Florida-Sunrise-1401 N.W. 136th Avenue Lease - Saw-Ban Ltd. and Talk.com Holding Corp.
OFFICE LEASE
- Between -
SAW-BAN, LTD.,
a Florida limited partnership
as Landlord
- and-
TALK.COM HOLDING CORP.,
a Pennsylvania corporation
as Tenant
Dated: May 11, 2000
-----------------------------
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INDEX TO
OFFICE LEASE
<TABLE>
<CAPTION>
SECTION PAGE
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<S> <C>
BASIC LEASE INFORMATION RIDER......................................................i
1. PREMISES; COMMON AREAS..........................................-1-
2. LEASE TERM; LEASE DATE..........................................-1-
3. RENT............................................................-1-
4. SECURITY DEPOSIT................................................-4-
5. USE, EXCLUSIVE..................................................-5-
6. INTENTIONALLY OMITTED...........................................-5-
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK; TENANT'S ADVANCE
POSSESSION .....................................................-5-
8. PARKING.........................................................-6-
9. BUILDING SERVICES...............................................-6-
10. SECURITY........................................................-8-
11. REPAIRS AND MAINTENANCE.........................................-8-
12. TENANT'S ALTERATIONS............................................-9-
13. LANDLORD'S ADDITIONS AND ALTERATIONS...........................-10-
14. ASSIGNMENT AND SUBLETTING......................................-10-
15. TENANT'S INSURANCE COVERAGE....................................-12-
16. LANDLORD'S INSURANCE COVERAGE..................................-13-
17. SUBROGATION....................................................-13-
18. DAMAGE OR DESTRUCTION BY CASUALTY..............................-13-
19. CONDEMNATION AND EMINENT DOMAIN................................-14-
20. LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION............-15-
21. COMPLIANCE WITH ENVIRONMENTAL LAWS AND PROCEDURES:.............-15-
22. COMPLIANCE WITH LAWS AND PROCEDURES............................-17-
23. RIGHT OF ENTRY.................................................-17-
24. DEFAULT........................................................-17-
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT.......................-18-
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT...............-18-
27. LIENS..........................................................-19-
28. NOTICES........................................................-19-
29. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION..................-19-
30. ATTORNMENT AND MORTGAGEE'S REQUEST.............................-20-
31. TRANSFER BY LANDLORD...........................................-20-
32. SURRENDER OF PREMISES; HOLDING OVER............................-20-
33. NO WAIVER; CUMULATIVE REMEDIES.................................-20-
34. WAIVER OF JURY TRIAL...........................................-21-
35. CONSENTS AND APPROVALS.........................................-21-
36. RULES AND REGULATIONS..........................................-21-
37. SUCCESSORS AND ASSIGNS.........................................-21-
38. QUIET ENJOYMENT................................................-21-
39. ENTIRE AGREEMENT...............................................-21-
40. MISCELLANEOUS..................................................-21-
</TABLE>
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EXHIBITS:
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Exhibit "A" Legal Description of the Building and Parking Facilities
Exhibit "A-1" Floor Plan
Exhibit "B" Work Letter Agreement
Exhibit "C" Rules and Regulations
Exhibit "D" Janitorial Specifications for the Premises provided by Landlord
Exhibit "E" Irrevocable Letter of Credit
RIDERS:
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Expansion Option Rider
Right of First Refusal Rider
Satellite Dish/Antenna Rider
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BASIC LEASE INFORMATION RIDER
OFFICE LEASE
Preamble
Page 1 Date of this Lease: May 11 , 2000
-------------------------------
Preamble Landlord: SAW-BAN, LTD., a Florida limited partnership
Page 1
Preamble Tenant: TALK.COM HOLDING CORP., a Pennsylvania corporation,
Page 1 and qualified to do business in the State of Florida.
Section 1 Premises: Entire Second Floor, subject to the Expansion
Option provided for in the
Page 1 Expansion Option Rider
Section 1 Net Rentable Area of Premises: 27,669 square feet
Page 1
Section 2 Lease Commencement Date: Forty-five (45) days from the Date
of this Lease
Page 1
Section 2 Expiration Date: May 10 , 2007
---------------------------------
Page 1
Section 2 Lease Term: 84 consecutive calendar months, subject to the
Extension Option provided for in the
Page 1 Extension Option Rider
Section 2 Rent Commencement Date: Forty-five (45) days from the Date of
this Lease
Page 1
Section 3 Base Rent: $14.00 per rentable square foot of space in the
Premises, resulting in an initial Base Rent
Page 1 of $387,366.00 per Lease Year, payable in equal monthly
installments of $32,280.50 per month, plus all applicable
taxes, subject to increases pursuant to the escalation
provisions of Section 3.(b).
Section 3 Tenant's Percentage Share: 26.23%, subject to the Expansion
Options provided for in the Expansion
Page 2 Option Rider.
Section 3 Additional Rent: Estimated for the calendar year 2000 to be
$8.00 per rentable square foot, but
Page 2 subject to adjustments and reconciliations, all as provided
for in Section 3 of this Lease.
Sections
3, 4 Security Deposit Received: $100,000.00 in the form of U.S.
cash, locally drawn cashier's or official
Page 4 bank check, wire transfer or an Irrevocable Letter of Credit
as provided for in Section 4.
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Section 5 Use of Premises: General office use and long distance
telephone services call center
Page 5
Tenant's Address for Notices Prior to Lease Commencement Date:
Talk.Com Holding Corp.
12001 Science Drive, Suite 130
Orlando, Florida 32826
Attn: _______________________
Tenant's Address for Notices After Lease Commencement Date:
Tenant
The Premises
With a copy (for informational purposes only) to:
Dreier & Baritz
150 East Palmetto Park Road
Boca Raton, FL 33432
Attention: Neil S. Baritz, Esq.
---------
Landlord's Address for Notices:
Saw-Ban, Ltd.
c/o Coldwell Banker Commercial - Brenner Real Estate Group
3195 North Powerline Road, Suite 104
Pompano Beach, FL 33064
Attention: Scott Brenner, President
With a copy (for informational purposes only) to:
Proskauer Rose, LLP
Suite 340 West
2255 Glades Road
Boca Raton, Florida 33431
Attention: George A. Pincus, Esq.
---------
Section 8 Number of Unassigned Parking Spaces in
Page 5 Uncovered Parking Area: Six and one-half (6 1/2) spaces per
1,000 useable square feet
Section 8 Number of Reserved Parking Spaces in Uncovered Parking Area:
Five (5)
Page 6
Section 15 Amount of Commercial General Liability Insurance:
Page 12 $1,000,000.00
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Section 40 Tenant's Real Estate Broker:
Page 22
Miles Brokerage, Inc.
7890 Peters Road, Suite G-105
Plantation, FL 33324
Attn: Daniel M. Feinstein
Landlord's Real Estate Broker:
Coldwell Banker Commercial - Brenner Real Estate Group
3195 N. Powerline Road, Suite 104
Pompano Beach, FL 33069
Certain of the information relating to the Lease, including
many of the principal economic terms, are set forth in the foregoing Basic Lease
Information Rider (the "BLI Rider"). The BLI Rider and the Lease are, by this
reference, hereby incorporated into one another. In the event of any direct
conflict between the terms of the BLI Rider and the terms of the Lease, the BLI
Rider shall control. Where the Lease simply supplements the BLI Rider and does
not conflict directly therewith, the Lease shall control.
IN WITNESS WHEREOF, Landlord and Tenant have signed this BLI
Rider as of this 11 day of _____May___________, 2000.
--
Witnesses: "LANDLORD"
--------
SAW BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation,
general partner
By: /s/
---------------------------
Its: President
---------------------------
(As to Landlord)
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania corporation
________________________ By: Aloysius T. Lawn IV /s/
--------------------------------------
________________________ Its: Executive V-P - General Counsel and Secretary
-----------------------------
(As to Tenant)
OFFICE LEASE
THIS BUILDING LEASE (this "Lease") is made as of the _11th_ day of
____May________, 2000, by and between SAW-BAN, LTD., a Florida limited
partnership ("Landlord"), and TALK.COM HOLDING CORP., a Pennsylvania corporation
authorized to do business in the State of Florida ("Tenant").
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W I T N E S S E T H:
- - - - - - - - - -
1. PREMISES; COMMON AREAS: Landlord leases to Tenant and Tenant leases
from Landlord the premises in the commercial office building located at 1401
N.W. 136th Avenue, City of Sunrise, County of Broward, Florida (together with
the uncovered parking facilities sometimes collectively referred to herein as
the "Building"), legally described in Exhibit "A" , known by that certain suite
number set forth in the Basic Lease Information Rider (the "BLI Rider") attached
to the front of this Lease and incorporated into this Lease by this reference,
which space is more particularly shown on the floor plan attached hereto as
Exhibit "A-1" and by this reference incorporated herein (the "Premises"). The
parties hereby agree that the Premises contain the number of net rentable square
feet set forth in the BLI Rider. In addition to the Premises, Tenant has the
right to use, in common with others, the lobby, public entrances, public
stairways and public elevators of the Building if any. The common areas serving
the Building, including those referenced above, the parking facilities, and all
others, will at all times be subject to Landlord's exclusive control and
management in accordance with the terms and provisions of this Lease.
2. LEASE TERM; LEASE DATE: The lease term (the "Lease Term") is for the
period of time set forth in the BLI Rider, commencing on the Lease commencement
date set forth in the BLI Rider (the "Lease Commencement Date") and ending on
the Lease expiration date set forth in the BLI Rider (the "Expiration Date").
Tenant's obligation to pay all rent, including Base Rent, Additional Rent and
any other cost or charge due and payable by Tenant hereunder, (collectively,
"Rent"), as such terms are hereafter defined, will commence on the rent
commencement date set forth in the BLI Rider (the "Rent Commencement Date"). For
purposes of this Lease, "Lease Year" shall mean and refer the period of twelve
(12) calendar months commencing on the Lease Commencement Date, and each
successive period of twelve (12) calendar months during the Lease Term.
3. RENT:
----
(a) Base Rent; Concession. Tenant will pay as the base rent
for the Premises (the "Base Rent") the amounts set forth in the BLI Rider, with
same being payable without demand, setoff or deduction, in advance, on or before
the first day of each month, in equal monthly installments of the amounts set
forth in the BLI Rider, plus applicable sales and other such taxes as are now or
later enacted. Notwithstanding the foregoing or any other provision of this
Lease to the contrary during the first eight (8) calendar months of the Lease
Term, Tenant shall be obligated to pay only one-half (1/2) of the Base Rent due
and payable by Tenant hereunder; provided, however, if Tenant defaults under
this Lease, then Landlord shall have the right to seek, as part of damages, sums
equal to the amounts of Base Rent abated hereunder.
(b) Escalations to Base Rent. Commencing on the first
anniversary of the Rent Commencement Date, and on each subsequent anniversary of
the Rent Commencement Date (each such date an "Adjustment Date"), the Base Rent
shall be increased annually by multiplying the Base Rent in effect during the
prior Lease Year by one hundred three percent (103%).
(c) Additional Rent. Tenant shall pay, as additional rent
("Additional Rent"), prorated for that part of the Lease Term within the
applicable calendar year, Tenant's Percentage Share ("Tenant's Percentage
Share"), as hereafter defined, of the total amount of (i) the annual operating
expenses ("Operating Expenses"), as hereafter defined, and (ii) the annual taxes
("Taxes"), for the Building. For all years during the Lease Term, Landlord
shall, in advance, reasonably estimate for each such calendar year the total
amount of the Additional Rent. One-twelfth (1/12) of the estimated Additional
Rent (plus all applicable taxes due and payable on Rent, now existing or
hereafter enacted) shall be payable monthly, along with the monthly payment of
the Base Rent. Landlord shall use its best efforts to make such estimate on or
before January 1 of each calendar year. On or before March 31 following a year
for which Additional Rent is payable hereunder, Landlord shall use its best
efforts to provide Tenant with the amount of the actual Additional Rent for the
previous year, and a reasonable breakdown of the items included therein,
together with an invoice for any underpayments of Additional Rent (to be paid
within thirty (30) days following receipt of such invoice, or to be included
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with the next monthly payment of Rent, whichever shall first occur) or a check
to Tenant to reimburse Tenant for any overpayment of Additional Rent. For a
period of thirty (30) days after receipt of the aforedescribed reconciliation
statements, Tenant shall have the right, upon advance notice, to visit
Landlord's office in the Building, or such other location within Broward County
or Palm Beach County, Florida where Landlord maintains the books and records for
the Building in the event that Landlord does not maintain an office at the
Building, during Business Hours, as hereafter defined, to inspect its books and
records concerning the Additional Rent. The delivery of the aforedescribed
projection statement after January 1 and/or the reconciliation after March 31
shall not be deemed a waiver of any of Landlord's rights to collect monies
and/or a waiver of any of the duties and obligations of Tenant as described in
this section or as provided elsewhere in this Lease.
(d) Rent Concession. Notwithstanding the foregoing or any
other provision of this Lease to the contrary during the first eight (8)
calendar months of the Lease Term, Tenant shall be obligated to pay only
one-half (1/2) of the Base Rent and one-half (1/2) of any Additional Rent due
and payable by Tenant hereunder; provided, however, if Tenant defaults under
this Lease, then Landlord shall have the right to seek, as part of damages, sums
equal to the amounts of Base Rent and Additional Rent abated hereunder.
(e) Definition of Material Terms.
(i) The term "Operating Expenses" shall mean (1) any
and all costs of ownership, management, operation and maintenance of the
Building, including, without limitation, wages, salaries, professionals' fees,
taxes, insurance, benefits and other payroll burdens of all employees, Building
management fee, janitorial services for five (5) days per week, maintenance,
security guard and other services, building management office rent or rental
value, power, fuel, water, waste disposal, landscaping care, lighting, garbage
removal, pest control, window cleaning, system maintenance, parking area care,
and any and all other utilities, materials, supplies, maintenance, repairs,
insurance applicable to the Building and Landlord's personal property and
depreciation on personal property, fees, assessments and maintenance charges
imposed by the property owners' association that governs the business park where
the Building is located, and (2) the cost (amortized over such reasonable period
as Landlord shall determine together with interest at the rate of twelve percent
(12%) per annum on the unamortized balance; provided, however, any assessments
imposed with respect to improvements having a useful life of three (3) years or
more shall be amortized over the useful life of such improvements) of any
capital improvements made to the Building by Landlord after the date of this
Lease that reduce other Operating Expenses or which are made to the Building by
Landlord after the date of this Lease that are required under any governmental
law or regulation; provided, however, that Operating Expenses shall not include
real property taxes, depreciation on the Building other than depreciation on
carpeting in public corridors and common areas, costs of tenants' improvements,
real estate broker's commissions, interest and capital items and costs of
repairs of any and all structural and/or latent defects of the Building other
than those referred to in subsection (2) above. Landlord shall maintain
accounting books and records in accordance with sound accounting principles. In
determining the amount of Operating Expenses for any calendar year, (i) if less
than one-hundred percent (100%) of the Building shall have been occupied by
tenants and fully used by them, Operating Expenses shall be increased to an
amount equal to the like operating expenses which would normally be expected to
be incurred had such occupancy been one-hundred percent (100%) and had such full
utilization been made during the entire period or (ii) if Landlord is not
furnishing particular work or services (the cost of which if performed by
Landlord would constitute an Operating Expense) to a tenant who has undertaken
to perform such work or service in lieu of the performance thereof by Landlord,
Operating Expenses shall be deemed to be increased by an amount equal to the
additional expense which would reasonably have been incurred during such period
by Landlord had Landlord furnished such work or service to such tenant. Landlord
hereby agrees to deduct each year from the amount of the Operating Expenses the
total amount of any and all sums, amounts or charges paid by Tenant or other
tenants of the Building directly to Landlord or its agent for specific tenant
requested services.
(ii) The term "Taxes" shall mean the gross amount of
all impositions, taxes, assessments (special or otherwise), water and sewer
assessments and other governmental liens or charges of any and every kind,
nature and sort whatsoever, ordinary and extraordinary, foreseen and unforeseen,
and substitutes therefor, including all taxes whatsoever (except for taxes for
the following categories which shall be excluded from the definition of Taxes:
any inheritance, estate, succession, transfer or gift taxes imposed upon
Landlord or any income taxes specifically payable by
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Landlord as a separate tax-paying entity without regard to Landlord's income
source as arising from or out of the Building and/or the land on which it is
located) attributable in any manner to the Building, the land on which the
Building is located or the rents (however the term may be defined) receivable
therefrom, or any part thereof, or any use thereon, or any facility located
therein or used in conjunction therewith or any charge or other amount required
to be paid to any governmental authority, whether or not any of the foregoing
shall be designated "real estate tax", "sales tax", "rental tax", "excise tax",
"business tax", or designated in any other manner.
