a sealed set of plans prepared and
certified by an architect to Landlord, and Tenant shall have received the prior
written consent of Landlord based upon the criteria and conditions set forth
below, which shall not be unreasonably withheld or delayed.
B. All such alterations or improvements shall be performed by
a licensed contractor approved by Landlord, such approval not to be unreasonably
withheld or delayed.
C. Tenant shall have procured all permits, licenses and other
authorizations required for the lawful and proper undertaking thereof, and
promptly after completion of any such alterations, Tenant shall obtain a proper
Certificate of Occupancy (if the same is required) and deliver same to Landlord.
D. All alterations when completed shall be of such a nature as
not to (i) reduce
(PAGE 12 MISSING)
presence of the generator and fuel tank shall not detract from the aesthetic
look of the Building, for the prior written approval of Landlord, and shall
install such landscaping or other screening, as approved by the Landlord, at the
time of the installation of the generator and fuel tank and shall maintain such
landscaping or other screening at Tenant's expense during the Term of this
Lease.
C. Tenant shall satisfy such other conditions as Landlord
shall reasonably request in order to ensure that the fuel tank does not
constitute an environmental violation or hazard.
3. MECHANIC'S, MATERIALMAN'S AND LABORER'S LIENS. Tenant agrees that it
will make full and prompt payment of all sums necessary to pay for the cost of
repairs, alterations, improvements, changes or other work done by Tenant to the
Premises and further agrees to indemnify and hold harmless Landlord from and
against any and all such costs and liabilities incurred by Tenant, and against
any and all mechanic's, materialman's or laborer's liens arising out of or from
such work or the cost thereof which may be asserted, claimed or charged against
the Premises or the Building or Property. Notwithstanding anything to the
contrary in this Lease, the interest of Landlord in the Premises shall not be
subject to liens for improvements made by or for Tenant, whether or not the same
shall be made or done in accordance with any agreement between Landlord and
Tenant, and it is specifically understood and agreed that in no event shall
Landlord or the interest of Landlord in the Premises be liable for or subjected
to any mechanic's, materialman's or laborer's liens for improvements or work
made by or for Tenant. This Lease specifically prohibits the subjecting of
Landlord's interest in the Premises to any mechanic's, materialman's or
laborer's liens for improvements made by Tenant or for which Tenant is
responsible for payment under the terms of this Lease. All persons dealing with
Tenant are hereby placed upon notice of this provision. In the event any notice
or claim of lien shall be asserted of record against the interest of Landlord in
the Premises or Building or the site on which it is located on account of or
growing out of any improvement or work done by or for Tenant, or any person
claiming by, through or under Tenant, for improvements or work the cost of which
is the responsibility of Tenant, Tenant agrees to have such notice of claim of
lien discharged of record as a claim against the interest of Landlord in the
Premises or the Building or Property (either by payment or bond as permitted by
law) within twenty (20) days after notice to Tenant by Landlord, and in the
event Tenant shall fail to do so, Tenant shall be considered in default under
this Lease. Tenant shall, prior to any work being performed, at Landlord's
request, execute and record any such recordable documents as are necessary to
evidence Landlord's non-responsibility to potential lienors.
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ARTICLE XII
ASSIGNMENT AND SUBLETTING
1. TENANT'S TRANSFER.
A. Tenant shall not voluntarily assign or encumber its
interest in this Lease or in the Premises, or sublease all or any part of the
Premises, or allow any other person or entity to occupy or use all or any part
of the Premises, without first obtaining Landlord's written consent, which
consent shall not be unreasonably withheld or delayed provided that the
following conditions have been or are being satisfied: (i) the proposed assignee
or sublessee is an entity which is of equal or greater credit worthiness and
financial reputation as Tenant on the date of this Lease; Tenant shall provide
to Landlord all documentation necessary or requested by Landlord to evidence the
credit worthiness and financial reputation of such proposed assignee. Failure to
provide any such information to Landlord, or Landlord's reasonable determination
that such information does not demonstrate a credit worthiness or financial
reputation of such assignee equal to that of the Tenant on the date of this
Lease, shall be deemed reasonable justifications for Landlord to withhold its
consent to such assignment or to conditions its consent to require that Tenant
remain liable for the performance of all of Tenant's obligations under this
Lease. Tenant may assign its interest in this Lease or in the Premises, or
sublease all or any part of the Premises, to an affiliate or subsidiary or
patent of Tenant without first obtaining Landlord's written consent, provided
that such affiliate or subsidiary of Tenant is at least 51% controlled by
Tenant, or such parent company owns at 51% of the issued and outstanding shares
of Tenant, and Tenant remains liable for the performance of all of Tenant's
obligations under this Lease. Any assignment, encumbrance or sublease without
Landlord's prior written consent shall be voidable and, at Landlord's election,
shall constitute a default hereunder unless expressly permitted herein. No
consent to any assignment, encumbrance or sublease shall constitute a further
waiver of the provisions of this provision.
B. [Deliberately Omitted]
C. If Tenant is a corporation, any dissolution, merger or
consolidation, or other reorganization of Tenant, or the sale of or the transfer
of controlling percentage of the capital stock of Tenant, or the sale of 51% of
the total combined voting power of all classes of Tenant's capital stock issued,
outstanding an entitled to vote for the election of directors shall be deemed a
voluntary assignment subject to the requirements of Paragraph 1.A. above.
Notwithstanding the foregoing a merger, consolidation or other reorganization of
Tenant shall not be considered a voluntary assignment requiring Landlord's
consent under this Lease provided that the surviving corporate entity (i) is of
an equal or greater credit worthiness and financial reputation as Tenant on the
date of this Lease; an (ii) has a ratio of long term and short term debt to
liquid and tangible assets equal to or less than Tenant immediately prior to
such merger, consolidation or other reorganization. Tenant shall provide to
Landlord all documentation necessary or requested by Landlord to evidence the
satisfaction of the foregoing conditions.
D. In the event Landlord consents to the assignment or
sublease of all or any part of the Premises, Tenant and the assignee or
sublessee shall enter into a sublease incorporating the same terms and
conditions as contained herein (exclusive of rent), and Landlord shall be
entitled to receive the total amount of any increased Rent provided for in said
assignment or sublease, including sales tax, paid by a sublessee or assignee.
E. Any assignment consented to by Landlord shall be evidenced
by a validly executed assignment and assumption of lease agreement, upon such
terms and provisions as shall be approved by Landlord in its sole discretion.
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F. If, without such prior written consent of Landlord, this
Lease is transferred or assigned by Tenant, or if the Premises, or any part
thereof, are sublet or occupied by anybody other than Tenant, whether as a
result of any act or omission by Tenant, or by operation of law or otherwise,
Landlord may, in addition to and not in diminution of, or substitution for, any
other rights and remedies under this Lease, or pursuant to law to which Landlord
may be entitled as a result thereof, collect and retain Rent directly from the
transferee, assignee, subtenant or occupant and apply the net amount collected
to the Rent due from Tenant to Landlord under this Lease.
2. TENANT'S LIABILITY. Notwithstanding any assignment or sublease, and
notwithstanding the acceptance of Rent by Landlord from any such assignee or
sublessee, Tenant shall continue to remain liable for the payment of Rent
hereunder and for the performance of all of the agreements, conditions,
covenants and terms herein contained.
3. LANDLORD'S RIGHT OF CANCELLATION. Notwithstanding anything contained
herein to the contrary, should Tenant desire or attempt to assign this Lease or
to sublease the entire Premises for the entire Term, except to an affiliated
company of Tenant, Landlord shall have the right, which must be exercised within
twenty (20) days of receipt by Landlord of notice of such attempt to assign this
Lease or sublease the Premises, but not the obligation, to cancel and terminate
the Lease and deal with Tenant's prospective assignee or sublessee directly and
without any obligation to Tenant.
4. LANDLORD'S TRANSFER. Landlord shall have the right to sell, assign,
mortgage or otherwise encumber or dispose of Landlord's interest in the
Building, the Property, the Premises and this Lease. In the event of any such
disposition, Landlord shall have no further liability or obligation to Tenant
under this Lease provided that the new landlord assumes all of the Landlord's
obligations and liabilities under this Lease.
ARTICLE XIII
OBLIGATION TO COMPLY
1. OBLIGATIONS OF TENANT. Tenant shall, during the Term of this Lease,
at its sole cost and expense, comply with all valid laws, ordinances,
regulations, orders and requirements of any governmental authority which may be
applicable to the Premises or to its use, whether or not the same shall
interfere with the use or occupancy of the Premises arising from (a) Tenant's
use of the Premises; (b) the manner or conduct of Tenant's business or operation
of its installations, equipment or other property therein; (c) any cause or
condition created by or at the instance of Tenant; or (d) breach of any of
Tenant's obligations hereunder, whether or not such compliance requires work
which is structural or non-structural, ordinary or extraordinary, foreseen or
unforeseen. Landlord agrees to cooperate with Tenant, as reasonable, if
alterations to the Premises are mandated by any such law or requirement arising
after the Commencement Date, so long as all alterations comply with the
provisions of Article XI of this Lease. Tenant shall pay all of the costs,
expenses, fines penalties and damages which may be imposed upon Landlord by
reason or arising out of Tenant's failure to fully and promptly comply with and
observe the provisions of this Section. Tenant shall give prompt notice to
Landlord of any notice it receives of the violation of any law or requirement of
any public authority with respect to the Premises or the use or occupation
thereof. Tenant's obligation to comply with laws shall include, without
limitation, those laws and regulations contemplated by Sections XXIV.2. and
XXIV.9. below and Title III of the Americans With Disabilities Act of 1990, as
Amended. In the event Tenant receives any notice alleging violation of any of
the aforementioned laws, ordinances, regulations, orders, rules or requirements
relating to any portion of the Premises, the Building or of the Property; or any
notice of regulatory action or investigation instituted in connection therewith,
Tenant shall provide written notice to Landlord thereof within ten (10) days
after receipt of same by Tenant.
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2. RULES AND REGULATIONS. Tenant shall comply with all rules and
regulations now existing (See EXHIBIT "D"), or as may be subsequently published
by Landlord to tenants of the Building. Landlord shall apply the rules and
regulations of the Building to all tenants on a uniform, non-discriminatory
basis.
3. ATTORNEY'S FEES. With respect to any default or failure to perform
on the part of Tenant, or any other dispute between Tenant and Landlord arising
out of this Lease, Landlord shall be entitled to recover all costs incurred,
including reasonable attorney's fees, which shall include, but not be limited
to, such fees incurred prior to the institution of litigation or in litigation,
including trial and appellate review, and in arbitration, bankruptcy or other
administrative or judicial proceedings, and such costs, expenses and attorney's
fees incurred by or on behalf of Landlord shall constitute Rent hereunder and
shall be paid upon written demand therefore. In addition, from time to time,
Tenant will pay, within twenty (20) days after demand, all expenses (including,
without limitation, the reasonable fees and expenses of legal counsel for
Landlord) relating to any request or demand made, or notice given by Tenant
pursuant to the Terms of this Lease, including, without limitation, under
Articles VI, XII, XX and XXIV. The prevailing party in any action or proceeding
in court or mutually agreed upon arbitration proceeding to enforce the terms of
this Lease is entitled to receive its reasonable attorneys' fees and other
reasonable costs and expenses from the non-prevailing party.
ARTICLE XIV
RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
1. PAYMENT OR PERFORMANCE. Landlord shall have the right, upon ten (10)
days prior written notice to Tenant (or without notice in the case of emergency
or in order to avoid any fine, penalty or cost which may otherwise be imposed or
incurred) to make any payment or perform any act required of Tenant under any
provision in this Lease, and in exercising such right, to incur necessary and
incidental costs and expenses, including reasonable attorney's fees if such
payment or performance has not been made by Tenant within said ten (10) day
period after written notice to Tenant (if Tenant is entitled to such ten (10)
day prior written notice under the terms of this paragraph). Nothing herein
shall imply any obligation on the part of Landlord to make any payment or
perform any act required of Tenant, and the exercise of the right to do so shall
not constitute a release of any obligation, waiver of any default or obligation
of Landlord to make any similar payment or perform any similar act in the
future.
2. REIMBURSEMENT. All payments made, and all costs and expenses
incurred in connection with Landlord's exercise of the right set forth in
Paragraph 1 above, shall be reimbursed by Tenant within thirty (30) days after
receipt of a bill setting forth the amounts so expended, together with interest
at the annual rate of 18% from the respective dates of the making of such
payments or the incurring of such costs and expenses. Any such payments, costs
and expenses made or incurred by Landlord shall be treated as Additional Rent
owed by Tenant.
ARTICLE XV
NON-LIABILITY AND INDEMNIFICATION
1. NON-LIABILITY OF LANDLORD. Neither Landlord, nor any joint venture
partner, officer, director, agent, servant or employee of Landlord, nor any
Superior Mortgagee (as defined in Article XX below), shall be liable to Tenant
for any loss, injury, or damage to Tenant or to any other person, or to its
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the gross negligence of Landlord, in the operation
or maintenance of the Premises or the Building, subject to the doctrine of
comparative negligence in the event of contributory negligence on the part of
Tenant or any of its subtenants, licenses, employees, invitees, officers, agents
or contractors. Tenant agrees that any Superior Mortgage will not be liable to
Tenant for injury, damage or loss caused by or resulting from the negligence of
Landlord. Further, neither Landlord, nor any Superior Mortgagee, nor any joint
venture partner, director, officer, agent, servant or employee of Landlord shall
be liable; (a) for any damage
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caused by other tenants or persons in, upon or about the Building or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if grossly negligent, for incidental or consequential damages or lost
profits arising out of any loss of use of the Premises or any equipment or
facilities therein by Tenant or any person claiming through or under Tenant.
