EXHIBIT 10.15
LEASE AGREEMENT
Dated as of September 27, 1999
Between: WK3 INVESTORS, LTD.
as Landlord
and: INTELLIGENT LIFE CORPORATION,
as Tenant
TABLE OF CONTENTS
PROVISIONS PAGE
1. RENT................................................ 2
2. COMMENCEMENT OF LEASE TERM; EXTENSION OPTIONS....... 3
3. PREMISES; COMMON AREAS; PARKING..................... 4
4. PREPARATION OF PREMISES; POSSESSION; RELOCATION..... 4
5. COMMON AREA MAINTENANCE COSTS....................... 5
6. PUBLIC UTILITIES.................................... 6
7. TAXES AND ASSESSMENTS............................... 6
8. REPAIRS AND MAINTENANCE............................. 7
9. ALTERATIONS......................................... 7
10. AFFIRMATIVE COVENANTS............................... 8
11. NEGATIVE COVENANTS OF TENANT........................ 9
12. HAZARDOUS WASTE DISPOSAL............................ 10
13. RIGHTS OF LANDLORD.................................. 12
14. DAMAGE TO PREMISES.................................. 12
15. INDEMNIFICATION AND INSURANCE REQUIREMENTS.......... 13
16. WAIVER OF CLAIMS BY TENANT.......................... 14
17. FIXTURES............................................ 14
18. ASSIGNING AND SUBLETTING............................ 15
19. SUBORDINATION; ATTORNMENT........................... 15
20. PERFORMANCE OF TENANT'S COVENANTS................... 16
21. CUSTOM AND USAGE; NO WAIVER......................... 17
22. SURRENDER AND HOLDING OVER.......................... 17
23. ADDITIONAL CONSTRUCTION............................. 17
24. CONDEMNATION........................................ 17
25. FORCE MAJEURE....................................... 18
26. ESTOPPEL STATEMENT.................................. 18
27. EVENTS OF DEFAULT................................... 18
28. LANDLORD'S REMEDIES UPON DEFAULT BY TENANT.......... 19
29. LETTER OF CREDIT.................................... 23
30. AUTHORITY........................................... 24
31. LIABILITY OF LANDLORD............................... 22
32. LEGAL EXPENSES...................................... 22
33. LAND DOCUMENTS; RULES AND REGULATIONS............... 22
34. TIME OF THE ESSENCE................................. 22
35. QUIET ENJOYMENT..................................... 22
36. SIGNS............................................... 23
37. SCOPE AND INTERPRETATION OF AGREEMENT............... 23
38. INVALID PROVISIONS.................................. 23
39. CAPTIONS............................................ 23
40. SUCCESSORS AND ASSIGNS.............................. 23
41. NOTICES............................................. 23
42. USE OF PREMISES..................................... 24
43. GENERAL PROVISIONS GOVERNING TENANT'S IMPROVEMENTS.. 24
44. WAIVER OF JURY TRIAL................................ 25
45. INSOLVENCY OR BANKRUPTCY............................ 25
46. NO REPRESENTATIONS; NO OFFER........................ 26
47. BROKERS............................................. 26
48. EXHIBITS............................................. 26
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of the 27th day of September, 1999,
by and between WK3 INVESTORS, LTD., a Florida limited partnership (herein called
"Landlord"), and INTELLIGENT LIFE CORPORATION, a Florida corporation (herein
called "Tenant").
WITNESSETH:
A. Landlord intends to acquire title to certain real property located within
Tract WK3 of the Abacoa development in the Town of Jupiter, Palm Beach County,
Florida, which real property is more particularly described on Exhibit "A"
attached hereto and which is a parcel of approximately 4.35 acres (the "Project
Site"), and which is owned by The John D. and Catherine T. MacArthur Foundation,
a Illinois not-for-profit corporation, and is under option to Workplace
Holdings, Ltd., a Florida limited partnership that is under common control with
Landlord; and
B. Landlord intends to construct on the Project Site a two (2) story office
building (the "Project"); and
C. Subject to the terms and conditions of this Lease, Landlord has agreed to
lease to Tenant, and Tenant has agreed to lease from Landlord, all of the
rentable square footage of the Project, which is 40,000 rentable square feet
(collectively, the "Premises); and
D. Adjacent to the Project Site is a parcel of approximately 2.15 acres of
land (the "Adjacent Site"), which is being purchased by Tenant from an affiliate
of Landlord simultaneously with commencement of construction of the Project
subject to the reserved right of the seller to develop another project for
Tenant upon the Adjacent Site during the twenty four (24) month period from and
after the commencement of construction of the Project; and
E. Landlord and Tenant desire to set forth herein the terms and conditions of
their agreement, including (without limitation), the terms and conditions under
which Tenant will take possession of and occupy the Premises:
NOW, THEREFORE, for and in consideration of, and subject to the terms and
conditions of, the covenants and agreements hereafter reserved and contained on
the part of Landlord and Tenant to be observed and performed, including (without
limitation) the rents to be paid by Tenant to Landlord, Landlord demises and
leases the Premises to Tenant, and Tenant rents the Premises from Landlord.
[CONTINUED WITH LEASE SUMMARY BEGINNING ON THE FOLLOWING PAGE]
Page 1
LEASE SUMMARY
(a) "Landlord's Address": 222 Lakeview Avenue, Suite 1700
West Palm Beach, Florida 33401
Attn.: Vice President
(b) "Tenant's Address":
(prior to commencement) 11811 U.S. Highway One, Suite 101
North Palm Beach, Florida 33408
Attn: ____________________
(after commencement) The Premises
(c) Tenant's Trade Name: Intelligent Life
(d) Square Footage: 40,000 rentable square feet. The rentable square
footage as set forth in this Lease shall be used in the calculation of rent
and other sums as applicable under this Lease.
(e) "Commencement Date": Except as otherwise provided in Section 4 of the
Lease Provisions, the Commencement Date of this Lease shall be the date of
issuance by the applicable governmental authority of a certificate of
completion for the building shell of the Project.
(f) "Lease Term": Ten (10) years from the Commencement Date. Tenant shall
have the option to renew this Lease for two (2) additional terms of five (5)
years each.
(g) "Base Rent": Base Rent for the first "Lease Year" (as defined in
Section 1(b) below) shall be Six Hundred Sixty Thousand and 00/100 Dollars
($660,000.00), which is equal to Sixteen and 50/100 Dollars ($16.50) per
rentable square foot per annum, payable in equal monthly installments of
$55,000.00. Base Rent shall be adjusted thereafter in accordance with the
following schedule:
Lease Year Base Rent Base Rent per Rentable Square Foot
------------ ----------- ----------------------------------
Two $660,000.00 $16.50
Three-Five $680,000.00 $17.00
Six-Eight $720,000.00 $18.00
Nine-Ten $760,000.00 $19.00
Eleven-Twelve $820,000.00 $20.50
Thirteen-Fifteen $850,000.00 $21.25
Sixteen-Eighteen $880,000.00 $22.00
Nineteen-Twenty $920,000.00 $23.00
In each instance, Base Rent shall be payable in equal monthly installments.
(h) Sales Tax: Tenant will pay all sales, use and other taxes (except
Landlord's income taxes), charges and/or impositions on the Base Rent,
Additional Rent and any and all other amounts paid under this Lease.
Page 2
(i) "Security Deposit": $300,000.00, in the form of a letter of credit in the
form of Exhibit "F" hereto and issued by a bank acceptable to Landlord in its
reasonable discretion and otherwise in accordance with Section 29 of the Lease
Provisions.
(j) "Permitted Use": Operation of a business office.
(k) "Improvement Allowance": $25.00 per rentable square foot.
(l) "Additional Improvement Allowance": $100,000.00 for an emergency
generator and data center.
(m) "Design Allowance": $120,000.00 for interior space plan and design.
[CONTINUED WITH LEASE PROVISIONS BEGINNING ON THE FOLLOWING PAGE]
Page 3
LEASE PROVISIONS
1. RENT
(a) This is a pure "Net Lease". All Base Rent payments, together with
Tenant's Operating Expense obligations (as defined below) and any other payments
or charges that may be due or payable under this Lease (collectively,
"Additional Rent"), shall be due and payable, without notice and without offset,
abatement or deduction, at Landlord's Address or at such other place as may be
designated in writing by Landlord, in advance without demand, on the first day
of each month during the term of this Lease, together with applicable sales tax
on all such payments. In the event any amounts due hereunder have not been paid
by the fifth (5th) day of the applicable month, Tenant shall pay $100.00 as a
late fee to cover Landlord's administrative costs, and all unpaid amounts shall
bear interest from the first day of the month at the lesser of eighteen percent
(18%) per annum or the maximum rate allowed by law. Notwithstanding the
foregoing, Landlord agrees that, not more than twice in any consecutive twelve
(12) month period, Landlord or its agent shall give Tenant written notice of any
overdue Rent and Tenant shall not be in default, and no interest or late fee
shall be due with respect to such overdue Rent, provided that Tenant pays the
overdue Rent within seven (7) days following the date of deemed delivery of the
notice in accordance with Section 41 of this Lease. After Rent is overdue more
than twice in any consecutive twelve (12) month period, Tenant shall be in
default without any prior notice from Landlord or its agent, and interest and
late fees shall be due with respect to such overdue Rent as provided in this
subsection. Adjustments to the Base Rent shall be made annually as provided in
subsection (b) below. The term "Rent" as used in this Lease shall include both
Base Rent and Additional Rent. Tenant's obligations to pay Rent under this Lease
are completely independent of any of Landlord's obligations under this Lease.
(b) Each twelve (12) month period commencing on the Commencement Date
or any anniversary thereof is referred to in this Lease as a "Lease Year";
provided that, if the Commencement Date is other than the first day of a
calendar month, then the first Lease Year shall include such partial month
together with the next succeeding twelve (12) months, and each succeeding Lease
Year shall begin on the first day of the calendar month that corresponds to the
month following the Commencement Date. For each Lease Year, the amount of Base
Rent shall be as provided in paragraph (g) of the Lease Summary.
(c) Payment of prorated Rent from the Commencement Date of this Lease
until the first day of the following month (when the first full monthly payment
is due) shall be due and payable on the Commencement Date, together with
applicable sales tax.
(d) All taxes, charges, costs, assessments and expenses that are due
and payable by Tenant hereunder, together with all interest and late charges
that may accrue thereon in the event of the failure of Tenant to pay those
items, and all other damages, costs, expenses and sums that Landlord may suffer
or incur, or that may become due by reason of any default of Tenant or failure
by Tenant to comply with the terms and conditions of this Lease, shall be deemed
to be Additional Rent, and in the event of non-payment Landlord shall have all
the rights and remedies as herein provided for failure to pay Base Rent.
(e) Tenant will pay all sales, use and other taxes, charges and/or
impositions imposed at any time or from time to time by any and all governmental
authorities on the Rent and any all other amounts of any nature paid under or in
connection with this Lease, including (without limitation), sales, use and other
taxes, charges and/or impositions imposed by any and all governmental
authorities upon the manufacture, sales, use, transmission, distribution or
other services to the Premises. All such taxes, charges and/or impositions shall
be paid by Tenant even though the taxing statute or ordinance may purport to
impose such taxes, charges and/or impositions against Landlord. Tenant shall pay
before delinquency all personal taxes and assessments on the furniture,
fixtures, equipment, and other property of Tenant located in the Premises and on
additions and improvements in the Premises belonging to Tenant.
Page 4
2. COMMENCEMENT OF LEASE TERM; EXTENSION OPTIONS
(a) The Commencement Date of this Lease and the Lease Term shall be as
provided in the Lease Summary.
(b) When the Commencement Date of this Lease has been determined,
Tenant shall execute, acknowledge and deliver to Landlord an acceptance letter
in the form attached hereto as Exhibit "B", specifying, among other things, the
Commencement Date. Tenant's failure to do so, after demand by Landlord, shall
not affect the occurrence of the Commencement Date but shall be deemed a default
under this Lease.
(c) Tenant may, at its option and subject to the conditions herein
stated, extend the original term of this Lease for two (2) additional terms of
five (5) years each. Each such extension shall be subject to all of the
provisions of this Lease, including provisions for adjustments to Rent as
provided in paragraph (g) of the Lease Summary. Tenant's right to exercise each
such option is subject to the following conditions precedent:
(i) Tenant shall give written notice to Landlord irrevocably
exercising the option not more than eighteen (18) months and not less than
twelve (12) months prior to expiration of the initial Lease Term. Landlord shall
give Tenant written notice of Tenant's rights under this subparagraph 2(c)(i)
not less than eighteen (18) months prior to expiration of the initial Lease Term
and the first extension term, as applicable.
(ii) This Lease shall be in full force and effect at the time
notice of exercise is given and on the last day of the initial Lease Term.
(iii) Without limiting Tenant's curing rights hereunder (to the
extent applicable), no uncured event of default shall exist under any provision
of this Lease (and there shall be no event which, with the giving of notice or
the passage of time, or both, would constitute such a default) at the time
notice of exercise is given by Tenant or during the period from the giving of
notice through and including the last day of the initial Lease Term.
3. PREMISES; COMMON AREAS; PARKING
(a) In connection with the construction of the Premises, Landlord will
improve the Project Site with parking areas for use by Tenant. The parking
areas available for use by Tenant in connection with the Project shall contain a
total of three hundred twenty (320) parking spaces. Tenant shall have the right
(for the Lease Term and the option term) to the use of all such parking areas as
well as driveways, walkways, and other facilities designed for common use as may
be made available by Landlord with respect to the Project (collectively, "Common
Areas"), subject to the terms and conditions of this Lease and subject to the
terms and conditions of all covenants, restrictions, easements and similar
encumbrances which may affect all or any portion of the Project from time to
time, including, without limitation, all deed and plat restrictions (such
covenants, restrictions, easements and encumbrances, as the same may be modified
from time to time, as well as such additional covenants, restrictions, easements
and encumbrances to which all or any portion of the Project may be submitted or
subject from time to time, are collectively referred to as the "Land
Documents"); provided that the Land Documents shall not prohibit the conduct of
the Permitted Use at the Premises . Landlord shall not be liable for any damage
of any nature to, or any theft of, vehicles, or contents thereof, in or about
the parking facilities, except for damages resulting from Landlord's negligence
or intentional misconduct. Tenant shall have access to the Premises and the
Common Areas 24 hours per day, seven days per week.