(iii) The term "Tenant's Percentage Share" shall mean
the percentage set forth in the BLI Rider. Landlord and Tenant acknowledge that
Tenant's Percentage Share has been obtained by taking the net rentable area of
the Premises, which Landlord and Tenant hereby stipulate for all purposes is the
amount set forth in the BLI Rider, and dividing such number by the total net
rentable area of the Building, which Landlord and Tenant hereby stipulate for
all purposes is 105,487 net rentable square feet, and multiplying such quotient
by 100. In the event Tenant's Percentage Share is changed during a calendar year
by reason of a change in the net rentable area of the Premises, Tenant's
Percentage Share shall thereafter mean the result obtained by dividing the new
net rentable area of the Premises by 105,487 net rentable square feet and
multiplying such quotient by 100 and for the purposes of Section 3.(b) Tenant's
Percentage Share shall be determined on the basis of the number of days during
such calendar year applicable to each such Tenant's Percentage Share.
(iv) The term "Rent" shall mean the sum of the Base
Rent and the Additional Rent and any other cost or charge due and payable by
Tenant under this Lease
(f) Related Provisions.
(i) Tenant covenants and agrees to pay a late charge
for any payment of Rent not received by Landlord on or before the tenth (10th)
day of each month and for any other payment, not received by Landlord on or
before the date when same is due. Said late charge shall be computed from the
first day of the month in the case of Rent and from the date when same is due in
the case of any other cost or charge due from Tenant hereunder. The amount of
the late charge shall be an amount equal to the interest accruing on the sum(s)
outstanding, with such interest commencing on the dates aforesaid, ending on the
date of receipt of the sum(s) by Landlord and having a rate equal to eighteen
percent (18%) per annum. In the event any late charge is due to Landlord,
Landlord shall advise Tenant in writing and Tenant shall pay said late charge to
Landlord along with and in addition to the next payment of Rent.
(ii) Landlord shall notify Tenant in writing of any
and all adjustments to Base Rent. In addition to Base Rent and Additional Rent
or any other Rent due under this Lease, Tenant shall and hereby agrees to pay to
Landlord each month a sum equal to any sales tax, tax on rentals and any other
similar charges now existing or hereafter imposed, based upon the privilege of
leasing the space leased hereunder or based upon the amount of rent collected
therefor.
(iii) If Tenant's possession of the Premises
commences on any day other than the first day of the month, Tenant shall occupy
the Premises under the terms of this Lease and the pro rata portion of the Rent
shall be paid by Tenant; provided, however, that in such an event the Lease
Commencement Date, for the purposes of this Lease, shall be deemed to be the
first day of the month immediately following the month in which possession is
given.
(iv) Additional Rent for the final months of this
Lease is due and payable even though it may not be calculated until subsequent
to the Expiration Date of the Lease. Tenant expressly agrees that Landlord, at
Landlord's sole discretion, may apply the Security Deposit, as hereafter
defined, in full or partial satisfaction of any Additional Rent due for the
final months of this Lease. If said Security Deposit is greater than the amount
of any such Additional Rent and there are no other sums or amounts owed Landlord
by Tenant by reason of any other terms, provisions, covenants or conditions of
this Lease, then Landlord shall refund the balance of said Security Deposit to
Tenant as provided herein. Nothing herein contained shall be construed to
relieve Tenant, or imply that Tenant is relieved, of the liability for or the
obligation to pay any Additional Rent due for the final months of this Lease by
reason of
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the provisions of this Section, nor shall Landlord be required first to apply
said Security Deposit to such Additional Rent if there are any other sums or
amounts owed Landlord by Tenant by reason of any other terms, provisions,
covenants or conditions of this Lease.
4. SECURITY DEPOSIT:
(a) General. Concurrently with the execution of this Lease,
Tenant has either (i) deposited with Landlord the amount set forth in the BLI
Rider in the form of U.S. cash, locally drawn cashier's or official bank check
or wire transfer (the "Cash Deposit"), or (ii) provided Landlord with an
irrevocable letter of credit in the amount set forth in the BLI Rider and
meeting the criteria of Section 4.(c) below (the "Irrevocable Letter of
Credit"), as the security deposit (the "Security Deposit") hereunder. The
Security Deposit will be retained by Landlord as security for the payment by
Tenant of the Rent and for the faithful performance by Tenant of all the other
terms and conditions of this Lease. In the event Tenant fails to faithfully
perform the terms and conditions of this Lease, Landlord, at Landlord's option,
may at any time apply the Security Deposit or any part thereof toward the
payment of the Rent and/or toward the performance of Tenant's obligations under
this Lease. In such event, within five (5) days after notice, Tenant will
deposit with Landlord or pay the banking institution that issued the Irrevocable
Letter of Credit cash sufficient to restore the Security Deposit to its original
amount. Landlord may (but is not obligated to) exhaust any or all rights and
remedies against Tenant before resorting to the Security Deposit.
Notwithstanding the foregoing or any other provision of this Lease to the
contrary, upon the expiration of the 18th consecutive calendar month of the
Lease Term (the "Security Deposit Expiration Date"), provided that Tenant is not
in default hereunder beyond any applicable cure or grace period prior to the end
of said 18th month and no condition exists as of the Security Deposit Expiration
Date that but for the lapse of time would be deemed a default by Tenant
hereunder, Landlord shall return the Cash Deposit to Tenant within fifteen (15)
days of the expiration of the Security Deposit Expiration Date, or, the
Irrevocable Letter of Credit shall be terminated, as applicable. In the event
that Tenant has defaulted hereunder beyond any applicable cure or grace period
prior to the end of the Security Deposit Expiration Date or a condition exists
as of the Security Deposit Expiration Date that but for the lapse of time would
be deemed a default by Tenant hereunder, then the Security Deposit shall remain
an obligation of Tenant hereunder for the remainder of the Lease Term.
(b) Cash Deposit. Landlord will return the unused portion of
the Cash Deposit, if any, to Tenant within thirty (30) days after the Expiration
Date if Tenant is not in violation of any of the provisions of this Lease.
Landlord will not be required to pay Tenant any interest on the Cash Deposit nor
hold same in a separate account. If Landlord sells or otherwise conveys the
Building, Landlord will deliver the Cash Deposit or the unapplied portion
thereof to the new owner. Tenant agrees that if Landlord turns over the Cash
Deposit or the unapplied portion thereof to the new owner, Tenant will look to
the new owner only and not to Landlord for its return upon expiration of the
Lease Term. If Tenant assigns this Lease with the consent of Landlord (as
expressly provided for in this Lease), the Cash Deposit will remain with
Landlord for the benefit of the new tenant and will be returned to such tenant
upon the same conditions as would have entitled Tenant to its return.
(c) Irrevocable Letter of Credit. The Irrevocable Letter of
Credit shall be in a form attached hereto as Exhibit "E" and shall be issued by
a federally insured banking institution located in Broward County, Palm Beach
County or Miami-Dade County, Florida, acceptable to Landlord (the "Approved
Institution"). The Irrevocable Letter of Credit shall provide that Landlord
shall have the absolute right, in the event Tenant is in default of the terms
and conditions of this Lease after the giving of any required notice and beyond
any applicable cure or grace period, and upon Landlord's demand to the Approved
Institution, to receive disbursements pursuant to the Irrevocable Letter of
Credit. Funds drawn under the Irrevocable Letter of Credit shall be treated as
part of the Security Deposit and shall be applied as provided in Section 4.(a)
above.
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5. USE, EXCLUSIVE:
(a) General Office Use. Tenant will use and occupy the
Premises solely for general office use and solely for the operation of the
business set forth in the BLI Rider. Tenant acknowledges that its type of
business, as above specified, is a material consideration for Landlord's
execution of this Lease. Tenant will not commit waste upon the Premises nor
suffer or permit the Premises or any part of them to be used in any manner, or
suffer or permit anything to be done in or brought into or kept in the Premises
or the Building, which would: (i) violate any law or requirement of public
authorities, (ii) cause injury to the Building or any part thereof, (iii) annoy
or offend other tenants or their patrons or interfere with the normal operations
of HVAC, plumbing or other mechanical or electrical systems of the Building or
the elevators installed therein, (iv) constitute a public or private nuisance,
or (v) alter the appearance of the exterior of the Building or of any portion of
the interior other than the Premises pursuant to the provisions of this Lease.
Tenant agrees and acknowledges that Tenant shall be responsible for obtaining
any special amendments to the certificate of occupancy for the Premises and/or
the Building and any other governmental permits, authorizations or consents
required solely on account of Tenant's use of the Premises.
(b) Prohibited Uses. Tenant hereby represents, warrants and
agrees that Tenant's business is not and shall not be used, (i) for the business
of photographic, multilith or multigraph reproductions or offset printing; (ii)
for a retail banking, trust company, depository, guarantee or safe deposit
business open to the general public, (iii) as a savings bank, a savings and loan
company open to the general public, (iv) for the sale to the general public of
travelers checks, money orders, drafts, foreign exchange or letters of credit or
the receipt of money for transmission, (v) as a stock broker's or dealer's
office or for the underwriting or sale of securities open to the general public,
(vi) as a restaurant or bar or for the sale of confectionery, soda, beverages,
sandwiches, ice cream or baked goods or for the preparation, dispensing or
consumption of food or beverages in any manner whatsoever, (vii) as a news or
cigar stand, (viii) as an employment agency, labor union office, or music
studio, school (except for the training of employees of Tenant), or (ix) as a
barber shop or beauty salon, nor shall Tenant's use conflict with any applicable
zoning or land use codes or laws applicable to the Building.
(c) Exclusive Use. Provided that Tenant is not in default
under this Lease beyond any applicable cure or grace period, Tenant shall have
the exclusive right in the Building to operate and conduct in the Premises a
long distance telephone services call center. To that end, during the Lease
Term, Landlord shall not be permitted to lease space in the Building to a tenant
such as Sprint, AT&T, MCI or similar operators of long distance telephone
services call centers. Landlord is permitted to lease space in the Building to
call center operators who are not engaged in the long distance telephone
services business.
6. INTENTIONALLY OMITTED.
7. ACCEPTANCE OF PREMISES; LANDLORD'S WORK; TENANT'S ADVANCE
POSSESSION:
(a) Improvements. Improvements, if any, to be made to the
Premises by Tenant shall be made in accordance with the Work Letter Agreement
attached hereto as Exhibit "B" and incorporated herein by this reference (the
"Work Letter Agreement"). Improvements, if any, to be made to the Premises by
Landlord are specifically set forth in the Work Letter and there are no others.
All improvements made to the Premises, whether by Landlord or Tenant, will
become the property of Landlord when attached to or incorporated into the
Premises. Such property will remain the property of Landlord upon termination of
this Lease. The taking of possession by Tenant (or any permitted assignee or
subtenant of Tenant) of all or any portion of the Premises for the conduct of
business will be deemed to mean that Tenant has found the Premises, and all of
their fixtures and equipment, acceptable.
(b) Tenant's Advance Possession for Fixturing. For a period of
fifteen (15) days prior to the Lease Commencement Date, Tenant shall have the
privilege of entering the Premises, rent free, for the purpose of installing
Tenant's leasehold improvements, fixtures and equipment and other construction
activities. Tenant's activities shall not create unreasonable interference with
the work of Landlord, and Landlord's work shall not create unreasonable
interference with Tenant's work during said 15-day period. Tenant shall
indemnify, defend, release and hold Landlord, its
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agents, employees, contractors and assignees, if any, harmless against all
penalties, damages, claims or demands due to personal injury incurred by
Tenant's employees and agents in connection with Tenant's activities pursuant to
this Section 7.(b). During said 15-day period, all terms and conditions of this
Lease, other than the provisions related to Tenant's payment of Rent hereunder,
shall apply to Tenant.
8. PARKING:
(a) Unassigned Parking. As long as Tenant is not in default
under this Lease, Landlord will provide Tenant during the Lease Term with
unassigned, nonexclusive parking spaces in the parking areas for the number of
automobiles set forth in the BLI Rider in the uncovered parking area of the
building (the "Unassigned Parking Areas"). Such parking spaces may be used only
by principals, employees and the business invitees of Tenant visiting the
Premises of Tenant.
(b) Reserved Parking in Uncovered Parking Areas. Tenant shall
be entitled to use of the number of reserved parking spaces (the "Reserved
Parking Spaces") set forth in the BLI Rider, which Reserved Parking Spaces are
located in the uncovered parking area of the Building (the "Covered Parking
Area").
(c) Parking Controls. Landlord has and reserves the right to
alter the methods used to control parking and the right to establish such
controls and rules and regulations (such as parking stickers to be affixed to
vehicles) regarding parking that Landlord may deem desirable. Without liability,
Landlord will have the right to tow or otherwise remove vehicles improperly
parked, blocking ingress or egress lanes, or violating parking rules, at the
expense of the offending tenant and/or owner of the vehicle.
9. BUILDING SERVICES:
(a) General. In general, the services set forth below will be
provided by Landlord at a service level set, defined and regulated by Landlord
consistent with office buildings of similar quality to and in the same immediate
geographic area as the Building. During the Lease Term, the regular business
hours (the "Business Hours") of the Building will be 7:30 a.m. to 6:30 p.m.,
Monday through Friday, and on Saturday, 8:00 a.m. to 2:00 p.m., except holidays
generally recognized by state and federal governments. The Building will be
accessible to Tenant, its subtenants, agents, servants, employees, contractors,
invitees or licensees (collectively, "Tenant's Agents") at all times during
Business Hours. Notwithstanding the foregoing, Tenant shall be permitted to
access the Building and parking areas 24 hours per day during the Lease Term.
(b) Specific Services Provided.
(i) Janitorial Service. Landlord agrees to provide
during the Lease Term janitorial services for the Premises customarily provided
in office buildings of similar quality to and in the same immediate geographic
area as the Building, all as more particularly described on Exhibit "D" hereto
and by this reference incorporated herein. Janitorial service will be provided
after Business Hours at the Building, but no janitorial services will be
provided on Saturdays, Sundays and holidays generally recognized by state and
federal government. Should Tenant require additional janitorial services beyond
those customarily provided by Landlord, Tenant may request same in writing from
Landlord and if Landlord agrees to provide such services, Tenant will be billed
for same by Landlord at a reasonable rate and those costs and expenses when
billed will be as Rent due under this Lease.
(ii) Electricity. During the Lease Term, electric
power will be available for the purposes of lighting and general office
equipment use in amounts consistent with Building standard electrical capacities
and will be separately metered for the Premises. Tenant shall be responsible for
all payments to the utility authority providing electricity. The Building
standard mechanical and electrical systems are designed to accommodate loads
generated by lights and office equipment such as typewriters, dictating
equipment, photocopy equipment, etc., up to the standard maximum capacities as
set forth in the Work Letter attached hereto as Exhibit "B". Tenant acknowledges
that Tenant's
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intended use of the Premises excludes material use of the Premises beyond
Business Hours. Material use shall be deemed to mean the operation of an
additional "shift", either full or part time, or use of the Premises after
Business Hours in any way that may preclude or interfere with the providing of
janitorial services to the Premises. In the event Tenant's use of the Premises
requires more electrical power than set forth above, whether by intensity of
use, load or type of equipment, Tenant may then be billed for such additional
use and such billings will be billed to Tenant as Rent. Landlord will utilize
Landlord's customary method of billing Tenant for excess electrical power
consumption. At Landlord's option, Landlord, at Tenant's expense, may have an
engineer estimate Tenant's usage, and bill Tenant at standard utility rates for
the excess usage or install a submeter for the purposes of monitoring Tenant's
excess power consumption. Landlord and Tenant agree that Landlord's
implementation of the electrical monitoring and billing procedures set forth
herein shall in no way be construed so as to deem Landlord a private or public
utility company. Landlord reserves the right, after Business Hours, to turn off
all unnecessary lighting in the unoccupied areas of the Building and the
Premises to minimize the energy consumption of the Building in both the common
areas and the Premises.