2. INDEMNIFICATION BY TENANT. Tenant shall indemnify and hold Landlord
and all Superior Mortgagees and its or their respective joint venture partners,
directors, officers, agents, employees and invitees (collectively referred to
hereinafter as the "Indemnified Parties" and individually as an "Indemnified
Party), harmless against and from any and all claims from or in connection with:
(a) the conduct or management of the Premises or any business therein, or any
condition created (other than by Landlord or its officers, agents or employees)
in or about the Premises during the Term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have been given
access to the Premises; (b) any act, omission or negligence of Tenant or any of
its subtenants or licensees or its or their partners, directors, officers,
agents, employees or contractors; (c) any accident, injury or damage whatsoever
(unless caused solely or primarily by the gross negligence or willful misconduct
of Landlord or its officers, agents or employees) occurring in, at or upon the
Premises; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease, together with all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim, action or proceeding brought against an Indemnified Party,
including, without limitation, all reasonable attorney's fees and expenses,
provided however that Tenant shall not be responsible for indemnifying any
Indemnified Party for any claim, action or proceeding brought against such
Indemnified Party for an act or omission caused solely by such Indemnified
Party's gross negligence or willful misconduct. In case any action or proceeding
is brought against Landlord or a Superior Mortgagee, Tenant, upon notice from
Landlord or such Superior Mortgagee, shall resist and defend such action or
proceeding (by counsel reasonably satisfactory to Landlord or such Superior
Mortgagee) at Tenant's sole cost and expense.
3. INDEPENDENT OBLIGATIONS; FORCE MAJEURE. The obligations of Tenant
hereunder shall not be affected, impaired or excused, nor shall Landlord have
any liability whatsoever to Tenant, because; (a) Landlord is unable to fulfill,
or is delayed in fulfilling, any of its obligations under this Lease by reason
of strike, other labor trouble, governmental preemption of priorities or other
controls or shortages of fuel, supplies, labor or materials, acts of God or any
other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) of any failure or defect in the supply, quantity or character of
electricity or water furnished to the Premises by reason of any requirement, act
or omission of the public utility or others serving the Building with electric
energy, steam, oil, gas or water, or for any other reason whether similar or
dissimilar, beyond Landlord's reasonable control. Tenant shall not hold Landlord
liable for any latent defect in the Premises, the Property or the Building if
Landlord has corrected such latent defect or has commenced correcting such
latent defect and is diligently pursuing such correction to completion, nor
shall Landlord be liable for injury or damage to person or property caused by
fire, theft, or resulting from the operation of elevators, heating or air
conditioning or lighting apparatus, or from falling plaster, or from steam, gas,
electricity, water, rain or dampness which may leak or flow from any part of the
Building or Property or from the pipes, appliances or plumbing work of the same.
ARTICLE XVI
DEFAULT
1. EVENTS OF DEFAULT. Tenant shall be in default under this Lease if
any one or more of the following events (each, an "event of default") shall
occur:
A. Tenant shall fail to pay any installment of the Rent when
due, which failure continues for a period of five (5) days after written notice
thereof from Landlord to Tenant (it being understood that Landlord is required
to give only one such notice per Lease Year), or any other expenses called for
hereunder as and when the Same shall become due and payable, which failure
continues for a period of ten (10) days after written notice thereof from
Landlord to Tenant; or
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B. Tenant shall default in the performance of or compliance
with any of the other terms or provisions of this Lease, and such default shall
continue for a period of ten (10) days after the giving of written notice
thereof from Landlord to Tenant, or, in the case of any such default which
cannot, with bona fide due diligence, be cured within said ten (10) days, Tenant
shall fail to proceed within said ten (10) day period to cure such default and
thereafter to prosecute the curing of same with all due diligence (it being
intended that as to a default not susceptible of being cured with due diligence
within such period of ten (10) days, the time within which such default may be
cured shall be extended for such period as may be necessary to permit the same
to be cured with bona fide due diligence); or
C. Tenant shall assign, transfer, mortgage or encumber this
Lease or sublet the Premises in a manner not permitted by Article XII; or
D. Tenant shall file a voluntary petition in bankruptcy or any
Order for Relief be entered against it, or shall file any petition or answer
seeking any arrangement, reorganization, composition, readjustment or similar
relief under any present or future bankruptcy or other applicable law, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Tenant of all or any substantial part of Tenant's properties; or
E. If any creditor of Tenant shall file a petition in
bankruptcy against Tenant or for reorganization of Tenant under state or federal
law, and if such petition is not discharged within one hundred and twenty (120)
days after the date on which it is filed; or
F. Tenant shall abandon the Premises.
2. SURRENDER OF PREMISES. Upon any termination of this Lease, Tenant
shall surrender the Premises to Landlord, and Landlord, at any time after such
termination, may, without further notice, re-enter and repossess the Premises
without being liable to any prosecution or damages therefore, and no person
claiming through or under Tenant or by virtue of any statute or of any order of
any court shall be entitled to possession of the Premises.
3. HOLDOVER. Should Tenant hold over and remain in possession of the
Premises at the expiration of any Term hereby created, Tenant shall, by virtue
of this Section, become a tenant-at-sufferance and shall pay Landlord twice the
Rent per month of the last monthly installment of Rent above provided to be
paid. Said tenancy shall be subject to all the conditions and covenants of this
Lease as though the same had been a tenancy-at-sufferance instead of a tenancy
as provided herein, and Tenant shall give to Landlord at least thirty (30) days
prior written notice of any intention to remove from the Premises, and shall be
entitled to ten (10) days prior notice of any intention of Landlord to remove
Tenant from the Premises in the event Landlord desires possession of the
Premises; provided, however, that said tenant-at-sufferance shall not be
entitled to ten (10) days notice in the event the said Rent is not paid in
advance without demand, the said ten (10 days written notice being hereby
expressly waived.
ARTICLE XVII
REMEDIES
1. REMEDIES. Upon the occurrence of any event of default, Landlord
shall be entitled to all remedies available to it under Florida law, including,
but not limited to, the filing of suit for the recover of all monetary damages
sustained by Landlord as a result thereof. In addition to its statutory and
common law remedies in the event of a default by Tenant, Landlord shall also be
entitled, at its option, to exercise any one or more of the following remedies:
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A. TERMINATION. Landlord shall be entitled to declare this
Lease terminated and the term ended and/or shall have the immediate right of
re-entry and may remove all persons and property from the Premises and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant, without evidence of notice or resort to
legal process and without being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby.
B. RIGHT TO RE-LET. Landlord may elect to re-enter the
Premises, either by taking possession pursuant to legal proceedings or
otherwise, and may either terminate this Lease or it may from time to time,
without terminating this Lease, make such alterations and repairs as may be
necessary in order to re-let the Premises, and re-let the Premises or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable. Upon each such
re-letting all rentals and other sums received by Landlord from such re-letting
shall be applied, first, to the payment of any expenses other than Rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such re-letting, including reasonable brokerage fees and attorneys'
fees and of costs of such alterations and repairs and costs of moving other
tenants in the Building in order to re-let the Premises, such as repairs and
alterations to other portions of the Building or reduced rental from other
tenants; third, to the payment of Rent and other charges due and unpaid
hereunder; and the residue, if any, shall be held by Landlord and applied in
payment of future Rent as the same may become due and payable hereunder. If such
rentals and other sums received from such re-letting during any month be less
than that to be paid during that month by Tenant hereunder, Tenant shall pay
such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall in no event be entitled to any rent collected or payable
upon any re-letting, whether or not such rent shall exceed the Rent reserved in
this Lease. No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction. Notwithstanding any
such re-letting without termination, Landlord may at any time hereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including the cost of recovering the Premises and reasonable attorney's
fees, which amount shall be immediately due and payable from Tenant to Landlord.
C. ACCELERATION. Landlord may, without notice or demand,
accelerate and declare all Rent, including Additional Rent, to become
immediately due and payable and bring suit for the collection thereof and for
damages, as hereinafter described, without entering into possession of the
Premises or terminating this Lease. The amount of expenses (Additional Rent) and
other sums to become due under this Lease shall be the present value of those
amounts payable during the twelve (12) month period immediately preceding
default, multiplied by the number of years, or a portion thereof, remaining in
the Term at the date of default.
D. ADDITIONAL CHARGES. In addition to the amounts recoverable
by Landlord from Tenant as described above and to the extent not already
included in the expenses (Additional Rent) already collected by Landlord,
Landlord may, upon a default by Tenant hereunder, recover damages from Tenant
for the unamortized portion of the Cost of Landlord's Work hereunder, brokerage
fees and attorneys' fees and costs, plus such other amounts in addition to or in
lieu of any other damages as may be permitted by the laws of the State of
Florida, plus interest thereon at the rate described in Article XIV.2. hereof.
E. WAIVER OF NOTICE. To the extent permitted by law, Tenant
waives notice of termination of this Lease, any statutory notice (three day or
otherwise), notice of re-entry or institution of legal proceedings and any right
of redemption, re-entry or repossessions. Landlord may foreclose on the lien
described in Article IX.4. hereof and enter the Premises and take possession of
any and all goods, equipment, fixtures, furniture and other personal property of
Tenant situated on the Premises without liability for trespass or conversion,
and sell the same at public or private sale, with or without having such
property at the sale, at which Landlord or its assigns may purchase and apply
the proceeds thereof, less
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any and all expenses connected with the taking of possession and sale of the
property, as a credit against any sums due by Tenant to Landlord.
ARTICLE XVIII
EMINENT DOMAIN
1. TAKING. If the whole of the Building or Premises or if a portion of
the Building or Premises which will materially and adversely affect Tenant's use
and occupancy of the Premises shall be taken by condemnation or in any other
manner for any public or quasi-public use or purpose, this Lease shall terminate
as of the date of vesting of title on such taking )herein called "Date of
Taking"), and the Base Rent and Additional Rent shall be prorated and adjusted
as of such date.
2. AWARD. In the event any action is brought, it shall be in the name
of Landlord, and Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom, except to the
extent that Tenant shall be entitled to compensation based upon damages
sustained to its personal property and moving expenses. Tenant shall not be
precluded from taking its own action against the condemning authority.
3. TEMPORARY TAKING. If the temporary use or occupancy of all or any
part of the Premises shall be taken by condemnation or in any other manner for
any public or quasi-public use or purpose during the Term of this Lease, Tenant
shall be entitled, except as hereinafter set forth, to receive that portion of
the award or payment for such taking, if any, which represents compensation for
the temporary use and occupancy of the Premises, for the taking of Tenant's
Property and for moving expenses, and Landlord shall be entitled to receive all
other award or payment, including, without limitation, that portion which
represents reimbursement for the cost of restoration of the Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue to pay
the Rent in full when due. If the period of temporary use or occupancy shall
extend beyond the Expiration Date of this Lease, that part of the award which
represents compensation for the use and occupancy of the Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period up to and including such
Expiration Date and Landlord shall receive so much as represents the period
after such Expiration Date. All monies received by Landlord as, or as part of,
an award for temporary use and occupancy for a period beyond the date through
which the Rent has been paid by Tenant, shall be held and applied by Landlord as
a credit against the Rent becoming due hereunder.
4. PARTIAL TAKING. In the event of any taking of less than the whole of
the Building which does not result in termination of this Lease: (a) subject to
the prior rights of a Superior Mortgagee, Landlord, at its expense, shall
proceed with reasonable diligence to repair the remaining parts of the Building
and the Premises (other than those parts of the Premises which are Landlord's
property and Tenant's property) to substantially their former condition to the
extent that the same is feasible (subject to reasonable changes which Landlord
shall deem desirable), so as to constitute a complete and tenantable Building
and Premises; and (b) Tenant, at its expense, shall proceed with reasonable
diligence to repair the remaining parts of the Premises which are deemed
Landlord's Property and Tenant's Property pursuant hereto, to substantially
their former condition to the extent feasible, subject to reasonable changes
which Tenant shall deem desirable and Landlord shall approve. Such work by
Tenant, shall be deemed alterations as described in Section XIX.1 hereinabove.
In the event of any partial taking, Tenant shall be entitled to a reduction in
Rent for the remainder of the Lease Term following such partial taking based
upon the percentage of Premises taken and untenantable relative to the original
Premises leased.
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ARTICLE XIX
QUIET ENJOYMENT
Landlord agrees that Tenant, upon paying all Rent and all other charges
herein provided for and observing and keeping the covenants, agreements, terms
and conditions of this Lease and the rules and regulations of Landlord affecting
the Premises on its part to be performed, shall lawfully and quietly hold,
occupy and enjoy the Premises during the Term hereof, expressly subject to the
terms, limitations and conditions contained in this Lease.
ARTICLE XX
SUBORDINATION AND ATTORNMENT
1. SUBORDINATION. This Lease and all rights of Tenant hereunder are and
shall be subordinate to any Superior Mortgage (as defined below).
Notwithstanding that such subordination is self-operative without any further
act of Tenant, Tenant shall, from time to time, within twenty (20) days of
request from Landlord, execute and deliver any documents or instruments that may
be requested by a lender to confirm such subordination, including an estoppel
certificate in substantially the form attached hereto as EXHIBIT "C". Any
mortgage, long-term lease or other encumbrance to which this Lease is subject
and subordinate is hereinafter referred to as a "Superior Mortgage" and the
holder of a Superior Mortgage is hereinafter referred to as a "Superior
Mortgagee".
2. NOTICE TO LANDLORD AND SUPERIOR MORTGAGEE. If any act or omission of
Landlord would give Tenant the right, immediately or after the lapse of a period
of time, to cancel this Lease or to claim a partial or total eviction, Tenant
shall not exercise such right; (a) until it has given written notice of such act
or omission to Landlord and any Superior Mortgagee; and (b) until a reasonable
period of time for remedying such act or omission shall have elapsed following
the giving of such notice and following the time when such Superior Mortgagee
shall have become entitled under such Superior Mortgage to remedy the same. In
the event any Superior Mortgagee shall request reasonable modifications to this
Lease (excluding any modification of Rent, use of the Premises or which would
otherwise diminish Tenant's rights or increase Tenant's obligations hereunder)
as a condition to financing or refinancing, Tenant shall not withhold, delay or
defer in providing its consent thereto. In the event Tenant has not provided its
consent to modifications requested by a Superior Mortgagee within twenty (20)
days after written notice from Landlord, Landlord, at its sole option, shall
have the right to execute any instrument for and on behalf of Tenant as its
attorney-in-fact for the purpose of executing such instrument required to carry
out the intent of this Section. In acknowledgment thereof, Tenant hereby
appoints Landlord as its irrevocable attorney-in-fact for the purpose of
executing any instruments required to carry out the intent of this Section on
behalf of Tenant after proper notice, and default hereunder by Tenant.
