LEASE

EXHIBIT 10.33

LEASE

THIS AGREEMENT is made as of the 4 ^th day of September, 2006, between THE GRAHAM COMPANIES, a Florida corporation, hereinafter called “Lessor”, and BANKUNITED, FSB, hereinafter called “Lessee”.

ARTICLE I

DEMISE, TERM

Section 1.0 - Demise: Term :

Lessor, in consideration of the agreement of Lessee herein contained, hereby leases and demises to Lessee an agreed 53,300 square feet of office/flex space along with 213 parking spaces located at 14801 Oak Lane, Miami Lakes, Miami-Dade County, Florida, 33016, and designated as Building No. 56A (hereafter, the “Premises”), in the Miami Lakes Business Park West, for a term beginning on September 1, 2006, continuing for seven (7) years and four (4) months ending December 31, 2013 (hereafter, the “Term”), reserving to Lessor the rental hereinafter set forth in this Lease, (the “Lease”), to be upon all of the terms and conditions herein contained.

ARTICLE II

LESSEE’S COVENANTS

Lessee hereby covenants with Lessor as follows :

Section 2.0 - Rental :

(a) Rental shall be paid in advance on or before the first day of each month, together with applicable tax thereon as follows:

 

 

*	All sales, use, or similar taxes now or hereinafter imposed on the payment of rent by Lessee, whether federal, state, or local, which is currently 7.0%.

(b) Lessee acknowledges that late payments or returned checks by Lessee to Lessor of rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such costs include, without limitation, processing and accounting charges and late charges or handling charges that may be imposed on Lessor for late payment of obligations paid out of the cash flow from Lessee. Therefore, if any installment of rent or other required payment due from Lessee is not received by Lessor when due or is paid by a check which is returned, Lessee shall pay to Lessor an additional sum of five percent (5%) of the then current minimum monthly rent as a late or returned check charge. In the case of a late payment and a returned check, the amount charged will be for both the late payment and the returned check (i.e. , a double charge equaling a total of 10%). The parties agree that this late payment and returned check charge represents a fair and reasonable estimate of the costs that Lessor will incur. Acceptance of a late charge or returned check charge shall not constitute a waiver of Lessee’s default with respect to the overdue amount or prevent Lessor from exercising any of the other rights and remedies available to Lessor. All amounts owing by Lessee under this Lease shall be deemed to be rent or additional rent, and if payment of the same are past due, interest on the amounts owing shall be due at the rate of eighteen percent (18%) per annum. Lessee shall pay all sales, use or similar taxes now or hereinafter imposed on the payment of rent by Lessee, whether federal, state or local, which is currently 7.0%.

Section 2.1 - Security Deposit : This Section is intentionally left blank.

 

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Section 2.2 - Rent Payment :

Lessee shall pay the rent herein reserved, in advance and without demand, promptly upon the days the same becomes due and payable to Lessor at 6843 Main Street, Miami Lakes, Florida, 33014, or at such address as may from time to time be designated by Lessor.

Section 2.3 - Use :

Lessee, its successors and assigns, shall use the Premises exclusively for the purpose of operating a general and administrative office, and the parking lot for employees and visitors only, and for no other use without the prior written consent of Lessor. Outside storage, including without limitation, storage of trucks and other vehicles, is prohibited without Lessor’s prior written consent.

Section 2.4 - Assignment, Subletting :

(a) Lessee shall not sublet the Premises or any part thereof or assign any interest in this Lease (whether by sale of assets, merger, consolidation or otherwise, or by sale or disposition of control or ownership) without first having obtained the written consent of Lessor. Lessor hereby consents to the assignment of this Lease to a wholly owned subsidiary, wholly owned affiliate, the parent or holding company of the original Lessee, or any entity that has acquired all or substantially all of the assets of the original Lessee whether by merger or purchase with the exception that Lessee shall not have the right to sublease or assign all or any part of the Premises to organizations conducting their primary business in retail sales, food services, or health care, but no such assignment shall relieve the Assignor of any liability hereunder. Notwithstanding the foregoing, Lessee may sublease a portion of the Premises to intercompany or related parties.