(iii) HVAC Services. Landlord agrees to provide,
during Business Hours, heating, ventilating and air conditioning for the
purposes of comfort control by way of an individual HVAC unit for the Premises.
Landlord and Tenant agree that Landlord's HVAC system is not designed to cool
machinery and equipment. Tenant shall obtain and provide to Landlord, at
Tenant's sole cost and expense, a written service and maintenance agreement for
the HVAC system at the Premises with a service contracting company reasonably
acceptable to Landlord. Landlord shall make available to Tenant from time to
time a list of approved service contractors. Tenant shall provide to Landlord,
on an annual basis, renewals of the service contract for the HVAC system.
Notwithstanding the foregoing, Tenant shall, at Tenant's sole cost and expense,
have the right to install its own HVAC system for the Premises (the "Additional
HVAC") and install a separate electrical meter to meter the Additional HVAC
("Meter"). If installed, the Additional HVAC and Meter shall remain the property
of Landlord after the end of the Lease Term. Installation of the Additional HVAC
and Meter shall be treated as an Alteration as defined in Section 12 below.
Landlord and Tenant shall work together, within reason, to minimize electrical
and/or air conditioning charges incurred as a result of Tenant's business
operations.
(iv) Water and Sewer. Landlord agrees to provide
municipally supplied cold water and sewer services to the common areas for
lavatory and non-commercial kitchen purposes.
(v) Elevator Service. Landlord will provide elevator
service during Business Hours and, at Landlord's sole discretion, Landlord may
provide restricted elevator service during non-Business Hours.
(c) Interruption of Services. It is understood and agreed that
Landlord does not warrant that any of the services referred to above, or any
other services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more of such services may be suspended by reason of
accident or repairs, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or other causes beyond
the control of Landlord. No such interruption or discontinuance of service will
be deemed an eviction or a disturbance of Tenant's use and possession of the
Premises or any part thereof, or render Landlord liable to Tenant for damages or
abatement of Rent or relieve Tenant from the responsibility of performing any of
Tenant's obligations under this Lease.
10 SECURITY:
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(a) Landlord's Responsibility. Landlord shall: (1) install and
maintain as part of Operating Expenses a system to reasonably control access to
the Building (excluding the Premises), which shall be monitored by a central
monitoring station on a twenty-four (24) hour basis.
(b) Tenant's Responsibility. Tenant shall: (1) abide by all
policies, procedures and rules and regulations for use of the access system, (2)
report promptly the loss or theft of all keys which would permit unauthorized
entrance to the Premises, Building or parking areas, (3) report to Landlord the
employment or discharge of employees and their vehicle's make, model, and
license number, (4) promptly report to Landlord door-to-door solicitation or
other unauthorized activity in the Building or parking areas, and (5) promptly
inform the Landlord's Building manager in the event of a break-in or other
emergency.
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(c) Interruption of Security. Tenant acknowledges that the
above security provisions may be suspended or modified at Landlord's sole
discretion or as a result of causes beyond the reasonable control of Landlord.
No such interruption, discontinuance or modification of security service will
constitute an eviction, constructive eviction, or a disturbance of Tenant's use
and possession of the Premises, and further, no interruption, discontinuance or
modification of security service will render Landlord liable to Tenant or
third-parties for damages, abatement of Rent, or otherwise, or relieve Tenant of
the responsibility of performing Tenant's obligations under this Lease.
11 REPAIRS AND MAINTENANCE:
(a) Landlord's Responsibilities. During the Lease Term,
Landlord shall define, set, and maintain the level of repairs and maintenance
for the Building, the common areas, and all other areas serving the Building, in
a manner comparable to office buildings of similar quality to and in the
immediate geographic area of the Building. Landlord's responsibilities with
respect to this paragraph are as follows: (1) the structural and roof systems of
the Building and parking areas, (2) the Building standard electrical and
mechanical systems, (3) the primary water and sewer systems of the Building, (4)
the Building common areas and the common area furniture, fixtures, and
equipment, (5) the landscaped areas in and about the Building, (6) the parking
areas and (7) replacement of Building standard light bulbs in the common areas.
(b) Tenant's Responsibilities. During the Lease Term, Tenant
will repair and maintain the following at Tenant's expense:
(i) The interior portion of the demising walls, the
interior partition walls of the Premises and their wall-covering, and the entry
door to the Premises.
(ii) The electrical and mechanical systems not considered
Building standard which have been installed by either Landlord or Tenant, for
the exclusive use and benefit of Tenant. The following examples are for
clarification and are not all inclusive: (a) electrical services for computers
or similar items, (b) projection room equipment such as dimmers, curtains, or
similar items, (c) water closet plumbing, kitchen plumbing or similar items, (d)
HVAC for other than comfort cooling in the Premises, (e) security systems for
the Premises, (f) telephone system for the Premises; and (g) other similar
systems.
(iii) Except for the janitorial services, if any, set
forth in Section 11.(a) of this Lease, the repair and maintenance of the floor
covering of the Premises, including VAT flooring, ceramic tiles, marble, wood
flooring, or similar coverings, shall be performed by Landlord upon Tenant's
request, at Tenant's expense, and Tenant will be billed for same as Rent. At
least once per year, if necessary, Landlord will clean Tenant's carpeting at
Tenant's expense to be billed to Tenant as Rent. Should additional cleaning be
requested by Tenant, such cleaning will be available at Tenant's expense and
will be billed to Tenant as Rent.
(iv) All cabinets and millwork (regardless of ownership)
so long as said cabinets and millwork are for the exclusive use and benefit of
Tenant.
(v) All other personal property, improvements or fixtures,
except Building standard improvements and those items enumerated in Section
11.(a) hereof. Those items to be repaired and maintained by Tenant include, but
are not limited to, the following: (a) ceiling tiles and ceiling grid, (b)
molding or other woodwork and paneling, (c) light fixtures and bulbs, (d)
draperies, blinds or wall hangings, (e) glass partition walls, (f) water
closets, sinks and kitchen areas, (g) doors and locksets, and (h) vaults, safes,
or secured areas. For the aforesaid items, Landlord may elect, with Tenant's
approval (which approval will not be unreasonably withheld) to maintain and
repair same at Tenant's expense and Tenant will be billed for same as Rent.
(c) Repairs and Maintenance; Miscellaneous. Notwithstanding
any of the provisions of this Section 11 to the contrary, Landlord shall have no
responsibility to repair or maintain the Building, any of its components,
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the common areas, the Premises, or any fixture, improvement, trade fixture, or
any item of personal property contained in the Building, the common areas,
and/or the Premises if such repairs or maintenance are required because of the
occurrence of any of the following: (i) the acts, misuse, improper conduct,
omission or neglect of Tenant or Tenant's Agents, or (ii) the conduct of
business in the Premises. Should Landlord elect to make repairs or maintenance
occasioned by the occurrence of any of the foregoing, Tenant shall pay as Rent
all such costs and expenses incurred by Landlord. Landlord shall have the right
to approve in advance all work, repair, maintenance or otherwise, to be
performed under this Lease by Tenant and all of Tenant's repairmen, contractors,
subcontractors and suppliers performing work or supplying materials. Tenant
shall be responsible for all permits, inspections and certificates for
accomplishing the above. Tenant shall obtain lien waivers for all work done in
or to the Premises.
12 TENANT'S ALTERATIONS:
(a) General. During the Lease Term, Tenant will make no
alterations, additions or improvements in or to the Premises, of any kind or
nature, including, but not limited to, alterations, additions or improvements
in, to, or on, telephone or computer installations (any and all of such
alterations, additions or improvements offer for those set forth in the Work
Letter attached hereto are collectively referred to in this Section 12 as the
"Alteration(s)"), without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Should Landlord consent to any proposed
Alterations by Tenant, such consent will be conditioned upon Tenant's agreement
to comply with all requirements established by Landlord, including safety
requirements and the matters referenced in Section 20 of this Lease. As stated
herein, all Alterations made hereunder will become Landlord's property when
incorporated into or affixed to the Building. However, at Landlord's option
Landlord may, at the expiration of the Lease Term, require Tenant, at Tenant's
expense, to remove Alterations made by or on behalf of Tenant and to restore the
Premises to their original condition.
(b) Alteration Fee.
(i) In connection with all Alterations other than the
Tenant Improvements constructed pursuant to the Work Letter (except for
Alterations deemed a Material Change pursuant to Section 2.3 of the Work
Letter), Tenant shall pay to Landlord as Additional Rent in connection with such
Alterations a fee (the "Alteration Fee") for its supervision and overhead in
connection with each such Alteration, for Landlord's review and approval of all
plans and specifications for such Alteration, for Landlord's construction
coordination and monitoring of such Alteration, and for all other reasonable
costs and expenses incurred by Landlord as a result of or in connection with
each such Alteration, an Alteration Fee as follows:
(1) If the total construction cost of the
Alteration is $50,000.00 or less, an
Alteration Fee of $500.00; or
(2) If the total construction cost of the
Alteration is greater than $50,000.00, an
Alteration Fee of $1,000.00.
(ii) Prior to making any Alteration, Tenant shall
submit to Landlord a statement of Tenant's independent architect, if one is
employed, or Tenant's contractor, estimating the total cost of such Alteration
and the estimated time required to complete such Alteration. The Alteration Fee
shall be calculated on the basis of such estimate and paid in equal monthly
installments during the course of the performance of the Alteration, together
with the monthly installments of Base Rent thereafter coming due. Within ten
business days after completion of the Alteration, Tenant shall pay to Landlord
the entire balance of the Alteration Fee if not theretofore paid in full.
(iii) Within ten (10) business days after completion
of any Alteration, Tenant shall submit to Landlord a statement of Tenant's
independent architect, if one is employed, or Tenant's contractor, certifying
the total cost of such Alteration. The Alteration Fee shall be adjusted, if
necessary, based on the certification. If the Alteration Fee, as adjusted, shall
be greater than the amount theretofore paid to Landlord by Tenant on account of
such Alteration Fee, Tenant shall pay such deficiency simultaneously with the
delivery to Landlord of the certification, which deficiency shall bear interest
at the annual rate (the "Applicable Rate") equal to two percent (2%) in excess
of the publicly announced prime (or corporate base) rate of interest then in
effect at Citibank, N.A. (or its successors) until paid if not paid within the
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time required for the payment thereof. If such Alteration Fee, as adjusted, is
less than the amount theretofore paid to Landlord by Tenant on account of such
Alteration Fee, Landlord, within 30 days after Landlord's receipt of the
certification, shall pay to Tenant the amount of such overpayment. If Landlord
shall dispute the statement certifying the total costs of such Alteration,
Landlord shall have the right, within 30 days after receipt of the
certification, to employ an independent certified public accountant to review
Tenant's books and records relating to such Alteration. The determination of
such accountant shall be conclusively binding upon the parties, and, if
necessary, the Alteration Fee shall be adjusted accordingly based upon such
determination. If such determination shall reveal that the Alteration Fee paid
on account of such Alteration shall have been understated by more than five
percent (5%), then Tenant shall pay the fees of the accountant in connection
with such review, and the payment to be made to Landlord as a result of such
understatement shall bear interest at the Applicable Rate. Any adjustment in the
Alteration Fee, together with interest thereon at the Applicable Rate, as well
as any payment of the fees of such accountant, shall be paid by Tenant to
Landlord as additional rent within ten business days after such accountant's
determination.
13 LANDLORD'S ADDITIONS AND ALTERATIONS: Landlord has the right
to make changes in and about the Building and parking areas; provided, however,
Landlord shall provide reasonable substitute parking during Landlord's
construction of changes to the parking areas. Such changes may include, but not
be limited to, rehabilitation, redecoration, refurbishment and refixturing of
the Building and expansion of or structural changes to the Building. The right
of Tenant to quiet enjoyment and peaceful possession given under the Lease will
not be deemed breached or interfered with by reason of Landlord's actions
pursuant to this paragraph so long as such actions do not materially deprive
Tenant of its use and enjoyment of the Premises.
14 ASSIGNMENT AND SUBLETTING:
(a) Prohibition on Assignment and Subletting. Neither Tenant
nor Tenant's legal representatives or successors in interest by operation of law
or otherwise shall assign, mortgage, hypothecate or otherwise encumber this
Lease or enter into a sublease or license agreement with respect to any portion
of the Premises or permit all or any portion of the Premises to be used by
others, without the prior written consent of Landlord, which consent may be
granted by Landlord in accordance with the terms and conditions of this Lease;
provided, however, Landlord's prior consent shall not be required for any
assignment of this Lease to any related entity or an affiliate of Tenant which
is controlled by, controls or is under common control as, Tenant, so long as
Tenant has provided Landlord with documentation and other evidence to establish
said related company's or affiliate's control or common control as may be
reasonably required by Landlord. Any issuance or transfer of stock in any
corporate tenant or subtenant or any interest in any non-corporate entity tenant
or subtenant, by sale, exchange, merger, consolidation, operation of law, or
otherwise, or creation of new stock or interests, by which an aggregate of more
than fifty (50%) percent of Tenant's stock or equity interests shall be vested
in one or more parties who are not stockholders or interest holders as of the
date of this Lease, however accomplished, and whether in a single transaction or
in a series of related or unrelated transactions, shall be deemed an assignment
of this Lease. This subsection shall not apply to sales of stock by persons
other than those deemed "insiders" within the meaning of the Securities Exchange
Act of 1934 as amended, which sales are effected through any recognized
securities exchange. Any modification or amendment to any sublease of any
portion of the Premises shall be deemed a further sublease of this Lease.
(b) Request for Consent. If Tenant requests Landlord's consent
to a specific assignment or sublease (a "Transfer"), it shall submit in writing
to Landlord, not later than thirty (30) days prior to any anticipated Transfer,
(i) the name and address of the proposed assignee or subtenant (the "Proposed
Transferee"), (ii) a duly executed counterpart of the proposed agreement of
assignment or sublease, (iii) reasonably satisfactory information as to the
nature and character of the business of the Proposed Transferee, as to the
nature and character of its proposed use of the Premises or portion thereof to
be sublet, and otherwise responsive to the criteria set forth in Subsection
14.(d) and (iv) banking, financial, or other credit information relating to the
Proposed Transferee reasonably sufficient to enable Landlord to reasonably
determine the financial responsibility, creditworthiness, and character of the
Proposed Transferee.
(c) Landlord's Options. Landlord shall have the following
options to be exercised within fifteen (15) business days from submission of
Tenant's request for Landlord's consent to a specific Transfer:
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(i) If Tenant proposes to assign this Lease or sublet
all or substantially all of the Premises, Landlord shall have the option to
cancel and terminate this Lease as of the proposed commencement date for the
transfer.
(ii) If any proposed sublease shall be for less than
all or substantially all of the Premises or if it shall be for less than the
balance of the Lease Term, Landlord shall have the option of canceling and
terminating this Lease only as to such portion of the Premises and such portion
of the Lease Term covered by the proposed sublease, effective as of the proposed
commencement date of the sublease. If Landlord exercises this option, all Rent
for the Premises shall be equitably apportioned as of the commencement date of
the sublease.
(d) Landlord's Consent. If Landlord does not elect one (1) of
the two (2) options provided in Subsection 14.(c), Landlord shall not
unreasonably withhold or delay its consent to a proposed Transfer. Landlord
shall be deemed to have reasonably withheld its consent to any proposed transfer
unless all of the following conditions have been established to Landlord's
reasonable satisfaction:
(i) The Proposed Transferee has sufficient financial
wherewithal to discharge its obligations under this Lease and the proposed
agreement of assignment or the sublease, as the case may be and as determined by
Landlord's criteria for selecting Building Project tenants and has a net worth,
experience, and reputation which is not less than the greater of (1) the net
worth, experience, and reputation which Tenant had on the Commencement Date, or
(2) the net worth, experience, and reputation of Tenant immediately prior to the
request for Landlord's consent to the proposed Transfer.
(ii) The Proposed Transfer shall not, in Landlord's
reasonable judgment, cause physical harm to the Building or harm to the
reputation of the Building which would result in an impairment of Landlord's
ability to lease space in the Building or a diminution in the rental value of
space in the Building.
(iii) The proposed use of the Premises by the
Proposed Transferee will be a use permitted under this Lease and will not
violate any restrictive covenants or exclusive use provisions applicable to
Landlord.