3. ATTORNMENT. If any Superior Mortgagee shall succeed to the rights of
Landlord hereunder, whether through possession or foreclosure action or delivery
of a new lease or deed, then, at the request of such party (hereinafter referred
to as "Successor Landlord"), Tenant shall attorn to and recognize such Successor
Landlord as Tenant's Landlord under this Lease and shall promptly execute and
deliver any instrument such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment, this Lease shall continue in
full force and effect as a direct Lease between Successor Landlord and Tenant,
upon all terms, conditions, and covenants as set forth in this Lease, except
that the Successor Landlord shall not: (a) be liable for any previous act or
omission of Landlord under this Lease; (b) be subject to any offset; or (c) be
bound by any previous modification of this Lease or by any previous prepayment,
unless such modification or prepayment shall have been previously approved in
writing by such Successor Landlord if such approval was required. Further, upon
such attornment, Landlord shall be released from any further obligation
hereunder.
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ARTICLE XXI
LANDLORD'S RIGHT OF ACCESS
1. ACCESS FOR MAINTENANCE AND REPAIR. Except for the space within the
inside surfaces of all walls, hung ceilings, floors, windows and doors bounding
the Premises, all of the Building including, without limitation, exterior walls,
core interior walls and doors and any core corridor entrance, any terraces or
roofs adjacent to the Premises and any space in or adjacent to the Premises used
for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other facilities of the Building, and the use thereof, as
well as access thereto throughout the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord. Landlord reserves
the right, and Tenant shall permit Landlord, to install, erect, use and maintain
pipes, ducts and conduits in and through the Premises, so long as such work by
Landlord does not lower the height of the ceiling from that which existed on the
Commencement Date. Landlord shall be allowed to take all materials into and upon
the Premises that may be required in connection therewith, without any liability
to Tenant and without any reduction of Tenant's covenants and obligations
hereunder. Landlord and its agents shall have the right to enter upon the
Premises for the purpose of making any repairs therein or thereto which shall be
considered necessary or desirable by Landlord in such a manner as to minimize
the interference with Tenant's business on the Premises; and in addition,
Landlord and its agents shall have the right to enter the Premises at any time
in cases of emergency.
2. ACCESS FOR INSPECTION AND SHOWING. Upon reasonable notice to Tenant
and during normal business hours, Landlord and its agents shall have the right
to enter and/or pass through the Premises at any time to examine the Premises
and to show them to prospective purchasers, mortgagees or lessees of the
Building. During the period of six (6) months prior to the Expiration Date of
this Lease, Landlord and its agents may exhibit the Premises to prospective
tenants upon reasonable notice to Tenant and during normal business hours.
3. LANDLORD'S ALTERATIONS AND IMPROVEMENTS. If, at any time, any
windows of the Premises are temporarily darkened or obstructed by reason of any
repairs, improvements, maintenance and/or cleaning in or about the Building, or
if any part of the Building, other than the Premises or access to the Premises,
is temporarily or permanently closed or inoperable, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant's
obligations under this Lease. Landlord reserves the right to make such changes,
alterations, additions and improvements in or to the Building and the fixtures
and equipment thereof, as well as in or to the street entrances, doors, halls,
passages, elevators, escalators and stairways thereof, and other public portions
of the Building and the Property, as Landlord shall deem necessary or desirable,
and no such alterations or changes shall be deemed a breach of Landlord's
covenant of quiet enjoyment or a constructive eviction.
ARTICLE XXII
SIGNS AND OBSTRUCTION
1. SIGNS. Tenant shall not place or suffer to be placed or maintained
upon any exterior door, roof, wall or window of the Premises or the Building,
any sign, awning, canopy or advertising matter of any kind, and will not place
or maintain any decoration, lettering or advertising matter on the glass of any
window or door of the Premises except as previously approved in writing by
Landlord, in Landlord's sole discretion. Tenant shall not place or maintain any
freestanding standard within or upon the Common Area of the Premises or the
Building or immediately adjacent thereto without first obtaining Landlord's
express prior written consent. No exterior sign or interior sign visible from
the exterior of the Building shall be permitted unless expressly permitted
herein. Said Building signage shall be subject to Landlord's reasonable approval
and is subject to all appropriate government approvals. At Tenant's sole
expense, Tenant agrees to maintain any such signage approved by Landlord (which
approval shall not be
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unreasonably withheld or delayed) in good condition and repair at all times and
to remove the same at its sole cost and expense at the end of the Term of this
Lease. Upon removal thereof, Tenant agrees to repair any damage to the Premises
caused by such installation and/or removal at Tenant's sole expense. Landlord
shall add Tenant's name to the tenant directory in the lobby of the Building.
Tenant may, at Tenant's expense, put a sign on the entrance doors of the
Premises, identifying the Tenant as the tenant of the Premises, provided that
such sign has first been approved by Landlord in writing. Tenant may also, at
its expense, place signage identifying the Tenant as a tenant of the Building on
a monument sign constructed or to be constructed at the Building, provided that
the location of such sign and form of such sign has received the prior written
consent by the Landlord.
2. OBSTRUCTION. Tenant shall not obstruct the corridors, elevators,
stairs, common areas, sidewalks, parking lots or other public portions of the
Building or the Property in any manner whatsoever.
ARTICLE XXIII
NOTICES
1. NOTICES. Any notice or other information required or authorized by
this Lease to be given by either Party to the other may be given by hand with
receipt; or sent by facsimile transmission; or by certified prepaid mail, return
receipt requested; or by nationally recognized overnight courier service, to the
other Party at the address stated below. Such address may be changed by either
respective Party at any time by giving prior written notice as herein provided.
Any notice or information given pursuant to this Section shall be deemed to have
been given when received by the Party to whom it has been directed.
AS TO LANDLORD: 1475 Cypress Creek Road, Suite 202
Fort Lauderdale, FL 33309
Attention: James E. Goldstein
Fax No.: (954) 771-8667
WITH A COPY TO: Clifford I. Hertz, P.A.
Broad and Cassel
400 Australian Avenue South, Fifth Floor
West Palm Beach, FL 33401
Fax No.: (561) 655-1109
AS TO TENANT: Fusion Telecom International
1801 South Federal Highway
Suite 305
Delray Beach, FL 33483
Attention:
Fax No.:
WITH A COPY TO: Greenberg Traurig
200 Park Avenue
New York, NY 10166
Attention: Marvin Rosen, Esq.
Fax No.: (212) 801-6400
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ARTICLE XXIV
MISCELLANEOUS
1. [DELIBERATELY OMITTED]
2. ENVIRONMENTAL INDEMNITY. Tenant agrees to indemnify and hold
Landlord harmless from and against any and all loss, claim, liability, damages,
injuries to person, property or natural resources, cost, expense, action or
cause of action arising in connection with the release or presence of any
Hazardous Substances at the Property through the acts of Tenant, its officers,
employees, contractors, agents or invitees, whether foreseeable or
unforeseeable, regardless of the source of such release and when such release
occurred or such presence is discovered. The foregoing indemnity includes,
without limitation, all costs in law or in equity of removal, remediation of any
kind, and disposal of such Hazardous Substances; all costs of determining
whether the Premises or other portions of the Property used by Tenant are in
compliance and to cause the Premises or other portions of the Property used by
Tenant are to be in compliance with all applicable environmental laws, all costs
associated with claims for damages to persons, property or natural resources,
and Landlord's reasonable attorneys' and consultants' fees and costs, whether or
not litigation is instituted. For the purposes of definition, "Hazardous
Substances" includes, without limitation, any toxic or hazardous wastes,
pollutants (or substances, including, without limitation, asbestos, PCBs,
petroleum products and by-products, substances defined or listed as "hazardous
substances" or "toxic substances" or similarly identified in or pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9061 ET. SEQ., hazardous materials identified in or
pursuant to the Hazardous Materials Transportation Act 49 U.S.C. Section 1802
ET. SEQ.). To the best of the knowledge of Landlord, and based solely upon its
review of the environmental assessment report of the Property prepared by
Property Solutions, Inc. dated as of April 16, 1999, there are no Hazardous
Substances at the Property.
3. RADON GAS. Pursuant to Florida Statutes, Section 404.056[6], the
following disclosure is required by law: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of Radon that excel federal and state guidelines have been found in
buildings in Florida. Additional information regarding Radon and Radon testing
may be obtained from your county public health unit.
4. BROKER COMMISSION. Landlord and Tenant covenant, warrant and
represent that Coldwell Banker Commercial Brenner Real Estate Group and Stiles
Corporation ("Brokers") were instrumental in bringing about or consummating this
Lease. Further, neither Landlord nor Tenant have had any conversations or
negotiations with any broker except Brokers concerning the leasing of the
Premises. Both parties agree to indemnify the other against and from any claims
for any brokerage commissions (except those payable to Brokers) and all costs,
expenses and liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses, for any breach of the foregoing
representation. Landlord shall pay all brokerage commissions due Brokers in
accordance with a separate agreement between Landlord and Brokers.
5. FINANCIAL STATEMENTS. Prior to the Commencement Date, Tenant shall
provide to Landlord, Tenant's most current and complete financial statement
including, but not limited to, its balance sheet and profit and loss statement,
certified by an officer of Tenant. Further, Tenant shall provide its most
current financial information specified above to Landlord within twenty (20)
days after written request from Landlord, not to exceed two (2) times in any
twelve (12) month period, if the Landlord requires such financial statements in
connection with a proposed or pending sale or refinancing of the Building, or in
connection with reviewing any request from Tenant for consent to an assignment
by Tenant of its interest in this Lease or the Premises or any portion thereof,
or if an event of default shall have occurred.
24
<PAGE>
6. ESTOPPEL CERTIFICATES. Each party agrees, at any time and from time
to time as requested by the other party, to execute and deliver to the other a
statement certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same are in full force and effect
as modified and stating the modifications), certifying the dates to which the
rent and other charges have been paid, stating whether or not the other party is
in default in performance of any of its obligations under this Lease, to the
best of the certifying parties' knowledge, and, if so, specifying each such
default, and stating whether or not any event has occurred which, with the
giving of notice or passage of time, or both, would constitute such a default,
and, if so, specifying each such event. Tenant also shall include in any such
statements such other information concerning this Lease as Landlord may
reasonably request. It shall be a condition precedent to the Landlord's
obligation to deliver possession of the Premises to Tenant, that Tenant executes
an Estoppel Certificate accepting the Premises and acknowledging the Lease. A
form of such Estoppel Certificate is attached hereto as EXHIBIT "C". In the
event either party fails to comply with this Section, such failure shall
constitute a material breach of this Lease. If Tenant fails to execute the
initial Estoppel Certificate, Rent shall continue to accrue, but Landlord shall
be under no obligation to deliver possession of the Premises.
7. NO RECORDATION. This Lease shall not be recorded by Tenant in the
Public Records of Broward County, Florida. Any attempted recordation by Tenant
shall render this Lease null and void and entitle Landlord to the remedies
provided for Tenant's default. At the request of Landlord, Tenant shall promptly
execute, acknowledge and deliver to Landlord a Memorandum of Lease with respect
to this Lease and a Memorandum of modification of Lease with respect to any
modification of this Lease, prepared by Landlord and sufficient for recording.
Such Memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease.
8. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Florida, and in the event litigation
arises between the Parties in connection with any of the terms of this Lease,
venue shall lie in the Circuit Court in Broward County, Florida, or in the
Federal District Court for the Southern District of Florida. If any provision of
this Lease or the application thereof to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, the remainder of this
Lease shall remain in full force and effect. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender, as the context may require.
9. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this Lease
will be deemed or construed to create a partnership or joint venture between
Landlord and Tenant, or to create any other relationship between the parties
other than that of Landlord and Tenant.
10. CAPACITY TO EXECUTE LEASE. If Tenant is other than a natural
person, Tenant represents that it is legally constituted, in good standing and
authorized to conduct business in the State of Florida. Tenant further
represents that the person who is executing this Lease on its behalf has the
full power and authority to perform such execution and deliver the Lease to
Landlord, and that upon such execution and delivery, the Lease shall be valid
and binding upon Tenant in accordance with its respective terms and conditions.
To further evidence the foregoing, upon request by Landlord, Tenant shall
deliver to Landlord an appropriate corporate or partnership resolution
specifying that the signatory to the Lease has been duly authorized to execute
same on behalf of Tenant, and a Certificate of Good Standing from the State of
Florida if Tenant is anything other than a natural person or a general
partnership. Landlord represents that it is legally constituted, in good
standing and authorized to conduct business in the State of Florida and that the
person who is executing this Lease on its behalf has the full power and
authority to perform such execution and deliver this Lease to Tenant, and that
upon such
25
<PAGE>
execution and delivery, this Lease shall be valid and binding upon Tenant in
accordance with its respective terms and conditions.
11. EXCULPATION OF LANDLORD. Landlord's obligations and liability to
Tenant with respect to this Lease shall be limited solely to Landlord's interest
in the Property and neither Landlord nor any officer, director or shareholder of
Landlord, shall have any personal liability whatsoever with respect to this
Lease.
12. WAIVER OF TRIAL BY JURY. IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY HEREBY
DO, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT OR
TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR BY ANY COURSE OF CONDUCT OR COURSE
OF DEALING. TENANT FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM
(OR COUNTERCLAIMS IN ANY SUMMARY PROCEEDING) IN ANY ACTION INITIATED BY LANDLORD
OR BASED UPON NONPAYMENT OF RENT OR OTHER PAYMENTS REQUIRED OF TENANT HEREUNER.
13. TIME OF ESSENCE. Time is of the essence as to all matters set forth
in this Lease.
14. ENTIRE AGREEMENT. This Lease constitutes the entire understanding
between the parties and shall bind the parties, their successors and assigns. No
representations, except as herein expressly set forth, have been made by either
party to the other, and this Lease cannot be amended or modified except by a
writing signed by Landlord and Tenant.
[SIGNATURES CONTAINED ON NEXT PAGE]
26
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
WITNESSES: "LANDLORD"
(2 witness required)
FORT LAUDERDALE CROWN CENTER,
INC., a Florida corporation
______________________________________ By: __________________________________
______________________________________ Name: ________________________________
Title: _______________________________
"TENANT"
FUSION TELECOM INTERNATIONAL
a Delaware corporation
_____________________________________ By: __________________________________
_____________________________________ Name: ________________________________
Title: _______________________________
(SEAL)
27
<PAGE>
EXHIBIT "C"
ESTOPPEL CERTIFICATE
RE: Premises: 1415 Cypress Creek Road, Fort Lauderdale, FL 33309
Suite No:
LEASE DATED:
BETWEEN: Fort Lauderdale Crown Center, Inc. (Landlord) and Fusion Telecom
International (Tenant)
1. The Lease is presently in full force and effect and is unmodified
except as indicated herein, if any.