(b) Lessor shall have the right of first refusal to repossess the space to be subleased or assigned. In the case of such repossession by Lessor, this Lease shall terminate on that date of repossession and shall then be null and void and of no further force or effect, and neither Lessor nor Lessee shall have any further obligation or liability hereunder except as provided in Sections 4.16 and 4.22 of this Lease as the Lease applies to space vacated. This Lease shall remain in effect on any space not repossessed by Lessor.

(c) Should Lessor not exercise its right of first refusal to repossess the Premises, Lessee shall be free to sublet such space to any third party with the exception of the aforementioned, subject to the following conditions:

(1) In no event shall more than two tenants be allowed to occupy said Premises (Tenant and one subtenant or two subtenants).

(2) Any subtenancy shall be for not more than one day less than the remaining term of the original Lease as may be extended.

(3) No sublease shall be valid and no sublessee shall take possession of the Premises subleased until an executed counterpart of such sublease has been delivered to Lessor.

(4) No sublessee shall have a right further to sublet; and

(5) Any sums or other economic consideration received directly or indirectly by Lessee or any other entity related to or affiliated with Lessee, as a result of such subletting (except rental or other payments received which are attributable to the amortization of the cost of leasehold improvements, other than building standard tenant improvements made to the sublet portion of the Premises by Lessor), whether denominated rentals under the sublease or otherwise, which exceed, in the aggregate, the total sums which Lessee is obligated (allocable to that portion of the Premises subject to such sublease) shall be payable to Lessor as additional rental under this Lease without effecting or reducing any other obligation of Lessee hereunder. In no event shall Lessee sublease the Premises and charge less rent per month than stipulated in this Lease.

(6) Notwithstanding anything contained in this Lease or any Addendum attached hereto, or otherwise, no sublessee shall have any rights as to building identification without the prior written consent of Lessor. No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by any sublessee on any part of the outside or inside of the Premises or building without the prior written consent of Lessor. In the event of the violation of the foregoing, Lessor may, at its sole option, treat such violation as an event of default hereunder. In addition, Lessor may remove such lettering without any liability and may charge the expense incurred by such removal to the Lessee and/or sublessee. The prior approval of all lettering must be obtained by sublessee from Lessor.

(7) Regardless of Lessor’s consent, no subletting or assignment shall release Lessee from Lessee’s obligations hereunder; nor shall it alter the primary liability of Lessee to pay the rental and to perform all other obligations to be performed by Lessee hereunder. The acceptance of rental by Lessor from any other person shall not be deemed to be a waiver by Lessor of any provision

 

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hereof. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, Lessor may proceed directly against Lessee without the necessity of exhausting remedies against such assignee or successor.

(8) Lessee shall be expressly prohibited from subleasing to any sublessee or from assigning to any party whose intended business use is other than that described in Section 2.3 herein unless otherwise approved by Lessor in writing.

(9) In no event shall any amendment to the sublease, whether or not Lessor shall approve same, affect or modify or be deemed to affect or modify the Lease in any respect.

(10) In no event shall Lessor be deemed to be in privity of contract with sublessee or owe any obligation or duty to sublessee under the Lease or otherwise. Any duties of Lessor under the Lease or required by law being in favor of or for the benefit of Lessee are enforceable solely by Lessee.

Section 2.5 - Surrender/Hold Over :

(a) Upon the expiration of the Term of this Lease, Lessee will, without demand, quietly and peacefully deliver possession of the Premises (including any improvements that may be made by Lessee except as provided for in Section 4.34) to Lessor in as good condition as when received, ordinary wear and tear only excepted. Lessee agrees that, if Lessee does not surrender to Lessor said Premises at the end of the term of this Lease, or upon any cancellation of the Term of this Lease, then Lessee will pay to Lessor all damages Lessor may suffer on account of Lessee’s failure to so surrender to Lessor possession of said Premises, and will indemnify Lessor on account of delay caused Lessor in delivering possession of said Premises to any succeeding tenant so far as such delay is occasioned by failure of Lessee to so surrender said Premises. Lessee will pay to Lessor all damages including, but not limited to, loss of profits.