(iv) The Proposed Transferee shall not be any person
or entity which shall at that time be a tenant, subtenant, or other occupant of
any part of the Building Project, or who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect to space in the Building during the
six (6) months immediately preceding Tenant's request for Landlord's consent.
(v) The proposed use of the Premises by the Proposed
Transferee will not require material alterations or additions to the Premises or
the Building Project to comply with applicable law or governmental requirements
and will not negatively affect insurance requirements or impose environmental
risks.
(vi) Any mortgagee of the Building will consent to
the proposed Transfer.
(vii) There shall be no default by Tenant, beyond any
applicable grace period, under any of the terms, covenants, and conditions of
this Lease at the time that Landlord's consent to any such transfer is requested
and on the date of the commencement of the term of any such proposed transfer.
Tenant expressly, knowingly, and voluntarily waives any right, claim, or remedy
otherwise available to Tenant for money damages (nor shall Tenant claim any
money damages by way of set-off, counterclaim, or defense) based upon any claim
or assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed its consent or approval to any proposed transfer pursuant to this Lease.
Tenant's sole remedy in such an event shall be to institute an action or
proceeding seeking specific performance, injunctive relief, or declaratory
judgment.
(e) Overages. If Tenant effects any transfer, then Tenant
thereafter shall pay to Landlord a sum equal to (a) the Base Rent, Additional
Rent, or any other consideration paid to Tenant by any transferee which is in
excess of the Rent then being paid by Tenant to Landlord under this Lease for
the portion of the Premises so assigned or sublet (on a pro-rated, square
footage basis) , and (b) any other profit or gain (after deducting any necessary
expenses incurred)
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realized by Tenant from the transfer. The net rent, or other consideration paid
to Tenant shall be calculated by deducting from the gross rent, or other
consideration reasonable and customary real estate brokerage commissions
actually paid by Tenant to third parties, tenant improvement allowances, rent
concessions, the actual cost of improvements to the Premises made by Tenant for
the transferee, and other direct out-of-pocket costs actually incurred by Tenant
in connection with the transfer (so long as the costs are commercially
reasonable and are commonly incurred by landlords in leasing similar space). All
sums payable by Tenant pursuant to this paragraph shall be payable to Landlord
as Rent immediately upon receipt by Tenant.
(f) No Release. Notwithstanding Landlord's consent to any
Transfer, Tenant shall remain liable to Landlord for the prompt and continuing
payment of all forms of Rent, payable under this Lease and the performance of
all other covenants of this Lease. Consent by Landlord to a transfer shall not
relieve Tenant from the obligation to obtain Landlord's written consent to any
further transfer. If Landlord consents to a transfer, in no event shall any
permitted transferee assign or encumber this Lease or its sublease, or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance. If this Lease is nevertheless
assigned, or the Premises are sublet or occupied by anyone other than Tenant,
Landlord may accept rent from such assignee, subtenant, or occupant and apply
the net amount thereof to the rent reserved in this Lease, but no such
assignment, subletting, occupancy, or acceptance of rent shall be deemed a
waiver of the requirement for Landlord's consent set forth in this section or
constitute a novation or otherwise release Tenant from its obligations under
this Lease.
15 TENANT'S INSURANCE COVERAGE:
(a) Required Coverages. Tenant agrees that, at all times
during the Lease Term (as well as prior and subsequent thereto if Tenant or any
of Tenant's Agents should then use or occupy any portion of the Premises), it
will keep in force, with an insurance company licensed to do business in the
State of Florida having a rating of "A-" and a financial class of XI or better
by Best's Insurance Key Rating Guide published by A.M. Best Company (i) without
deductible, commercial general liability insurance, including coverage for
bodily injury and death, property damage and personal injury and contractual
liability as referred to below, in the amount of not less than the amount set
forth in the BLI Rider, combined single limit per occurrence for injury (or
death) and damages to property, (ii) with deductible of not more than Five
Thousand Dollars ($5,000.00), insurance on an "All Risk or Physical Loss" basis,
including sprinkler leakage, vandalism, malicious mischief, fire and extended
coverage, covering all improvements to the Premises, fixtures, furnishings,
removable floor coverings, equipment, signs and all other decoration or stock in
trade, in the amounts of not less than the full replacement value thereof, and
(iii) workmen's compensation and employer's liability insurance, if required by
statute. Such policies will: (i) include Landlord and such other parties as
Landlord may reasonably designate as additional insured's, (ii) be considered
primary insurance, (iii) include within the terms of the policy or by
contractual liability endorsement coverage insuring Tenant's indemnity
obligations under Section 20, and (v) provide that it may not be canceled or
changed without at least thirty (30) days prior written notice from the company
providing such insurance to each party insured thereunder. Tenant will also
maintain throughout the Lease Term worker's compensation insurance with not less
than the minimum statutory limits of coverage.
(b) Policy Requirements. The insurance coverages to be
provided by Tenant will be for a period of not less than one year. Prior to, and
as a condition of, the Lease Commencement Date, Tenant will deliver to Landlord
original certificates of all such paid-up insurance; thereafter, at least
fifteen (15) days prior to the expiration of any policy Tenant will deliver to
Landlord such original certificates as will evidence a paid-up renewal or new
policy to take the place of the one expiring.
16 LANDLORD'S INSURANCE COVERAGE:
(a) Required Coverages. Landlord will at all times during the
Lease Term maintain a policy or policies of insurance insuring the Building
against loss or damage by fire, explosion or other hazards and contingencies
typically covered by insurance for an amount acceptable to the mortgagees
encumbering the Building. Landlord reserves the right to self insure.
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(b) Tenant not to Affect Landlord's Insurance Coverages.
Tenant will not do or permit anything to be done upon or bring or keep or permit
anything to be brought or kept upon the Premises which will increase Landlord's
rate of insurance on the Building. If by reason of the failure of Tenant to
comply with the terms of this Lease, or by reason of Tenant's occupancy (even
though permitted or contemplated by this Lease), the insurance rate shall at any
time be higher than it would otherwise be, Tenant will reimburse Landlord for
that part of all insurance premiums charged because of such violation or
occupancy by Tenant. Tenant agrees to comply with any requests or recommendation
made by Landlord's insurance underwriter inspectors.
17 SUBROGATION:
(a) Mutual Waiver of Subrogation. Each party will look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible. To the extent
permitted by law, each of Landlord and Tenant hereby waives and releases all
rights of subrogation under their respective all-risk casualty insurance
policies required under this Lease. Each of Landlord and Tenant will cause each
such insurance policy to be properly endorsed to evidence such waiver and
release of subrogation in favor of Landlord.
(b) Tenant's Improvements and Personal Property. Tenant
acknowledges that Landlord will not carry insurance on improvements, furniture,
furnishings, trade fixtures, equipment installed in or made to the Premises by
or for Tenant, and Tenant agrees that Tenant, and not Landlord, will be
obligated to promptly repair any damage thereto or replace the same.
18 DAMAGE OR DESTRUCTION BY CASUALTY:
(a) Termination. If by fire or other casualty the Premises are
totally damaged or destroyed, or the Building is partially damaged or destroyed
to the extent of twenty-five per cent (25%) or more of the replacement cost
thereof (even though the Premises may not be damaged), Landlord will have the
option of terminating this Lease or any renewal or extension thereof by serving
written notice upon Tenant within one hundred and twenty (120) days from the
date of the casualty and any prepaid Rent will be prorated as of the date of
destruction and the unearned portion of such Rent will be refunded to Tenant
without interest.
(b) Election for Restoration. If by fire or other casualty the
Premises are damaged or partially destroyed to the extent of twenty-five per
cent (25%) or more of the replacement cost thereof and the provisions of Section
18.(a) above are not applicable, then (i) if the unexpired Lease Term is less
than two (2) years, excluding any theretofore unexercised renewal option,
Landlord may either terminate this Lease by serving written notice upon Tenant
within twenty (20) days of the date of destruction or Landlord may elect to
restore the Premises, or (ii) if the unexpired Lease Term is more than two
years, including any previously exercised renewal option, Landlord will restore
the Premises.
(c) Less than Major Damage. If by fire or other casualty the
Premises are damaged or partially destroyed to the extent of substantially less
than twenty-five percent (25%) of the replacement cost thereof and the unexpired
Lease Term, including any previously exercised renewal option is more than two
years and the provisions of Section 18.(a) above are not applicable, then
Landlord will restore the Premises.
(d) Apportionment of Rent. In the event of restoration by
Landlord, all Rent paid in advance shall be apportioned as of the date of damage
or destruction and all such Rent as above described thereafter accruing shall be
equitably and proportionately adjusted according to the nature and extent of the
destruction or damage, pending substantial completion of rebuilding, restoration
or repair. In the event the destruction or damage is so extensive as to make it
unfeasible for Tenant to conduct Tenant's business in the Premises, Rent under
this Lease will be completely abated until the Premises are substantially
restored by Landlord or until Tenant resumes use and occupancy of the Premises,
whichever shall first occur. Landlord will not be liable for any damage to or
any inconvenience or interruption of business of Tenant or any of Tenant's
Agents occasioned by fire or other casualty.
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(e) Restoration. Restoration, rebuilding or repairing will be
at Landlord's sole cost and expense, subject to the availability of applicable
insurance proceeds. Landlord shall have no duty to restore, rebuild or replace
Tenant's personal property and trade fixtures. Notwithstanding anything to the
contrary in this Lease, including, but not limited to this Section 18,
Landlord's obligation(s) to repair, rebuild or restore the Building or the
Premises shall exist only to the extent of insurance proceeds received by
Landlord, plus the amount of any applicable insurance deductible, in connection
with the condition or event which gave rise to Landlord's obligation to repair,
rebuild or restore.
19 CONDEMNATION AND EMINENT DOMAIN:
(a) Substantial Taking. If all or a substantial part of the
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the Premises for the purpose for which they are then being used, this Lease
will terminate and the Rent will be abated during the unexpired portion of this
Lease effective on the date physical possession is taken by the condemning
authority. Tenant will have no claim to the condemnation award.
(b) Less Than Substantial Taking. In the event a portion of
the Premises is taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and this Lease is not terminated as provided in paragraph A above,
Landlord may, at Landlord's expense, restore the Premises to the extent
necessary to make them reasonably tenantable. The Rent payable under this Lease
during the unexpired portion of the Lease Term shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. Tenant shall have
no claim to the condemnation award with respect to the leasehold estate but, in
a subsequent, separate proceeding, may make a separate claim for trade fixtures
installed in the Premises by and at the expense of Tenant and Tenant's moving
expense. In no event will Tenant have any claim for the value of the unexpired
Lease Term.
(c) Taking Affecting Building. Notwithstanding the foregoing,
even if the Premises are not affected in whole or in part by a taking, Landlord
will have the right to terminate this Lease upon ten (10) days prior written
notice to Tenant if a material portion of the Building is taken by condemnation
or eminent domain proceedings. Upon any such termination, Landlord and Tenant
will each be released from all further liability under this Lease.
20 LIMITATION OF LANDLORD'S LIABILITY; INDEMNIFICATION:
(a) Tenant's Personal Property. All personal property placed
or moved into the Building will be at the sole risk of Tenant or other owner.
Landlord will not be liable to Tenant or others for any damage to person or
property arising from Environmental Concerns, as hereafter defined, theft,
vandalism, HVAC malfunction, the bursting or leaking of water pipes, any act or
omission of any cotenant or occupant of the Building or of any other person, or
otherwise.
(b) Limitation of Liability. Notwithstanding any contrary
provision of this Lease: (i) Tenant will look solely (to the extent insurance
coverage is not applicable or available) to the interest of Landlord (or its
successor as Landlord hereunder) in the Building for the satisfaction of any
judgment or other judicial process requiring the payment of money as a result of
any negligence or breach of this Lease by Landlord or its successor or of
Landlord's managing agent (including any beneficial owners, partners,
corporations and/or others affiliated or in any way related to Landlord or such
successor or managing agent) and Landlord has no personal liability hereunder of
any kind, and (ii) Tenant's sole right and remedy in any action or proceeding
concerning Landlord's reasonableness (where the same is required under this
Lease) will be an action for declaratory judgment and/or specific performance.
(c) Indemnity. Tenant agrees to indemnify, defend and hold
harmless Landlord and its agents from and against all claims, causes of actions,
liabilities, judgments, damages, losses, costs and expenses, including
reasonable attorneys' fees and costs through all appeals, incurred or suffered
by Landlord and arising from or in any way connected with the Premises or the
use thereof or any acts, omissions, neglect or fault of Tenant or any of
Tenant's
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Agents, including, but not limited to, any breach of this Lease or any death,
personal injury or property damage occurring in or about the Premises or the
Building or arising from Environmental Concerns, as hereafter defined. Tenant
will reimburse Landlord upon request for all costs incurred by Landlord in the
interpretation and enforcement of any provisions of this Lease and/or the
collection of any sums due to Landlord under this Lease, including collection
agency fees, and reasonable attorneys' fees and costs, regardless of whether
litigation is commenced, and through all appellate actions and proceedings if
litigation is commenced.
21 COMPLIANCE WITH ENVIRONMENTAL LAWS AND PROCEDURES:
(a) Hazardous Waste. "Hazardous Waste" shall mean toxic or
hazardous waste, pollutants or substances, including, without limitation, bio
hazardous materials, medical waste, asbestos, PCBs, petroleum products and
by-products, substances defined or listed as "hazardous substance", "toxic
substance", "toxic pollutant", or similarly identified substance or mixture, in
or pursuant to any "Environmental Law". "Environmental Law" shall include, but
is not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C .ss.9601, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C.ss.1802, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C.ss.6901, et seq., the Toxic Substance
Control Act of 1976, as amended, 15 U.S.C.ss. 2601, et seq., and the Clean Water
Act, 33 U.S.C.ss. 446 et seq., as amended. The term "Environmental Law" also
includes, but is not limited to, any present and then applicable federal, state
and local laws, statutes, ordinances, rules, regulations and the like, as well
as common law or other approval of a governmental authority relating to
compliance with Environmental Law by the Premises requiring notification or
disclosure of releases of Hazardous Substances to any governmental authority or
other person or entity, imposing environmental conditions or requirements in
connection with permits or other authorization for lawful activity at the
Premises.
(b) Tenant's Covenants. Tenant shall not manufacture or
dispose of any Hazardous Substances at the Premises or store or use any
Hazardous Substance at the Premises in such quantities, concentrations, forms or
levels, or otherwise in a manner which is in violation of any applicable
Environmental Laws. Tenant shall comply with all Environmental Laws and other
ordinances and regulations applicable to the Premises, and shall promptly comply
with all governmental orders and directives for the correction prevention and
abatement of any violations or nuisances in or upon, or connected with, the
Premises, all at Tenant's sole cost and expense. To the extent that Tenant
generates any medical or biohazardous waste in conjunction with Tenant's use of
the Premises, Tenant, at Tenant's sole cost and expense, shall obtain and
maintain throughout the Lease Term a service contract with a duly licensed
medical or biohazardous waste transportation and disposal company. Copies of
such service contract shall be provided to Landlord each year during the Lease
Term.
(c) Indemnification by Tenant.
(i) Environmental Contamination. Tenant hereby agrees
to indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees for attorneys of Landlord's choice, costs
of any settlement or judgment and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against Landlord by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under, or the escape, seepage, leakage, spillage, discharge,
emission or release from the Premises of any Hazardous Waste (including, without
limitation, any losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees for attorneys of
Landlord's choice, costs of any settlement or judgment or claims asserted or
arising under any Environmental Law, and any and all other statutes, laws,
ordinances, codes, rules, regulations, orders or decrees regulating, with
respect to or imposing liability, including strict liability, substances or
standards of conduct concerning any Hazardous Waste), regardless of whether
within Tenant's control provided that the foregoing was occasioned by the acts
or negligence of Tenant, its agents, employees or licensees.
(ii) Continuing Indemnification. The aforesaid
indemnification and hold harmless agreement shall benefit Landlord from the date
hereof and shall continue notwithstanding any termination of this Lease and,
without limiting the generality of the foregoing such obligations shall continue
for the benefit of Landlord and any subsidiary of Landlord during and following
any possession of the Premises thereby or any ownership of the Premises
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thereby, whether arising by eviction, surrender by Tenant or otherwise, such
indemnification and hold harmless agreement to continue forever.