2. Tenant took possession of the Premises on
____________________________and has paid Rent commencing on
_____________________________, and all Rent due under the Lease has
been paid to________________________________.
3. The Term of the Lease commenced on _____________, and terminates on
_______________.
4. Tenant has accepted possession of the Premises and all improvements
required by the terms of the Lease to be made by Landlord, if any, have
been completed to the satisfaction of Tenant [exclude punch list items
if applicable].
5. No Rent under the Lease has been paid more than 30 days in advance of
its due date.
6. Landlord has not defaulted in its obligations under the Lease to
Tenant.
7. Tenant, as of this date, has no charge, lien, cause of action, claim or
right of offset against Landlord under the Lease or otherwise, against
Rents or other charges due or to become due under the Lease.
8. Tenant is leasing _____rentable square feet in the Building.
9. The present Base Rent is $________per square foot, per year.
10. Tenant's security deposit is $______and has been paid in full and to
the best of Tenant's knowledge is presently held by Landlord.
"TENANT"
FUSION TELECOM INTERNATIONAL,
a Delaware corporation
___________________________________ By: ________________________________
___________________________________ Name: ______________________________
Title: _____________________________
(SEAL)
<PAGE>
EXHIBIT "D"
TENANT RULES & REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed, or affixed on or to any part of the
outside or inside of the building without the written consent of
Landlord which consent shall be uniform and non- arbitrarily applied
against all occupants. Landlord shall have the right to remove any such
sign, placard, picture, advertisement, name or notice without notice to
and at the expense of the Tenant.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the Tenants or used by them
for any purpose other than for ingress and egress from their respective
premises.
3. Tenant shall not alter any lock or install any new or additional locks
without giving Landlord keys therefore, except Tenant's vault, or
install any bolts on any doors or windows of the premises which would
deny access to firefighters.
4. The Toilet rooms, urinals, wash bowls and other apparatus not be used
for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose,
employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the premises or in any way
deface the premises or any part thereof.
6. No furniture of any kind shall be brought into the building without
prior notice to Landlord and all moving the same into or out of the
building shall be done at such time and in such manner as Landlord
shall reasonably designate. Landlord shall have the right to prescribe
the weight, size and position of all heavy equipment brought into the
building and also the times and manner of moving the same in and out of
the building. Said heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to
properly distribute the weight. Landlord will not be responsible for
loss of or damage to any such objects or property from any cause except
its negligent willful acts or omissions and all damage caused by Tenant
to the building by moving or maintaining any such object or other
property shall be repaired at the Tenant's expense.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the premises, or permit or suffer the
premises to be occupied or used in a manner offensive or objectionable
to the Landlord or other occupants of the building by reason of noise,
odors and/or vibrations, or interfere in any way with other Tenants or
those having business therein, nor shall any animals or birds be
brought in or kept in or about the premises or the building.
8. No cooking shall be done or permitted by Tenant on the premises, nor
shall the premises be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper, objectionable or immoral
purposes.
9. Tenant shall not use or keep in the premises or the building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied
by Landlord.
<PAGE>
EXHIBIT "D"
TENANT RULES & REGULATIONS
10. No boring or cutting for telephone, telegraph or computer terminal
wires will be allowed without the reasonable consent of the Landlord.
The location of telephones, call boxes and other office equipment
affixed to the premises shall be subject to the reasonable approval of
Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m. the following day, access to the
building, or to the halls, corridors, elevators or stairways in the
building, or to the premises, may be refused unless the person seeking
access is known to the person or employee of the building in charge and
has a pass or is properly identified. The Landlord shall in no case be
liable for damages for any error with regard to the admission to or
exclusion from the building of any person. In case of invasion, mob,
riot, public excitement or other commotion, the Landlord reserves the
right to prevent access to the building during the continuance of the
same by closing of the doors or otherwise, for the safety of the
Tenants and protection or property in the building and the building
itself.
12. Landlord reserves the right to exclude or expel from the building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the building.
13. No vending machines or machines of any description shall be installed,
maintained or operated upon the premises without the written consent of
the Landlord which consent is herein granted Tenant within Tenant's
demised for the exclusive use of Tenant's employees and business
invitees.
14. Landlord shall have the right to change the street address of the
building which the premises are a part upon giving a reasonable notice.
15. Tenant shall not disturb, solicit or canvass any occupant of the
building and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the
Tenant's business, except as part of Tenant's address.
17. All entrance doors in the premises shall be left locked when the
premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the
premises.
18. Landlord shall furnish parking facilities near the building for use by
Tenant. Tenant's employees, agents, guests, or invites, but Landlord
does not guarantee the availability of parking spaces. The driveways,
entrances and exits upon, into and from such parking areas shall not be
obstructed by Tenant, Tenant's employees, agents, guests, or invitees
provided however Landlord shall not be responsible or liable for
failure of any person to observe this rule. Tenant and its employees
shall not park in spaces designated for visitor parking.
19. Tenants shall execute such estoppel certificates to confirm the term of
Tenant's lease; renewal options; rent paid; occupancy acceptance
subject only to minor punch-list items; obligations to pay rent, etc.,
as may from time to time may be reasonably requested by Landlord.
<PAGE>
20. The Landlord reserves the right to make such other and further rules
and regulations as in its reasonable judgment may, from time to time,
be needed for the proper operations and cleanliness of the premises and
for the preservation of good order therein.
EXHIBIT "E"
LIST OF PLANS AND SPECIFICATIONS FOR
LEASEHOLD IMPROVEMENTS BUILDOUT
AND
LANDLORD'S WORK OUTLINE
The following outline represents the extent of Landlord's responsibility for the
Construction of the Tenant improvements for the Leased Premises. The lease
premise, located at 1415 Cypress Creek Road, 2nd floor, is more particularly
illustrated on Drawing # A-1 of "Ritter Architecture, Inc", dated August 23,
1999, "hereinafter EXHIBIT A". The following is meant to outline the intent of
the parties; however, the obligations regarding the Construction improvements to
be made by the Landlord shall be those indicated on the final working drawings
to be prepared by the designated Project Architect. Providing that said drawings
generally conform to that contained herein, the parties shall sign off on same
plans within seventy two (72) hours of receipt thereof acknowledging their
approval; or otherwise note any changes or discrepancies on same plans within
same time period. In order to avoid any substantial discrepancies on the Final
working drawings, the parties shall meet together with the designated Project
Architect to input the necessary information for the preparation of a final
floor plan layout. After receipt of same (floor plan), the parties shall provide
in writing their consent to said plan (layout or otherwise provide notification
of any discrepancies, errors or omissions no later than 48 hours from receipt
thereof. Following receipt of approval of the floor plan, preparation of the
working drawings shall immediately commence.
The parties to this Agreement acknowledge that "TIME IS OF THE ESSENCE", and
shall cooperate with one another to expedite all phases of the work from design
/ permit to Construction / Completion.
Landlord shall provide rest room facilities in compliance with the City of Fort
Lauderdale code requirements within the Building common areas, and generally in
the area indicated on the attached "EXHIBIT A".
Landlord's work shall consist of the following items:
1. Demolition: All required demolition of any existing work or improvements to
accommodate the proposed Tenant build out.
2. Plans and Permits: Provided by Landlord. Notwithstanding anything to the
contrary herein, all work required to meet the requirements of the Building
Department and related Governing Agencies, shall be the responsibility of
the Landlord.
3. Plumbing: ADA code compliant bathrooms to be provided in building common
area in accordance with City of Ft. Lauderdale requirements.
4. Site: New Entry walk way and Architectural canopy overhang to be provide by
Landlord at West elevation of Building.
5. Building: Landlord shall provide all work to the building shell to allow
for new window wall construction along the west elevation of the building
which shall accommodate full width fenestration at the executive offices,
all as indicated on the attached "EXHIBIT A".
6. Hardware: All door hardware shall be lever type and conforming to "ADA"
requirements. Hardware shall be commercial grade with "626" (brushed
chrome) finish.
<PAGE>
7. Doors: All doors shall be 1-3/4 inch thick solid core wood - paint grade.
Doors shall be 7'0" high and unless noted otherwise, 36" wide.
8. Walls: All interior partitions shall be constructed from 3-5/8" metal studs
with 1/2" drywall on both sides. All walls shall receive paint finish.
Walls shall receive latex finish, and all wood work (doors, frames &
casings) to receive semi gloss / oil base finish.
9. Insulation. "Executive offices" and "Conference Rooms" shall receive R-11
thermal insulation for sound attenuation. All new Tenant separation walls
shall likewise receive R-11 thermal insulation for sound attenuation.
10. Ceilings: All new 2 x 4 suspended acoustical tile ceiling system.
11. Flooring: Where designated on the attached room finish schedule ("EXHIBIT
B"), VCT flooring shall be 1/8" commercial grade 12" x 12" vinyl composite
tiles. Where carpet is designated on finish schedule, same shall be a 28-32
oz. commercial grade, glue down application, level loop nylon carpet.
12. Cabinetry: Cabinetry, built in and modular furniture to be provided by
Tenant.
13. Entry: Landlord to provide new double storefront entry door at the east
entry to the space.
14. HVAC: Landlord to provide complete air conditioning systems conforming to
the intended use.
15. Fire Alarm: Landlord shall make all required modifications to suit Tenant
layout and meet all code requirements.
16. Electrical: Landlord to provide complete electrical and lighting systems to
suit Tenant layout including use of 2 x 4 prismatic lens lay in commercial
lighting fixtures, exit and emergency lighting, phone and computer outlets,
duplex receptacles, light switching, connect A.C. equipment. Include power
supply to feed modular furniture stations. Power to the modular furniture
units shall be provided by way of Power poles, supplied form ceiling area.
Power poles shall be provided for groupings of stations only. Tenant
supplied modular units shall include internal raceway provisions ("UL
Approved").
17. General: All dimensions on plan ("EXHIBIT "A") are approximate and shall be
subject to final field measurements. Architect shall field measure before
production of floor plans. Prior to Architect's preparation of the "final
working drawings", a floor plan layout shall be submitted to Tenant and
Landlord for approval; which approval shall be made within two (2) business
days from receipt thereof, or alternatively provide written notice of any
discrepancies. Following preparation of the final working drawings by the
project Architect, such final working drawings shall be submitted to Tenant
and Landlord for approval; which approval shall be made within two (2)
business days from receipt thereof, or alternatively provide written notice
of any discrepancies. The parties agree and acknowledge that the floor plan
to be prepared by the Architect shall accommodate leaving existing
mechanical chases and electrical equipment room at their current locations.
18. Exclusions: The following items are specifically excluded from Landlord's
scope of work: "FFE" (Furniture, fixtures and equipment), Sound and
Security systems, Telephone and Computer systems and wiring, window
coverings, identification systems.
Crown Center - "FUSION" September 3, 1999
Landlord's Work Outline
<PAGE>
CROWN CENTER
TENANT'S RECEIPT
Receipt is hereby acknowledged by Landlord of the total sum of _________________
and ____________________Dollars ($______), which represents payment by Tenant
of the following:
1. $ ____ First month's Base Rent.
2. $ ____ First month's Additional Rent.
3. $ ____ First month's Base Rent and Additional Rent Sales Tax.
4. $ ____ Security Deposit.
$ TOTAL
===========
DATED this _____ day of __________, 1999.
LANDLORD:
FORT LAUDERDALE CROWN CENTER, INC.
BY ITS AGENT:
By: _____________________________________
<PAGE>
AMENDMENT NUMBER ONE TO LEASE AGREEMENT
THIS AMENDMENT NUMBER ONE TO LEASE AGREEMENT (this "Amendment") is
entered into this 10th day of December, 1999 between FORT LAUDERDALE CROWN
CENTER, INC., a Florida corporation, as landlord (the "Landlord") and FUSION
TELECOM INTERNATIONAL, a Delaware corporation, as tenant (the "Tenant"), and
hereby amends that certain Lease Agreement dated October ______, 1999 between
the Landlord and Tenant (the "Lease") concerning the lease of Suite 220 in the
building known as Crown Center, 1475 Cypress Creek Road, Fort Lauderdale,
Florida 33309 (the "Premises").
AGREEMENT:
The parties hereto, for good and valuable consideration, the receipt
and sufficiency which is hereby acknowledged, hereby amend the Lease as follows:
1. SECURITY/DAMAGE DEPOSIT. Article IV of the Lease (Security/Damage
Deposit is hereby amended by adding the following paragraph to the end of said
Article IV:
"If Landlord receives notice from the issuer of the letter of
credit provided by Tenant at the commencement of the Lease, or any
substitute letter of credit provided by Tenant thereafter in accordance
with this Article IV (hereinafter collectively referred to as the
"Letter of Credit"), that the Letter of Credit is not being renewed,
then Landlord shall send a copy of such notice to the Tenant, and
Tenant shall be obligated, within ten (10) days thereafter, to obtain a
substitute Letter of Credit, issued by a financial institution
reasonably acceptable to the Landlord and in a form comparable to the
Letter of Credit which is not being renewed; provided, however,
notwithstanding any other time table contained in this paragraph, the
substitute Letter of Credit must be received by the Landlord no later
than thirty (30) days prior to the expiration date of the then current
Letter of Credit. If the substitute Letter of Credit is not received by
the thirtieth (30th) day prior to the then applicable expiration date
of the current Letter of Credit, then the Landlord shall have the right
to draw upon the Letter of Credit for the full amount of the Letter of
Credit. All such amounts drawn shall be held in non-interest bearing
account and may be co-mingled with other security deposits or funds of
Landlord. Such amounts shall be used by the Landlord solely for the
purposes set forth in the first paragraph of this Article IV.