(b) Neither Tenant nor its agents, employees or invitees shall utilize the
Common Areas or any part thereof for any of the following purposes: (i) to
solicit signatures on any petition or for any other purpose, disseminate any
information in connection therewith, or distribute any circular, booklet,
handbill, placard or other material that has no relationship to any purpose for
which the Premises was built or is permitted to be used; (ii) to
Page 5
solicit membership in any organization, group or association, or contribution
for any purpose that has no relationship to the Premises; (iii) to parade,
rally, patrol, picket, demonstrate or engage in any other such conduct; (iv) to
throw, discard or deposit any paper, glass or extraneous matter of any kind,
except in designated receptacles, or create litter or hazards of any kind; or
(v) to deface, damage or demolish any sign, light standard or fixture,
landscaping material or other improvement within the Project.
4. PREPARATION OF PREMISES; POSSESSION
(a) Landlord, at its sole cost and expense, shall construct and complete
the site work and building shell of the Project, as well as the Common Areas, as
provided in Exhibit "C" ("Landlord's Work"). Landlord shall also cause to be
constructed by the "Target Date" (hereinafter defined), subject to force
majeure, the two roadways proximate to the Project Site identified on Exhibit
"C" hereto, and Landlord shall use reasonable efforts to have the roadway which
runs in an east-west direction as depicted on Exhibit "C" designated as
"Intelligent Drive". The building shell shall be constructed substantially in
accordance with plans and specifications prepared by Landlord's architect and
approved by Tenant, such approval not to be unreasonably delayed, withheld or
conditioned. The design of the building shell shall be in accordance with
required standards and approvals for the Abacoa community and consistent with
Exhibit "C". Landlord shall cause its general contractor to obtain payment and
performance bonds for Landlord's Work and to name Tenant as an obligee of such
bonds. Further, subject to Tenant's obligation to deposit the "Tenant's
Contribution" with Landlord as provided in Exhibit "C", Landlord shall construct
all demising walls and all interior improvements to the Premises in accordance
with final architectural and engineering working drawings for the interior
improvements to the Premises as approved by Tenant and Landlord. Except as
otherwise expressly set forth in the two immediately preceding sentences,
Landlord shall have no obligations to perform any work, supply any materials,
incur any other expenses or make any installations in order to prepare the
Premises for Tenant's occupancy.
(b) Landlord shall assure that Landlord's Work, as performed by the general
contractor engaged by Landlord, shall be undertaken in a workmanlike manner and
shall be completed with new materials (unless otherwise agreed by Tenant).
Within ten (10) days following the Commencement Date, Tenant shall give Landlord
written notice of any defects in construction of the Premises, and Tenant shall
otherwise accept the Premises in their then existing condition and state of
repair, latent defects excepted. Landlord shall diligently correct any defects
in Landlord's Work that do not conform to the approved plans and specifications.
Tenant agrees that no representations, statements, or warranties, express or
implied, have been made by or on behalf of Landlord with respect to the
condition of the Project or the Premises unless expressly provided for in this
Lease. Following completion of Landlord's Work, Landlord shall cause its general
contractor to furnish Tenant an affidavit that all sums owing from Landlord to
the general contractor have been paid and that the general contractor has paid
all sums owing to its subcontractors, materialmen and suppliers. Landlord agrees
to assign to Tenant all applicable construction and manufacturers warranties,
although any such assignment shall include a reservation of Landlord's rights
under any such warranties.
(c) Without limitation of any other provision of this Lease, Tenant
acknowledges that, in order to avoid delays in completion of Landlord's Work and
Tenant's occupancy of the Premises, Tenant must provide to Landlord complete
space plans and interior program information, material, equipment wiring and
color selections, and other such matters, diligently and in good faith, and in a
timely manner in accordance with established schedules for space planning,
architectural and engineering design, and construction, which schedules shall be
in accordance with the requirements of subsection (d) below. Without limitation
of the foregoing, Tenant must furnish all information necessary for the
preparation of construction documents (including, without limitation, all
material, equipment wiring and color selections) in a timely manner and in CAD
format compatible with the building shell plans. Tenant acknowledges that
failure to timely deliver such information will delay the interior improvement
of the Premises, the issuance of a certificate of occupancy, and accordingly,
Tenant's occupancy thereof, but that Tenant nonetheless will be obligated to
commence the payment of Rent not later than the Commencement Date specified in
this Lease.
Page 6
(d) Notwithstanding any other provision in this Lease to the contrary,
provided that Tenant satisfies each and every one of the conditions set forth in
subparagraphs (i) - (v) below and Tenant is not in default of the Lease,
paragraph (e) of the Lease Summary will be deemed modified to substitute "three
(3) days following the date of issuance of a certificate of occupancy for the
Premises" in place of "the date of issuance by the applicable governmental
authority of a certificate of completion for the building shell of the Project".
Furthermore, provided that Tenant satisfies each and every one of the conditions
set forth in subparagraphs (i) -(v) below, Tenant is not in default of the
Lease, and the certificate of occupancy for the Premises is not issued by
September 15, 2000 (the "Target Date"), subject to force majeure, Landlord shall
as Tenant's sole remedy) make payment to Tenant in an amount equal to $1,000 per
day (the "Daily Amount") for each day later than the Target Date which elapses
prior to issuance of the certificate of occupancy for the Premises, provided
that if more than thirty days elapses from Target Date until issuance of a
certificate of occupancy, the Daily Amount shall be increased by $500 per day
from and after such thirtieth (30th) day and shall similarly increase by $500
per day from and after each following thirty day anniversary of the Target Date
(e.g., after 60 days following the Target Date, the Daily Amount shall be
$2,000). For example, if the certificate of occupancy is issued for the Premises
on October 17, 2000, Landlord shall pay to Tenant an amount equal to $30,000
((30 x $1,000) + (2 x $1,500) = $33,000).
(i) Tenant gives Landlord written approval of the site plan, building
elevations and building floor plates for the Project not later than September
30, 1999. Landlord is permitted, without the further consent of Tenant, to make
such changes to the approved site plan, building elevations and building floor
plates as may be required by the Town of Jupiter.
(ii) Tenant gives Landlord the final space plans, furniture location plan,
wiring requirements, and architectural and engineering plans for the interior
improvements to the Premises, evidencing Tenant's written approval thereof, not
later than the seventieth (70th) day after the date of this Lease; and
(iii) Tenant gives Landlord written approval of final selections for all
interior finishes for the Premises not later than the one hundredth (100th) day
after the date of this Lease; and
(iv) Tenant gives Landlord written approval of final pricing for the
interior improvements to the Premises by the date that is the later of (A) the
one hundredth fortieth (140th) day after the date of this Lease, or (B) seven
(7) days following delivery of the proposed pricing to Tenant; and
(v) Tenant deposits with Landlord the excess cost for the interior
improvement work, as required by Exhibit "C", by the date that is the later of
(A) the one hundredth fiftieth (150th) day after the date of this Lease, or (B)
ten (10) days following Tenant's written approval of the final pricing for the
interior improvements to the Premises.
Tenant acknowledges that Landlord has agreed to the provisions of this
subsection 4(d) on the condition that Tenant does not intend to include in the
Premises any long lead items or any improvements or equipment that would require
licensure or review by any Federal, state or local agency or instrumentality,
and the provisions of this subsection 4(d) shall be inapplicable in the event
that Tenant elects to include any such long lead items or improvements or
equipment in the Premises. Further, nothing herein shall in any event serve to
extend the Commencement Date beyond the date three (3) days following the date
on which the Tenant opens the Premises for business or otherwise commences its
operations therein.
Landlord shall provide Tenant with notice of: (i) receipt of site plan
approval for the Project, (ii) submission for a building permit for the Project,
and (iii) receipt of a building permit for the Project. Landlord and Tenant
shall hold monthly meetings during the period following the date hereof through
the Commencement Date for the purpose of reviewing the progress of the
development and construction of the Project (including the status of progress
drawings, the status of construction and the results of any studies or analyses
conducted with respect to the Project)
Page 7
and obtaining required input from Tenant. Such meetings shall be attended by
representatives of Tenant and Landlord knowledgeable about the Project and the
Project architect.
(e) If Tenant shall occupy the Premises prior to the Commencement Date, but
not open for business, such occupancy by Tenant shall be deemed to be that of a
tenant under all of the terms, covenants, and conditions of this Lease, except
that Tenant's obligation to pay Rent shall not commence until the Commencement
Date. Tenant shall be entitled to access to the Premises, subject to reasonable
coordination by and scheduling with Landlord and its general contractor, for
purposes of installing equipment, cabling, moving furniture, and otherwise
preparing the Premises for occupancy, provided that no such activities cause a
delay in issuance of a certificate of occupancy for the Premises.
5. COMMON AREA MAINTENANCE COSTS
(a) Tenant acknowledges that this Lease is on a net, net, net basis.
Accordingly, in addition to Base Rent, Tenant shall pay in a timely manner
before they become delinquent directly to the billing parties beginning on the
Commencement Date and ending on the last day of the Term, all expenses
("Operating Expenses") accruing during the Lease Term hereof and arising out of
or attributable to the Project including, but not limited to, real estate taxes
and assessments including special assessments; property owners' association and
similar association fees and assessments if any, the imposition of which taxes
the Tenant shall have the right to contest with the appropriate governmental or
private entity; (and Landlord shall cooperate with any such contest provided
there is no cost or expense to Landlord); amounts due under the Land Documents;
insurance required to be carried by Tenant under the terms of this Lease or by
applicable laws; maintenance; repairs, operation; parts; water; sewer;
electricity; and all other utilities; if any; trash removal; landscaping;
management; supplies; tools; materials; security services (if any); energy
control services; sound system; exterminating; service contracts; the costs of
any capital improvements, machinery or equipment which are reasonably necessary
or are imposed by applicable law, rule, regulation or code; all costs of the
maintenance, repair and replacement of the Project and any structural and non-
structural portions thereof, and maintenance, repair and replacement of the
roof.
(b) In the event for reasons other than a default hereunder by Tenant any
Operating Expense shall pertain to a specified or definite period of time some
of which accrued during the Lease Term and some of which accrued either before
the Commencement Date or after the last day of the Lease Term, then Tenant shall
pay all of such Operating Expense which accrued during the Lease Term. For
example only, in the event the last day of the Lease Term shall, for reasons
other than a default hereunder by Tenant, be other than December 31st of any
calendar year, then Tenant shall pay upon the issuance of the real estate tax
bill(s) for the Project for the calendar year in which the Lease Term shall end
the amount of taxes as set forth on such tax bill(s) multiplied by a fraction,
the numerator of which shall be the number of days during the calendar year at
issue prior to the expiration of the Lease Term and the denominator of which
shall be the number of days in such calendar year (i.e., the denominator of
which shall be either 365 or 366). Notwithstanding the foregoing, Operating
Expenses shall not include, and Tenant shall not be obligated to pay (1)
franchise or partnership taxes, gross receipts taxes, income taxes, inheritance
taxes or any similar or like taxes on Landlord (except to the extent based upon
the rent collected for the Project or any portion thereof as hereinabove
provided); (2) interest, amortization and other charges paid in respect of
mortgage or other loans made by Landlord; (3) ground lease and other rent paid
by Landlord (if any); (4) depreciation of the Project; and (5) fines, penalties,
and other costs incurred by Landlord due to its violation of any applicable law.
(c) In furtherance of Section 8 below and not in limitation thereof, Tenant
covenants and agrees with Landlord that during the continuance of this Lease
Tenant at its sole expense shall keep the Project in a good state of repair and
in as good condition as they were at the beginning of the Lease Term, ordinary
wear and tear and casualty damage to the extent Landlord receives insurance
proceeds therefor excepted, and Tenant will not suffer or permit any strip,
waste or neglect of the Project, and Tenant at its sole expense will maintain,
repair, replace and renovate the Project, including without limitation all
structural and non-structural portions thereof, and all portions of the roof
thereof, in order to keep the Project in first class repair and condition. In
the event Tenant does not pay Operating
Page 8
Expenses as required by this Lease, keep and maintain the Project as required by
this Lease or make the said repairs or replacements within thirty (30) days
after notice from Landlord, or in case of repairs which, for causes beyond
Tenant's control cannot with reasonable diligence be cured within said thirty
(30) day period, if Tenant shall not have promptly after notice commenced such
repairs and thereafter diligently prosecuted same to completion, within a
reasonable time, then Landlord shall have the right, in addition to any other
remedies it may have under law or this Lease, but not the obligation, after
notice to Tenant to pay such Operating Expenses and/or enter upon the Project
and maintain the Project and/or make the said repairs or replacements itself, as
the case may be, and charge the cost thereof to Tenant as Additional Rent
hereunder which cost thereof shall be due and payable by Tenant within thirty
(30) days after Tenant deemed to have received a bill therefor from Landlord
together with interest at the Rate of eighteen percent per annum. In the event
Tenant fails to pay in full said cost within said thirty (30) days after Tenant
is billed therefor, then, in addition to and not in limitation or waiver of any
other remedies which may arise out of a default hereunder by Tenant, interest
shall accrue on all unpaid amounts from the due date to the date of payment by
Tenant and such interest shall be due and payable immediately as Additional
Rent. For purposes of this Lease and without limitation of subparagraph 1(a)
above, "Additional Rent" includes all costs, expenses, interest and sums other
than Base Rent which become due hereunder whether payable to Landlord or to
other parties (such as with regard to Operation Expenses), but which are not
paid by Tenant within the time required by, it being the intent of the parties
that all such other costs, expenses, interest and sums due hereunder from Tenant
to Landlord shall be construed as Additional Rent due from Tenant to Landlord.