(iii) Notice of Environmental Complaint. If Tenant
shall receive any notice of: (1) the happening of any material event involving
the spill, release, leak, seepage, discharge or cleanup of any Hazardous Waste
at the Premises or in connection with Tenant's operations thereon; or (2) any
complaint, order, citation or material notice with regard to air emissions,
water discharges or any other environmental, health or safety matter affecting
Tenant (an "Environmental Complaint") from any person or entity, then Tenant
immediately shall notify Landlord orally and in writing of said notice.
(d) Landlord's Reserved Rights. Landlord shall have the right
but not the obligation (and without limitation of Landlord's rights under this
Lease) to enter onto the Premises or to take such other actions as it shall deem
necessary or advisable to clean up, remove, resolve or minimize the impact of,
or otherwise deal with, any such Hazardous Waste or Environmental Complaint
following receipt of any notice from any person or entity having jurisdiction
asserting the existence of any Hazardous Waste or an Environmental Complaint
pertaining to the Premises or any part thereof which, if true, could result in
an order, suit or other action against Tenant and/or which, in Landlord's sole
opinion, could jeopardize its security under this Lease. All reasonable costs
and expenses incurred by Landlord in the exercise of any such rights shall be
payable by Tenant upon demand as Rent if same were occasioned by the activities
of Tenant, its employees or licensees.
(e) Environmental Audits. If Landlord shall have good reason
to believe that Hazardous Waste has been discharged on the Premises by Tenant,
its employees or licensees, Landlord shall have the right, in its sole
discretion, to require Tenant to perform periodically to Landlord's satisfaction
(but not more frequently than annually unless an Environmental Complaint shall
be then outstanding), at Tenant's expense, an environmental audit and, if deemed
necessary by Landlord, an environmental risk assessment of: (a) the Premises;
(b) Hazardous Waste management practices and/or (c) Hazardous Waste disposal
sites used by Tenant. Said audit and/or risk assessment must be by an
environmental consultant reasonably satisfactory to Landlord. Should Tenant fail
to perform any such environmental audit or risk assessment within thirty (30)
days after Landlord's request, Landlord shall have the right to retain an
environmental consultant to perform such environmental audit or risk assessment.
All costs and expenses incurred by Landlord in the exercise of such rights shall
be secured by this Lease and shall be payable by Tenant upon demand as Rent.
(f) Breach. Any breach of any warranty, representation or
agreement contained in this Section shall be an Event of Default and shall
entitle Landlord to exercise any and all remedies provided in this Lease or
otherwise permitted by law.
(g) Radon Gas. In accordance with Florida Law, the following
disclosure is hereby made:
RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient
quantities, may present health risk to persons who are exposed
to it over time. Levels of radon that exceed Federal and State
Guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained
from your county public health unit.
22 COMPLIANCE WITH LAWS AND PROCEDURES: Tenant will promptly
comply with all applicable laws, guidelines, rules, regulations and
requirements, whether of federal, state, or local origin, applicable to the
Premises and the Building, including those for the correction, prevention and
abatement of nuisance, unsafe conditions, or other grievances arising from or
pertaining to the use or occupancy of the Premises. Accordingly, Tenant agrees
that Tenant and Tenant's Agents shall comply with all operation and maintenance
programs and guidelines implemented or promulgated from time to time by Landlord
or its consultants, including, but not limited to, those matters set forth in
subsections (b) and (c) below, in order to reduce the risk to Tenant, Tenant's
Agents or any other tenants of the Building of injury from Environmental
Concerns. Notwithstanding the foregoing, except for changes and alterations to
the Building and Premises necessitated due to Tenant's specific use of the
Premises, Landlord shall be responsible for those changes and alterations to the
Building required by any applicable federal, state and local laws, guidelines,
rules, regulations and requirements related to handicap access, which changes
Landlord has received notice from the applicable
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governmental authority that they are in need of being made, including, without
limitation, the federal Americans with Disabilities Act.
23 RIGHT OF ENTRY: Landlord and its agents will have the right to
enter the Premises during all reasonable hours to make necessary repairs to the
Premises. In the event of an emergency, Landlord or its agents may enter the
Premises at any time, without notice, to appraise and correct the emergency
condition. Said right of entry will, after reasonable notice, likewise exist for
the purpose of removing placards, signs, fixtures, alterations, or additions
which do not conform to this Lease. Landlord or its agents will have the right
to exhibit the Premises at any time to prospective tenants within one hundred
and eighty days (180) before the Expiration Date of the Lease.
24 DEFAULT:
(a) Events of Default. If (1) Tenant vacates or abandons the
Premises prior to the Expiration Date in contravention of the terms and
provisions of this Lease, or (2) Tenant fails to fulfill any of the terms or
conditions of this Lease or any other Lease heretofore made by Tenant for space
in the Building or (3) any execution or attachment is issued against Tenant or
taken or occupied by someone other than Tenant, or (4) Tenant or any of its
successors or assigns or any guarantor of this Lease ("Guarantor") should file
any voluntary petition in bankruptcy, reorganization or arrangement, or an
assignment for the benefit of creditors or for similar relief under any present
or future statute, law or regulation relating to relief of debtors, or (5)
Tenant or any of its successors or assigns or any Guarantor should be
adjudicated bankrupt or have an involuntary petition in bankruptcy filed against
it, or (6) Tenant shall permit, allow or suffer to exist any lien, judgment,
writ, assessment, charge, attachment or execution upon Landlord's or Tenant's
interest in this Lease or to the Premises, and/or the fixtures, improvements and
furnishings located thereon; then, Tenant shall be in default hereunder.
(b Tenant's Grace Periods. If (1) Tenant fails to pay Rent on
the date due or (2) Tenant fails to cure any other default within ten (10) days
after written notice from Landlord specifying the nature of such default (unless
such default is of a nature that it cannot be completely cured within said ten
(10) day period and steps have been diligently commenced to cure or remedy it
within such ten (10) day period and are thereafter pursued with reasonable
diligence and in good faith), then Landlord shall have such remedies as are
provided under this Lease and/or under the laws of the State of Florida.
(c Repeated Late Payment. Regardless of the number of times
of Landlord's prior acceptance of late payments and/or late charges, (i) if
Landlord notifies Tenant two (2) times in any 6-month period that Base Rent has
not been paid when due, then any other late payment within such 6-month period
shall automatically constitute a default hereunder and (ii) the mere acceptance
by Landlord of late payments in the past shall not, regardless of any applicable
laws to the contrary, thereafter be deemed to waive Landlord's right to strictly
enforce this Lease, including Tenant's obligation to make payment of Rent on the
exact day same is due, against Tenant.
25. LANDLORD'S REMEDIES FOR TENANT'S DEFAULT:
(a Landlord s Options. If Tenant is in default of this Lease,
Landlord may, at its option, in addition to such other remedies as may be
available under Florida law:
(i terminate this Lease and Tenant's right of
possession; or
(ii terminate Tenant's right to possession but not
the Lease and/or proceed in accordance with any and all provisions of Section
25.(b) below.
(b Landlord's Remedies.
(i Landlord may without further notice reenter the
Premises either by force or otherwise and dispossess Tenant by summary
proceedings; and/or at Landlord's option,
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(ii All Rent for the balance of the Term will, at
the election of Landlord, be accelerated and the full amount of same shall
become immediately due thereupon and be paid, together with all expenses of
every nature which Landlord may incur such as (by way of illustration and not
limitation) those for attorneys' fees, brokerage, advertising, and refurbishing
the Premises in good order or preparing them for re-rental; and/or at Landlord's
option,
(iii Landlord may re-let the Premises or any part
thereof, either in the name of Landlord or otherwise, for a term or terms which
may at Landlord's option be less than or exceed the period which would otherwise
have constituted the balance of the Lease Term, and may grant concessions or
free rent or charge a higher rental than that reserved in this Lease; and/or at
Landlord's option,
(iv Tenant or its legal representative(s) will also
pay to Landlord as liquidated damages any deficiency between the Rent hereby
reserved and/or agreed to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the Premises for each month of
the period which would otherwise have constituted the balance of the Lease Term.
26. LANDLORD'S RIGHT TO PERFORM FOR TENANT'S ACCOUNT: If Tenant fails
to observe or perform any term or condition of this Lease within the grace
period, if any, applicable thereto, then Landlord may immediately or at any time
thereafter perform the same for the account of Tenant. If Landlord makes any
expenditure or incurs any obligation for the payment of money in connection with
such performance for Tenant's account (including reasonable attorneys' fees and
costs in instituting, prosecuting and/or defending any action or proceeding
through appeal), the sums paid or obligations incurred, with interest at
eighteen percent (18%) per annum, will be paid by Tenant to Landlord within ten
(10) days after rendition of a bill or statement to Tenant. In the event Tenant
in the performance or non-performance of any term or condition of this Lease
should cause an emergency situation to occur or arise within the Premises or in
the Building, Landlord will have all rights set forth in this paragraph
immediately without the necessity of providing Tenant any advance notice.
27. LIENS:
(a Statutory Construction Lien Notice. In accordance with the
applicable provisions of the Florida Construction Lien Law and specifically
Florida Statutes, ss. 713.10, no interest of Landlord whether personally or in
the Premises, or in the underlying land or Building of which the Premises are a
part or the leasehold interest aforesaid shall be subject to liens for
improvements made by Tenant or caused to be made by Tenant hereunder. Further,
Tenant acknowledges that Tenant, with respect to improvements or alterations
made by Tenant or caused to be made by Tenant hereunder, shall promptly notify
the contractor making such improvements to the Premises of this provision
exculpating Landlord's liability for such liens.
(b No Liens. Notwithstanding the foregoing, if any
construction lien or other lien, attachment, judgment, execution, writ, charge
or encumbrance is filed against the Building or the Premises or this leasehold,
or any alterations, fixtures or improvements therein or thereto, as a result of
any work action or inaction done by or at the direction of Tenant or any of
Tenant's Agents, Tenant will discharge same of record within ten (10) days after
the filing thereof, failing which Tenant will be in default under this Lease. In
such event, without waiving Tenant's default, Landlord, in addition to all other
available rights and remedies, without further notice, may discharge the same of
record by payment, bonding or otherwise, as Landlord may elect, and upon request
Tenant will reimburse Landlord for all costs and expenses so incurred by
Landlord plus interest thereon at the rate of eighteen percent (18%) per annum.
28. NOTICES: Notices to Tenant under this Lease will be addressed
to Tenant and mailed or delivered to the address set forth for Tenant in the BLI
Rider. Notices to Landlord under this Lease (as well as the required copies
thereof) will be addressed to Landlord (and its agents) and mailed or delivered
to the address set forth in the BLI Rider. Notices will be personally delivered
or given by registered or certified mail, return receipt requested. Notices
delivered personally will be deemed to have been given as of the date of
delivery and notices given by mail will be deemed to have been given forty-eight
(48) hours after the time said properly addressed notice is placed in the mail.
Each party may change its address from time to time by written notice given to
the other as specified above.
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29. MORTGAGE; ESTOPPEL CERTIFICATE; SUBORDINATION:
(a Mortgage of the Building. Landlord has the unrestricted
right to convey, mortgage and refinance the Building, or any part thereof.
Tenant agrees, within seven (7) days after notice, to execute and deliver to
Landlord or its mortgagee or designee such instruments as Landlord or its
mortgagee may require, certifying the amount of the Security Deposit and whether
this Lease is in full force and effect, and listing any modifications. This
estoppel certificate is intended to be for the benefit of Landlord, any
purchaser or mortgagee of Landlord, or any purchaser or assignee of Landlord's
mortgage. The estoppel certificate will also contain such other information as
Landlord or its designee may request.
(b Subordination. This Lease shall not be subordinated to any
mortgage, including any renewal modification, consolidation, replacement or
extension thereof, which at any time encumbers Landlord's interest in this Lease
and/or in the Premises or Building; unless and until Tenant has received from
the holder of such mortgage a non-disturbance agreement executed by such holder,
in a form acceptable to such holder. Landlord shall use its best efforts to
obtain from the holder of any mortgage encumbering the Premises as of the Lease
Commencement Date, a non-disturbance agreement executed by such holder, in a
form acceptable to such holder. Tenant hereby agrees to give any holder of any
first mortgage on the Building, by registered or certified mail, a copy of any
default notice served upon Landlord by Tenant provided Tenant has been provided
advance written notice of the name and address of such first mortgage holder.
30. ATTORNMENT AND MORTGAGEE'S REQUEST:
(a Attornment. If any mortgagee of the Building comes into
possession or ownership of the Premises, or acquires Landlord's interest by
foreclosure of the mortgage or otherwise, upon the mortgagee's request Tenant
will attorn to the mortgagee.
(b Estoppel Certificate. Tenant agrees that within seven (7)
days after request by any mortgagee of the Building, Tenant will execute,
acknowledge and deliver to the mortgagee a notice in form and substance
satisfactory to the mortgagee, setting forth such information as the mortgagee
may require with respect to this Lease and/or the Premises. If for any reason
Tenant does not timely comply with the provisions of this Section, Tenant will
be deemed to have confirmed that this Lease is in full force and effect with no
defaults on the part of either part and without any right of Tenant to offset,
deduct or withhold any Rent.
31. TRANSFER BY LANDLORD: If Landlord's interest in the Building
terminates by reason of a bonafide sale or other transfer, Landlord will, upon
transfer of the Security Deposit to the new owner, thereupon be released from
all further liability to Tenant under this Lease.
32. SURRENDER OF PREMISES; HOLDING OVER:
(a Expiration Date. Tenant agrees to surrender the Premises to
Landlord on the Expiration Date (or sooner termination of the Lease Term
pursuant to other applicable provisions hereof) in as good condition as they
were at the commencement of Tenant's occupancy, ordinary wear and tear, and
damage by fire and windstorm excepted.
(b Restoration. In all events, Tenant will promptly restore
all damage caused in connection with any removal of Tenant's personal property.
Tenant will pay to Landlord, upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
will indemnify Landlord against all liabilities, costs and expenses (including
all reasonable attorneys' fees and costs if any) arising out of Tenant's delay
in so delivering possession.
(c Improvements. Upon expiration of the Lease Term, Tenant
will not be required to remove from the Premises Building standard items, all of
such Building standard items are the property of Landlord. However,
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should Tenant, prior to the expiration of the Lease Term or during the Lease
Term, install or cause to be installed fixtures, trade fixtures or any tenant
improvements in excess of Building standard, Landlord shall have the option of
retaining same or requiring Tenant to remove same. Should Landlord elect to
cause Tenant to remove such items, the cost of removal of same, upon Landlord's
election and notice to Tenant, shall be at Tenant's sole cost and expense.
Landlord has no obligation to compensate Tenant for any items which are required
hereunder to remain on or with the Premises.
(d Holdover Rent. Without limiting Landlord's rights and
remedies, if Tenant holds over in possession of the Premises beyond the end of
the Lease Term, during the holdover period the Rent will be double the amount of
the Rent due and payable for the last month of the Lease Term.
(e Offer of Surrender. No offer of surrender of the Premises,
by delivery to Landlord or its agent of keys to the Premises or otherwise, will
be binding on Landlord unless accepted by Landlord, in writing, specifying the
effective surrender of the Premises. At the expiration or termination of the
Lease Term, Tenant shall deliver to Landlord all keys to the Premises and make
known to Landlord the location and combinations of all locks, safes and similar
items.
33. NO WAIVER; CUMULATIVE REMEDIES: No waiver of any provision of this
Lease by either party will be deemed to imply or constitute a further waiver by
such party of the same or any other provision hereof. The rights and remedies of
Landlord under this Lease or otherwise are cumulative and are not intended to be
exclusive and the use of one will not be taken to exclude or waive the use of
another, and Landlord will be entitled to pursue all rights and remedies
available to landlords under the laws of the State of Florida. Landlord, in
addition to all other rights which it may have under this Lease, hereby
expressly reserves all rights in connection with the Building or the Premises
not expressly and specifically granted to Tenant under this Lease. Provided that
Landlord does not unreasonably disrupt Tenant's business operations, Tenant
hereby waives all claims for damages, loss, expense, liability, eviction or
abatement it has or may have against Landlord on account of Landlord's exercise
of its reserved rights, including, but not limited to, Landlord's right to alter
the existing name, address, style or configuration of the Building or the common
areas, signage, suite identifications, parking facilities, lobbies, entrances
and exits, elevators and stairwells.