The original Letter of Credit provided by the Tenant as
required by the Lease contains an expiration date of four years from
the date of its issuance. Tenant shall be required to provide Landlord
with an amendment of such Letter of Credit which renews same for a term
ending no earlier then, or a substitute Letter of Credit, issued by a
financial institution reasonably acceptable to Landlord and in a form
comparable to the original Letter of Credit with an expiration date no
earlier than, sixty (60) days after the Expiration Date of the Lease,
by no later than the thirtieth (30th) day prior to the expiration date
of the original Letter of Credit. It Tenant does not provide such
amendment or new Letter of Credit on or before the thirtieth (30th) day
prior to the expiration date of the original Letter of Credit, Landlord
shall be entitled to draw upon the current Letter of Credit in the full
amount of the Letter of Credit and shall deposit the proceeds of the
draw into a non-interest bearing account, as set forth in this Article,
subject to the terms and conditions of this Article. Such amounts shall
be used by the Landlord solely for the purposes set forth in the first
paragraph of this Article IV.
In the event that the Landlord has drawn upon the Letter of
Credit pursuant to either of the two (2) preceding paragraphs, Landlord
shall return the proceeds thereof to Tenant upon Landlord's receipt of
a new Letter of Credit which complies with the provisions of this
Article IV.
<PAGE>
Regardless of whether or not Landlord has drawn upon the
Letter of Credit, Landlord agrees that the Letter of Credit shall be
reduced, or that a portion of the monies drawn by Landlord under the
Letter of Credit, shall be released to Tenant upon Tenant's written
request provided that Tenant is not then in default under any provision
of the Lease, such that the amount of the Letter of Credit or the
proceeds drawn thereunder, as the last may be, being held by the
Landlord after such reduction or release is equal to the following
amounts at the times indicated: (i) $150,000.00 at the end of the
fourth (4th) lease year; (ii) $100,000.00 at the end of the fifth (5th)
lease year; and (iii) $50,000.00 at the end of the sixth (6th) lease
year."
2. ADDITIONAL EVENT OF DEFAULT. Article XVI of the Lease (Events of
Default is hereby amended by adding the following paragraphs to said Article
XVI.
"G. Tenant shall fail to provide any substitute or replacement
Letter of Credit at the times required by Article IV of the
Lease, as amended by Section I of Amendment Number One to
Lease Agreement, which failure continues for a period of five
(5) days after written notice thereof from Landlord to
Tenant."
3. NO OTHER MODIFICATIONS: RATIFICATIONS AND CONFIRMATION OF LEASE. No
other modification, except as expressly set forth herein, is being made to the
Lease, and all other terms and conditions of the Lease are hereby ratified and
confirmed, as amended hereby, by the parties hereto.
4. COUNTERPARTS: FACSIMILE SIGNATURE. This Amendment may be executed in
multiple counterparts, which, when taken together, shall constitute one and the
same instrument. This Amendment may be executed by facsimile signature or the
parties, which facsimile signature shall constitute originals for all purposes.
5. EFFECTIVE DATE. The effective date (the "Effective Date") of this
Amendment is the date upon which this Amendment is signed by the Landlord.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
WITNESES: "LANDLORD"
(2 witnesses required)
FORT LAUDERDALE CROWN CENTER,
INC., a Florida corporation
________________________________ By: _______________________________
Print Name:_____________________ Name:______________________________
Title :____________________________
________________________________ Date Signed:_______________________
Print Name:_____________________
"TENANT"
FUSION TELECOM INTERNATIONAL,
a Delaware corporation
________________________________ By:________________________________
Print Name:_____________________ Name:______________________________
Title: ____________________________
________________________________ Date Signed:_______________________
Print Name:_____________________
(SEAL)
<PAGE>
EXHIBIT 10.10 AMENDMENT
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDEMENT TO LEASE AGREEMENT (this "Second Amendment" is
entered into this 24th day of April, 2003 between FORT LAUDERDALE CROWN CENTER,
INC., a Florida corporation, and FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.,
a Delaware corporation (the "Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated on or about October, 1999 concerning the leasing of Suite 220 in the
building known as Crown Center, located at 1475 Cypress Creek Road , Fort
Lauderdale, Florida 33309 (the "Premises"), as amended by that certain Amendment
Number One to Lease Agreement ("First Amendment") between Landlord and Tenant
dated December 10, 1999 (collectively, the "Lease"); and
WHEREAS, pursuant to the Lease, Tenant provided Landlord with a
security deposit in the amount of $35,442.76 ("Security Deposit") and a letter
of credit in the amount of $250,000 ("Letter of Credit") issued by the Chase
Manhattan Bank ("Bank"); and
WHEREAS, the parties acknowledge and agree that Tenant's account was
past due and delinquent under the Lease for its failure to pay Landlord the Base
Rent and Additional Rent (as defined in the Lease, hereinafter referred to as
"Rent") for the months of December 2002, January 2003, and February 2003; and
WHEREAS, Landlord applied $30,000 of the Security Deposit against
Tenant's obligations for Rent for the months of December 2002, January 2003, and
February 2003 ("First Security Deposit Application"), and except as otherwise
set forth in this Second Amendment, Tenant's account is current for such months;
and
WHEREAS, Landlord and Tenant desire to enter into this Second Amendment
in order to set forth Tenant's method of payment for certain Rent payments due
under the Lease and otherwise modify the Lease as hereinafter detailed.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the parties hereto agree as
follows:
1. RECITATIONS. The foregoing recitations of fact are true and correct
and are incorporated herein by this reference.
2. RENT PAYMENTS. From March through May, 2003, the parties agree that
Tenant's payments of Rent due under the Lease shall be accomplished as follows:
For March 2003, Landlord shall apply $5,000 of the Security Deposit ("Second
Security Deposit Application") and apply the sum of $5,679.83 from a $35,000
draw against Tenant's Letter of Credit ("LC Draw") against Tenant's Rent
obligation for such month. Landlord's LC Draw will occur simultaneously upon the
execution of this Second Amendment, and Tenant will take all necessary actions
with the Bank in connection therewith to provide Landlord with all necessary
documentation with which to complete the LC Draw. Landlord shall apply the
remaining $29,320.17 proceeds of the LC Draw against Tenant's Rent obligations
as follows: (a) $1,359.64 due for the increased CAM charges, including sales tax
thereon, for January and February 2003, (b) $2,254.00 for 2002 CAM
reconciliation, including sales tax thereon, (c) late fees for October and
November, 2002 in the amount of $997.67 (the negotiated amount agreed to between
Landlord and Tenant), (d) $20,633.30 representing Tenant's Base Rent and
Additional Rent obligations, including sales tax thereon, for April 2003, and
(e) $4,075.56 representing a portion of Tenant's Rent obligations for May 2003.
Tenant shall pay Landlord the remainder of its Rent obligations for May 2003 on
or prior to the tenth (10th) day of such month. Tenant agrees that commencing
June 1, 2003, Tenant shall continue to timely pay Landlord its monthly
installments of Rent in accordance with the terms and conditions of the Lease.
3. RESTORATION OF SECURITY DEPOSIT. On or about April 25, 2004 ("LC
Draw Date"), Landlord shall draw upon the Letter of Credit in the amount of
$35,000.00 ("Second LC Draw") as restoration of the Security Deposit to such sum
prior to the Landlord's First and Second
<PAGE>
Security Deposit Applications ("Security Deposit Restoration"). Tenant shall
take all necessary actions with the Bank in connection therewith to provide
Landlord with all necessary documentation with which to complete the Second LC
Draw. If at anytime prior to the LC Draw Date, Landlord receives notice of any
kind that the Letter of Credit is not being renewed, or if Tenant shall
otherwise be in default under the Lease beyond any applicable cure period, then,
in addition to any other right or remedy provided under the Lease, at law or in
equity, Landlord shall be entitled to immediately draw upon the Letter of Credit
and apply a portion of such proceeds against the Security Deposit Restoration.
Notwithstanding such application, Landlord shall be entitled to pursue any
remedies against Tenant under the Lease, at law or in equity, for any and all
outstanding sums then owed to Landlord under the Lease. In the event Tenant
fails to pay Landlord any payments of its Rent as provided herein, or if Tenant
shall otherwise be in default under the Lease as amended or this Second
Amendment, Landlord shall be entitled to avail itself of any and all remedies
available to it under the Lease, this Second Amendment, or at law or in equity.
Except as expressly set forth in this Second Amendment, nothing herein shall
affect any of Tenant's obligations under the Lease including its obligations to
pay Landlord Base Rent and Additional Rent for each month of the Lease Term
pursuant to the terms and conditions of the Lease, as amended.
4. SUBLEASE. Landlord agrees that notwithstanding anything to the
contrary contained in Article XII, Section 1 of the Lease, Tenant shall have the
right to sublease the Premises, upon Landlord's prior written consent, which
shall not be unreasonably withheld or conditioned, so long as such proposed
sublessee has in Landlord's reasonable discretion: (a) a strong financial
background; (b) substantial experience in the reputable business that it will be
conducting at the Premises; and (c) a use that is compatible with the other
tenants of the Building and which does not violate any exclusive use provisions
then existing in other leases of the Building.
5. NO OTHER MODIFICATIONS. Except as expressly set forth herein, all of
the terms and conditions of the Lease, as amended, shall remain in full force
and effect and shall apply to this Second Amendment.
6. OTHER AGREEMENTS. This Second Amendment, together with the Lease and
the First Amendment, is the complete agreement of the parties and supersedes all
prior agreements and representations concerning the Lease. Any further
amendments to the Lease must be in writing and signed by both parties.
7. NO LANDLORD DEFAULTS/RELEASE. Tenant acknowledges that Landlord is
not in default of any of the terms or conditions of the Lease, as amended, as
the date of this Second Amendment and knows of no facts which, given the passage
of time, would constitute a default by Landlord under the Lease. Tenant herein
releases Landlord from any and all monetary or other claims Tenant may have
against Landlord pursuant to the Lease for any past reconciliation of Operating
Expenses, prior to the date of this Second Amendment and agrees never to
challenge same without the written consent of the Landlord, except as to any
reconciliation of the current calendar year's Operating Expenses, and only as
such reconciliation may be handled in accordance with the terms of the Lease.
8. DEFAULTS. Any default under the Lease, as amended, shall be deemed a
default under this Second Amendment, and any default under this Second
Amendment, shall be deemed a default under the Lease, as amended.
9. DUE AUTHORIZATION. The person or persons executing this document on
behalf of Landlord and Tenant each, respectively, certify and warrant that they
are duly authorized to execute this Second Amendment and that this Second
Amendment is a valid, binding and enforceable agreement on such party.
10. DEFINITIONS. All capitalized terms contained in this Second
Amendment shall have the meaning ascribed to them in the Lease unless otherwise
defined herein.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
WITNESS: "LANDLORD:"
(2 witnesses required)
FORT LAUDERDALE CROWN CENTER,
INC., a Florida corporation
________________________________ By: ______________________________
Print Name: ____________________ Name: ______________________________
Title: ______________________________
________________________________
Print Name: ___________________
"TENANT"
FUSION TELECOMMUNICATIONS
INTERNATIONAL, a Delaware corporation
________________________________ By: ______________________________
Print Name: ___________________ Name: ______________________________
Title: ______________________________
________________________________
Print Name: ___________________
SEAL)
<PAGE>
EXHIBIT 10.10 AMENDMENT
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDEMENT TO LEASE AGREEMENT (the "Amendment") is dated the
28th day of April, 2004 between FORT LAUDERDALE CROWN CENTER, INC., a Florida
corporation (hereinafter referred to as "Landlord") and FUSION
TELECOMMUNICATIONS INTERNATIONAL, INC., a Delaware corporation (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated on or about October, 1999 (the "Original Lease") for approximately 13,502
rentable square feet (the "Original Premises") located on the second (2nd) floor
in Suite 220 of that certain building known as "Crown Center" located at 1475
Cypress Creek Road , Fort Lauderdale, Florida 33309 (the "Original Building");
and
WHEREAS, the Original Lease was amended by: (i) that certain Amendment
Number One to Lease Agreement Dated December 19, 1999 (the "First Amendment")
and (ii) that certain Second Amendment to Lease Agreement dated April 24, 2003
(the "Second Amendment"); and
WHEREAS, the Original Lease was amended by the First Amendment and the
Second Amendment shall be collectively hereinafter referred to as the "Lease";
and
WHEREAS, Tenant desires to relocate the Original Premises to certain
premises in the "Crown Center" located at 1475 Cypress Creek Road, Fort
Lauderdale, Florida 33309 (the "Relocated Building") containing approximately
9,716 rentable square feet located on the second (2nd) floor in Suite 204 of the
Relocated Building (the "Relocated Premises") and Landlord desires Tenant to so
relocate the Original Premises; and
WHEREAS, in connection with the relocation of the Original Premises,
Tenant desires to thereafter extend the Term of the Lease for a term of sixty
(60) months commencing on the "Relocated Premises Commencement Date" (as
hereinafter defined); and
WHEREAS, in connection with the foregoing, Landlord and Tenant desire
to amend the Lease as hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
1. The foregoing recitations are true and correct and are incorporated
herein by this reference.
2. In the event of any conflict between the provisions of the Lease and
the provisions of this Amendment, the provisions of this Amendment shall
control. The initial capitalized terms used herein shall have the same meaning
given such terms in the Lease, unless otherwise defined herein or unless the
context otherwise indicates.
3. Effective as of the Relocated Premises Commencement Date, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the Relocated
Premises, as such Relocated Premises are more particularly described on Schedule
"1" attached hereto and made a part hereof. From and after the Relocated
Premises Commencement Date, all references in the Lease to the "Premises"
(including, without limitation, all references to rentable square feet of the
"Premises") shall mean the Relocated Premises and all the references in the
Lease to the "Building" (including, without limitation, all references to the
rentable square feet of the "Building") shall mean the Relocated Building. As
used herein, the term " Relocated Premises Commencement Date" shall mean the
tenth (10th) day following the date on which Landlord
<PAGE>
shall provide Tenant with written notice that Landlord has substantially
completed the "Work" as more particularly described and defined on Schedule "2"
attached hereto and made a part hereof. Effective as of the Relocated Premises
Commencement Date, Exhibit "A" to the Lease is hereby deleted in its entirety
and Schedule "1" attached hereto and made a part hereof shall thereafter be
deemed, for all purposes, Exhibit "A" to the Lease. In connection with the
foregoing, as an accommodation to Tenant, Landlord estimates, in good faith,
that the Relocated Premises Commencement Date shall occur on or about May 24,
2004; provided, however, that Tenant expressly acknowledges and agrees that the
foregoing is merely an estimate only and not a representation or warranty by
Landlord in any manner whatsoever and Landlord is providing such estimate with
respect to the Relocated Premises Commencement Date solely as an accommodation
to Tenant and, as such, Tenant is expressly acknowledging that Tenant is not
relying on Landlord's estimate of the Relocated Premises Commencement Date and
that Landlord shall have no liability and that Landlord shall not be in default
under the Lease in the event the Relocated Premises Commencement Date shall not
occur on or about May 24, 2004.