(b) Any holding over after the expiration of the Term hereof, with the consent of Lessor, shall be construed to be a tenancy from month to month at a rental rate to be determined and provided for in the written consent document and shall otherwise be on the terms and conditions herein specified, so far as is applicable. This consent must be in writing. In the absence of any written agreement to the contrary, if Lessee, or any assignee or sublessee shall remain in occupancy after the expiration of the Lease Term, it shall so remain as a Tenant at Sufferance from month-to-month and all provisions of this Lease applicable to such tenancy shall remain in full force and effect, except that Lessee shall pay rent at the maximum allowable by Florida Statutes. Acceptance by the Lessor of any Rent after termination shall not constitute a renewal of this Lease or a consent to such hold over occupancy nor shall it waive the Lessor’s right of re-entry or any other right contained in this Lease or provided by law. Holding over for any partial month will require Lessee to pay the full monthly rental payment.

Section 2.6 - Floor Loads :

All heavy business machines or heavy equipment to be moved into the Premises (excluding that equipment or replacement of same currently in the Premises) will be done only with the prior written approval of Lessor, which consent will not be unreasonably withheld, but which may be conditioned upon moving by skilled licensed handlers and installation and maintenance at Lessee’s expense of special reinforcing and settings adequate to absorb and prevent noise and vibration.

Section 2.7 - Alterations, Additions, Improvements :

(a) Lessee shall commit or permit no waste or injury to the Premises, and Lessee shall not make any alterations, additions, or improvements, inside or outside, including, without limitation, any holes in or penetrations of the roof, without the prior written consent of Lessor. At least fifteen (15) days’ notice in writing must be given Lessor before Lessee desires to make any such alterations, additions or improvements.

(b) All additions or improvements, except only office furniture and fixtures which shall be readily removable without injury to the Premises, shall be and remain a part of the Premises at the expiration of this lease, except as provided for in Section 4.34.

(c) Lessee shall not be permitted to install any type of wallcovering on an exterior building wall.

Section 2.8 - Lessee’s Compliance :

Lessee will not use or permit the Premises to be used for any illegal, immoral or improper purposes, and Lessee will execute and comply with, at Lessee’s own cost and expense, all laws, rules, orders, ordinances and regulations now in force or at any time issued, applicable to the Premises or to Lessee’s occupancy thereof, by the Local, State and Federal governments and of each and every

 

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department, bureau and official thereof, and with any fire underwriting requirements of any insurance company. Lessee shall not advertise or permit any advertising which, in Lessor’s opinion, tends to injure the reputation of the building or impair its desirability; and upon written notice from Lessor, Lessee shall refrain from or discontinue any such advertising. Lessee’s use and occupancy of the Premises must be carried out so as not to cause or permit any loud or unreasonable noises or unreasonable disturbances to emanate therefrom, and so as not to disturb, annoy or otherwise interfere with the use and enjoyment of other spaces and public spaces by tenants and visitors. Lessee shall not permit any refuse, debris or rubbish to be placed in public spaces at the building and shall not allow the same to collect or accumulate in the Premises.

Section 2.9 - Liability :

Lessee agrees to indemnify and save Lessor harmless from any and all liability for any damage to any person or property throughout the Term of this Lease and any extension or renewal thereof, occasioned by or resulting from the breakage, leakage or obstruction of the water, gas or sewer pipes or of the roof or rain ducts, or any fire sprinkler or other quenching system, or other leakage or overflow or otherwise, in or about the Premises, or from any carelessness, negligence or improper conduct on the part of Lessee or Lessee’s employees, subtenants (if any), or agents, on, in, or about the Premises, or the hallways and public areas (if any) adjoining the same. Lessor shall not be liable for any damage, loss or injury to the person, property or effects of Lessee or any other person, suffered on, in or about the Premises by reason of any present, future, latent or other defects to the form, character or condition of Premises or any part or portion thereof, or by reason of water, rain, fire, storms or accidents, and the rent shall not be diminished or withheld by reason of or on account of any such loss or damage.