34. WAIVER OF JURY TRIAL: TO THE EXTENT PERMITTED BY LAW, TENANT HEREBY
WAIVES: (A) JURY TRIAL IN ANY ACTION OR PROCEEDING REGARDING A MONETARY DEFAULT
BY TENANT AND/OR LANDLORD'S RIGHT TO POSSESSION OF THE PREMISES, AND (B) IN ANY
ACTION OR PROCEEDING BY LANDLORD FOR MONIES OWED BY TENANT AND/OR POSSESSION OF
THE PREMISES, THEN TENANT WAIVES THE RIGHT TO INTERPOSE ANY CROSSCLAIM OR
COUNTERCLAIM (EXCEPT A MANDATORY CROSSCLAIM OR COUNTERCLAIM IF THE SAME IS
PROVIDED FOR PURSUANT TO FLORIDA LAW). HOWEVER, THE FOREGOING WILL NOT PROHIBIT
TENANT FROM BRINGING A SEPARATE LAWSUIT AGAINST LANDLORD.
35. CONSENTS AND APPROVALS: If Tenant requests Landlord's consent or
approval under this Lease, and if in connection with such requests Landlord
deems it necessary to seek the advice of its attorneys, architects and/or other
experts, then Tenant shall pay the reasonable fee of Landlord's attorneys,
architects and/or other experts in connection with the consideration of such
request and/or the preparation of any documents pertaining thereto.
36. RULES AND REGULATIONS: Tenant agrees to abide by all rules and
regulations attached hereto as Exhibit "C" and incorporated herein by this
reference, as reasonably amended and supplemented from time to time by Landlord.
Landlord will not be liable to Tenant for violation of the same or any other act
or omission by any other tenant.
37. SUCCESSORS AND ASSIGNS: This Lease will be binding upon and inure
to the benefit of the respective heirs, personal and legal representatives,
successors and permitted assigns of the parties hereto.
38. QUIET ENJOYMENT: In accordance with and subject to the terms and
provisions of this Lease, Landlord warrants that it has full right to execute
and to perform under this Lease and to grant the estate demised and that Tenant,
upon Tenant's payment of the required Rent and performing of all of the terms,
conditions, covenants, and
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agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the full Lease Term.
39. ENTIRE AGREEMENT: This Lease, together with the BLI Rider,
exhibits, schedules, addenda and guaranties (as the case may be) fully
incorporated into this Lease by this reference, contains the entire agreement
between the parties hereto regarding the subject matters referenced herein and
supersedes all prior oral and written agreements between them regarding such
matters. This Lease may be modified only by an agreement in writing dated and
signed by Landlord and Tenant after the date hereof.
40. MISCELLANEOUS:
(a Cross Default. If Tenant has a lease for other space in the
Building, any default by Tenant under such lease will constitute a default
hereunder.
(b Severability; Choice of Law; Venue. If any term or
condition of this Lease or the application thereof to any person or circumstance
is, to any extent, invalid or unenforceable, the remainder of this Lease, or the
application of such term or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, is not to be affected
thereby and each term and condition of this Lease is to be valid and enforceable
to the fullest extent permitted by law. This Lease will be construed in
accordance with the laws of the State of Florida. Venue for any action arising
out of this Lease shall be Palm Beach County, Florida.
(c NO OFFER. SUBMISSION OF THIS LEASE TO TENANT DOES NOT
CONSTITUTE AN OFFER, AND THIS LEASE BECOMES EFFECTIVE ONLY UPON THE MUTUAL
EXECUTION AND DELIVERY BY BOTH LANDLORD AND TENANT AND THE PAYMENT TO LANDLORD
OF ANY SECURITY DEPOSITS OR ADVANCE RENT REQUIRED HEREUNDER.
(d Integration. Tenant acknowledges that it has not relied
upon any statement, representation, prior or contemporaneous written or oral
promises, agreements or warranties, except such as are expressed herein.
(e Personal Property Taxes. Tenant will pay before delinquency
all taxes assessed during the Lease Term against any occupancy interest in the
Premises or personal property of any kind owned by or placed in, upon or about
the Premises by Tenant.
(f Pre-Lease Commencement Occupancy. If Tenant, with
Landlord's consent, occupies the Premises or any part thereof prior to the
beginning of the Lease Term, all provisions of this Lease will be in full force
and effect commencing upon such occupancy, and Base Rent and Additional Rent,
where applicable, for such period will be paid by Tenant at the same rate herein
specified.
(g Brokers Each party represents and warrants that it has not
dealt with any agent or broker in connection with this transaction except for
the agents or brokers specifically set forth in the BLI Rider with respect to
each Landlord and Tenant. If either parties' representation and warranty proves
to be untrue, such party will indemnify the other party against all resulting
liabilities, costs, expenses, claims, demands and causes of action, including
reasonable attorneys' fees and costs through all appellate actions and
proceedings, if any. The foregoing will survive the end of the Lease Term.
(h No Recording. Neither this Lease nor any memorandum hereof
will be recorded by Tenant.
(i Landlord's Consents. Whenever under this Lease Landlord's
consent or approval is expressly or impliedly required, the same may be
arbitrarily withheld unless or except as otherwise specified herein.
(j No Partnership. Nothing contained in this Lease shall be
deemed by the parties hereto or by any third party to create the relationship of
principal and agent, partnership, joint venturer or any association between
24
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Landlord and Tenant, it being expressly understood and agreed that neither the
method of computation of Rent nor any other provisions contained in this Lease
nor any act of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of landlord and tenant.
(k Construction of Certain Terms; Headings. Whenever in this
Lease the context allows, the word "including" will be deemed to mean "including
without limitation". The headings of articles, sections or paragraphs are for
convenience only and shall not be relevant for purposes of interpretation of the
provisions of this Lease.
(l No-Air Rights. This Lease does not create, nor will Tenant
have, any express or implied easement for or other rights to air, light or view
over or about the Building or any part thereof.
(m Delegation by Landlord. Any acts to be performed by
Landlord under or in connection with this Lease may be delegated by Landlord to
its managing agent or other authorized person or firm.
(n Construction. This Lease shall not be more strictly
construed against either party hereto by reason of the fact that one party may
have drafted or prepared any or all of the terms and provisions hereof. It is
acknowledged that each of the parties hereto has been fully represented by legal
counsel and that each of such legal counsel has contributed substantially to the
content of this Lease.
(o Confidentiality of Terms. Landlord and Tenant acknowledge
that the terms and provisions of this Lease have been negotiated based upon a
variety of factors, occurring at a coincident point in time, including, but not
limited to: (i) the individual principals involved and the financial strength of
Tenant, (ii) the nature of Tenant's business and use of the Premises, (iii) the
current leasing market place and the economic conditions affecting rental rates,
(iv) the present and projected tenant mix of the Building, and (v) the projected
juxtaposition of tenants on the floor(s) upon which the Premises are located and
the floors within the Building. Therefore, recognizing the totality, uniqueness,
complexity and interrelation of the aforementioned factors, the Tenant agrees to
use its best efforts not to disseminate in any manner whatsoever, (whether by
word of mouth, mechanical reproduction, physical tender or by any manner of
visual or aural transmission or review) the terms and conditions of this Lease
to third parties who could in any way be considered presently or in the future
as prospective tenants for this or any other leasehold property with which
Landlord may be involved. Notwithstanding the foregoing, Tenant shall be
entitled to make reference and/or disclose the terms and conditions of this
Lease only in any filing with the Securities Exchange Commission or any state
securities regulatory body.
(p Parties Bound. If more than one person or entity is named
herein as Tenant, their liability hereunder will be joint and several. In case
Tenant is a corporation or limited liability company, Tenant (a) represents and
warrants that this Lease has been duly authorized, executed and delivered by and
on behalf of Tenant and constitutes the valid and binding agreement of Tenant in
accordance with the terms hereof, and (b) Tenant shall deliver to Landlord or
its agent, concurrently with the delivery of this Lease, executed by Tenant,
certified resolutions of the board of directors (and shareholders, if required)
or managers (and members, if required) authorizing Tenant's execution and
delivery of this Lease and the performance of Tenant's obligations hereunder. In
case Tenant is a partnership, Tenant represents and warrants that all of the
persons who are general or managing partners in said partnership have executed
this Lease on behalf of Tenant, or that this Lease has been executed and
delivered pursuant to and in conformity with a valid and effective authorization
therefor by all of the general or managing partners of such partnership, and is
and constitutes the valid and binding agreement of the partnership and each and
every partner therein in accordance with its terms. It is agreed that each and
every present and future partner in Tenant shall be and remain at all times
jointly and severally liable hereunder and that neither the death, resignation
or withdrawal of any partner, nor the subsequent modification or waiver of any
of the terms and provisions of this Lease, shall release the liability of such
partner under the terms of this Lease unless and until Landlord shall have
consented in writing to such release.
(q Proposed Use. Landlord has made no inquiries about and
makes no representations (express or implied) concerning whether Tenant's
proposed use of the Premises is permitted under applicable law, including
applicable
25
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zoning law; should Tenant's proposed use be prohibited, Tenant shall be
obligated to comply with applicable law and this Lease shall nevertheless remain
in full force and effect.
(r No Relocation of Tenant. Landlord agrees not to relocate
Tenant during the Lease Term.
(s Signage. Tenant may, at Tenant's sole cost and expense,
install an identification sign within or adjacent to the entrance of the
Premises and on the monument sign located on the Southeast corner of Landlord's
property provided such design has the prior approvals of Landlord and the
property owners' association which governs the business park where the Building
is located, as well as conforms to the graphic standards of the Building. In
addition, subject to the remaining terms of this Section 40.(s), Landlord hereby
grants to Tenant a right, at Tenant's sole cost and expense, and subject to
applicable law, to erect a sign on the exterior facade of the Building (the
"Building Sign") so long as the Building Sign's design has the prior approvals
of Landlord (not to be unreasonably withheld or delayed) and the property
owners' association which governs the business park where the Building is
located, as well as conforms to the graphic standards of the Building (the
"Building Sign Option"). The Building Sign Option is a one-time right, only
exercisable provided that, at the time Tenant is entitled to exercise the
Building Sign Option, Tenant is not in default of this Lease beyond any
applicable cure or grace period and Tenant occupies a majority of space in the
Building (on a rentable square foot basis), as compared to all other tenants
leasing space in the Building. During the Lease Term, if and when 75% of the net
rentable square feet of the Building has been leased (the "Occupancy Rate"),
Landlord shall notify Tenant in writing (the "Building Sign Notice") that the
Building has achieved the Occupancy Rate and whether Tenant occupies a majority
of space in the Building (on a rentable square foot basis). Tenant acknowledges
that the Building Sign Option has been granted to other tenants in the Building
and will be exercisable only by that tenant which occupies a majority of space
in the Building when the Occupancy Rate is achieved. Tenant further agrees and
acknowledges that, based on the square footage of other tenants in the Building,
it is possible that Tenant may never occupy a majority of the space in the
Building. In the event that Tenant does occupy a majority of the space in the
Building, Tenant shall have a period of fifteen (15) days from the date of the
Building Sign Notice to elect, by written notification delivered to Landlord
within such fifteen (15) day period, whether it shall exercise its Building Sign
Option. If Tenant wishes to exercise the Building Sign Option and so delivers
written notice to Landlord within the aforesaid fifteen (15) day period, then
Tenant shall erect the Building Sign within 180 days from the date of the
Building Sign Notice. If Tenant no longer has the Building Sign Option pursuant
to other provisions of this Section 40.(s) or the Lease, or fails to properly
exercise within the fifteen (15) day exercise period or fails to complete the
installation of the Building Sign within the 180 days of the date of the
Building Sign Notice, then the Building Sign Optiont shall thereupon and
thereafter be null, void and of no further force or effect. Landlord and Tenant
acknowledge and agree that time is of the essence for Tenant's exercise of the
Building Sign Option. Landlord is not obligated to notify Tenant of any upcoming
need to timely exercise the Building Sign Option other than to notify tenant as
set forth in this Section. Tenant shall be responsible for all repairs and
restoration of the Building and the monument sign arising from Tenant's
installation of any and all of the signage under this Section, including,
without limitation, the Building Sign. Landlord shall maintain in the lobby of
the Building, a directory which shall include the name of the Tenant and any
other names reasonably requested by Tenant in proportion to the number of
listings given to other tenants of the Building.
[EXECUTION PAGE FOLLOWS]
26
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IN WITNESS WHEREOF, the parties have executed and delivered this Lease
as of the day and year first above written.
Witnesses: . "LANDLORD"
--------
SAW BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation,
general partner
_________________________ By: /s/
---------------------------------
_________________________ Its: President
(As to Landlord) --------------------------------
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania
Corporation
________________________ By: Aloysius T. Lawn IV /s/
----------------------------
________________________ Its: Executive V-P - General Counsel and Secretary
--------------------------------------------
27
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF THE BUILDING AND PARKING FACILITIES
--------------------------------------------------------
(As to Tenant)
1
<PAGE>
EXHIBIT "A-1"
FLOOR PLAN
<PAGE>
EXHIBIT "B"
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (this "Agreement") is made and
entered into this 11 day of May , 2000, between Landlord and Tenant. In the
event of any inconsistencies between this Agreement and the Lease dated
concurrently herewith to which this Agreement is attached as Exhibit "B", this
Agreement shall control. Capitalized terms used in this Agreement shall, unless
otherwise specifically set forth herein, have the same meanings as in the Lease.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant have executed a Lease this date
and, in connection therewith, are entering into this Agreement for the
construction of certain leasehold improvements of and to the Premises referenced
in the Lease;
WHEREAS, (i) Landlord will be responsible for delivering the
Building with certain structural, mechanical, electrical and other systems in
good working order, as provided in the Lease, and (ii) Tenant shall employ a
general contractor to undertake construction of the Tenant's leasehold
improvements, including, without limitation, architectural and space plans,
permit fees, HVAC, and interior finishes of the Premises (all such work being
collectively referred to herein as the "Tenant Improvements").
WHEREAS, the parties agree and acknowledge that, for purposes
of this Agreement only, the Premises contain 25,511 usable (as opposed to
rentable as referred to in the Lease) square feet of space. Nothing in this
Agreement, however, shall be deemed to modify or amend the provisions of the
Lease dealing with the net rentable square footage of the Premises of the
Building.
NOW, THEREFORE, for TEN & NO/100 DOLLARS ($10.00) and other good and
valuable considerations, receipt and adequacy of which is hereby acknowledged,
Landlord and Tenant agree as follows:
SECTION 1
RECITALS
1.1 Landlord and Tenant agree to the recitals set forth above and
acknowledge that each of same is true and correct and by this
reference is hereby incorporated into this Agreement.
SECTION 2
PLANS AND SPECIFICATIONS; THE CONTRACTOR; HVAC
2.1 Tenant shall cause a licensed Florida architect of Tenant's
selection ("Tenant's Architect") and such other duly licensed
professionals as required to prepare a space plan,
construction budget (including all architectural and space
planning costs) (the "Construction Budget"), construction
plans, specifications and working drawings for the proposed
Tenant Improvements (collectively all such items are referred
to herein as the "Preliminary Plans"). The Preliminary Plans
shall reflect the Tenant Improvements to the Premises to be
made in compliance with all applicable zoning, land use and
building codes applicable to the Building so that: (1) all
required building permits can be obtained, based upon
submittal of the Final Working Drawings (as defined below) to
the appropriate governmental authority, (2) upon the proper
completion of the Tenant Improvements all required
certificates of occupancy can be issued by the governmental
authority having jurisdiction over such matters, and (iii) the
Premises
1
<PAGE>
are built out and decorated in a first class manner.
Notwithstanding the foregoing, Tenant's choice of Tenant's
Architect shall be subject to Landlord's prior written
consent, which shall not be unreasonably withheld or delayed.