6. PUBLIC UTILITIES
(a) Landlord shall, at Tenant's sole cost and expense, arrange for the
initial hook-up of all utilities needed for the Permitted Use. Tenant shall
separately arrange with, and pay directly to, the applicable local public
authorities or utilities, as the case may be, for the furnishing, installation
and maintenance of all utilities, telephone services and equipment required by
Tenant for the Permitted Use.
(b) In addition, pursuant to Section 5 above, Tenant shall pay all water
and sewer charges for the Project, which payment shall be made when due to the
appropriate public utility provider.
7. TAXES AND ASSESSMENTS
(a) Pursuant to Section 5 above, Tenant shall pay all real estate taxes,
fees, assessments and charges of any kind or nature whatsoever (excluding
Landlord's income taxes) associated with or attributable to the ownership,
operation, maintenance or repair of all or any portion of the Project,
including, without limitation, any charges or assessments against the Project
for public betterments or improvements, and all expenses and fees incurred in
connection with contesting the amount or the validity of any of the foregoing.
In connection with the development of the Project, Landlord shall cause the
Project Site to be platted and a separate tax parcel established. Landlord shall
provide to Tenant copies of all tax bills promptly following receipt of such
bills by Landlord.
(b) Landlord shall have the option to take the benefit of the provisions
of any statute or ordinance permitting any taxes or assessments to be paid over
a period of time, in which case Tenant shall be obligated to pay only the
portion of the installments which become due and payable during the term of this
Lease, as extended, prorated for any partial Lease Year.
(c) The provisions of this Section 7 are predicated upon the present
system of taxation in the State of Florida. Should any governmental authority
having jurisdiction over all or any portion of the Project impose a tax and/or
assessment or any kind or nature upon, against, measured by or with respect to
the Rent payable to Landlord under this Lease or with respect to the ownership
of the Project or any part thereof by Landlord (or any individual or entity
forming Landlord), either by way of substitution for all or any part of the
present real estate taxes or
Page 9
assessments or in addition thereto, then such tax and/or assessment shall be
deemed to constitute "real estate taxes" for purposes of this Lease and Tenant
shall be obligated to pay the same as set forth in this Section 7.
8. REPAIRS AND MAINTENANCE
(a) During the original term of this Lease and each extension term, Tenant
shall, at Tenant's sole cost and expense, maintain, repair, replace and renovate
all portions of the roof, the exterior walls and all structural and non-
structural elements of the Project; the elevators, electrical, plumbing,
heating, air conditioning, and other mechanical installations that serve the
Project and the Premises; and the interior of the Premises, including (without
limitation) all interior glass and doors that are a part of the Premises, all in
first class condition and good working order, and shall use materials and labor
of a kind and quality equal to the original work. Landlord shall have no
obligation to repair, maintain, alter, replace, or modify the Project or the
Premises or any part thereof, including (without limitation) any elevators,
electrical, plumbing, heating, air conditioning, or other mechanical
installation. Tenant agrees that the roof, elevators, electrical, heating and
air conditioning equipment for the Project shall be maintained by contractors
reasonably approved by Landlord and fully licensed to maintain such improvements
in the State of Florida. Tenant shall, upon the request of Landlord from time to
time, provide Landlord with copies of maintenance contracts entered into with
respect to the Project or the Premises, as well as written service records that
shall be maintained by Tenant or its contractor during the Lease Term.
(b) Any interruption of any services with respect to the Project or the
Premises, whether such failure is caused by acts of God; accidents; breakage;
repairs; strikes; lockouts; other labor disputes; the making of repairs,
alterations, or improvements to the Premises or any part of the Project;
inability to obtain an adequate supply of fuel, steam, water, electricity, labor
or other supplies; or by any other condition, including, without limitation, any
governmental energy conservation program, shall not constitute a default by
Landlord under this Lease, shall not render Landlord liable for any damages
directly or indirectly resulting from such failure or delay, shall not permit
Tenant to abate any Rent or relieve Tenant from any of its obligations under
this Lease, and shall not constitute a constructive or other eviction of Tenant,
unless such interruption of services was caused by the negligence or intentional
misconduct of Landlord.
(c) Except as provided in Section 9 below, at the expiration or earlier
termination of this Lease, Tenant shall surrender the Premises in the same
condition as when received, reasonable wear and tear and, subject to Tenant's
obligations under this Lease, casualty or condemnation excepted.
9. ALTERATIONS
Tenant shall not make any alterations, improvements, or additions to the
Project or the Premises, including (without limitation) drilling into, or
securing any fixture, apparatus, or equipment of any kind to, any part of the
Premises, without first obtaining the written consent of Landlord in each
instance, which consent shall not be unreasonably withheld or delayed. Without
limitation of the foregoing, it is the intention of Landlord and Tenant that
Landlord shall maintain complete aesthetic control over any and every portion of
the Premises visible from outside of the Premises. Tenant shall present to the
Landlord plans and specifications for work at the time approval is sought. All
such alterations, improvements, and additions made by Tenant shall remain upon
the Premises at the expiration or earlier termination of this Lease and shall
become the property of Landlord, unless Landlord shall, prior to or
simultaneously with such expiration or termination, have given written notice to
Tenant to remove same, in which event Tenant shall remove such alterations,
improvements, and additions and restore the Premises to the same good order and
condition as at the Commencement Date, reasonable wear and tear and, subject to
Tenant's obligations under this Lease, casualty or condemnation excepted. Upon
default by Tenant, Landlord may perform such restoration and collect the cost
thereof from Tenant as Additional Rent. In addition, Landlord may apply
Tenant's security deposit against such obligation. Tenant's obligations under
this Section 9 shall, in all events, be carried out in conformance with the
provisions of Section 10(h) below.
Page 10
10. AFFIRMATIVE COVENANTS
(a) Tenant covenants that it shall:
(i) Pay all Rent at the times, and in the manner, set forth in this
Lease.
(ii) Comply with the terms of all statutes, ordinances and regulations
applicable to Tenant or its use of the Premises, including, without limitation,
zoning ordinances, resolutions, orders, development orders, master plans, site
plans, licenses, agreements, arrangements, plans, rules or regulations of or
issued by governmental, quasi-governmental or utility authorities having
jurisdiction over the Premises or declarations of property owner associations
having jurisdiction over the Premises, and save Landlord harmless from
penalties, fines, costs, expenses, or damages resulting from Tenant's failure to
do so. Tenant shall provide to Landlord copies of each licensure inspection
report within ten (10) days after receipt of same, and shall provide to
Landlord, within ten (10) days following the applicable deadline for corrective
action, evidence of compliance with any corrective action recommended or
required as a result of any such inspection.
(iii) Comply with the terms and conditions set forth herein relating
to the use, operation, and maintenance of the Project, including the Premises
and the Common Areas.
(iv) Give to Landlord prompt written notice of any accident, fire, or
damage occurring on or to the Project, including the Premises and the Common
Areas.
(v) Conduct its operations at the Premises in a professional manner and
keep the Premises in first-class condition and good working order.
(vi) Comply with all reasonable rules and regulations of Landlord with
respect to the Project, including the Premises and the Common Areas, whether in
effect at the time of execution of this Lease or amended or promulgated from
time to time thereafter by Landlord in its reasonable discretion, including
(without limitation) the installation of fire extinguishers and other safety
equipment as Landlord may require and compliance with the recommendations of
Landlord's insurance carriers and their rate-making bodies.
(vii) Comply with all terms and provisions of the Land Documents
affecting all or any portion of the Project.
(viii) Tenant shall have no power or authority to create any lien or
permit any lien to attach to the Premises, or any interest of Landlord in the
Premises or the Project, and all suppliers, contractors, artisans, mechanics,
laborers and other persons contracting with Tenant with respect to the Premises
or any part thereof shall be so notified in writing by Tenant. Landlord may
record a memorandum (referring to this provision) that the interest of Landlord
shall not be subject to liens for improvements made by or on behalf of Tenant,
and Tenant agrees to do all things necessary to prevent the filing of any
mechanic's or other liens against the Premises or any part thereof by reason of
work, labor, services, or materials supplied or claimed to have been supplied to
Tenant, or anyone holding the Premises, or any part thereof, through or under
Tenant. If any such lien shall at any time be filed against the Premises,
Tenant shall cause the same to be discharged of record within ten (10) days
after Tenant has notice of the of filing of the same. If Tenant shall fail to
discharge the lien within such period of time, then, in addition to any other
right or remedy of Landlord resulting from Tenant's default, Landlord may, but
shall not be obligated to, discharge the same by paying the amount claimed to be
due, procuring the discharge of the lien by giving security, or taking such
other action as may be permitted by law. Notice is hereby given that landlord
is not and shall not be liable for any labor, services or materials furnished to
tenant or anyone holding the premises, and that no construction, mechanic or
other lien for any such labor, services or materials shall attach to or affect
the interest of landlord in and to the premises or the project.
Page 11
(ix) Subject to the notice and cure provisions of Section 27(g) of this
Lease, repay to Landlord as Additional Rent, on demand, any and all liabilities,
costs or expenses incurred by Landlord as a result of the breach of any covenant
set forth in this Section 10 or in Section 11 below, and interest thereon at the
lesser of eighteen percent (18%) per annum or the maximum amount allowed by law.
(x) So long as Tenant is a corporation the shares of which are traded
on a recognized stock exchange and Tenant is required to file with the
Securities and Exchange Commission on an annual basis a Form 10k,provide
Landlord within ninety (90) days following the end of each calendar year copies
of Tenant's Form 10k for such year. If Tenant is not a corporation the shares of
which are traded on a recognized stock exchange or for any other reason Tenant
is not required to file with the Securities and Exchange Commission a Form 10k,
provide to Landlord, within ninety (90) days following the end of each calendar
year, copies of audited financial statements for such year for Tenant, and
provide to Landlord, upon request, copies of unaudited quarterly financial
statements for the most recent quarter for Tenant. All documents provided to
Landlord pursuant to this subsection will remain confidential, subject to lender
review, and will be used only for asset management purposes related to the
Project. Tenant acknowledges that, as a material inducement to Landlord to enter
into this Lease, Tenant has provided to Landlord current financial statements
for Tenant. Tenant further acknowledges that Landlord has relied on such
documents and information in determining the net worth of Tenant and in
evaluating such other criteria as Landlord may have deemed relevant in entering
into this Lease.
(b) Landlord covenants that it shall: (i) comply in all material
respects with the terms of all statutes, ordinances and regulations applicable
to Landlord; (ii) comply with the terms and provisions of the Land Documents to
the extent they apply to the Project; and (iii) provide Tenant copies of any
notices received from any governmental agency or property owner's association
regarding the Project.
11. NEGATIVE COVENANTS OF TENANT
Tenant covenants that it shall not do any of the following without obtaining the
prior written consent of Landlord:
(a) Permit the emission of any noises or noxious odors from the Premises
that are harmful to person or property.
(b) Do, or suffer to be done, anything at the Premises or the Project that
causes the fire insurance or any other insurance now in force or hereafter to be
placed on the Premises or the Project to become void or suspended.
(c) Commit, or suffer to be committed, any waste upon the Project,
including the Premises or Common Areas.
(d) Tenant shall neither use nor occupy the Premises or any part thereof
for any unlawful, disreputable, or ultra-hazardous purpose, nor operate or
conduct its practice or business in a manner constituting a nuisance of any kind
in the reasonable judgment of Landlord. Tenant shall, immediately on discovery
or notice of any unlawful, disreputable, or ultra-hazardous use, take action to
halt such activity.
12. HAZARDOUS WASTE DISPOSAL
(a) For purposes of this Lease, "Hazardous Materials" shall mean any
material, substance or waste that is or has the characteristic of being
hazardous, toxic, ignitable, reactive or corrosive, including, without
limitation, (i) petroleum, PCB's, asbestos, materials known to cause cancer or
reproductive problems; (ii) any materials, substances and/or wastes, including,
without limitation, infectious waste, which are or hereafter become regulated by
any local governmental authority, the State of Florida or the United States; and
(iii) substances defined
Page 12
as "hazardous substances," "hazardous materials," "toxic substances," "hazardous
wastes," "oil," "regulated substances," "restricted hazardous wastes," "special
wastes" or words of similar import in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq.; the Federal Water Pollution Control Act; the Federal Clear Air Act; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901, et seq; and all
other corresponding or related State of Florida and local statutes, ordinances
and regulations, including, without limitation, any dealing with underground
storage tanks; and any other environmental law, regulation or ordinance now
existing or hereinafter enacted (collectively, "Hazardous Materials Laws").
Notwithstanding the foregoing, the term Hazardous Substances as defined herein
shall not include (a) pharmaceuticals, cleaning agents of the types and in the
quantities and concentrations normally stocked by health care providers similar
to the Project, or (b) oil in de minimis amounts typically associated with the
use of certain portions of the Project for driving and parking motor vehicles;
provided that the foregoing are used, stored, transported and disposed of in
accordance with all Hazardous Materials Laws.
(b) Tenant, and all of its officers, directors, employees,
representatives, agents, contractors, subcontractors, successors, assigns,
lessees, sublessees, concessionaires, invitees and any other occupants of the
Premises (collectively, "Tenant Representatives"), shall abide by all Hazardous
Materials Laws and other municipal, county, state and federal statutes, laws,
ordinances, administrative rules and regulations and guidelines applicable to
the disposal of Hazardous Materials. Tenant shall not use, handle, deposit or
dispose of any Hazardous Materials which requires special handling into the
waste disposal facilities provided by Landlord. Tenant shall, at Tenant's
expense, employ or engage private waste management services to dispose of any
and all waste of Tenant which must be handled in any manner other than general
waste collection provided by Landlord through public or private waste collection
service. Without limiting the foregoing, Tenant shall employ or engage a
licensed waste disposal service to provide any required containers or storage
facilities and to remove any Hazardous Materials which Tenant must handle in a
manner as provided for by Hazardous Materials Laws.