Section 2.10 - Right to Entry :

Lessee shall permit Lessor and Lessor’s representative and independent contractors at any time, by providing 24 hours prior notice, during usual business hours and without interfering with Lessee’s business operations (unless an emergency exists, Lessee is in default or Lessor reasonably anticipates that a default is imminent, in which case time of entry is unrestricted), to enter the Premises for the purpose of inspections necessary for the safety, comfort or preservation of the Building of which the Premises are a part or for the removal of alterations or additions not in conformity with the Lease. Such entry, except in the case of an emergency, shall only be permitted if an appropriate officer of Lessee is present. Lessor shall have the right to exhibit the property for sale, lease, appraisal or mortgage and to post and keep upon the Premises a “For Rent” sign at any time within ninety (90) days before the expiration of the Lease. Lessee has the right to install a sign identifying its relocation during the ninety (90) day period.

Section 2.11 - Attorneys’ Fees :

The non-prevailing party shall pay all and singular costs, charges and expenses, including reasonable attorney’s and legal assistant’s fees (including those in connection with any appeal) reasonably incurred or paid at any time by the prevailing party, because of the failure on the part of the non-prevailing party to comply with and abide by each and every of the stipulations, agreements, covenants and conditions of this Lease.

Section 2.12 - Waiver :

The failure of Lessor to insist in any one or more instances upon the strict performance of any one or more of the covenants, terms and agreements of this Lease, shall not be construed as a waiver of such covenants, terms or agreements, but the same shall continue in full force and effect, and no waiver by Lessor of any of the provisions hereof shall in any event be deemed to have been made (by acceptance of rent or otherwise) unless the same be expressed in writing, signed by Lessor, and all remedies provided for by the terms of this Lease shall be cumulative.

Section 2.13 - Condition of Premises :

Lessee shall at all times keep the interior of the Premises in a clean, orderly and tenantable condition befitting a first class operations center building. Lessee shall not knowingly bring any furniture or fixtures into the Premises that contain termites and other wood destroying insects.

 

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Section 2.14 - Liability Insurance :

Lessee shall maintain at its own expense throughout the Term of this Lease Commercial General Liability Insurance for personal injury and property damage to protect both Lessor and Lessee against damage, costs and standard defense attorneys’ fees arising out of accidents of any kind occurring on or about the Premises. Said liability insurance shall be written by a company or companies reasonably acceptable to Lessor naming Lessor an additional insured and will have liability limits of not less than $3,000,000.00 combined single limit for bodily injury and property damage. A certificate showing such insurance in force shall be delivered to Lessor prior to commencement of the Lease Term, and such certificate shall be maintained with Lessor throughout the Term of this Lease. The certificate shall require thirty (30) days written notice from the insurer to Lessor of any cancellation or reduction in coverage.

Section 2.15 - Statement by Lessee :

Upon demand of Lessor, or any prospective purchaser, or mortgagee, Lessee agrees to execute a statement of the condition of this Lease, including the amount of monthly rental and the date to which the same has been paid, the amount of security held by Lessor, the expiration date of this Lease, and whether any breach hereof exists.

Section 2.16 - Security Interest : This Section is intentionally left blank.

Section 2.17 - Damage to Premises :

Lessee shall make good to Lessor immediately upon demand any damage to the plumbing, electrical wiring, lights, glass, doors, floors, or appurtenances of the Premises, or of the building, caused by any act or neglect of Lessee, or of any person or persons in the employ or under the control of Lessee.

Section 2.18 - Waiver of Right of Redemption : This Section is intentionally left blank.

Section 2.19 - Waste Disposal System:

At all times during the Term of this Lease and any renewals thereof, Lessee at its own cost and expense, shall comply with all requirements of the Miami Dade Water and Sewer Authority, or its successor, regulating the type and quality of waste that may be discharged into the sanitary sewers serving the Premises, including, without limitation, the installation of any alternative waste disposal or pretreatment system that may from time to time be designated by said authority. Lessee hereby agrees to indemnify and hold Lessor harmless from and against any and all claims, costs, liabilities, damages, fines, fees or other expenses whatsoever, (including reasonable attorneys’ fees and appellate attorneys’ fees and legal assistants’ fees and court costs) arising from or growing out of Lessee’s failure to comply with any such requirements. Any alternative waste disposal or pretreatment system shall immediately become and remain part of the real estate and property of Lessor. Lessor, at its sole cost, shall have the right from time to time to order such tests as it may determine to be necessary to detect and analyze the waste and effluent being discharged into the waste collection and pretreatment system for the Premises.