4. Except as otherwise set forth herein, on the Relocated Premises
Commencement Date all of the terms and provisions of the Lease shall be
applicable to the Relocated Premises. Landlord agrees to deliver the Relocated
Premises to Tenant on the Relocated Premises Commencement Date (or such earlier
date as the parties may agree) with the Work set forth on Schedule "2" attached
hereto substantially completed. Except to the extent of the Work as set forth on
Schedule "2", Landlord shall deliver possession of the Relocated Premises in its
"as-is" condition, without warranty, express or implied. Notwithstanding any
provision to the contrary contained herein, Tenant acknowledges and agrees that
Tenant shall be solely responsible for all costs and expenses incurred in
connection with the performance of all the items of work not included in the
description of the Work on Schedule "2" (the "Tenant's Work"). In connection
with the performance of any Tenant's Work, Tenant may use Florida licensed and
insured subcontractors reasonably approved by Landlord.
5. Effective as of the Relocated Premises Commencement Date (and
subject to the terms and conditions of this Amendment), the Lease, solely with
respect to the Original Premises, shall be terminated, cancelled and of no
further force or effect. In the event Tenant shall not have vacated the Original
Premises on or after the Relocated Premises Commencement Date, then, commencing
on the Relocated Premises Commencement Date (at Landlord's option and in
addition to all rights and remedies which Landlord shall have at law or in
equity) and in addition to the Base Rent, Additional Rent and all other costs
and charges due from Tenant to Landlord with respect to the Relocated Premises,
Tenant shall pay Landlord "holdover" rent with respect to the Original Premises
(in accordance with the terms and conditions of Article XVI, Paragraph 3 of the
Lease) until such time that Tenant shall surrender and deliver the Original
Premises to Landlord in the condition required by the terms and provisions of
the Lease.
6. On the Relocated Premises Commencement Date, Tenant acknowledges and
agrees that Tenant shall surrender and deliver possession of the Original
Premises to Landlord in the condition required by the terms and provisions of
the Lease. Tenant agrees that it shall be obligated to pay all Base Rent and
Additional Rent under the Lease (as modified herein including, without
limitation, the modifications set forth in Paragraphs 12 and 14 below) with
respect to the Original Premises for the period up to and including the
Relocated Premises Commencement Date. Tenant acknowledges and agrees that
Tenant's failure to vacate and deliver possession of the Original Premises on
the Relocated Premises Commencement Date to Landlord in the condition required
pursuant to the Lease shall be a default under the Lease.
7. Effective as of the Effective Date of this Amendment, Tenant shall
have the right to reduce the $250,000.00 letter of credit issued by Chase
Manhattan Bank as part of the security deposit under the Lease (as more
particularly described in Article IV of the Lease) to a $150,000.00 letter of
credit (issued by a financial institution reasonably acceptable to Landlord and
in a form reasonably accepted to Landlord). Upon Landlord's reasonable approval
of such $150,000.00 letter of credit, Tenant may cause the $250,000.00 letter of
credit to be cancelled and, thereafter, such $150,000.00 letter of credit shall
be substituted in place thereof. In addition to the foregoing, on June 30, 2004
and provided that Tenant shall not then be in default under the terms and
provisions of the Lease beyond applicable notice and cure period, Tenant shall
have the right to reduce the $150,000.00 letter of credit to a $50,000.00 letter
of credit (issued by a financial institution reasonably acceptable to Landlord
and in a form reasonably acceptable to Landlord). Upon Landlord's reasonable
approval of such $50,000.00 letter of credit, Tenant may
<PAGE>
cause the $150,000.00 letter of credit to be cancelled and, thereafter: (a) such
$50,000.00 letter of credit shall be substituted in place thereof and shall
serve as security for the full performance and observance by Tenant of all the
terms, covenants and conditions of the Lease with respect to the Relocated
Premises; and (b) Paragraph 3 of the Second Amendment shall be deleted in its
entirety and shall be of no further force or effect. In addition to the
foregoing, on June 30, 2007 and provided Tenant shall not then be in default
under the terms and provisions of the Lease beyond applicable notice and cure
period, Tenant shall have the right to reduce the $50,000.00 letter of credit to
a $10,000.00 letter of credit (issued by a financial institution reasonably
acceptable to Landlord and in a form reasonably acceptable to Landlord). Upon
Landlord's reasonable approval of such $10,000.00 letter of credit, Tenant may
cause the $50,000.00 letter of credit to be cancelled and, thereafter, such
$10,000.00 letter of credit shall be substituted in place thereof.
8. Effective as of the Relocated Premises Commencement Date, Landlord
and Tenant hereby release and forever discharge each other, including their
respective officers, directors, employees, representatives, agents, contractors,
subsidiaries, affiliates, heirs, personal representatives, successors and
assigns, from any and all manner of action and actions, cause and causes of
action, suits, debts, sums of money, accounts, reckonings, covenants,
warranties, obligations, agreements, contracts, promises, damages, claims and
demands whatsoever, in law or in equity, which either party ever had, now has or
may have in the future, which any personal representative, successor, heir or
assign of either party hereafter can, shall or may have against the other party
(whether known or unknown as of the date hereof), accruing or arising, directly
or indirectly, in whole or in part, for, upon, or by reason of the Lease with
respect to the Original Premises, except: (i) Landlord does not release Tenant
from its obligations under this Amendment regarding the Original Premises, which
obligations shall survive the Relocated Premises Commencement Date; and (ii)
neither party releases the other from any indemnities and/or obligations under
the Lease with respect to the Original Premises as to matters occurring prior to
the Relocated Premises Commencement Date, which obligations and indemnities
shall survive the Relocated Premises Commencement Date pursuant to the terms and
conditions of the Lease. Notwithstanding anything to the contrary contained
herein, Tenant expressly acknowledges and agrees that, subject to the terms and
conditions of Paragraph 7 above, nothing contained in this Paragraph 8 shall be
deemed to waive, release or modify Paragraph 3 of the Second Amendment, which
Paragraph 3 Tenant hereby expressly reaffirms and ratifies as being in full
force and effect and which shall survive the occurrence of the Relocated
Premises Commencement Date.
9. Commencing on the Relocated Premises Commencement Date, the Term of
the Lease shall be extended for a period of sixty (60) months (the "Extended
Term"), and shall thereafter expire at midnight (Eastern Standard Time) on the
date which is the last day of the fifth (5th) Lease Year (the "Extended
Expiration Date") and all references in the Lease to the Expiration Date of the
Term of the Lease shall hereafter be deemed to refer to the Extended Expiration
Date unless the Tenant has timely and validly exercised the Option Term, in
which case all references to the Expiration Date of the Term of the Lease shall
mean the date of the expiration of the Option Term, or such earlier date as may
otherwise be provided in the Lease.
10. Effective as of the Relocated Premises Commencement Date, Article
I, Paragraph 3 of the Lease is hereby deleted in its entirety and the following
shall be inserted in lieu thereof:
"FOLLOWING THE EXPIRATION OF THE EXTENDED TERM, PROVIDED IN ALL CASES
THAT TENANT IS NOT THEN IN DEFAULT HEREUNDER BEYOND APPLICABLE NOTICE
AND CURE PERIOD, TENANT SHALL HAVE ONE (1) OPTION TO EXTEND THE
EXTENDED TERM FOR AN ADDITIONAL PERIOD OF THIRTY-SIX (36) FULL CALENDAR
MONTHS. SUCH EXTENSIONS SHALL BE UPON ALL OF THE SAME TERMS AND
CONDITIONS AS ARE CONTAINED IN THIS LEASE AND THIS AMENDMENT. SUCH
EXTENSION IS REFERRED TO HEREIN AS THE "OPTION TERM". TO EXERCISE THE
OPTION TERM, TENANT MUST GIVE IRREVOCABLE WRITTEN NOTICE TO LANDLORD OF
ITS ELECTION TO EXTEND THE EXTENDED TERM FOR THE OPTION TERM NOT LATER
THAN TWO HUNDRED SEVENTY (270) DAYS PRIOR TO THE EXTENDED EXPIRATION
DATE. IF TENANT FAILS TO GIVE PROPER AND TIMELY NOTICE OF THE EXERCISE
OF THE OPTION TERM, THE OPTION TERM SHALL AUTOMATICALLY BE NULL AND
VOID IN ALL RESPECTS, AND THIS LEASE SHALL TERMINATE ABSOLUTELY ON THE
EXTENDED EXPIRATION DATE, IF NOT SOONER AS ELSEWHERE PROVIDED IN THIS
LEASE.
<PAGE>
UPON TENANT'S TIMELY AND VALID GIVING OF THE FOREGOING WRITTEN NOTICE
TO LANDLORD, LANDLORD AND TENANT SHALL BECOME BOUND UNDER THIS LEASE
FOR THE OPTION TERM. FURTHER, TENANT SHALL EXECUTE SUCH OTHER DOCUMENTS
AS LANDLORD DEEMS REASONABLY NECESSARY TO EVIDENCE AND CONFIRM THE
EXTENSION OF THIS LEASE, AND TO RATIFY THE TERMS AND CONDITIONS OF THIS
LEASE FOR THE ENTIRE OPTION TERM."
11. Commencing on the Relocated Premises Commencement Date, and
continuing on the first (1st) day of each calendar month occurring during Lease
Year 1 of the Extended Term, the Base Rent payable by Tenant to Landlord in
accordance with Article II of the Lease (exclusive of sales tax), with respect
to the Relocated Premises shall be in the amount of $1111,734.00 per annum (to
wit: $11.50 per rentable square foot x 9,716 rentable square feet), payable in
twelve (12) equal monthly installments of $9,311.17 each in the manner and in
accordance with Article II of the Lease (as modified herein). On the first (1st)
day of Lease Year 2 of the Extended Term, and on the first (1st) day of each
Lease Year thereafter occurring during Extended Term (and the Option Term if the
same has been timely exercised by Tenant in accordance with the terms and
provisions of this Amendment), the Base Rent payable by Tenant to Landlord in
accordance with Article II of the Lease shall increase by four percent (4%).
12. Notwithstanding any provision to the contrary contained herein,
commencing effective as of April 1, 2004 on the "Effective Date of this
Amendment" (as hereinafter defined) and continuing on the first (1st) day of
each calendar month occurring during the Term thereafter through and including
the Relocated Premises Commencement Date, the Base Rent payable by Tenant to
Landlord in accordance with Article II of the Lease (exclusive of sales tax),
with respect to the Original Premises, shall be in the amount of $9,311.17 per
month ($111,734.00 per annum).
13. Effective as of the Relocated Premises Commencement Date and
throughout the Extended Term of the Lease, Tenant shall continue to pay to
Landlord, in the form of Additional Rent, plus applicable sales tax thereon,
Tenant's Proportionate Share of the Operating Expenses of the Building and the
Property (with respect to the Relocated Premises) for the applicable calendar
year in accordance with the terms of the Lease. Upon the Relocated Premises
Commencement Date and throughout the Extended Term, Tenant Proportionate Share
(with respect to the Relocated Premises) shall be modified to mean 14.16% (to
wit: 9,716/68,608 x 100). The estimated Operating Expenses for calendar year
2004 are currently $6.15 per rentable square foot, plus applicable sales tax
thereon. The amounts to be included in Tenant's Proportionate Share shall be
based upon the actual cost per square foot paid by Landlord for Operating
Expenses. Operating Expenses shall not include leasing commissions and expenses
for Tenant improvements incurred for other Building tenants. In connection with
the foregoing, effective as of the Relocated Premises Commencement Date, Article
III, Paragraph 2 of the Lease is hereby deleted in its entirety. Tenant's
Proportionate Share of the Operating Expenses shall be pro-rated for any partial
calendar year.
14. Notwithstanding anything to the contrary contained in the Lease,
effective as of the Effective Date of this Amendment and through and including
the Relocated Premises Commencement Date, Tenant's Proportionate Share (with
respect to the Original Premises) shall be modified to mean 6.93% (to wit:
9,716/140,183 x 100). The amounts to be included in Tenant's Proportionate Share
shall be based upon the actual cost per square foot paid by Landlord for
Operating Expenses.
15. Effective as of the Effective Date of this Amendment, the second to
last sentence of Article III.1.A of the Lease, to wit: "FOR PURPOSES OF
DETERMINING TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES, ANNUAL INCREASES
IN OPERATING EXPENSES (EXCLUDING INCREASES IN REAL ESTATE TAXES AND INSURANCE
PREMIUMS SHALL NOT EXCEED FIVE PERCENT (5%) OF THE OPERATING EXPENSES (EXCLUDING
REAL ESTATE TAXES AND INSURANCE PREMIUMS) FOR THE PRECEDING CALENDAR YEAR" is
hereby deleted in its entirety.