(c) Tenant shall indemnify, defend and hold harmless Landlord and the
holder ("Mortgagee") of any mortgage encumbering all or any portion of the
Project or the real property upon which the Project is situated ("Mortgage"),
and their respective partners, shareholders, directors, officers, agents and
employees (the "Indemnified Parties") from and against any and all claims
arising from or in connection with any act, omission or negligence of Tenant, or
any of its subtenants or licensees or its or their partners, directors, offices,
agents, employees or contractors, relating to or arising out of the disposal of
Hazardous Materials from the Premises, such indemnity to include all costs,
expenses and liabilities incurred in or in connection with each such claim,
action or proceeding with respect thereto, including, without limitation, all
attorney's fees and expenses. In the event any Indemnified Party shall be made a
party to any litigation or proceeding commenced by or against Tenant, then
Tenant shall protect, indemnify and hold such Indemnified Party harmless with
respect thereto, and Tenant shall pay all costs, expenses and reasonable
attorneys' fees (in all proceedings) incurred or paid by such Indemnified Party
in connection with such litigation or proceeding, or in enforcing the covenants
and agreements of this Section. TENANT ACKNOWLEDGES AND AGREES THAT IT IS THE
SOLE RESPONSIBILITY OF TENANT TO ASCERTAIN AND COMPLY WITH THE HAZARDOUS
MATERIALS LAWS IN CONNECTION WITH THE HANDLING AND DISPOSAL OF HAZARDOUS
MATERIALS OR ANY OTHER MATERIALS FROM THE PREMISES.
(d) Tenant hereby agrees that Tenant and Tenant's Representatives shall
not use, generate, manufacture, refine, produce, process, store or dispose of,
on, under or about the Premises or the Project, or transport to or from the
Premises or the Project in the future for the purpose of generating,
manufacturing, refining, producing, storing, handling, transferring, processing
or transporting Hazardous Materials, except in compliance with all applicable
Hazardous Materials Laws. Furthermore, Tenant shall, at its own expense,
procure, maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental and regulatory approvals required for
the storage or use by Tenant or any of Tenant's Representatives of Hazardous
Materials on the Premises, including (without limitation) discharge of
(appropriately treated) materials or wastes only as provided
Page 13
by law. Tenant further agrees that Tenant and Tenant's representatives shall not
permit any lien arising under or related to any of the Hazardous Materials Laws
to attach to the Premises or the Project.
(e) If at any time during the Lease Term (or any extended term) any
contamination of the Premises or the Project by Hazardous Materials shall occur,
where such contamination is caused by the act or omission of Tenant or Tenant's
Representatives ("Tenant Contamination"), then Tenant, at its sole cost and
expense, shall promptly and diligently remove such Hazardous Materials from the
Project or the groundwater underlying the Project to the extent reasonably
possible in accordance with the requirements of the applicable Hazardous
Materials Laws and industry standards then prevailing in the Hazardous Materials
management and remediation industry in Florida. However, Tenant shall not take
any required remedial action in response to any Tenant's Contamination in or
about the Project or enter into any settlement agreement, consent, decree or
other compromise in respect to any claims relating to any Tenant's Contamination
without first notifying Landlord and any Mortgagee of Tenant's intention to do
so, and affording Landlord and any Mortgagee the opportunity to appear,
intervene or otherwise appropriately assert and protect their interests with
respect thereto.
(f) In addition to all other rights and remedies of Landlord or any
Mortgagee, if Tenant does not promptly and diligently take all steps to prepare
and obtain all necessary approvals of a remediation plan for any Tenant's
Contamination and thereafter commence the required remediation of any Hazardous
Materials released or discharged in connection with Tenant's Contamination
within thirty (30) days after Landlord and any Mortgagee have reasonably
approved Tenant's remediation plan and all necessary approvals and consents have
been obtained, and thereafter continue to prosecute said remediation to
completion in accordance with the approved remediation plan, then Landlord or
any Mortgagee, at their sole discretion, shall have the right, but not the
obligation, to cause said remediation to be accomplished, and Tenant shall
reimburse, within fifteen (15) business days of demand for reimbursement, all
amounts reasonably paid by Landlord (together with interest on said amounts at
the highest lawful rate until paid), when said demand is accompanied by proof of
payment of the amounts demanded. Tenant shall promptly deliver to Landlord and
any Mortgagee copies of hazardous waste manifests reflecting the legal and
proper disposal of all Hazardous Materials removed from the Project as part of
Tenant's remediation of any Tenant's Contamination.
(g) Each party hereto (for purposes of this Section 12, a "Notifying
Party") shall immediately notify the other party (the "Notice Recipient") in
writing of: (i) any enforcement, clean-up, removal or other governmental or
regulatory action instituted, contemplated or threatened concerning the Project
pursuant to any Hazardous Materials Laws; (ii) any claim made or threatened by
any person against the Notifying Party or the Project relating to damage
contribution, cost recovery, compensation, loss or injury resulting from or
claimed to result from any Hazardous Materials on or about the Project; and
(iii) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in or removed from the Project including
any complaints, notices, warnings or asserted violations in connection
therewith, all upon receipt by the Notifying Party of actual knowledge of any of
the foregoing matters. Notifying Party shall also supply to Notice Recipient as
promptly as possible, and in any event within five (5) business days after
Notifying Party first receives or sends the same, with copies of all claims,
reports, complaints, notices, warnings or asserted violations relating in any
way to the Premises or Tenant's use thereof.
(h) If at any time during the Lease Term (or any extended term) any
contamination of the Project by Hazardous Materials shall occur, where such
contamination (i) is not caused by Tenant or Tenant's Representatives, and (ii)
is caused by the act or omission of Landlord or "Landlord's Representatives"
(which shall include Landlord's officers, directors, employees, representatives,
agents, contractors, subcontractors, successors, and assigns, but shall not
include lessees, sublessees or other occupants of the Project) ("Landlord
Contamination"), then Landlord, at its sole cost and expense, shall promptly and
diligently remove such Hazardous Materials from the Project or the groundwater
underlying the Project to the extent reasonably practical in accordance with the
requirements of the applicable Hazardous Materials Laws and industry standards
then prevailing in the Hazardous Materials management and remediation industry
in Florida. Landlord shall indemnify and hold harmless Tenant and Tenant's
Representatives from and against any and all claims arising from or in
connection with any act, omission or negligence of Landlord,
Page 14
or any of its partners, shareholders, directors, officers, and employees,
relating to or arising out of the disposal of Hazardous Materials from the
Project, such indemnity to include all reasonable costs, expenses and
liabilities incurred in or in connection with each such claim, action or
proceeding with respect thereto, including, without limitation, all reasonable
attorney's fees and expenses. Landlord has no knowledge of the presence of
Hazardous Materials on the Project Site, provided that the only investigation
undertaken in that regard is documented in that certain report from ATC
Associates, Inc. dated September 21, 1999 under ATC Project Number 03353.0001;
Task 2, a copy of which report has previously been provided to Tenant.
13. RIGHTS OF LANDLORD
In addition to any other rights of Landlord reserved herein, Landlord
reserves the right, at all reasonable times after prior notice to Tenant, by
itself or its duly authorized agents, to enter into the Premises to inspect same
and to perform any obligation of Tenant under this Lease that is not performed
by Tenant within any cure period provided for in this Lease; to take photographs
of the Premises for promotional or other purposes of Landlord (although Landlord
shall not take photographs of the interior of the Premises which photographs
include information regarding Tenant's business, without the prior consent of
Tenant, which consent shall not be unreasonably withheld, delayed or
conditioned); to enforce any rights and remedies of Landlord under this Lease;
and, after notice from Landlord of intention to terminate this Lease in
accordance with the terms of this Lease, at any time within three (3) months
prior to the expiration of the Lease Term or any extension term, or in
connection with a potential sale or refinancing of the Project or any portion
thereof, to show the Premises. If Tenant does not make itself available or
otherwise refuses to admit Landlord or its agents to the Premises during regular
business hours after prior notice from Landlord, or if an entry into the
Premises shall be necessary in the case of an emergency, Landlord or Landlord's
agents may make forcible entry without rendering Landlord or such agents liable
therefor and without in any manner affecting the obligations and covenants of
Tenant under this Lease. Tenant hereby irrevocably grants Landlord the necessary
licenses to carry out the terms of this subsection. The exercise of any right
reserved to Landlord in this Section 13 (or otherwise) shall not be deemed an
eviction or disturbance of Tenant's use and possession of the Premises, shall
not render Landlord liable in any manner to Tenant, any of Tenant's
Representatives or to any other person, and shall not diminish any other rights
or remedies of Landlord with respect to a default by Tenant under this Lease.
14. DAMAGE TO PREMISES
(a) If the Premises or any other portion of the Project shall be damaged
or destroyed by fire or other casualty of any kind, Tenant shall promptly cause
such damage to be repaired and replaced, and the Rent shall not be abated. There
shall be no obligation on Landlord to repair or replace the Premises or any
other portion of the Project in case of fire or other casualty. Notwithstanding
the foregoing, if during the last two years of the Lease Term the Project is
damaged by fire or any other cause to such extent that the cost of restoration,
as reasonably estimated by Landlord, will equal or exceed fifty percent (50%) of
the replacement value of the Project (exclusive of foundation) as of the day
preceding the day of the occurrence of the damage, then Tenant may, no later
than the sixtieth (60th) day following the occurrence of the damage, give
Landlord notice of Tenant's election to terminate this Lease. In the event of
such termination election by Landlord or Tenant as set forth above, (i) this
Lease shall be deemed to terminate on the sixtieth (60th) day after such notice;
(ii) Tenant shall surrender possession of the Premises on or before the sixtieth
(60th) day after such notice of election to terminate; (iii) Base Rent shall be
equitably abated as of the date of damage; and (iv) all rent, including Base
Rent and any Additional Rent, shall be apportioned as of the date of surrender
and any rent for any period beyond such date shall be refunded to Tenant. In the
event of any such termination, all proceeds from the insurance on the Project
required to be maintained by Tenant under the Lease shall be paid to Landlord.
Tenant acknowledges and agrees that in no event shall Landlord be liable to
Tenant or any of Tenant's Representatives for any inconvenience or loss of
business on account of any loss or damage to the Premises or any other portion
of the Project. Tenant shall promptly commence all repairs and replacements
under this Section 14, and shall diligently complete such repairs in a good and
workmanlike manner in accordance with the
Page 15
terms of this Lease (including the terms of Section 8 above), and in accordance
with all applicable laws, rules and regulations.
(b) The obligations of Tenant in the event of any damage to or destruction
of the Premises, or any other portion of the Project, are governed exclusively
by this Lease. Tenant hereby waives the provisions of any law to the contrary.
15. INDEMNIFICATION AND INSURANCE REQUIREMENTS
(a) Tenant shall:
(i) Indemnify, defend and save the Indemnified Parties harmless from and
against any and all claims, actions, damages, liability, and expense, including
attorney's fees and costs in all proceedings, in connection with loss of life,
personal injury, or damage to property occurring in or about the Project,
including the Premises and the Common Areas. The foregoing indemnity shall
include, without limitation, all claims, actions, damages, liability, and
expense, including attorney's fees and costs in all proceedings, that are
excluded from Tenant's liability insurance coverage (as required under this
Section 15), whether as a deductible or otherwise.
(ii) At all times during the term hereof, keep in force, at its own
expense, commercial general liability insurance, including automobile liability
for non-owned and hired, in companies acceptable to Landlord and naming as
additional insureds Landlord, the Project property manager and each Mortgagee,
with a combined single limit of $3,000,000. The commercial general liability
insurance policy shall include a contractual liability endorsement which shall
insure Landlord against liability arising from any of the claims against which
Tenant is required by this Lease to indemnify Landlord.
(iii) At all times during the term hereof, keep in force, at its own
expense, insurance against loss or damage by fire and lightning, and such other
perils as are covered under a standard "all-risk" or special form policy. Such
insurance shall be carried with companies acceptable to Landlord, in an amount
not less than one hundred percent (100%) of the replacement costs of the Project
including Tenant's betterments and improvements to of the Premises, and naming
Landlord, and each Mortgagee of which Tenant has actual notice as an additional
insured. The foregoing coverage shall include business interruption insurance
for a period of twenty four (24) months following the occurrence of any insured
casualty or occurrence.
(iv) Furnish to Landlord, within ten (10) days prior to the Commencement
Date (or, if earlier, the date that Tenant takes possession of the Premises),
and thereafter within ten (10) after request by Landlord at any time and from
time to time, copies of all policies and endorsements of insurance evidencing
coverage required by this Lease. All policies required hereunder shall contain
an endorsement providing that the insurer will not cancel or materially change
the coverage of such policies without first giving thirty (30) days prior
written notice thereof to Landlord and each named Mortgagee.
(b) Landlord may, at its option, purchase fire and extended coverage
insurance on the Project (other than Tenant's betterments and improvements to
the Premises) under a standard "all-risk" or special form policy and in such
amounts as may be required by each Mortgagee from time to time. Any such
purchase of insurance by Landlord shall not limit the obligations of Tenant as
set forth above.
(c) Landlord and Tenant hereby mutually waive and release their respective
rights of recovery against one another and their officers, agents and employees
for any damage to real or personal property, including resulting loss of use,
interruption of business, and other expenses occurring as a result of the use or
occupancy of the Premises if, and only to the extent that, the same is insured
against under a standard "all-risk" or special form policy of property insurance
required to be maintained by the parties hereto. Landlord and Tenant agree that
all policies of insurance obtained by them pursuant to the provisions of this
Lease shall contain provisions or endorsements thereto
Page 16
waiving the insurer's rights of subrogation with respect to claims against the
other, to the extent obtainable at no additional cost; provided, however, that
if there is an additional cost, then the party benefiting from waiver of
subrogation shall have the option of paying such cost.