Section 2.20 - Utility Bills/Utilities :

(a) Lessee shall pay all charges for gas, electricity, water and sewer, telephone and other utilities applicable to the Building during the term of this Lease and during any time that Lessee occupies the Premises, before any of said charges become delinquent.

(b) Failure to any extent to furnish or any stoppage of these services resulting from any cause whatsoever shall not render Lessor liable in any respect to any person, property or business, nor be construed as an eviction of Lessee or work an abatement of rent, nor relieve Lessee from fulfillment of any covenant or agreement hereof. Lessee shall have no claim for rebate of abatement of rental or damages on account of any interruptions in service occasioned thereby or resulting therefrom.

Section 2.21 - Building Maintenance and Repairs by Lessee :

(a) Throughout the term of the Lease, Lessee shall maintain in good repair all portions of the Premises not required to be maintained in good repair by Lessor, including, without limitation, the air conditioning (if any), glass, pumps, plumbing, fire sprinkler system, doors, windows and interior walls. In the event that the cost of any such repairs required to be made by Lessee is paid by proceeds of Lessor’s insurance, then Lessor shall make such proceeds available to Lessee to the extent required for such repairs.

(b) Except as otherwise permitted herein, Lessee shall at all times keep in effect a contract with a qualified air-conditioning maintenance firm for a regular program of preventive

 

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maintenance including but not limited to routine filter replacement, leak repairs, freon replacement, annual coil cleaning and general monthly service, and at least equivalent to what would be provided by the contractor installing same under the contractor’s certified maintenance plan. On an annual basis upon Lessor’s request, Lessee shall furnish Lessor with a copy of every such maintenance contract and every renewal, amendment or replacement of such contract promptly when the same is entered into. In the event Lessee chooses to maintain its air conditioning utilizing its employees, Lessee shall notify Lessor in writing of its intent to do so and said maintenance program shall be consistent to that which would be provided by an outside contractor. Lessee, at its sole expense, shall be responsible to keep the air conditioning system in good repair, including replacement if necessary. Lessee shall be entitled to the benefit of any warranty by the installer in favor of Lessor. Lessee will notify Lessor, in writing, of any and all major repairs and replacements made to the air-conditioning units and systems during the term of the Lease.

(c) Lessee shall provide Lessor with at least fifteen (15) days written notice (except in the case of an emergency in which case notice must be reasonable under the circumstances) of needed repairs which are the responsibility of Lessor and Lessor shall have a reasonable time thereafter to cause work on said repairs to be commenced, and once commenced, said work shall be continued and completed with reasonable dispatch provided that Lessor shall not be liable for failure to complete such repairs by reason of Force Majeure.

Section 2.22 - Services :

Lessee shall be responsible for all services applicable to the Building, including janitorial service, waste collection, insect and pest control service, HVAC maintenance, and all other services necessary to maintain the Building.

Section 2.23 - Landscape Maintenance/Parking Lot Maintenance/Waste Collection :

(a) Lessee, at its sole cost, shall provide lawn and landscape maintenance of the Premises. Responsibility shall include, but not be limited to, the following: mowing, edging, weeding, blowing of parking lot; rust prevention; tree trimming to be done in accordance with acceptable practices (all trees will be trimmed away from parking lot lights); root pruning and removal of any roots from asphalt areas; mulching of beds and replacement of dead plant material; fertilizer and pest control (chinch bugs); sod replacement; pressure cleaning sidewalks; bumper block and curb repair and replacement; replacement of broken sprinkler heads and sprinkler lines; repair of sprinkler pump and well, including replacement if necessary; and asphalt repair. Lessee shall police all areas contiguous to the Premises to prevent the accumulation of trash and debris. Should the Lessee fail to police its area, then Lessor may clean up the area and charge the Lessee for the cost of the clean up plus 15%, including, but not limited to the cost of labor. Said charges shall be considered additional rent and be promptly paid upon submission of a bill for same by the Lessor.

(b) Lessee shall provide sealcoating and striping of the parking lot at least once every five (5) years, or as reasonably requested by Lessor.

(c) Lessee, at its sole cost, shall provide for trash pickup a minimum of once per week during the summer and every ten days during the winter.