16. Effective as of the Relocated Premises Commencement Date, Article
VI of the Lease shall be deleted in its entirety and the following shall be
inserted in lieu thereof:
"THERE SHALL BE AVAILABLE AT THE BUILDING UP TO FOUR (4) PARKING SPACES
FOR EACH 1000 SQUARE FEET OF RENTABLE SQUARE FEET CONTAINED IN THE
PREMISES (TO WIT: THIRTY-EIGHT (38) NONRESERVED SPACES), FOR THE
NONEXCLUSIVE USE OF TENANT, FREE OF CHARGE. THREE (3)
<PAGE>
COVERED PARKING SPACES OF THESE THIRTY-EIGHT (38) PARKING SPACES WILL
BE DESIGNATED RESERVED FOR TENANT AND LOCATED IN AN AREA AS REASONABLY
DESIGNATED BY LANDLORD. IN ADDITION TO THE FORGOING, IN THE EVENT ANY
MORE COVERED PARKING SPACES SHALL BECOME AVAILABLE (AS AVAILABILITY
SHALL BE REASONABLY DETERMINED BY LANDLORD), TENANT SHALL HAVE THE
RIGHT TO USE UP TO TWO (2) ADDITIONAL COVERED RESERVED PARKING SPACES
LOCATED IN AN AREA AS REASONABLY DESIGNATED BY LANDLORD. IN THE EVENT
ANY SUCH COVERED PARKING SPACES SHALL BECOME AVAILABLE (AS REASONABLY
DETERMINED BY LANDLORD) FOR USE BY TENANT, LANDLORD SHALL PROVIDE
WRITTEN NOTICE OF THE SAME TO TENANT ("LANDLORD'S PARKING SPACE
NOTICE") AND TENANT, WITHIN THREE (3) DAYS FROM RECEIPT OF LANDLORD'S
PARKING SPACE NOTICE, SHALL PROVIDE WRITTEN NOTICE TO LANDLORD OF
TENANT'S ELECTION TO USE THE ADDITIONAL COVERED PARKING SPACE(S), UP TO
TWO (2) PARKING SPACES, IDENTIFIED IN THE LANDLORD'S PARKING SPACE
NOTICE, TIME BEING OF THE ESSENCE. IN THE EVENT TENANT SHALL FAIL TO
TIMELY PROVIDE WRITTEN NOTICE TO LANDLORD OF TENANT'S ELECTION TO USE
ANY SUCH ADDITIONAL COVERED PARKING SPACE(S), UP TO TWO (2) PARKING
SPACES, IDENTIFIED IN THE LANDLORD'S PARKING SPACE NOTICE OR TENANT
SHALL TIMELY PROVIDE WRITTEN NOTICE TO LANDLORD IN WHICH TENANT SHALL
ELECT NOT TO USE SUCH ADDITIONAL COVERED PARKING SPACE(S), THEN, IN
SUCH CASE, TENANT SHALL HAVE NO FURTHER RIGHTS TO USE THE ADDITIONAL
COVERED PARKING SPACE(S) (OR THE REMAINING ADDITIONAL COVERED PARKING
SPACES IN THE EVENT TENANT TIMELY ELECTS TO USE ONE (1) OF SUCH PARKING
SPACES), ALL AS IDENTIFIED IN THE LANDLORD'S PARKING SPACE NOTICE, AND
THE TERMS AND CONDITIONS OF THIS ARTICLE VI SHALL BE OF NO FURTHER
FORCE AND EFFECT WITH RESPECT TO ANY SUCH ADDITIONAL COVERED PARKING
SPACES (OR THE REMAINING ADDITIONAL COVERED PARKING SPACES IN THE EVENT
TENANT TIMELY ELECTS TO USE ONE (1) OF SUCH PARKING spaces) AS
IDENTIFIED IN THE LANDLORD'S PARKING SPACE NOTICE."
17. Effective as of the Effective Date of this Amendment, the Tenant's
Expansion Option as set forth in Article I, Paragraph 4 is hereby deleted in its
entirety and is hereby restated in full as follows:
"NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED
HEREIN, AND PROVIDED THAT NO "EVENT OF DEFAULT" SHALL THEN BE
OCCURRING, LANDLORD HEREBY GRANTS TENANT, FROM AND AFTER THE OCCURRENCE
OF THE RELOCATED PREMISES COMMENCEMENT DATE THROUGH AND INCLUDING THE
EXPIRATION OF THE TERM OF THIS LEASE, THE RIGHT OF FIRST OFFER ("RIGHT
OF FIRST OFFER") WITH RESPECT TO THOSE CERTAIN PREMISES DEPICTED ON
SCHEDULE "1" ATTACHED HERETO AND MADE A PART HEREOF AS THE "ROFO
SPACE", TO THE EXTENT THAT SUCH ROFO SPACE SHALL BE "AVAILABLE FOR
LEASE". AS USED IN THIS LEASE, THE TERM "AVAILABLE FOR LEASE" MEANS
THAT THE ROFO SPACE, AT ANY TIME DURING THE TERM OF THIS LEASE, IS NOT
FROM TIME TO TIME LEASED OR OTHERWISE COMMITTED TO A THIRD PARTY. IF
THE ROFO SPACE SHALL BE AVAILABLE FOR LEASE, THEN LANDLORD SHALL GIVE
WRITTEN NOTICE THEREOF TO TENANT (THE "OFFER NOTICE"). AFTER RECEIPT OF
THE OFFER NOTICE FROM LANDLORD, TENANT SHALL HAVE THE RIGHT OF FIRST
OFFER, EXERCISABLE AT ANY TIME WITHIN FIVE (5) BUSINESS DAYS AFTER
TENANT'S RECEIPT OF SUCH OFFER NOTICE (THE "ACCEPTANCE PERIOD"), TO
NOTIFY LANDLORD IN WRITING OF TENANT'S ELECTION TO LEASE THE ROFO SPACE
UPON THE TERMS SET FORTH IN THE OFFER NOTICE. IF TENANT TIMELY ELECTS
TO EXERCISE THE RIGHT OF FIRST OFFER (TIME BEING OF THE ESSENCE),
TENANT SHALL DELIVER WRITTEN NOTICE (THE "ACCEPTANCE ELECTION") TO
LANDLORD OF ITS EXERCISE OF SUCH RIGHT OF FIRST OFFER DURING THE
ACCEPTANCE PERIOD. IF TENANT DOES NOT TIMELY EXERCISE SUCH RIGHT OF
FIRST OFFER DURING THE ACCEPTANCE PERIOD, OR FAILS TO DELIVER THE
ACCEPTANCE ELECTION AS PROVIDED ABOVE, TIME BEING OF THE ESSENCE,
LANDLORD SHALL BE FREE TO LEASE THE ROFO SPACE, OR ANY PART THEREOF, TO
ANY PERSON, OR ENTITY, ON ANY TERMS OR CONDITIONS ACCEPTABLE TO
LANDLORD, AND TENANT SHALL HAVE NO FURTHER RIGHTS WITH RESPECT TO THE
ROFO SPACE. IF TENANT TIMELY PROVIDES THAT ACCEPTANCE ELECTION TO
LANDLORD, LANDLORD AND TENANT SHALL ENTER INTO A NEW LEASE FOR THE
FIFTEEN (15) BUSINESS DAYS OF THE TENANT'S RECEIPT FROM THE LANDLORD OF
A PROPOSED NEW LEASE OR AMENDMENT TO THIS LEASE WITH RESPECT TO THE
ROFO SPACE. IF ANY SUCH NEW LEASE (OR AN AMENDMENT TO THIS LEASE) IS
NOT ENTERED INTO WITHIN SUCH FIFTEEN (15) BUSINESS DAY PERIOD, THEN THE
TENANT'S RIGHT OF FIRST OFFER SHALL IMMEDIATELY BECOME NULL AND VOID
AND OF NO FURTHER FORCE AND EFFECT WHATSOEVER.
<PAGE>
IN THE EVENT TENANT SHALL ELECT TO LEASE THE ROFO SPACE IN
ACCORDANCE WITH THIS ARTICLE I, PARAGRAPH 4, THEN ALL OF THE FOLLOWING
SHALL APPLY:
A. UNLESS OTHERWISE AGREED TO BY BOTH LANDLORD AND TENANT,
TENANT SHALL TAKE THE ROFO SPACE IN ITS THEN EXISTING "AS-IS" CONDITION
AT THE TIME SUCH ROFO SPACE IS DELIVERED TO TENANT, AND LANDLORD SHALL
HAVE NO OBLIGATION TO IMPROVE THE ROFO SPACE. THE ROFO SPACE SHALL
BECOME PART OF THE PREMISES AND (EXCEPT AS OTHERWISE SET FORTH HEREIN)
SHALL BE SUBJECT TO ALL THE TERMS AND CONDITIONS OF THIS LEASE,
INCLUDING, WITHOUT LIMITATION, BASE RENT, TENANT'S PROPORTIONATE SHARE
OF OPERATING EXPENSES AND ALL OTHER ITEMS OF ADDITIONAL RENT.
B. THE RIGHT OF FIRST OFFER SHALL BE SUBJECT AND SUBORDINATE
TO ANY RIGHTS THAT ANY OTHER TENANT OF THE UNDER A LEASE DATED PRIOR TO
THIS LEASE, MAY HAVE WITH RESPECT TO SUCH ROFO SPACE.
C. TENANT SHALL NOT BE ENTITLED TO EXERCISE THE RIGHT OF FIRST
OFFER AT ANY TIME WHEN AN EVENT OF DEFAULT UNDER THIS LEASE SHALL BE
OCCURRING. IN ADDITION TO THE FOREGOING, TENANT SHALL NOT BE ENTITLED
TO THE ROFO SPACE IF, UPON THE COMMENCEMENT OF THE TERM OF THE ROFO
SPACE, AN EVENT OF DEFAULT BY TENANT SHALL THEN BE OCCURRING.
D. SUBJECT TO TENANT AND LANDLORD ENTERING INTO A NEW LEASE OR
AMENDMENT TO THIS LEASE WITH RESPECT TO THE ROFO SPACE, THE RENTABLE
SQUARE FOOTAGE OF THE ROFO SPACE SHALL BE ADDED TO THE THEN RENTABLE
SQUARE FOOTAGE OF THE PREMISES (THE RENTABLE SQUARE FOOTAGE OF THE ROFO
SPACE TOGETHER WITH THE THEN RENTABLE SQUARE FOOTAGE OF THE PREMISES
SHALL BE REFERRED TO AS THE "NEW RENTABLE SQUARE FOOTAGE"), AND
THEREAFTER THE NEW RENTABLE SQUARE FOOTAGE SHALL BE USED FOR ALL
PURPOSES OF THIS LEASE, INCLUDING, WITHOUT LIMITATION, THE CALCULATION
OF BASE RENT, TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES AND
ANY OTHER ITEMS OF ADDITIONAL RENT, WHICH AMOUNTS SHALL BE PAYABLE TO
LANDLORD IN THE MANNER AS PROVIDED FOR IN THIS LEASE.
E. LANDLORD SHALL NOT BE LIABLE FOR FAILURE TO GIVE POSSESSION
OF THE ROFO SPACE BY REASON OF ANY HOLDING OVER OR RETENTION OF
POSSESSION BY ANY PREVIOUS TENANTS OR OCCUPANTS WHICH ARE NOT
AUTHORIZED BY LANDLORD, NOR SHALL SUCH FAILURE IMPAIR THE VALIDITY OF
THIS LEASE; PROVIDED, HOWEVER, THAT THE COMMENCEMENT DATE OF THE ROFO
SPACE SHALL NOT OCCUR UNTIL LANDLORD CAN DELIVER POSSESSION OF THE ROFO
SPACE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE NEW LEASE OR
AMENDMENT TO THIS LEASE ENTERED INTO BY LANDLORD AND TENANT WITH
RESPECT TO THE ROFO SPACE.
F. TENANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (I) IN THE
EVENT TENANT SHALL EXERCISE THE RIGHT OF FIRST OFFER IN THE MANNER SET
FORTH HEREIN; AND (II) EFFECTIVE AS OF THE COMMENCEMENT DATE OF THE
ROFO SPACE LESS THAN THIRTY-SIX (36) FULL CALENDAR MONTHS SHALL REMAIN
UNTIL THE EXPIRATION OF THE THEN APPLICABLE TERMS OF THIS LEASE, THEN,
AS A CONDITION PRECEDENT TO THE EFFECTIVENESS OF THE TENANT'S EXERCISE
OF THE RIGHT OF FIRST OFFER, TENANT SHALL BE REQUIRED TO ADDITIONALLY
ELECT TO EXTEND THE THEN APPLICABLE TERM OF THIS LEASE FOR SUCH PERIOD
OF TIME WHICH MAY BE REQUIRED TO PROVIDE FOR A THIRTY-SIX (36) FULL
CALENDAR MONTH TERM OF THIS LEASE COMMENCING ON THE COMMENCEMENT DATE
OF THE ROFO SPACE."
18. The parties represent and warrant to each other that they have not
dealt with any real estate brokers, salesmen, or finders in connection with this
Amendment. If a claim for commission in connection with this transaction is made
by any broker, salesmen, or finder claiming to have dealt through on behalf of
one of the parties hereto, such party shall indemnify, defend and hold the other
party hereunder harmless from and against all liabilities, damages, claims,
costs, fees and expenses (including reasonable attorney's fees and costs at
trial and all appellate levels) with respect to said claim for brokerage.
19. This Amendment shall be construed and interpreted in accordance
with the laws of the State of Florida, contains the entire agreement of the
parties hereto with respect to the subject matter hereof, and may not be changed
or terminated orally or by course of conduct, or
<PAGE>
by any other means except by a written instrument, duly executed by the party to
be bound thereby. This Amendment shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns.
20. Except as modified hereby, the Lease shall remain in full force and
effect in accordance with the terms and provisions thereof and Tenant hereby
ratifies and affirms all of the terms and conditions thereof.
21. This Amendment may be executed in several counterparts, each of
which shall be fully effective as an original and all of which together shall
constitute one and the same instrument. Signature pages may be detached from the
counterparts and attached to a single copy of this document to physically form
one document.
22. As used herein, the term "Effective Date of this Amendment" shall
mean the date of the last of Landlord and Tenant to execute this Amendment.
23. In the event that it shall become necessary for either Landlord or
Tenant to employ the services of attorneys to enforce any of their respective
rights under the Lease or to collect any sums due to them under the Lease or to
remedy the breach of any covenant of the Lease on the part of the other to be
kept or performed, the nonprevailing party (Tenant or Landlord as the case may
be) shall pay to the prevailing party such reasonable fee as shall be charged by
the prevailing party's attorneys for such services at all trial and appellate
levels and post judgment proceedings and such prevailing party shall also have
and recover from the nonprevailing party (Landlord or Tenant as the case may be)
all other costs and expenses of such suit and any appeal thereof or with respect
to any postjudgment proceedings.
24. RADON GAS: RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT,
WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT
HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT
EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARRDING RADON AND RADON TESTING MAY BE OBTAINED FROM
OUR COUNTY PUBLIC HEALTH UNIT.