16. WAIVER OF CLAIMS BY TENANT
Landlord and its agents, employees, and contractors shall not be liable
for, and Tenant hereby releases all claims for damages to person or property
sustained by Tenant or any person claiming by, through or under Tenant resulting
from, any fire, accident, occurrence, or condition in or upon the Premises or
Landlord's property, including, but not limited to, claims for damage resulting
from: (i) any defect in or failure of plumbing, heating, or air conditioning
equipment, electrical wiring or installation thereof, water pipes, stairs,
railings, or walks; (ii) any equipment or appurtenances becoming out of repair;
(iii) the bursting, leaking, or running of any tank, washstand, water closet,
waste pipe, drain or any other pipe or tank in, upon or about the Premises; (iv)
the backing-up of any sewer pipe or downspout, (v) the escape of steam or hot
water; (vi) water being upon or coming through the roof or any other place upon
or near the Premises; (vii) the falling of any fixture, plaster, or stucco;
(viii) broken glass; (ix) any act, negligence, or omission of Tenant or other
occupants of the Project; and (x) vandalism or theft. Notwithstanding the
foregoing, Tenant shall not be deemed to have released any claims for damages to
person or property sustained by reason of the negligence or intentional
misconduct of Landlord or its agents, employees, or contractors.
17. FIXTURES
(a) Any and all improvements to the Premises that are funded with the
Improvement Allowance, the Additional Improvement Allowance and/or the Design
Allowance, regardless of whether such improvements constitute fixtures
(including, without limitation, trade fixtures), shall remain a part of the
Premises, and in no event may be removed by or on behalf of Tenant during the
Lease Term or any extension thereof, or upon the expiration or earlier
termination of this Lease or any extension thereof.
(b) Any trade fixtures installed in the Premises by Tenant, which trade
fixtures are not funded with the Improvement Allowance, the Additional
Improvement Allowance and/or the Design Allowance, shall remain the property of
Tenant and shall be removable at the expiration or earlier termination of this
Lease or any extension thereof, provided Tenant shall not at such time be in
default; and, provided further, that in the event of such removal, Tenant shall,
at the time of removal, repair the damage caused by such removal and promptly
restore the Premises to its original improved order and condition, reasonable
wear and tear and, subject to Tenant's obligations under this Lease, casualty
and condemnation excepted. Any such trade fixture not removed at or prior to
expiration or earlier termination of this Lease shall become the property of
Landlord. Without limitation of the foregoing, light fixtures, cabinetry, and
plumbing equipment, whether or not installed by Tenant or funded with the
Improvement Allowance, the Additional Improvement Allowance and/or the Design
Allowance, shall not be removable at the expiration or earlier termination of
this Lease, or at the expiration of any extension thereof, and shall be the
property of Landlord. If the removal of trade fixtures would leave any wall or
floor indentations or other non-standard improvement finishes, then the
obligation of Tenant to restore the Premises (as a condition of removal of any
such trade fixtures) includes the obligation to eliminate any such indentations
or other non-standard improvement finishes and paint or otherwise finish the
applicable areas in the same manner as surrounding areas, such that, in the
reasonable judgment of Landlord, Landlord shall not be required to incur any
expense to make the Premises ready for a successor tenant as relates to the
areas of the Premises from which trade fixtures have been removed.
18. ASSIGNING AND SUBLETTING
(a) Tenant covenants that it shall not, by operation of law or otherwise,
assign this Lease, sublease all or any part of the Premises, or permit the
Premises to be used by others without the prior written consent of
Page 17
Landlord in each instance, which consent shall not be unreasonably withheld or
delayed, provided the proposed assignee or sublessee has a then current net
worth sufficient for it to meet its monetary obligations under this Lease or its
sublease, as the case may be. Notwithstanding anything in this Section 18 of the
Lease to the contrary, Tenant shall have the right, at any time or times without
the consent of the Landlord, to assign the Lease or to sublease all or any
portion of the Premises to any wholly-owned subsidiary of Tenant or any
affiliate of Tenant which is wholly-owned by a common parent corporation with
Tenant. In the event of any assignment or sublease, Tenant shall nevertheless
remain liable for the full and timely payment and performance of all of Tenant's
obligations under the Lease. Any attempt by Tenant to assign, sublet, encumber
or mortgage this Lease without Landlord's consent (under circumstance where such
consent is required) shall be voidable at Landlord's election. The consent by
Landlord to any assignment, subletting or use of the Premises by others shall
not constitute a waiver of Landlord's right to withhold its consent to any other
assignment, subletting or use by others of the Premises. Whether or not
Landlord's consent shall be granted to any proposed assignment or subletting,
Tenant shall reimburse Landlord for the reasonable expenses, including
attorneys' fees and disbursements, incurred by Landlord in connection with
Tenant's request for such consent. In addition, Tenant shall pay to Landlord, as
Additional Rent, all reasonable direct and indirect expenses incurred by
Landlord due to any such assignee or sublessee taking possession of the
Premises, including freight elevator operation, security service, cleaning
service, janitorial service and rubbish removal. The prohibitions set forth in
this Section 18(a) and Tenant's agreement thereto are material inducements to
Landlord to enter into this Lease with Tenant, and any breach or attempted
breach thereof shall constitute an event of default under this Lease for which
no notice or opportunity to cure need be given.
(b) No consent by Landlord to an assignment of this Lease shall be
effective unless and until Tenant shall deliver to Landlord an agreement, in
form and substance satisfactory to Landlord, pursuant to which such assignee
assumes and agrees to be bound by all of the provisions of this Lease. In no
event shall Tenant be released from its obligations hereunder as a result of any
assignment of this Lease, and the Tenant named herein and any assignee of such
Tenant who assumes the obligations of the named Tenant under this Lease, from
and after such assignment, shall be jointly and severally liable for performance
of all obligations of Tenant under this Lease.
(c) For the purposes of this Section 18, (i) the transfer or issuance of
stock or other form of voting interest ultimately resulting in ownership of a
majority of the issued and outstanding capital stock or other voting interest of
any corporate tenant, or the transfer of a majority of the total interests in
any partnership tenant or tenant which is a limited liability company, however
accomplished, whether in a single transaction or in a series of related or
unrelated transactions, shall be deemed an assignment of this Lease, except that
the transfer of the outstanding capital stock of any corporate tenant shall not
be deemed to include the sale of such stock by persons or parties through the
"over-the-counter market" or through any recognized stock exchange (ii) a
takeover agreement or similar agreement whereby the obligations of Tenant under
this Lease are assumed by another party shall be deemed a transfer of this
Lease, (iii) any person or legal representative of Tenant, to whom Tenant's
interest under this Lease passes by operation of law, or otherwise, shall be
bound by the provisions of this Section 18, and (vi) if Tenant consists of more
than one person, a purported assignment, voluntary, involuntary, or by operation
of law by any of the persons executing this Lease shall be deemed a voluntary
assignment of this Lease by Tenant.
19. SUBORDINATION; ATTORNMENT
(a) This Lease is subject and subordinate to the Land Documents and any
Mortgages, and to any renewals, modifications, increases, extensions,
replacements, and substitutions of any of the foregoing provided that such
subordination is expressly conditioned on each Mortgagee providing Tenant non-
disturbance protection pursuant to which Tenant shall not be disturbed in its
possession of the Premises for so long as Tenant is not in default of this
Lease. Each Mortgagee shall provide such non-disturbance protection pursuant to
a subordination, non-disturbance and attornment agreement in required form for
such Mortgagee (an "SNDA"), and Tenant shall execute and deliver each such SNDA
promptly upon request. In furtherance of the foregoing, Tenant shall not be
required to subordinate to any Mortgagee who does not agree to provide such non-
disturbance protection pursuant to an SNDA in required form for such Mortgagee.
Tenant acknowledges that each such SNDA may be subject to
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exceptions similar to those set forth in paragraphs (i) and (vi) of subsection
19(b) below. At the option of any Mortgagee, this Lease shall be made superior
to such Mortgage.
(b) If any Mortgagee succeeds to the rights of Landlord under this Lease,
whether through foreclosure, deed-in-lieu of foreclosure, delivery of a new
lease or otherwise (a "Successor Landlord"), then at the request of the
Successor Landlord and upon Successor Landlord's written agreement to accept
Tenant's attornment, Tenant shall be deemed to have attorned to and recognized
such Successor Landlord as Tenant's Landlord under this Lease. This provision
shall be self-operative and no further instrument of attornment shall be
required; provided, however, that Tenant shall execute, acknowledge and deliver
such further instrument(s) conforming such attornment as may be reasonably
requested by such Successor Landlord. Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between Successor Landlord
and Tenant upon all of the terms set forth in this Lease after such attornment,
except that the Successor Landlord shall not:
(i) be liable for any previous act or omission of Landlord under this
Lease;
(ii) be subject to any offset;
(iii) be bound by any previous modification of this Lease, or by any
previous prepayment of more than one month's Base Rent or Additional Rent,
unless such modification or prepayment shall have been expressly approved in
writing by such Successor Landlord;
(iv) be obligated to perform any alteration of the Premises;
(v) be obligated in respect of any security deposit it shall not have
received (Landlord shall cooperate with any required transfer of the LOC to the
Successor Landlord); or
(vi) be obligated to repair the Premises or the Project or any part
thereof.
20. PERFORMANCE OF TENANT'S COVENANTS
Tenant shall perform all of the covenants and conditions on its part to be
performed under this Lease, and upon receipt of written notice from Landlord
(where notice of non-performance is required by this Lease) will immediately
comply with the requirements of such notice. If Tenant shall violate any
covenant or condition of this Lease, whether or not notice is required, Landlord
may following the expiration of any applicable cure period, at its option, do or
cause to be done any or all of the things required by this Lease. In so doing
Landlord shall have the right to cause its agents, employees, and contractors to
enter upon the Premises, and in such event shall have no liability to Tenant,
its agents and employees, for any loss or damages resulting in any way from such
action. Tenant hereby grants Landlord all necessary licenses required to carry
out the terms of this Section. Tenant shall pay to Landlord, within ten (10)
days of demand, any monies paid or expenses incurred by Landlord in taking such
actions, including attorney's fees and costs in all proceedings, and such sums
shall be collectible from Tenant as Additional Rent hereunder.
21. CUSTOM AND USAGE; NO WAIVER
Any law, usage, or custom to the contrary notwithstanding, Landlord shall
have the right at all times to enforce the covenants and conditions of this
Lease in strict accordance with the terms hereof, notwithstanding any conduct or
custom on the part of Landlord in refraining from so doing at any time or times.
The waiver by Landlord of any term, covenant or condition in this Lease shall
not be deemed to be a waiver of any subsequent breach of the same or of any
other term, covenant or condition herein. The subsequent acceptance of Base
Rent, Additional Rent or any other monetary obligation of Tenant hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach or default
by Tenant of any term, covenant or condition of this Lease, other than the
failure of
Page 19
Tenant to make the particular payment so accepted, regardless of Landlord's
knowledge of such preceding breach or default at the time of acceptance of such
payment. No covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord unless such waiver is in writing and executed by
Landlord.
22. SURRENDER AND HOLDING OVER
(a) Tenant, upon expiration or termination of this Lease, either by lapse
of time or otherwise, shall peaceably surrender the Premises to Landlord in
broom-clean condition and in good repair as required in this Lease, reasonable
wear and tear and, subject to Tenant's obligations under this Lease, casualty or
condemnation excepted. In the event that Tenant shall fail to surrender the
Premises upon demand, Landlord, in addition to all other remedies available to
it hereunder or at law or in equity, shall have the right to receive, as
liquidated damages for all the time Tenant shall so retain possession of the
Premises or any part thereof, an amount equal to twice the Base Rent specified
in this Lease as applied to such period, together with all other payments
required hereunder as Additional Rent, provided that Tenant shall nonetheless be
a tenant at sufferance. If Tenant shall provide Landlord a written request not
less than six (6) months prior to the expiration of the Lease Term and Tenant is
not in default of the Lease and no event has occurred which with notice, the
lapse of time or both would result in such a default, Landlord has agreed to
provide a ninety (90) day period following the date upon which the Lease would
otherwise expire to surrender the Premises so that Tenant can vacate the
Premises in an orderly fashion, and Tenant shall take reasonable actions to
promptly and completely vacate the Premises during such ninety (90) day period.
Tenant shall pay Landlord Base Rent during such ninety (90) day period at a rate
equal to 150% of the Base Rent applicable during the final Lease year of the
Lease Term together with all Additional Rent owing under this Lease. Under such
circumstances and without limitation of Landlord's rights under Section 13 of
this Lease, during the ninety (90) day period following demand for surrender,
Landlord may with the prior consent of Tenant, such consent not to be
unreasonably withheld, delayed or conditioned, enter the Premises for all
purposes, including, without limitation, preparation of the Premises for a
successor tenant, provided that Landlord shall undertake reasonable efforts not
to unreasonably interfere with Tenant's business operations or damage the
personal property of Tenant remaining in the Premises during such ninety (90)
day period.
(b) If Tenant remains in possession of the Premises with Landlord's
consent but without a new lease in writing and duly executed by Landlord, Tenant
shall be deemed to be occupying the Premises as a Tenant from month to month,
but otherwise subject to all the covenants and conditions of this Lease.
23. ADDITIONAL CONSTRUCTION
Landlord reserves the right at any time, and from time to time, to
construct other, or add to other, buildings or improvements on surrounding
property, and to permit others to do so from time to time. In the event of such
additional construction, Landlord shall not unreasonably interfere with Tenant's
occupancy.
24. CONDEMNATION
(a) If the whole of the Premises shall be taken or condemned by any
competent authority for any public or quasi-public use or purpose, or if only a
portion of the Premises shall be taken or condemned but Tenant is not able to
carry on sufficient operations at the Premises in a manner that the purpose of
Tenant's occupancy of the Premises as for its Permitted Use is not frustrated,
this Lease shall cease and terminate as of the date on which title shall vest
thereby in that authority and the Rent reserved hereunder shall be apportioned
and paid up to such date. sale by Landlord to any authority having the power of
eminent domain or its designee, either under threat of condemnation or while
condemnation proceeding are pending, shall be deemed a taking under the power of
eminent domain for all purposes under this Article.