2.2 Within ten (10) business days of Landlord's receipt of the
Preliminary Plans, Landlord shall either (i) approve such
Preliminary Plans in writing (in which case the Preliminary
Plans shall be deemed to be the "Final Working Drawings" for
the Tenant Improvements), or (ii) Landlord shall disapprove
the Preliminary Plans, with specific written objections to
same. Landlord shall be reasonable in its review and approval
or disapproval of the Preliminary Plans. In the event that
Landlord disapproves the Preliminary Plans, Landlord and
Tenant shall, within ten (10) business days of the date of
Landlord's written disapproval, detailing Landlord's
objections, convene a meeting of Tenant's Architect, the
appropriate representative of Tenant, Landlord's architect or
other construction professional and the appropriate
representative of Landlord. The meeting shall be held in the
offices of Tenant's Architect or such other location as the
parties may all mutually agree. The purpose of the meeting
shall be to review the Preliminary Plans along with Landlord's
written objections and to work towards remedying such
objections so that a revised set of the Preliminary Plans can
be prepared and delivered to Landlord for review (the "Revised
Preliminary Plans"). Within ten (10) business days of
Landlord's receipt of the Revised Preliminary Plans, Landlord
shall (i) approve such Revised Preliminary Plans in writing
(in which case the revised Preliminary Plans shall be deemed
to be the Final Working Drawings for the Tenant Improvements)
or (ii) Landlord shall disapprove the Preliminary Plans, with
specific written objections to same. The parties shall
continue the foregoing process until Landlord approves of the
Revised Preliminary Plans; provided, however, if the Revised
Preliminary Plans are not approved by Landlord within fifteen
(15) days then Landlord shall have the right to terminate the
Lease upon written notice to Tenant.
2.3 The Final Working Drawings shall serve as the basis for the
construction of the Tenant Improvements (collectively, the
"Work"). To the extent that Tenant makes material changes to
the Final Working Drawings, that is, either a change that
results in a change in the cost of the Work of $7,500.00 or is
a substantial design change from what was originally approved
in the Final Working Drawings (in either case, a "Material
Change"), such Material Change shall be submitted to Landlord
for Landlord's review and approval, which approval shall not
be unreasonably withheld or delayed. No Material Change shall
be implemented unless and until Landlord has approved same,
which approval shall not be unreasonably withheld of delayed,
as provided for in this Section 2.3.
2.4 Tenant shall select a Florida licensed contractor for the
completion of the Work, pursuant to the Final Working Drawings
(the "Contractor"). Tenant's choice of the Contractor shall be
subject to Landlord's prior written consent, which shall not
be unreasonably withheld or delayed. The following is agreed
to be an approved Contractor, not requiring Landlord's
consent: Integral Construction of Broward, Inc. (the "Approved
Contractor"). In the event that Tenant does not engage the
Approved Contractor, Tenant shall provide such information
regarding the Contractor, including financial information, as
Landlord may reasonably required. As a condition of Landlord's
approval of the Contractor, Landlord, to the extent that
Landlord has a reasonable basis for concern, may require that
Tenant obtain, at Tenant's sole cost and expense, payment and
performance bonds in reasonable amounts, applicable to the
work being performed by the Contractor, provided however that
such bonds shall not be required if Tenant engages an Approved
Contractor.
SECTION 3
FINANCIAL
2
<PAGE>
3.1 As long as Tenant has duly kept and performed all terms and
conditions to be kept and performed by Tenant under the Lease,
Landlord agrees that it shall make the following financial
contributions for the Tenant Improvements (subject to the
disbursement provisions below): subject to Sections 3.2 and
3.3 of this Agreement, the amount of Three Hundred Thirty-Two
Thousand Twenty-Eight & No/100 Dollars ($332,028.00), based on
$12.00 per rentable square footage of the Premises (the
"Allowance").
3.2 Tenant shall submit monthly draw requests (no later than the
fifth (5th) business day of each month) for disbursement of
the Allowance (a "Draw Request"). Each Draw Request shall
consist of: (i) an itemization of the progress payment amounts
due and payable to the Contractor, which itemization shall
correspond to the line items in the Construction Budget (the
"Progress Payment Amounts"), (ii) a certification from the
Contractor of the subject Work completed, (iii) a written
certification from Tenant's Architect that the Work, as
detailed in the Draw Request for which payment is sought, has
been completed to Tenant's Architect's reasonable
satisfaction, and (iv) such partial releases of lien from the
Contractor and all subcontractors being paid for out of the
monies due from the subject Draw Request. Provided that Tenant
has submitted a Draw Request in compliance with the foregoing,
no construction liens have been filed (which have not been
discharged completely), or threatened in writing, against the
Building and Tenant is otherwise not in default under the
Lease, Landlord shall, not later than ten (10) business days
after the submittal of the Draw Request, disburse the Progress
Payment Amounts requested of Landlord in the Draw Request
(subject to a ten percent (10%) retainage) to the Contractor.
Landlord has the right to confirm that the Progress Payment
Amounts of the Draw Request are appropriate for the amount and
portion of the Work completed and contest disbursement of any
or all such amounts upon a reasonable basis; provided,
however, subject to the conditions of Section 3.1 above, and
so long as Tenant is not in default under the Lease or this
Agreement beyond any applicable cure or grace periods and/or
no event has occurred that will constitute a default by Tenant
under the Lease or this Agreement if not corrected by Tenant
within the applicable cure or grace period, Landlord shall be
obligated to make total disbursements up to the full amount of
the Allowance upon confirmation that the Work, for which Draw
Requests have been properly submitted, has been provided to
the Premises. In no event shall Landlord be required to
disburse more than the Allowance.
3.3 Once Landlord has disbursed the full amount of the Allowance
(but subject to the ten percent (10%) retainage) Tenant shall,
at Tenant's cost and expense, continue to cause the Contractor
to be timely paid for the Work until completion of the Work
and issuance of a certificate of occupancy for the Premises.
The ten percent (10%) retainage shall be disbursed by Landlord
to the Contractor only upon (i) the issuance of a final
certificate of occupancy for all of the work contemplated by
the Final Working Drawings, (ii) submittal of a final release
of lien from the Contractor, (iii) submittal of a final
contractor's affidavit, as contemplated by Florida Statutes,
Chapter 713, which shall indicate that all subcontractors have
been paid in full, and (iv) a written certification from
Tenant that the Work has been completed to Tenant's reasonable
satisfaction.
SECTION 4
CONSTRUCTION OF IMPROVEMENTS
4.1 Tenant shall cause the Work to be completed under the auspices
of the Contractor in a good and workmanlike manner, in
compliance with all applicable zoning, land use and building
codes applicable to the Building, free from all construction
liens.
4.2 To the extent that any of the Work affects, damages, or
otherwise affects any of the Building's systems, specifically
including, without limitation, the various Building systems
described in Section 9. of the Lease, Tenant, at Tenant's sole
cost and expense, shall be responsible for such repairs to the
affected Building system, in order to restore same to good
working order.
3
<PAGE>
4.3 Tenant shall indemnify and hold harmless Landlord (including
attorneys' fees and costs) from any and all loss, cost,
damage, claim, charge, expense or liability arising out of or
in any way connected with the installation and completion of
the Work. Tenant shall obtain, and cause Landlord to be named
as an additional insured thereunder, a policy of Builder's
Risk insurance, issued by an insurance company, licensed to do
business in the State of Florida, reasonably acceptable to
Landlord. A copy of such Builder's Risk Insurance Policy shall
be delivered to Landlord prior to the commencement of the
Work.
4.4 Tenant shall, upon completion of the Work, obtain and provide
to Landlord true and correct copies of, all certificates of
occupancy, certificates of completion, occupational licenses
and other governmental approvals required. Tenant shall not
occupy the space for business purposes unless and until Tenant
has obtained all of the foregoing governmental approvals,
including the Certificate of Occupancy and the occupational
licenses submitted same to Landlord.
4.5 Tenant shall have the right to relocate all computer room
floor tiles and equipment in the Premises, as Tenant deems
necessary within the Premises, at Tenant's sole cost and
expense.
SECTION 5
RATIFICATION
5.1 Except as specifically set forth in this Agreement, the Lease
is ratified and confirmed as written.
[EXECUTION PAGE FOLLOWS]
4
<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the day and year first above written.
Witnesses: "LANDLORD"
--------
SAW BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation,
general partner
_______________________ By: /s/
-----------------------
_______________________ Its: President
----------------------
(As to Landlord)
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania corporation
_______________________ By: Aloysius T. Lawn IV /s/
----------------------------
_______________________ Its: Executive V-P - General Counsel
--------------------------------------------
5
<PAGE>
EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, and halls shall not be obstructed or
encumbered by any Tenant or used for any purpose other than ingress and egress
to and from the Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building without the prior written consent of Landlord. No
curtains, blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior written
consent of Landlord. Such awnings, projections, curtains, blinds, shades,
screens, or other fixtures must be of a quality, type, design, and color, and
attached in the manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the Premises or Building or on the inside of the Premises if the same
can be seen from the outside of the Premises without the prior written consent
of Landlord except that the name of Tenant may appear on the entrance door of
the Premises. In the event of a violation of the foregoing by Tenant, Landlord
may remove same without any liability and may charge the expense incurred by
such removal to the Tenant or Tenants violating this rule. Interior signs on
doors and the directory shall be inscribed, painted or affixed for each Tenant
by Landlord at the expense of such Tenant and shall be of a size and style
acceptable to the Landlord.
4. Tenant shall not occupy or permit any portion of the
Premises demised to it to be occupied as an office for a public stenographer or
typist, or as a barber or manicure shop, or as an employment bureau. Tenant
shall not engage or pay any employees on the Premises, except those actually
working for Tenant at the Premises, nor advertise for labor giving an address at
the Premises. The Premises shall not be used for gambling, lodging, or sleeping
or for any immoral or illegal purposes. The Premises shall not be used for the
manufacture, storage, or sale of merchandise, goods or property of any kind
whatsoever.
5. The sashes, sash doors, skylights, windows, and doors that
reflect or admit light and air into the halls, passageway or other public places
in the Building shall not be covered or obstructed by any Tenant nor shall any
bottles, parcels or other articles be placed on the window sills. No materials
shall be placed in the corridors or vestibules nor shall any articles obstruct
any air conditioning supply or exhaust vent.
6. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed and no sweepings, rubbish, rags, or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures by Tenant, its
servants, employees, agents, or licensees shall be borne by Tenant.
7. No Tenant shall mark, paint, drill into, or in any way
deface any part of the Premises or the Building of which they form a part. No
boring, cutting, or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as it may direct. Should a Tenant require
telegraphic, telephonic, annunciator or other communication service, Landlord
will direct the electricians where and how wires are to be introduced and
placed, and none shall be introduced or placed except as Landlord shall direct.
Electric current shall not be used for power or heating without Landlord's prior
written permission. Neither Tenant nor Tenant's Agents including, but not
limited to, electrical repairmen and telephone installers, shall lift, remove or
in any way alter or disturb any of the interior ceiling materials of the
Premises or Building, nor shall any of same have any access whatsoever to the
area above the interior ceiling of the Premises or the Building except with the
prior written consent of Landlord and in accordance with guidelines established
by Landlord. No antennas shall be permitted except as provided in the Satellite
Dish/Antenna Rider attached to this Lease.
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8. No bicycles, vehicles, or animals of any kind shall be
brought into or kept in or about the Premises, and no cooling shall be done or
permitted by any Tenant on said Premises. No Tenant shall cause or permit any
unusual or objectionable odors to be produced upon or permeate from the
Premises.
9. Landlord shall have the right to retain a passkey and to
enter the Premises at any reasonable time, to examine same or to make such
alterations and repairs as may be deemed necessary, or, subject to the terms of
this Lease, to exhibit same to prospective Tenants during normal business hours.
10. No Tenant shall make, or permit to be made, any unseemly
or disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. No Tenant shall throw anything out of
doors, windows, or skylights, or down the passageways.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by any Tenant, nor shall any changes be made in
existing locks or the mechanism thereof. Each Tenant must, upon the termination
of his tenancy restore to the Landlord all keys of offices and toilet rooms,
either furnished to, or otherwise procured by, such Tenant. Tenant shall pay to
the Landlord the cost of any lost keys.
12. Tenant will refer all contractors, contractors'
representatives and installation technicians, rendering any service to Tenant,
to Landlord for Landlord's supervision, approval, and control before performance
of any contractual service. This provision shall apply to all work performed in
the building, including installations of telephones, telegraph equipment,
electrical devices and attachments, and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment or any other
physical portion of the Building.
13. All removals, or the carrying in or out of any safes,
freight, furniture or bulky matter of any description must take place during the
hours which the Landlord or its agent may determine from time to time. All such
movement shall be under supervision of Landlord and in the manner agreed between
Tenant and Landlord by pre-arrangement before performance. Such pre-arrangements
initiated by Tenant will include determination by Landlord, subject to his
decision and control, of the time, method, and routing of movement and
limitations imposed by safety or other concerns which may prohibit any article,
equipment or any other item from being brought into the building. Landlord
reserves the right to prescribe the weight and position of all safes, which must
be placed upon 2-inch thick plank strips to distribute the weight. Any damage
done to the Building or to other Tenants or to other persons in bringing in or
removing safes, furniture or other bulky or heavy articles shall be paid for by
the Tenant.
14. Tenant agrees that all machines or machinery placed in the
Premises by Tenant will be erected and placed so as to prevent any vibration or
annoyance to any other Tenants in the Building of which the Premises are a part,
and it is agreed that upon written request of Landlord, Tenant will, within ten
(10) days after the mailing of such notice, provide approved settings for the
absorbing, preventing, or decreasing of noise from any or all machines or
machinery placed in the Premises.
15. Each Tenant shall, at its expense, provide artificial
light for the employees of the Landlord while doing janitor service or other
cleaning, and in making repairs or alterations in said Premises.
16. The requirements of Tenant will be attended to only upon
written application at the office of the Building. Employees of Landlord shall
not receive or carry messages for or to any Tenant or other person nor contract
with or render free or paid services to any Tenant or Tenant's agent, employees,
or invitees.
17. Canvassing, soliciting, and peddling in the Building is
prohibited and each Tenant shall cooperate to prevent the same.
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18. Tenant shall have the free use of the mail chutes, if any,
installed in the Building, but the Landlord in no wise guarantees efficiency of
the said mail chutes and shall be in a no wise responsible for any damage or
delay which may arise from use thereof.
19. Landlord will not be responsible for lost, stolen, or
damaged property, equipment, money, or jewelry from Tenant's area or public
rooms regardless of whether such loss occurs when area is locked against entry
or not.
20. Landlord specifically reserves the right to refuse
admittance to the Building from 6:30 p.m. to 7:30 a.m. Monday through Friday, or
on Saturdays from 2:00 p.m. to 8:00 a.m., Sundays or legal holidays, to any
person or persons who cannot furnish satisfactory identification, or to any
person or persons who, for any other reason in the Landlord's judgment, should
be denied access to the Premises. Landlord, for the protection of the Tenant and
Tenant's effects may prescribe hours and intervals during the night and on
Saturdays, Sundays and holidays, when all persons entering and departing the
Building shall be required to enter their names, the offices to which they are
going or from which they are leaving, and the time of entrance and departure in
a register provided for the purpose by that Landlord.
21. No Tenant, nor any of Tenant's Agents, shall at any time
bring or keep upon the Premises any inflammable, combustible, or explosive
fluid, chemical, or substance.
22. Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
needful for the safety, care and cleanliness of the Premises, and for the
preservation of good order therein and any such other or further rules and
regulations shall be binding upon the parties hereto with the same force and
effect as if they had been inserted herein at the time of the execution hereof.
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EXHIBIT "D"
JANITORIAL SERVICES FOR THE PREMISES PROVIDED BY LANDLORD
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EXHIBIT "E"
IRREVOCABLE LETTER OF CREDIT
Amount: $100,000.00
Beneficiary:
Effective Date:
Expiration Date:
SAW-BAN, LTD.
c/o Coldwell Banker Commercial - Brennar Real Estate Group
3195 North Powerline Road, Suite 104
Pompano Beach, FL 33064
Attn: Scott Brenner
Dear Sir/Madam:
1. We open in your favor this our Irrevocable Clean Letter of
Credit, Credit No._______, for the amount U.S. $100,000.00, effective
immediately and expiring on the close of business on ________, 2000 at our
____________Street office.
2. Funds under this credit are available to you against your
sight draft on us, mentioning our credit number and accompanied by your
certificate signed by one of your corporate officers or representatives or
person acting under power of attorney stating: (a) that Talk.Com Holding Corp.,
a Pennsylvania corporation, the tenant under a certain lease dated as of , 2000,
with Saw-Ban, Ltd., a Florida limited partnership, as Landlord, covering the
premises in the commercial office building located at 1401 N.W. 136th Avenue,
City of Sunrise, County of Broward, Florida (the "Lease") is in default
thereunder; (b) that Landlord gave Tenant written notice of such default in
accordance with the notice requirements of the Lease; (c) that Tenant, if any,
failed to cure the default within the applicable grace period, if any, allowed
by the Lease; and (d) the amount of funds (up to and including the face amount
of this Letter of Credit, subject to reduction as hereinafter set forth) to be
drawn by the aforementioned sight draft.