25. IT IS MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE
RESPECTIVE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE
OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT OR TENANT'S USE OR OCCUPANCY OF THE
PREMISES, OR BY ANY COURSE OF CONDUCT OR COURSE OF DEALING. TENANT FURTHER
AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM (OR COUNTERCLAIMS IN ANY
SUMMARY PROCEEDING) IN ANY ACTION INITIATED BY LANDLORD OR BASED UPON NONPAYMENT
OF RENT OR OTHER PAYMENTS REQUIRED OF TENANT HEREUNDER.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first mentioned above.
"LANDLORD"
WITNESS: FORT LAUDERDALE CROWN
CENTER, INC., a Florida corporation
________________________________ By: _____________________________
Print Name: ____________________ Name: _____________________________
Title: _____________________________
________________________________
Print Name: ____________________
"TENANT"
FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC., a Delaware
corporation
________________________________ By: _____________________________
Print Name: ___________________ Name: _____________________________
Title: _____________________________
________________________________
Print Name: ___________________
(SEAL)
<PAGE>
SCHEDULE 1
RELOCATED PREMISES
<PAGE>
SCHEDULE 1-1
"ROFO SPACE"
<PAGE>
SCHEDULE 2
WORK LETTER AGREEMENT
This Work Letter Agreement ("Work Letter") is executed simultaneously with that
certain Third Amendment to Lease Agreement dated of even date herewith, which
amends that certain Lease Agreement dated on or about October, 1999, as further
amended by that certain Amendment Number One to Lease Agreement dated December
19, 1999 and that certain Second Amendment to Lease Agreement dated
_____________, 2003 (collectively, the "Lease") between and FUSION
TELECOMMUNICATIONS INTERNATIONAL, INC., a Delaware corporation (hereinafter
referred to as "Tenant") and FORT LAUDERDALE CROWN CENTER, INC., a Florida
corporation (hereinafter referred to as "Landlord"), relating to demised
premises ("Premises") located on the second (2nd) floor in Suite 204 of that
certain building known as the "Crown Center" located at 1475 Cypress Creek Road,
Fort Lauderdale, Florida 33309 (the "Building"), which Premises are more fully
identified in the Lease. Capitalized terms used herein, unless otherwise defined
in this Work Letter, shall have the respective meanings ascribed to them in the
Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. TENANT'S INITIAL PLANS; THE WORK. Tenant desires Landlord to perform
certain leasehold improvements in the Premises in substantial accordance with
Schedule 2-1 (collectively, the "Initial Plan"). Such work, as described on the
Initial Plan and as shall be more fully detailed in the Working Drawings (as
defined and described in Paragraph 2 below), shall be hereinafter referred to as
the "Work". In connection with the foregoing, upon Landlord's request, Tenant
shall promptly furnish to Landlord such additional plans, drawings,
specifications and finish details as Landlord may reasonably request to enable
Landlord's architects and engineers to prepare mechanical, electrical and
plumbing plans and to prepare the Working Drawings, including a final telephone
layout and special electrical connection requirements, if any. All plans,
drawings, specifications and other details describing the Work which have been
or are hereafter furnished by or on behalf of Tenant shall be subject to
Landlord's approval, which Landlord agrees shall not be unreasonably withheld.
Landlord shall not be deemed to have acted unreasonably if it withholds its
approval of any plans, specifications, drawings or other details or of any
Additional Work (as defined in Paragraph 7 below) because, in Landlord's
reasonable opinion, the work, as described in any such item, of the Additional
Work, as the case may be: (a) is likely to adversely affect Building systems,
the structure of the Building or the safety of the Building and/or its
occupants; (b) might impair Landlord's ability to furnish services to Tenant or
other tenants in the Building; (c) would increase the cost of operating the
Building; (d) would violate any governmental laws, rules or ordinances (or
interpretations thereof); (e) contains or uses hazardous or toxic materials or
substances; (f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building; or (i) is likely to be substantially delayed because
of unavailability or shortage of labor or materials necessary to perform such
work or the difficulties or unusual nature of such work. The foregoing reasons,
however, shall not be the only reasons for which Landlord may withhold its
approval, whether or not such other reasons are similar or dissimilar to the
foregoing. Neither the approval by Landlord of the Work or the Initial Plan or
any other plans, drawings, specifications or other items associated with the
Work nor Landlord's performance, supervision or monitoring of the Work shall
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant intended use of the Premises.
2. WORKING DRAWINGS. If necessary for the performance of the Work and
not included as part of the Initial Plan attached hereto, Landlord shall prepare
or cause to be prepared final working drawings and specifications for the Work
(the "Working Drawings") based on and consistent with the Initial Plan by Tenant
to Landlord and approved by Landlord pursuant to Paragraph 1 above. So long as
the Working Drawings are consistent with the Initial Plan, Tenant shall approve
the Working Drawings within the three (3) days after receipt of same from
Landlord by initialing and returning to Landlord each sheet of the Working
Drawings or by executing Landlord's approval form then in use, whichever method
of approval Landlord may designate.
<PAGE>
3. PERFORMANCE OF THE WORK. Except as hereinafter provided to the
contrary, Landlord shall cause the performance of the Work using (except as may
be stated or shown otherwise in the Working Drawings) building standard
materials, quantities and procedures then in use by Landlord, but no less than
commercially reasonable standards for like office buildings of like class in
Fort Lauderdale, Florida ("Building Standards").
4. SUBSTANTIAL COMPLETION. The Work shall be deemed to be
"substantially completed" for all purposes under this Work Letter and the Lease
if and when both of the following shall have occurred: (i) Landlord's architect
issues a written certificate to Landlord and Tenant, certifying that the Work
has been substantially completed (i.e., completed except for "punchlist" items
listed in such architect's certificate) in substantial compliance with the
Working Drawings; and (ii) Landlord has obtained, and delivered to Tenant, a
certificate of occupancy (or its equivalent) for the Relocated Premises, issued
by the appropriate governmental agency having jurisdiction over the Relocated
Premises. Landlord agrees to use reasonable and continuous diligence to complete
all punchlist work listed in the aforesaid architect's certificate promptly
after substantial completion.
5. TENANT DELAYS. Landlord shall not be liable for failure to complete
the Work by reason of any delay attributable to Tenant ("Tenant Delays"),
including without limitation:
(a) the failure of Tenant to furnish all or any plans,
drawings, specifications, finish details or the other information required under
Paragraph 1 above on or before the date stated in Paragraph 1;
(b) the failure of Tenant to grant approval of the Working
Drawings within the time required under Paragraph 2 above;
(c) Tenant's requirements for special work or materials,
finishes, or installations other than the Building Standards or Tenant's
requirements for special construction staging or phasing;
(d) the performance of any Additional Work (as defined in
Paragraph 6 below) requested by Tenant or the performance of any work in the
Premises by any person, firm or corporation employed by or on behalf of Tenant,
or any failure to complete or delay in completion such work; or
(e) any other act or omission of Tenant that causes a delay.
6. ADDITIONAL WORK. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
approved by Tenant, including, without limitation, any change orders to the Work
(in accordance with Paragraph 2 above) ("Additional Work") and the approval by
Landlord of such Additional Work, which approval Landlord agrees shall not be
unreasonably withheld, Landlord shall perform such Additional Work, at Tenant's
sole cost and expense, subject, however, to the following provisions of this
Paragraph 6. Prior to commencing any Additional Work requested by Tenant,
Landlord shall submit to Tenant a written statement of the cost of such
Additional Work, which cost shall include a fee payable to Landlord in the
amount of 15% of the total cost of such Additional Work as compensation to
Landlord for monitoring the Additional Work and for administration, overhead and
field supervision associated with the Additional Work and an additional charge
payable to Landlord in the amount of 5% of the total Cost of the Additional Work
as compensation for Landlord's general conditions (such fee and additional
charge being herinafter referred to collectively as "Landlord's Additional
Compensation"), and, concurrently with such statement of cost, Landlord shall
also submit to Tenant a proposed tenant extra order (the "TEO") for the
Additional Work in the standard form then in use by Landlord. Tenant shall
execute and deliver to Landlord such TEO and shall pay to Landlord the entire
cost of the Additional Work, including Landlord's Additional Compensation (as
reflected in Landlord's statement of such cost), within five (5) days after
Landlord's submission of such statement and TEO to Tenant. If Tenant fails to
execute or deliver such TEO or pay the entire cost of such Additional Work
within such 5-day period, then Landlord shall not be obligated to do any of the
Additional Work and may proceed to do only the Work, as specified in the Working
Drawings.
<PAGE>
7. LEASE PROVISIONS. The terms and provisions of the Lease, insofar as
they are applicable to this Work Letter, are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be Additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
8. MISCELLANEOUS.
(a) This Work Letter shall be governed by the laws of the
state in which the Premises are located.
(b) This Work Letter may not be amended except by a written
instrument signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant
warrants and represents he/she has authority to sign and deliver this Work
Letter and bind Tenant.
(d) Notices under this Work Letter shall be given in the same
manner as under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant
and Landlord regarding the Work.
(g) In the event that the final working drawings and
specifications are included as part of the Initial Plan attached hereto, or in
the event Landlord performs the Work without the necessity of preparing working
drawings and specifications, then whenever the term "Working Drawings" is used
in this Agreement, such term shall be deemed to refer to the Initial Plan and
all supplemental plans and specifications approved by Landlord.
9. EXCULPATION OF LANDLORD. Notwithstanding anything to the contrary
contained in this Work Letter, it is expressly understood and agreed by and
between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns
against Landlord with respect to the alleged breach by or on the part of
Landlord of any representation, warranty, covenant, undertaking or agreement
contained in this Work Letter (collectively, "Landlord's Work Letter
Undertakings") shall extend only to Landlord's interest in the real estate of
which the Premises demised under the Lease are a part (hereinafter, "Landlord's
Real Estate") and not to any other assets of Landlord or its constituent
partners; and
(b) Except to the extent of Landlord's interest in Landlord's
Real Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, its constituent partners, or against any of their respective
directors, officers, employees, agents, constituent partners, beneficiaries,
trustees or representatives.
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<PAGE>
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
____ day of _________________, 2003.
"LANDLORD"
WITNESS: FORT LAUDERDALE CROWN
CENTER, INC., a Florida corporation
________________________________ By: _____________________________
Print Name: ____________________ Name: _____________________________
Title: _____________________________
________________________________
Print Name: ___________________
"TENANT"
FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC., a Delaware
corporation
________________________________ By: _____________________________
Print Name: ___________________ Name: _____________________________
Title: _____________________________
________________________________
Print Name: ___________________
(SEAL)
<PAGE>
SCHEDULE 2-1
WORK
LANDLORD WORK LETTER
Tenant: FUSION TELECOM
Area: 9,754
Location: 1475 CYPRESS CREEK ROAD
Suite No.: 204
Date: March 7, 2004
LANDLORD SHALL PROVIDE THE DEMISED PREMISES WITH THE FOLLOWING IMPROVEMENTS:
1. DEMOLITION of existing installations as required for new
construction to suit Tenant layout as designated on the
attached plan "Exhibit A", as well as required to allow for
construction of new one hour rated Tenant separation wall
separating Tenant space from adjacent space to the south. This
(rated) wall shall include R- 11 thermal insulation.
2. Construction of Tenant space per the attached floor plan
layout ("Exhibit A"). Finish standards to match existing.
3. Entire Tenant space shall be REPAINTED. Color selection by
Tenant.
4. All new DOORS and hardware to match existing / including
finish (paint color selection) - by Tenant.
5. Existing CABINETRY in break room to remain.
6. New FLOOR COVERINGS for entire space. Use commercial grade
carpet. Carpet shall be based on Landlord's Building standard
carpet. Tenant shall pick color / pattern from Landlord's
selection.
7. 4" HIGH VINYL COVE BASE for entire space - color selection by
Tenant.
8. Rework CEILING electrical, fire sprinklers, air conditioning
to suite floor plan. Installations and materials shall match
existing. Where practical to leave ceiling bulkheads from
removed partitions so as not to disrupt existing ceiling
installations, Landlord may, at Landlord's discretion, do so.
9. All costs for construction PLANS AND BUILDING PERMITS.
10. FIRE ALARM system compliant with City of Ft. Lauderdale's Fire
Department current requirements.
11. ELECTRICAL: Lighting shall be altered to suit Tenant layout
and modular furniture configuration. Power shall meet
requirement's of Tenant's use, consistent with Tenant's
existing set up at 1415 Cypress Creek Road. Include required
data / phone stubs.
12. CEILINGS: All ceiling work as required to suit layout,
including lighting & HVAC grills. All new installations to
match existing. All ductwork and A.C. grills to be modified /
added, all as required to suit Tenant space plan. LIGHTING:
Repair and re-lamp all existing lighting fixtures. New exit
and emergency lighting, as well as modification of existing -
to suite Tenant layout.
<PAGE>
13. INTERIOR WINDOWS: Install at eight (8) offices as shown on
floor plan Exhibit "A".
14. FIRE EXTINGUISHERS: As required by code / City of Ft.
Lauderdale.
LANDLORD DOES NOT INCLUDE THE FOLLOWING ITEMS:
1. "FFE" - Furniture, Fixtures, Equipment.
2. Window Coverings (existing to remain).
3. Wall coverings.
4. Sound, Phone, T.V., Computer, Data, Security wiring and
systems.
5. Kitchen appliances.
THE FOLLOWING PROVISIONS SHALL APPLY TO LANDLORD'S WORK:
1. All work provided by Landlord shall comply with current
applicable codes and building standards.
2. Landlord shall re-use existing doors, frames and hardware
wherever possible subject to materials being in a reasonably
good condition prior to finishing. Where same materials are
not available or reusable, Landlord shall provide new
materials to match existing - finish selection per Tenant.
3. Where new materials are required, Landlord shall use best
available for matching color and texture. The parties
acknowledge that this provision is subject to availability;
however, due to such conditions related to availability, as
well as product discontinuation, dye lot changes, shade and
color variations; Landlord's obligations in this regard shall
be limited to "best efforts".
4. Construction drawings showing all details of the work shall be
prepared by Landlord's Design Professionals. Prior to
commencement of any work, Landlord and Tenant shall review
said Construction drawings to assure that the proposed design
meets the intent of this Landlord Work Letter and the proposed
Tenant's use of the space. The formal method of plan approval
/ acceptance shall be specified in the Lease Agreement.