(b) If only a portion of the Premises shall be taken or condemned, this
Lease and the term hereof shall not cease or terminate, but the Rent payable
after the date on which Tenant shall be required to surrender possession
Page 20
of such portion shall be reduced in proportion to the decreased use suffered by
Tenant, as determined by agreement of the parties or by arbitration.
(c) In the event of any taking or condemnation in whole or in part, the
entire award of damages shall belong to Landlord, without any deduction
therefrom for the value of the unexpired term of this Lease or for any other
estate or interest in the Premises now or later vested in Tenant. Tenant assigns
to Landlord all its right, title, and interest in any and all such awards.
However, Tenant shall not be prohibited from pursuing its own action for damages
against the condemning authority for its business damages and relocation
expenses.
(d) In case of any governmental action not resulting in the taking or
condemnation of any portion of the Premises but creating a right to compensation
therefor, or if less than a fee title to all or any portion of the Premises
shall be taken or condemned by any governmental authority for temporary use or
occupancy, and provided such condemnation shall not have reduced significantly
the previously available parking for Tenant, this Lease shall continue in full
force and effect without reduction or abatement of Rent.
25. FORCE MAJEURE
With the exception of the obligation of Tenant to pay Rent and all other
amounts that may be due from time to time under this Lease, if either party
shall be delayed or hindered in or prevented from doing or performing any act or
thing required hereunder by reason of any matters beyond the reasonable control
of such party, then such party shall not be liable or responsible for any such
delays and the doing or performing of such act or thing shall be extended for a
period equivalent to the period of such delay. In such event, this Lease and
the obligations of both parties to perform and comply with all of the other
terms and provisions of this Lease shall in no way be affected, impaired, or
excused.
26. ESTOPPEL STATEMENT
Within ten (10) days after request therefor by Landlord or any Mortgagee,
Tenant shall deliver in recordable form (and signed by Tenant, if an
individual, or a duly authorized representative of Tenant if Tenant is not an
individual) a statement to Landlord, any Mortgagee, or any proposed Mortgagee or
transferee of the Project (as the case may be), certifying (if such be the case)
that this Lease is in full force and effect, that Tenant is in possession of the
Premises, that Tenant has commenced the payment of Rent, and that there are no
defenses or offsets to this Lease claimed by Tenant, as well as any other
information reasonably requested. If Tenant fails or refuses to give a
certificate hereunder within the time period herein specified, then the
information contained on such certificate as submitted by Landlord shall be
deemed correct for all purposes, but Landlord shall have the right to treat such
failure or refusal as a default by Tenant. Further, Landlord agrees that upon
Tenant's reasonable request (but not more than twice annually), Landlord shall
deliver a statement to Tenant that this Lease is in full force and effect.
27. EVENTS OF DEFAULT
The occurrence of any of the following shall, in addition to any other
events of default provided herein, constitute an event of default hereunder:
(a) Failure of Tenant to pay, when due (i.e., by the fifth day of the
month) and without notice or offset, any Base Rent or monthly installment of
Common Area Maintenance Costs provided for in this Lease; or failure of Tenant
to pay any other Additional Rent or other charges of any nature required to be
paid by Tenant under this Lease within ten (10) days after written notice from
Landlord. Notwithstanding the foregoing, Landlord agrees that, not more than
twice in any consecutive twelve (12) month period, Landlord or its agent shall
give Tenant written notice of any overdue Rent and Tenant shall not be in
default, and no interest or late fee shall be due
Page 21
with respect to such overdue Rent, provided that Tenant pays the overdue Rent
within seven (7) days following the date of deemed delivery of the notice in
accordance with Section 41 of this Lease.
(b) The filing of a petition by or against Tenant Lease for relief under
the United States Bankruptcy Code ("Bankruptcy Code"), reorganization, or
appointment of a receiver or trustee of Tenant or Tenant's property; or an
assignment by Tenant for the benefit of creditors; or the taking of possession
of the property of Tenant by any governmental officer or agency pursuant to
statutory authority for the dissolution or liquidation of Tenant; or if a
temporary or permanent receiver or trustee shall be appointed for Tenant or for
Tenant's property and such temporary or permanent receiver or trustee shall not
be discharged within thirty (30) days from the date of appointment; or any other
execution, levy, attachment or other process of law upon Tenant's leasehold
interest hereunder (or any part thereof); or if any judgment entered against
Tenant has not been satisfied or bonded within thirty (30) days of the date of
the judgment.
(c) Vacation or desertion of the Premises, or failure of Tenant to open
and actively conduct its business for a period of one hundred eighty (180)
consecutive calendar days.
(d) Tenant's failure to deliver the initial LOC (hereinafter defined) or
otherwise post or maintain in effect an LOC as required by this Lease.
(e) The removal or attempted removal of Tenant's goods or property from
the Premises, whether by Tenant or any third party pursuant to execution of a
levy, enforcement of a security interest or otherwise, other than in the
ordinary and usual course of business, without having first paid and satisfied
Landlord for all Rent which may become due during the entire Lease Term (or
extension term, as applicable).
(f) The transfer or attempted transfer of any legal or equitable interest,
whether by operation of law or otherwise, of this Lease or Tenant's interest in
this Lease, except strictly in accordance with the express terms of this Lease.
(g) Tenant's failure to perform or observe any other provision of this
Lease (including, without limitation, Tenant's covenants not to change the
Permitted Use without the prior written consent of Landlord), within thirty (30)
days after written notice and demand, provided that, if such failure is of a
character as not to permit immediate compliance in the reasonable opinion of
Landlord, then Tenant's failure to proceed diligently and immediately upon
receipt of notice to commence the cure of such failure, and thereafter to
complete such cure with all reasonable diligence within a reasonable period
thereafter.
28. LANDLORD'S REMEDIES UPON DEFAULT BY TENANT
(a) Upon the occurrence of any event of default as set forth in this
Lease, Landlord, at its option, may at such times as it may determine,
concurrently or successively, without being deemed to have waived any rights or
to have made an election of remedies in any circumstance, do any or all of the
following, in addition to any right or remedy provided by law or allowed in
equity:
(i) Landlord may serve upon Tenant notice that this Lease and the
then unexpired Lease Term shall terminate and become absolutely void on a date
specified in such notice, to be not less than ten (10) days after the date of
such notice, and this Lease, as well as the right, title, and interest of Tenant
hereunder shall, except as to the rights and remedies of Landlord upon
termination as provided herein, terminate and become void in the same manner and
with the same force and effect as if the date provided in such notice were the
date originally specified for the expiration of the Lease Term. Tenant shall
then immediately quit and surrender to Landlord the Premises and all rights of
Tenant with respect to the Common Areas, and Landlord may then or at any time
thereafter, as permitted by law after appropriate judicial proceedings, enter
into and repossess the Premises, opening locked doors, if necessary, to effect
such entrance, and may remove all occupants and any property thereon without
Page 22
being liable for any action or prosecution of any kind for such entry or the
manner thereof or loss of or damage to any property upon the Premises.
(ii) Without terminating this Lease and without notice, Landlord may,
as permitted by law after appropriate judicial proceedings, enter into and
repossess the Premises for the account of Tenant, opening locked doors if
necessary to effect such entrance, and may remove all occupants and any property
thereon without being liable for any action or prosecution of any kind for such
entry or the manner thereof or loss of or damage to any property upon the
Premises. Landlord may, in addition to its other rights and remedies, store
Tenant's property in a public warehouse or at a place selected by Landlord, at
the expense of Tenant.
In the event of either (i) or (ii) above, Landlord may, but shall not be
obligated to, obtain possession of the Premises by any judicial proceeding,
which it may, in its sole discretion, institute for such purpose. Landlord's
obtaining of possession of the Premises, shall not, of itself, terminate this
Lease.
(iii) With or without terminating this Lease and with or without
reentering and obtaining possession of the Premises, Landlord may lease the
Premises to any other person upon such terms as Landlord may deem reasonable, in
its sole discretion, and for a term within or beyond the term of this Lease.
Landlord shall apply the rent received from reletting the Premises to reduce the
obligations of Tenant under this Lease. Tenant shall remain liable for all Rent
for the balance of the then current term, together with any expenses or costs
incurred by Landlord in reentering the Premises, such as the payment of
commissions, attorney's fees, the making of alterations or otherwise, and
Landlord may recover such costs and expenses at any time, and from time to time,
after any of the foregoing events, whether prior to the end of the term herein
granted or otherwise. Landlord shall have no obligation to relet the Premises,
or any part thereof, and shall in no event be liable for failure to relet the
Premises, or any part thereof, or, in the event of any such reletting, for
refusal or failure to collect any rent due upon such reletting, and no such
refusal or failure shall operate to relieve Tenant of any liability under this
Lease or otherwise affect any such liability.
(iv) Landlord is hereby granted a valid lien, for all Rent and other
sums of money which may at any time be owing by Tenant to Landlord, upon all
furniture, fixtures (excluding trace fixtures), equipment, inventory and other
property of Tenant which may at any time be in or about the Premises. Said
property shall not be removed from the Premises without the consent of Landlord
until all arrears in Rent, as well as any and all other sums of money due
hereunder, shall first have been paid, provided further that the lien herein
granted may be enforced in accordance with the provisions of Article 9 of the
Uniform Commercial Code as in effect in the State of Florida, or in any other
manner provided by law. Tenant shall, at the request of Landlord, execute and
deliver such additional documents as may be reasonably required to perfect this
security interest. Landlord shall have all of the rights of a secured party
under the Uniform Commercial Code as in effect in Florida. Landlord agrees to
subordinate its lien to the lien of financing obtained by Tenant from an
institutional lender for property located in the Premises, provided that the
subordination is in form reasonably acceptable to Landlord.
(b) Without limitation of or by the foregoing, Tenant waives any and all
demands and notices of any kind which may be required by law to be given prior
to any entry or reentry by Landlord, by means of judicial proceedings for that
purpose or otherwise. In the event Landlord shall terminate this Lease prior to
the date of expiration of the Lease Term as set forth herein, or in the event
Landlord shall repossess the Premises, by judicial process or otherwise, with or
without termination of this Lease, Tenant waives all right to recover or regain
possession of the Premises to save forfeiture of possession or of this Lease, as
the case may be, by payment of Rent due or by other performance of the covenants
and conditions hereof, and without limitation of or by the foregoing, Tenant
waives all right to reinstate or redeem this Lease notwithstanding any
provisions of any statute, law, or decision hereafter in force and effect.
Page 23
(c) Tenant shall not interpose or assert any claim or counterclaim in any
action or proceeding brought by Landlord under this Lease. Tenant acknowledges
that any such claim or counterclaim would be inconvenient to Landlord and would
prejudice the rights of Landlord under this Lease. If Tenant violates this
subsection, Landlord and Tenant stipulate that any such claim or counterclaim
shall be severed and tried separately from the action or proceeding brought by
Landlord if permitted pursuant to applicable rules of civil procedure or other
applicable law. This subsection 28(c) shall in no way impair the right of Tenant
to commence a separate action against Landlord for any violation by Landlord of
the provisions of this Lease or to which Tenant has not waived any claim
pursuant to the provisions of this Lease, so long as notice is first given to
Landlord and any Mortgagee, and a reasonable opportunity is granted to Landlord
and/or the Mortgagee to correct such violation. In no event shall Landlord or
any Mortgagee be responsible for any consequential damages incurred by Tenant,
including lost profits or interruption of business, as a result of any default
by Landlord.
(d) The various rights, remedies, powers, options and elections of
Landlord reserved, expressed, or contained in this Lease are distinct, separate
and cumulative, and no one of them shall be deemed to be exclusive of the other
rights, remedies, powers or options provided herein, or as are now or may
hereafter be conferred upon Landlord by statute or by law or equity.
(e) On the occurrence of any of the foregoing acts of default, the entire
Rent for the balance of the then current term of this Lease, or any part
thereof, shall, at the option of Landlord, immediately become due and payable as
if by the terms of this Lease it were payable in advance, and Landlord may
immediately proceed to collect or bring an action for such Rent, or such part
thereof, as Rent being in arrears, or may file a proof of claim in any
bankruptcy or insolvency proceedings for such Rent, or may institute any other
proceedings to enforce payment thereof.
(f) No termination of this Lease, nor taking or recovering possession of
the Premises with or without termination of this Lease, shall deprive Landlord
of any remedies or actions against Tenant for Rent or any damages for the breach
of any covenant or condition herein contained, nor shall the bringing of any
such action for Rent or breach of any covenant or condition, nor the resort to
any other remedy herein or otherwise provided for the recovery of Rent or
damages for such breach, be construed as a waiver of the right to insist upon
the forfeiture and to obtain possession in the manner herein provided.
(g) No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent herein stipulated shall be deemed to be other than on account of the
earliest Rent due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided in this Lease.
(h) No receipt of money by Landlord from Tenant after default or
cancellation of this Lease shall: (i) reinstate, continue, or extend the term or
affect any notice given to Tenant, (ii) operate as a waiver of the right of
Landlord to enforce the payment of Rent then due or to become due, or (iii)
operate as a waiver of the right of Landlord to recover possession of the
Premises by suit, action, proceeding, or other remedy. After: (x) service of
notice of termination and forfeiture as herein provided and the expiration of
the time specified therein, (y) the commencement of any suit, action,
proceeding, or other remedy, or (z) final order or judgment for possession of
the Premises, Landlord may demand, receive and collect any monies due, without
in any manner affecting such notice, order or judgment. Any and all such monies
so collected shall be deemed to be payment on account of the use and occupation
of the Premises or, at the election of Landlord, on account of the liability of
Tenant hereunder.