3. Notwithstanding the foregoing, if for any reason this
Letter of Credit is expiring or terminating or if for some reason you require a
renewal or replacement of this Letter of Credit, then this Letter of Credit may
be immediately presented to us for full payment to you by drawing a sight draft
on us in the then remaining amount of this Letter of Credit, unless a renewal or
replacement letter of credit extending the expiration date to , 2000, is
delivered to you at least thirty (30) days prior to the expected expiration or
termination date of this Letter of Credit.
4. We hereby agree with you that any draft (drawn under and in
accordance with paragraphs 2 or 3 above) and the terms of this credit will be
duly honored by us in the amount referred to in paragraph 2(d) above or in the
amount referred to in paragraph 3 above, as the case may be, upon our receipt at
this office ( Street, , Florida) of the original of this Letter of Credit and
certificate drawn in accordance with the above applicable paragraph(s), without
regard to the accuracy of the certificate or to the amount requested, or to any
contrary request or dispute by Tenant and without the necessity of our receiving
further proof of the facts certified to or any specification of the nature of
the default.
5. Should you have occasion to communicate with us regarding
this Letter of Credit, kindly address your correspondence to _________ Street,
____________, Florida, making specific mention of our credit number.
Very truly yours,
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<PAGE>
EXTENSION OPTION RIDER
THIS EXTENSION OPTION RIDER (this "Rider") is dated, executed
and delivered concurrently with the attached lease (the "Lease") by and between
SAW-BAN, LTD., a Florida limited partnership ("Landlord") and TALK.COM HOLDING
CORP., a Pennsylvania ("Tenant"). In the event of any conflict between the terms
of this Rider and the terms of the Lease, the terms of this Rider shall govern.
1. Grant of Option. Provided that (i) Tenant is not in default
beyond any applicable cure or grace period under any of the terms and conditions
of the Lease or under any other lease with Landlord on the date of exercise and
the date of delivery of possession, (ii) Tenant has, from the original Lease
Commencement Date, continuously occupied without interruption, sublease or
assignment, and does occupy the entire Premises originally set forth in the
Lease, and (iii) Tenant provides notice of its election in a proper and timely
fashion, Tenant shall have the option (the "Extension Option") to extend the
Lease Term for one (1) additional, successive term of five (5) years (the
"Extension Term"), commencing immediately upon the expiration of the original
Lease Term.
2. Exercise of Option. In order to exercise the Extension
Option, Tenant must give Landlord written notice of its intention to exercise
(the "Option Notice"), with such notice to be delivered to Landlord, in
accordance with the notice provision of this Lease, not less than six (6) months
prior to the expiration of the Lease Term.
3. Failure to Exercise. In the event Tenant at any time fails
to deliver the Option Notice as specified in Section 2 or Tenant is otherwise
not permitted to exercise pursuant to other terms hereof or of the Lease, then
the Extension Option shall terminate and be null and void and this Lease shall
expire on the expiration date of the then existing Lease Term or Extension Term.
LANDLORD AND TENANT AGREE AND ACKNOWLEDGE THAT TIME IS OF THE ESSENCE FOR
TENANT'S TIMELY EXERCISE OF THE EXTENSION OPTION. LANDLORD IS NOT OBLIGATED TO
NOTIFY TENANT OF ANY UPCOMING NEED TO TIMELY EXERCISE THE EXTENSION OPTION.
4. Applicable Terms. In the event Tenant exercises the
Extension Option, all of the terms of the Lease, including, but not limited to
Tenant's obligation to pay Additional Rent and any other cost or charge which
may be due and payable by Tenant under the Lease shall continue to be applicable
to such Extension Term, except for (i) any Tenant Improvement Allowances,
obligations under the Work Letter (such Work Letter being null and void as to
any Extension Option), Landlord's build-out obligations, free Rent, or any other
similar abatements of Rent under the Lease, (ii) the Extension Option then being
exercised, and (iii) those terms which are specifically modified as set forth in
Section 5 below.
5. Base Rent. During the Extension Term, the Base Rent shall,
for each year thereafter during the Extension Term, be equal to the greater of:
(i) the Base Rent for each Lease Year during the Extension Term as adjusted as
provided for in Section 3.(b) of the Lease, or (ii) ninety-five percent (95%) of
the then-fair market rental value of the Premises, as such fair market rental
value is determined by Landlord, in Landlord's sole, but reasonable, judgment.
6. No Assignment. Landlord grants to Tenant the Extension
Option specifically due to the character and nature of Tenant. As such, if
Tenant shall, during the Lease Term or any extension thereof, assign or sublet
any or all of the Premises, then the Extension Option shall not pass to such
assignees or sublessees and, instead, the unexercised Extension Option shall
thereupon and thereafter be null, void and of no further force or effect.
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7. Ratification. Except as expressly set forth herein, the
Lease is ratified and confirmed as written.
Witnesses: "LANDLORD"
--------
SAW-BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation,
general partner
_______________________ By: /s/
---------------------------
_______________________ Its: President
--------------------------
(As to Landlord)
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania
corporation
_______________________ By: Aloysius T. Lawn IV
------------------------
_______________________ Its: Executive V-P - General Counsel and Secretary
--------------------------------------------
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RIGHT OF FIRST REFUSAL RIDER
This Right of First Refusal Rider (this "Rider") is dated,
executed and delivered concurrently with the attached lease (the "Lease") by and
between SAW-BAN, LTD., a Florida limited partnership ("Landlord") and TALK.COM
HOLDING CORP., a Pennsylvania corporation ("Tenant"). In the event of any
conflict between the terms of this Rider and the terms of the Lease, the terms
of this Rider shall govern.
1. Grant of Right. Subject to the terms of paragraphs 2 and 3
below, Landlord hereby grants to Tenant a right of first refusal (the "Refusal
Right") with respect to any space located in the Building except for any space
located on the third floor of the Building (the "Refusal Space") during the
Lease Term.
2. Exercise of Rights; Applicable Terms. With respect to the
Refusal Space:
(a) Landlord shall notify Tenant in writing of (i)
Landlord's receipt of a bona fide written acceptable offer to lease all or part
of the Refusal Space, and (ii) the relevant lease terms pertaining thereto prior
to the intended commencement date for such new tenant.
(b) Tenant shall, provided Tenant is then in possession of
an amount of space not less than the entire Premises originally set forth in the
Lease and provided Tenant is not then or at the date of delivery of possession
of the subject portion of the Refusal Space in default of this Lease beyond any
applicable cure or grace period, have the right to lease from Landlord the
portion of the Refusal Space covered in Landlord's notice on the terms and
conditions of this Lease except for (i) improvement allowance, Landlord's
build-out obligations, free rent provisions, parking charges, etc., which,
although applicable to this Lease, shall not be applicable to the Refusal Space
and (ii) Base Rent with respect to the Refusal Space shall be either the Base
Rent set forth in Section 3 of the Lease or the Base Rent set forth in the bona
fide written offer, whichever is less, and (iii) Tenant's Percentage Share shall
be adjusted accordingly.
(c) Tenant shall have a period of five (5) business days
from the date of Landlord's notification to elect, by written notification
delivered to Landlord within such five (5) business day period, whether it shall
exercise its Refusal Right.
(d) If Tenant wishes to exercise the Refusal Right and so
delivers written notice to Landlord within the aforesaid five (5) business day
period, then Landlord and Tenant shall execute an amendment to this Lease within
five (5) days thereafter setting forth all relevant terms pertaining to the
subject portion of the Refusal Space, including Base Rent, Commencement Date,
Tenant's Percentage Share and Expiration Date.
3. Failure to Exercise. If Tenant no longer has the Refusal
Right pursuant to other provisions of this Rider or the Lease, or fails to
properly exercise within the five (5) business day exercise period or fails to
enter into an amendment within the five (5) day execution period, then the
Refusal Right, with respect to the subject portion of the Refusal Space then
being negotiated by Landlord, shall thereupon and thereafter be null, void and
of no further force or effect. LANDLORD AND TENANT ACKNOWLEDGE AND AGREE THAT
TIME IS OF THE ESSENCE FOR TENANT'S EXERCISE OF ANY REFUSAL RIGHT. LANDLORD IS
NOT OBLIGATED TO NOTIFY TENANT OF ANY UPCOMING NEED TO TIMELY EXERCISE A REFUSAL
RIGHT OTHER THAN TO NOTIFY TENANT AS SET FORTH IN PARAGRAPH 2(a) ABOVE.
4. Right Not Transferable. Landlord grants to Tenant this
Refusal Right specifically due to the character and nature of Tenant. As such,
if Tenant shall, during the Lease Term or any extension thereof, assign or
sublet any or all of the Premises, this right shall not pass to any assignee or
subtenant by or through an assignment or sublease and shall terminate as of the
date of execution of any assignment or sublease.
5. Ratification. Except as expressly set forth herein, the
Lease is ratified and confirmed as written.
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Witnesses: "LANDLORD"
--------
SAW BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation,
general partner
________________________ By: /s/
------------------------
________________________ Its: President
----------------------
(As to Landlord)
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania
corporation
________________________ By: Aloysius T. Lawn IV
------------------------
________________________ Its: Executive V-P - General Counsel and Secretary
---------------------------------------------
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SATELLITE DISH/ANTENNA RIDER
THIS SATELLITE DISH/ANTENNA RIDER (this "Rider") is dated,
executed and delivered concurrently with the attached lease (the "Lease") by and
between SAW-BAN, LTD., a Florida limited partnership ("Landlord") and TALK.COM
HOLDING CORP., a Pennsylvania corporation, qualified to do business in the State
of Florida ("Tenant"). In the event of any conflict between the terms and
conditions of this Rider and the terms and conditions of the Lease, the terms
and conditions of this Rider shall govern.
1. The Antenna. Landlord understands that during the Lease
Term, Tenant may require communication services in connection with the operation
of Tenant's business which would necessitate the construction, installation,
operation and use by Tenant of one or more communication antennas, microwave
and/or satellite dishes, together with related equipment, mountings and supports
(collectively, the "Antennas") on the roof of the Building. Landlord shall make
available to Tenant, for Tenant's own use (and not for resale purposes) such
space on the roof of the Building for Tenant's Antennas, as Tenant shall from
time to time require, for no rent or other charge whatsoever therefor. Tenant's
use of the roof of the Building shall be on a non-exclusive basis and Landlord
shall be permitted to lease other portions of the roof to other tenants of the
Building, provided such users do not interfere with Tenant's use of the roof. In
connection with Tenant's use of the roof of the Building, Landlord shall make
available to Tenant access to the roof for the construction, installation,
maintenance, repair, operation and use of the Antennas, as well as reasonable
space in the Building to run electrical and telecommunications conduits from the
Antennas to the Premises. The installation of the Antennas shall constitute an
Alteration and shall be performed at Tenant's sole cost and expense (including,
without limitation, any costs and expenses in connection with reinforcing the
roof of the Building, if required) in accordance with and subject to the
provisions of Section 12 of the Lease and except as otherwise expressly set
forth in this Rider. All of the provisions of this Lease with respect to
Tenant's obligations hereunder shall apply to the installation, use and
maintenance of the Antennas, including, without limitation, provisions relating
to compliance with insurance, indemnity, repairs and maintenance. The license
granted to Tenant in this Rider shall not be assignable by Tenant separate and
apart from this Lease.
2. Use of the Roof and the Antenna. Landlord retains the right
to use the portion of the roof on which the Antenna is located for license to
other tenant in the building for location of such tenant's satellite dishes or
antennae, provided however, that such other tenant's uses shall not interfere
with Tenant's Antenna. Tenant shall use the Antenna so as not to cause any
damage or interference with the operation of the Building or the Building
systems. If after any Antenna is installed by Tenant it is discovered that the
Antenna causes any such interference, damage or disturbance, then Tenant, at its
sole cost and expense, shall relocate its Antenna to another area on the roof
designated by Landlord. If such interference or disturbance still occurs despite
such relocation, or if no portion of the roof is available for such relocation,
Tenant, at its sole cost and expense, shall remove its Antenna from the roof of
the Building. In the event Tenant fails to relocate or remove the Antenna,
Landlord may do so, and Tenant shall promptly reimburse Landlord for any costs
incurred by Landlord in connection therewith. In no event shall Tenant's
installation of the Antenna puncture or otherwise penetrate the surface of the
roof the Building.
3. Default; Remedies. If Tenant is in default under any
provision of this Rider which Tenant shall not cure with the notice and cure
period afforded for non-monetary breaches in Section 24 of the Lease, then,
without limiting Landlord's rights and remedies, Landlord may otherwise have
under this Lease, Tenant, upon written notice from Landlord, shall, at Tenant's
sole cost and expense immediately discontinue its use of the Antennas and remove
the same from the roof of the Building.
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4. Compliance with Applicable Laws. Landlord shall not have
any obligations with respect to the Antennas or compliance with any applicable
governmental laws, rules, regulations, ordinances or any other legal
requirements imposed by any governmental authority whatsoever ("Governmental
Requirements") relating thereto (including, without limitation, the obtaining of
any required permits or licenses, or the maintenance thereof), nor shall
Landlord be responsible for any damage that may be caused to Tenant or the
Antennas by any other tenant or occupant of the Building. Landlord makes no
representation that the Antennas will be able to receive or transmit
communication signals without interference or disturbance and Tenant agrees that
Landlord shall not be liable to Tenant therefor. Tenant shall, at Tenant's sole
cost and expense, keep the Antennas and the fact that the Antennas are present
at the Building, in compliance with any and all Governmental Requirements, now
existing or hereafter imposed, including without limitation, those Governmental
Requirements which may necessitate the relocation or removal of the Antennas.
5. Appearance; Lightning Rods. Tenant, at Tenant's sole cost
and expense, shall paint and maintain the Antennas in white or such other color
as Landlord shall reasonably determine and shall install such lightning rods or
air terminals on or about the Antennas as Landlord may reasonably require.
6. Tenant's Obligations. Subject to the provisions of Section
17 of the Lease, Tenant shall (i) be solely responsible for any damage caused to
Landlord or any other person or property as a result of the installation,
maintenance or use of the Antenna, (ii) promptly pay any tax, license, permit or
other fees or charges imposed pursuant to any Requirements relating to the
installation, maintenance or use of the Antenna, (iii) promptly comply with all
precautions and safeguards recommended by Landlord's insurance company and all
Governmental Authorities, (iv) perform all necessary repairs or replacements to,
or maintenance of, the Antennas, and (v) at the end of the Lease Term, remove
the Antenna and make any repair to the roof and/or the Building as a result of
such removal.
7. Licence. Tenant acknowledges and agrees that the privileges
granted Tenant under this Rider shall merely constitute a license and shall not,
now or at any time after the installation of the Antennas, be deemed to grant
Tenant a leasehold or other real property interest in the Building or any
portion thereof. The license granted to Tenant in this Rider shall automatically
terminate and expire upon the expiration or earlier termination of this Lease
and the termination of such license shall be self-operative and no further
instrument shall be required to effect such termination. The foregoing
notwithstanding, upon request by Landlord, Tenant, at Tenant's sole cost and
expense, promptly shall execute and deliver to Landlord, in recordable form, any
certificate or other document confirming the termination of Tenant's right to
use the roof of the Building.
IN WITNESS WHEREOF, Landlord and Tenant have executed and
delivered this Rider concurrently with the Lease.
Witnesses: "LANDLORD"
--------
SAW-BAN, LTD., a Florida limited partnership
By: DIG USA, INC., a Florida corporation, general
partner
______________________ By: /s/
----------------------
______________________ Its: President
----------------------
(As to Landlord)
"TENANT"
------
TALK.COM HOLDING CORP., a Pennsylvania corporation
______________________ By: Aloysius T. Lawn IV
-----------------------------
______________________ Its: Executive V-P - General Counsel and Secretary
-----------------------------------------------
(As to Tenant)
2