(i) Any sums which may be expended by Landlord in accordance with the
terms of this Lease that are paid on behalf of Tenant or due to Tenant's default
hereunder shall bear interest at the lesser of eighteen percent (18%) per annum
or the maximum rate allowed by law, and Tenant shall be liable for such sums
plus such interest as Additional Rent hereunder.
Page 24
29. LETTER OF CREDIT
Simultaneously with the execution and delivery of the Lease, Tenant shall
deliver an irrevocable letter of credit in the form of Exhibit "F" hereto in the
amount of $300,000 (the "LOC"). Tenant shall keep a renewal/replacement LOC in
effect through the entire term of the Lease including the renewal option term.
Landlord shall be authorized to draw under each LOC upon a default by Tenant
under this Lease which remains uncured beyond the applicable cure period,
including, without limitation, the failure of Tenant to post a replacement LOC
at least thirty (30) days before each LOC expiration date during the Lease term
as set forth in subsection 27(d) above. Landlord will draw under the LOC
amounts due Landlord as a result of the applicable default, including, without
limitation, amounts due under Section 28(e). Each replacement LOC shall be in
the same amount as the initial LOC. The issuing bank must be approved by
Landlord and the then Mortgagee, such approval not to be unreasonably withheld,
delayed or conditioned. Each LOC must include the right of Landlord to assign
the LOC to each Mortgagee as security and to Landlord's successors in interest
to the Project. Each issuing bank shall have an office in Palm Beach County,
Florida at which draws may be made by Landlord on the LOC.
30. AUTHORITY
If Tenant signs as a corporation, each of the persons executing this Lease
on behalf of Tenant represents and warrants that Tenant has been and is
qualified to do business in the state in which the Project is located, that the
corporation has full right and authority to enter into this Lease, and that all
persons signing on behalf of the corporation were authorized to do so by
appropriate corporate actions. If Tenant signs as a partnership, trust or other
legal entity, each of the persons executing this Lease on behalf of Tenant
represents and warrants that Tenant has complied with all applicable laws, rules
and governmental regulations relative to its right to do business in the state
in which the Project is located, and that each of the persons or entities acting
on behalf of the Tenant was authorized to do so by any and all appropriate
partnership, trust or other actions. Tenant agrees to furnish promptly upon
request a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of Tenant to enter
into this Lease.
31. LIABILITY OF LANDLORD
(a) Tenant shall look solely to Landlord's interest in the Project and
Landlord's personal property used in connection with the Project for the
satisfaction of any judgment or decree requiring the payment of money by
Landlord, based upon any default hereunder, and no other property or asset of
Landlord shall be subject to levy, execution, or other enforcement procedure for
the satisfaction of such judgment or decree.
(b) Tenant shall be in exclusive control and possession of the Premises,
and Landlord shall not be liable for any injury or damages to any property or to
any person on or about the Premises, nor for any injury or damage to any
property of Tenant, except for damages resulting from Landlord's negligence or
intentinal misconduct. The provisions herein permitting Landlord to enter and
inspect the Premises are made to ensure that Tenant is in compliance with the
terms and conditions hereof and to make repairs that Tenant has failed to make.
Landlord shall not be liable to Tenant for any entry on the Premises for
purposes permitted under this Lease, except with respect to the negligence or
intentional misconduct of Landlord or its agents.
32. LEGAL EXPENSES
If any legal action or other proceeding is brought for the enforcement of
this Lease, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Lease, the
successful or prevailing party or parties shall be entitled to recover
reasonable fees of attorneys, paralegals, and legal assistants, court costs and
all expenses even if not taxable as court costs (including, without limitation,
all such fees, costs and expenses incident to appeals), together with any sales
tax thereon, incurred in that action or proceeding, in addition to any other
relief to which such party or parties may be entitled.
Page 25
33. LAND DOCUMENTS; RULES AND REGULATIONS
The parties shall be bound by all existing and future Land Documents and
the Rules and Regulations, in the form of Exhibit "D" hereto, governing the
Premises and the Project or any part thereof as same may be amended. The Rules
and Regulations shall be subordinate to the terms and provisions of this Lease.
34. TIME OF THE ESSENCE
Time is of the essence in all provisions of this Lease.
35. QUIET ENJOYMENT
Upon payment by Tenant of the Rents and other charges herein provided, and
upon the observance and performance of all the covenants, terms and conditions
on Tenant's part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject, nevertheless, to the
terms and conditions of this Lease and all existing or future Mortgages
encumbering the Project.
36. SIGNS
Without the prior written consent of Landlord, which consent may be
withheld in Landlord's sole and absolute discretion, no sign or other
promotional or informational materials of any nature shall be placed on the
exterior of the Premises, in any window visible from the exterior of the
Project. Signage shall be permitted only as provided in Exhibit "E".
37. SCOPE AND INTERPRETATION OF AGREEMENT; CONFIDENTIALITY
This Lease and all Exhibits set forth all of the covenants, promises,
agreements, conditions, and understandings between Landlord and Tenant
concerning the Premises, and there are no covenants, promises, conditions, or
understandings, either oral or written, other than as set forth herein. No
subsequent alteration, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by both parties. The
laws of the State of Florida shall govern the validity, interpretation,
performance, and enforcement of this Lease. This Lease shall not be more
strictly enforced against either party regardless of who was more responsible
for its preparation. A memorandum of this Lease in form and content mutually
acceptable to Landlord and Tenant (such acceptance not to be unreasonably
withheld, delayed or conditioned) may be recorded in the public records of Palm
Beach County, and upon termination or expiration of this Lease, Tenant shall
immediately record a termination of the memorandum of lease in the public
records of Palm Beach County. Except as set forth in the preceding sentence,
except at Landlord's option, no part of this Lease or any memorandum thereof may
be recorded in the public records of any municipality or county. Tenant will
maintain the confidentiality of this Lease and, except as required by applicable
law, will not divulge the economic or other terms of this Lease, whether
verbally or in writing, to any person, other than Tenant's officers, directors,
partners or shareholders; Tenant's attorneys, accountants and other professional
consultants; any governmental agencies; and pursuant to subpoena or other legal
process.
Page 26
38. INVALID PROVISIONS
If any provision of this Lease shall be determined to be void by any court
of competent jurisdiction or by any law enacted subsequent to the date hereof,
then such determination shall not affect any other provisions hereof, all of
which other provisions shall remain in full force and effect.
39. CAPTIONS
Any headings preceding the text of the provisions and subparagraphs hereof
are inserted solely for convenience of reference and shall not constitute a part
of this Lease, nor shall they affect its meaning, construction or effect.
40. SUCCESSORS AND ASSIGNS
All rights, obligations, and liabilities given to, or imposed upon, the
parties hereto shall extend to and bind the respective heirs, executors,
administrators, successors, sublessees, licensees, concessionaires and assigns
of such parties, subject to the terms of Section 18 hereof. No rights, however,
shall inure to the benefit of any assignee or sublessee of Tenant unless the
assignment or sublease has been approved by Landlord in writing as required
under this Lease. Nothing contained in this Lease shall in any manner restrict
Landlord's right to assign or encumber this Lease. The original Landlord named
herein, and each successive owner of the Project, shall be liable only for
obligations accruing during the period of its ownership.
41. NOTICES
All notices, requests, consents and other communications required or
permitted under this Lease shall be in writing (including telex, facsimile and
telegraphic communication) and shall be (as elected by the person giving such
notice) hand delivered by messenger or overnight courier service, faxed or
telecommunicated (with original to follow by overnight commercial courier for
delivery on the next business day), or mailed by registered or certified mail
(postage prepaid), return receipt requested, addressed to Landlord's Address and
Tenant's Address, as appropriate, or to such other address as any party may
designate by notice complying with the terms hereof. Each such notice shall be
deemed delivered (a) on the date delivered if by personal or overnight delivery,
(b) on the date telecommunicated if by telegraph or facsimile (with original to
follow as provided above), (c) on the date of transmission if by telex, and (d)
on the date upon which the return receipt is signed or delivery is refused or
the notice is designated by the postal authorities as not deliverable, as the
case may be, if mailed.
42. USE OF PREMISES
Tenant shall use and occupy the Premises only for the Permitted Use and for
no other purpose, without the prior written consent of Landlord.
Page 27
43. GENERAL PROVISIONS GOVERNING TENANT'S IMPROVEMENTS
(a) This section shall apply to all alterations, improvements, or
additions (collectively, "improvements") made to the Premises during the Lease
Term, as permitted in this Lease, other than the improvements to be made with
-------------------------------------------
the Improvement Allowance and the Additional Improvement Allowance pursuant to
- -------------------------------------------------------------------------------
Section 4 above.
- ---------------
(b) Before entering the Premises for the purpose of performing
improvements, Tenant shall deposit with Landlord certificates of workmen's
compensation insurance and liability insurance of Tenant's general contractor,
or, if none, from each of Tenant's independent contractors. Liability insurance
shall be in an amount not less than $1,000,000 per occurrence, or such greater
amount as Landlord may reasonably require from time to time, and shall name
Landlord and each Mortgagee as additional insureds. The liability insurance
shall be on a comprehensive form, and shall cover all hazards related to any
work performed by any such contractor on the Premises. At Landlord's option, in
connection with any improvements reasonably expected to cost in excess of
$25,000, Tenant shall provide, at Tenant's sole expense, a payment and
performance or completion bond in an amount equal to the estimated cost of any
improvements to the Premises to be made by Tenant and otherwise in form and
substance satisfactory to Landlord.
(c) Any damage to the Premises or the Project caused by Tenant or any of
its employees, contractors, or workmen shall be repaired promptly by and at the
expense of Tenant. Tenant shall be responsible for the disposal of waste
generated with respect to its work.
(d) All improvements within the Premises shall be completed with new
materials, unless otherwise approved in writing by Landlord. Materials used and
workmanship performed shall be of a uniformly high quality in accordance with
the best standards of practice, and shall be subject to the approval of
Landlord.
(e) The opinion of Landlord's architect shall be final and binding upon
Landlord and Tenant respecting all matters of dispute regarding any
improvements, including the state of completion and whether or not the work is
completed in a good and workmanlike manner.
(f) Upon completion of the improvements, Tenant shall cause to be
furnished to Landlord a final contractor's affidavit, stating that there are no
liens outstanding against the Premises or the Project on account of the
improvements, and that all accounts for work, service and materials have been
paid in full.
44. WAIVER OF JURY TRIAL
LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE OR THE
OBLIGATIONS EVIDENCED HEREBY, OR ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED
TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO EACH OF LANDLORD AND TENANT IN ENTERING
INTO THIS LEASE.
45.
INSOLVENCY OR BANKRUPTCY
Upon the filing of a petition by or against Tenant under the Bankruptcy
Code, Tenant, as debtor and as debtor in possession, and any trustee who may be
appointed, agree as follows:
Page 28
(a) to perform each and every obligation of Tenant under this Lease until
such time as Tenant's interest in this Lease is either rejected or assumed by
order of the U.S. Bankruptcy Court;
(b) to pay monthly in advance, on the first day of each month, as
reasonable compensation for use and occupancy of the Premises, an amount equal
to all Rent and other charges due pursuant to this Lease;
(c) to reject or assume this Lease within 60 days after the filing of such
petition under Chapter 7 of the Bankruptcy Code or within 120 days (or such
shorter term as Tenant, in its sole discretion, may deem reasonable so long as
notice of such period is given) of the filing of a petition under any other
Chapter;
(d) to give Landlord at least 45 days prior written notice of any
proceeding relating to any assumption of this Lease;
(e) to give at least 30 days' prior written notice of any abandonment of
the Premises; any such abandonment to be deemed a rejection of this Lease;
(f) to do all other things of benefit to Landlord otherwise required under
the Bankruptcy Code;
(g) to be deemed to have rejected this Lease in the event of the failure
to comply with any of the above; and
(h) to have consented to the entry of an order by an appropriate U.S.
Bankruptcy Court providing all of the above, and waiving notice and hearing
prior to the entry of such order. No default of this Lease by Tenant, either
prior to or subsequent to the filing of such petition, shall be deemed to have
been waived unless expressly done so in writing by Landlord, and included within
and in addition to any other conditions or obligations imposed upon Tenant or
its successor in the event of assumption and/or assignment of this Lease are the
following:
(i) the cure of any monetary defaults and the reimbursement of
pecuniary loss within not more than 30 days of assumption and/or assignment of
the Lease; and
(ii) the use of the Premises strictly in accordance with the
requirements of this Lease.
46. NO REPRESENTATIONS; NO OFFER
(a) Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except those expressed in
this Lease, and that this Lease contains the entire agreement of the parties
hereto with respect for the subject matter hereof.
(b) The submission of this document for examination and review does not
constitute an option, an offer to lease space, or an agreement to lease space.
This document shall have no binding effect on the parties unless and until
executed and delivered by both Landlord and Tenant, and will be effective only
upon Landlord's execution and delivery of the same.
47. BROKERS
Tenant represents and warrants that it has not dealt with any brokers,
finders or like agents in connection with the negotiation, execution or delivery
of this Lease, with the exception of Ben DeVries. Landlord shall be solely
responsible for the payment of the commission due to Ben DeVries with respect to
this Lease. Tenant agrees to, indemnify, defend and hold Landlord harmless from
and against obligations, losses, claims, liabilities, damages, costs and
expenses including all attorneys' fees and disbursements) incurred by reason of
any claim or of liability to any other broker, finder, like agent or other
person claiming by, through or under Tenant or claiming to have
Page 29
rendered services for Tenant for commissions or other compensation or charges
with respect to the negotiation, execution and delivery of this Lease, and such
obligations shall survive the expiration or sooner termination of this Lease.
48. EXHIBITS
The following exhibits are a part of this Lease and are incorporated herein
by reference:
Exhibit "A" - Legal Description
Exhibit "B" - Acceptance Letter
Exhibit "C" - Tenant's Allowances and Landlord's Work
Exhibit "D" - Rules and Regulations
Exhibit "E" - Signage Requirements
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as of the
day and year first above written.
TENANT:
INTELLIGENT LIFE CORPORATION, a Florida corporation
By: _____________________________________
Name:____________________________________
Title: __________________________________
LANDLORD:
WK3 INVESTORS, LTD., a Florida limited partnership
By: WK3 EQUITY INVESTORS, LTD., a Florida limited
partnership, its general partner
By: WK3 EQUITY CORPORATION, a Florida corporation, its
general partner
By: _____________________________________
Name:____________________________________
Title: __________________________________
Page 30
EXHIBIT "A"
LEGAL DESCRIPTION
Page 31
EXHIBIT "B"
TENANT ACCEPTANCE LETTER
Date: ___________________
Intelligent Life Corporation
____________________
____________________
Attn: ______________________
Re: Lease Agreement ("Lease") dated September 27, 1999, between WK3
-----
Investors, Ltd. ("Landlord") and Intelligent Life Corporation
--------
("Tenant")
------
Please confirm the following information by filling in any spaces below, as
applicable, and counter-signing this letter as provided below:
1. The Commencement Date (as defined in the Lease) occurred on ________.
2. All alterations and improvements required to be performed by Landlord
pursuant to the provisions of the Lease to prepare the entire Premises
for Tenant's initial occupancy have been satisfactorily completed.
3. As of the date hereof, Landlord and Tenant have each fulfilled all of
their respective obligations under the Lease.
4. The Lease is in full force and effect and has not been modified,
altered, or amended, except as follows [if none, state "None"]:
______________________________________________.
5. There are no offsets or credits against Base Rent or Additional Rent
(as defined in the Lease).
Very truly yours,
WK3 Equity Corporation, General Partner of the
General Partner of the Landlord
By: ______________________________
Name: ____________________________
Title: ___________________________
Agreed to and accepted as of ______________, 19___
Intelligent Life Corporation, a Florida corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
Page 32
EXHIBIT "C"
TENANT'S ALLOWANCES AND LANDLORD'S WORK
Landlord shall provide Tenant (a) an allowance of TWENTY FIVE DOLLARS
($25.00) per rentable square foot for initial improvement work in preparing the
Premises for Tenant's use (the "Improvement Allowance"); (b) an additional
allowance of $100,000.00 for an emergency generator and data center (the
"Additional Improvement Allowance"); and (c) an additional allowance of
$120,000.00 for interior space plan and design (the "Design Allowance"). All
such allowances shall be disbursed by, and in accordance with the draw
requirements of, Landlord's construction lender. The Improvement Allowance and
the Additional Improvement Allowance shall be available solely for the hard
costs of leasehold improvements (the "Improvement Work"), and no portion thereof
shall be used for furniture, personal property, working capital or other such
purposes.
Tenant shall be responsible for developing all plans and specifications for
the Improvement Work, but all such work shall be done by Landlord's general
contractor. Landlord will instruct its general contractor to obtain three bids
from subcontractors for each major component of the Improvement Work expected to
have a cost to compete in excess of $10,000. If the cost of the Improvement Work
will exceed the Improvement Allowance and the Additional Improvement Allowance,
Tenant will be solely responsible for such excess cost, and the full amount of
the excess cost must be deposited with Landlord (or its construction lender, if
so required) within ten (10) days after Tenant's approval of the cost of the
Improvement Work. The failure to deposit the excess cost in full at such time
shall constitute a default under the Lease.
Tenant acknowledges and agrees that no changes to the approved plans and
specifications for the Improvements will be made following the approval thereof
except pursuant to a written change order executed by Landlord and Tenant and
providing for Tenant's agreement to bear all of the costs associated with such
change order, as well as Tenant's agreement to pay Rent during any period that
the Commencement Date is delayed as a result of such change order. In no event
will Tenant communicate any changes or other directives to the general
contractor unless Tenant obtains Landlord's prior written approval.
Landlord's Work shall be as detailed on Exhibit "C-1" attached hereto.
Page 33
EXHIBIT "C-1"
Sitework: A. Clearing of site as required.
B. Clean fill spread and compacted to subgrade for one (1)
building pad, parking lot and landscape areas.
C. Storm water and retention systems as required.
D. Water and sewer services to building.
E. Fire hydrants as required to meet fire marshal
requirements.
F. Conduit for tenant phone and power service from property
line to building.
G. Paving layout in accordance with site plan.
1. Parking spaces for three hundred twenty (320) vehicles.
2. Six (6") inch compacted limerock base auto parking and
secondary driveways.
3. One and one-half (1 1/2" inch type II asphaltic
concrete.)
4. Stripes, bumpers, handicapped signage as required.
H. Concrete walks at building entries and extruded curbs at
parking lot end islands.
I. Six foot high dumpster enclosure with gates.
J. Code required landscape and irrigation of site.
K. Soil Compaction: Dynamic Compaction
Structure - Foundation: A. Concrete - Footings
1. Footings excavated, compacted formed as required with
grade 60 steel rebar, poured using 3,000 P.S.I. concrete.
Continuous at walls.
2. Spread footings at columns excavated, compacted formed
placing of grade 60 rebar, poured using 3,000 P.S.I.
concrete.
B. Concrete - Slab on Grade
1. Building corners to be laid out by a Professional Land
Surveyor.
2. Soil bearing capacity at 2,500 psf.
3. Slab on grade to be formed as required compacted to 95%
density.
4. Termite soil treatment with one (1) year warranty
5. Rough-in plumbing and electrical as required.
6. Lay 6 mil visqueen vapor barrier.
7. Lay 6 x 6 - 10/10 welded wire mesh.
8. Pour 3,000 P.S.I. concrete 5" thick.
9. Cure slab using Silco Seal 77 or equal
A stem wall survey will be made to assure building meets all
required set backs per code.
Building - Structure & A. Structural engineering of panels and engineering for
Tilt Up Wall lifting.
Panels:
B. Form panels on existing slab, set structural embeds,
lifting accessories, rustications, door frames and place
reinforcing.
C. Pour panels using 3,000 P.S.I. concrete minimum 7 1/2"
thick reinforced.
Page 34
D. Level pads, erect panels, plumb and align walls.
E. Brace panels for 28 days. Grout at footings.
F. Prepare and patch ext. ready for texcote.
G. Egress doors for emergency exit per code.
H. Exterior finish textured oil base paint (texcote).
I. Special inspector, as required, throughout all
structural operations of the project.
J. Floor loads are as follows:
1. Dead loads: 62 lbs. per square foot.
2. Live loads: 60 lbs. per square foot.
3. Partition load 20 lbs. per square foot.
K. Roof loads:
1. Dead load 20 lbs. per square foot.
2. Live load 30 lbs. per square foot.
Structural Steel: A. Steel bar joists and girders.
B. Steel columns on grid system.
C. All steel fabricated, erected and shop primed, gray.
D. Galvanized corrugated roof deck.
E. Miscellaneous angles and air conditioning support frames as
required.
F. Structural bay spacing 30' x 30' typical or most economical.
Roofing: A. Insulation with R value of R-19 throughout.
B. 4-ply built up roofing system, making a continuous,
waterproof membrane per manufacturer's specifications.
C. Interior roof drains as per mechanical engineer's design.
D. Provide ship's ladder to roof inside one stair tower.
E. Manufacturer 15 year bond included.
Glass & Glazing: A. Exterior glass to cover approximately 15% of exterior wall
area.
B. Glass to be tinted.
C. Two pairs of entrance doors 3'0" x 8'0" glass doors with
standard stile. Glass transom above doors to be 2'0" high.
D. Typical windows at office perimeter walls to be 5'0" x 5'0"
at 10'0" on center.
E. All exterior glass to be impact resistant system for
compliance with hurricane code.
Fire Sprinklers: Building to be fully fire sprinkled according to NFPA standards.
NFPA 101 ordinary hazard fire sprinklers. Special system for
computer room.
Common Areas: A. Building shell includes 2 code required exit stairwells and
1 lobby stairway, men's and women's restrooms to code, one (1)
elevator, elevator machine room, electrical and phone rooms and
ventilation chases as required.
B. Other common areas (lobby and hallways) may be provided
based upon final tenant requirements.
Page 35
C. Common areas include all items necessary to completely
finish them to Class A standards.
Plumbing: A. Briggs fixtures or equal.
B. Public restrooms provided each floor with fixture quantity
based on minimum code requirements for 300 employees and 20
visitors. Includes all local handicap and ADA requirements.
C. Provide hose bibs and water coolers per code.
D. Provide five (5) wet stacks for hookup of tenant's plumbing
at various locations in building.
Electric: A. Electrical main 3000 amp switch. Service to be 277/480
volt.
B. One (1) distribution panel for HVAC 480 volt.
C. One (1) distribution panel for lighting and ventilation
277/480 volt at each floor.
D. One (1) distribution panel on each floor for general
power using step down transformers 120/208 volt at each
floor.
E. All exit signs, battery emergency lights, fire alarm
control wiring and panel for common areas.
F. Site lighting to consist of shoebox fixtures on precast
concrete poles, 25' high in sufficient arrangement to
provide 1.5 foot candles over the site.
G. Gutter provided for hookup of and metering of tenant's
power.
H. Conduit provided for main phone feed to central phone
room from property boundary.
I. Electrical capacity 18 to 20 watts per square foot.
J. All fluorescent electrical lighting shall be
electronically ballasted high efficiency.
Elevators: A. Provide one (1) Dover Seville 35 elevator or equal.
B. Capacity to be 3,500 lbs. Each.
C. Cab to be 10' clear height.
Page 36
EXHIBIT "D"
RULES AND REGULATIONS
Tenant covenants and agrees with Landlord to obey the following Rules and
Regulations:
(a) All deliveries of shipments of any kind to and from the Premises,
including loading and unloading of goods, shall be made only at such locations
and times reasonably designated by Landlord, and only designated for such
purpose by Landlord, and all deliveries shall be unloaded in accordance with any
jurisdictional rights of any interested labor unions as determined by Landlord.
Any damage to the Project caused by Tenant's movers or personnel shall be
reimbursed to Landlord within ten (10) days of receipt of and invoice therefor.
(b) All garbage and refuse shall be kept in the kind of container
specified by Landlord, and shall be placed outside of the Premises prepared for
collection in the manner and at the times and places specified by Landlord.
Landlord shall provide or designate a service for picking up refuse and garbage,
and the cost thereof shall be included as a Common Area Maintenance Cost.
(c) No antenna, dish or other communication device shall be erected on the
roof, exterior walls, or grounds of the Project without, in each instance, the
written consent of Landlord, which consent will not be unreasonably withheld,
delayed or conditioned. Landlord acknowledges that Tenant intends to place
communication devices on the roof of the Project. Any antenna, dish or other
communication device so installed without such written consent shall be subject
to removal at the expense of Tenant.
(d) The plumbing facilities shall not be used for any purpose other than
that for which they are constructed, no foreign substance of any kind shall be
thrown therein, and the expense of any breakage, stoppage, or damage resulting
from a violation of this rule shall be borne by Tenant.
(g) Tenant shall pay for and maintain a termite and pest extermination
service for the Premises.
(h) Tenant shall not burn any trash or garbage of any kind in or about the
Premises.
(i) Tenant agrees that Landlord may amend, modify, delete, or add new and
additional reasonable rules and regulations for the use and care of the Premises
and the Project. Tenant agrees to comply with all such reasonable rules and
regulations upon notice to Tenant from Landlord, or upon the posting of the same
in such place within the Project as Landlord may designate.
Page 37
EXHIBIT "E"
SIGNAGE REQUIREMENTS
Tenant shall be provided with directory and lobby signage. Exterior signage
shall be subject to approval by Landlord (and all governmental authorities, as
applicable). Subject to the receipt of all required governmental approvals, such
exterior signage may be back-lit. The cost of such signage shall be paid from
the Improvement Allowance.
Promptly following execution of the Lease, Tenant shall provide Tenant's
signage information to Landlord.
Any changes in signage from time to time as requested by Tenant shall be
coordinated by Landlord and the costs thereof shall be charged to Tenant as
Additional Rent.
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EXHIBIT F
(BANK LETTERHEAD)
RE: Irrevocable Letter of Credit No.______________________
Gentlemen:
By order of our client, [Insert Name And Address Of Tenant], we hereby open our
irrevocable letter of credit No. _________________ in favor for an amount not to
exceed in the aggregate $300,000.00. Effective immediately and expiring at our
[Insert Bank Street Address] office, ________, _______, with our close of
business on [Insert Date One Year From Date Of Issuance].
We hereby agree with you that drafts drawn under and in compliance with the
terms and condition of this Credit shall be duly honored if presented together
with: (a) the original of this Credit, and (b) an affidavit executed by an
authorized representative of the Beneficiary stating that a default by the
tenant has occurred under that certain lease agreement dated as of _________ ,
1999 between Intelligent Life Corporation and ____________, and such default
remains uncured beyond the applicable grace period, entitling the Beneficiary to
the proceeds of this Credit.
We will honor your draft, prior to 2:00 p.m. ([insert city], Florida time), on
the same Business Day the draft is presented, if the draft is presented at or
before 11;00 a.m. ([insert city], Florida time) on any Business Day, or not
later than 10:00 a.m. ([insert city], Florida time) on the next following
Business Day, if the draft is presented after 11:00a.m. ([insert city], Florida
time) on any Business Day. For the purposes hereof, a "Business Day" shall mean
a day on which banks located in the State of Florida are not required or
authorized to remain closed.
This letter of credit shall be automatically reserved from year to year until
the earlier of [Insert The Expiration Date Of This Lease] or terminated by the
undersigned by notice to you given not less than ninety (90) --- days prior to
the then expiration date therefor.
This letter of credit is transferable.
Except as far as otherwise expressly stated herein, this letter of credit is
subject to the uniform customs and practice for documentary credits (1983
revision) International Chamber of Commerce Publications No. 400.
[Name Of Bank]
Authorized Signature
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