ARTICLE III

LESSOR’S COVENANTS

Lessor hereby covenants with Lessee as follows :

Section 3.0 - Quiet Enjoyment :

Subject to the terms and conditions of this Lease, Lessee may quietly hold and occupy the Premises without any interruption by Lessor or persons claiming through or under Lessor, so long as the Lessee is not in default under this Lease.

Section 3.1 - Maintenance and Repairs by Lessor:

(a) Except for repairs required to be made by Lessee, throughout the term of the Lease, Lessor shall maintain in a good state of repair the roof and structural portions of the Premises, provided, however, that if Lessee makes any penetration of or hole in the roof, then Lessee shall reimburse Lessor upon demand for the cost differential that Lessor encounters in repairing or replacing the roof compared with what the costs would have been without any such penetration or hole. Notwithstanding the foregoing, Lessor’s responsibility for repairing and/or maintaining the roof shall commence when Lessee has replaced the roof in accordance with 4.34(n)(7).

 

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(b) Lessor’s liability with respect to any defects, repairs or maintenance for which Lessor is responsible under any of the provisions of this Lease shall be limited to the cost of such repairs or maintenance or the curing of such defect. In the event of an emergency repair which is Lessor’s responsibility to repair, if Lessor fails to promptly, under the circumstances, make said repair after notice from Lessee, then Lessee shall have the right to take any action necessary to make said emergency repair. The cost of said emergency repair, to include a copy of the invoice and proof of payment of said invoice, will be submitted by Lessee to Lessor for reimbursement.

ARTICLE IV

MUTUAL COVENANTS

It is mutually covenanted and agreed as follows :

Section 4.0 - Waiver of Subrogation :

Lessor and Lessee each waive any claim against the other for property damage to the extent that such claim is covered and payable by valid and collectible fire and extended coverage insurance carried for the benefit of the party entitled to make such claim; on condition, further, that this waiver shall not apply if the policy of such insurance would be invalidated by the operation of said waiver.

Section 4.1 - Mechanics’ Liens :

Lessee shall not permit or perform any act, nor is Lessee authorized to make any contract which may create or be the foundation for any lien or other encumbrance upon any interest of Lessor or any ground Lessor or underlying Lessor in any portion of the Building. If, because of any act or omission (or alleged act or omission) of Lessee, any mechanic’s or other lien, charge or order for the payment of money or other encumbrance shall be filed against Lessor and/or any ground Lessor or underlying Lessor and/or any mortgagee and/or any portion of the Building (whether or not such lien, charge, order or encumbrance is valid or enforceable as such), Lessee shall, at its own cost and expense, cause the same to be discharged of record, bonded or transferred to other security as provided by Florida Statutes so as to free title to the Premises of any alleged claim of lien within ten (10) days after notice to Lessee of the filing thereof. Lessee shall indemnify and save harmless Lessor, all ground Lessor(s) and underlying Lessor(s) and all mortgagees against and from all costs, liabilities, suits, penalties, claims and demands, including reasonable counsel fees and appellate counsel and legal assistant fees resulting therefrom. In the event Lessee fails to comply with the foregoing provisions of this section, Lessor shall have the option of discharging or bonding any such lien, charge, order or encumbrance, by payment or otherwise, and Lessee agrees to reimburse Lessor for all costs, expenses and other sums of money in connection therewith (as Additional Rent) with interest at the rate of eighteen percent (18%) per annum promptly upon demand. All laborers, mechanics, and materialmen may be put on notice of the provisions of this Section by the recordation, at Lessor’s option, of a memorandum of this Lease in Miami-Dade County public records, and Lessee shall execute and acknowledge such a memorandum if requested.

Section 4.2 - Notices :

Any notice required or permitted under this Lease shall be in writing and shall be deemed given if delivered by overnight commercial courier, such as Federal Express, when received by facsimile, provided the original is delivered the next day by overnight courier or by the United States Postal Service, postage prepaid, Certified Mail, Return Receipt Requested to Lessor at the place designated for the payment of rent, if such notice is to Lessor, and if delivered to Lessee, such notice shall be to:

BankUnited, FSB

Corporate Real Estate

Attention: Robert A. Marsden, Executive V.P.

14840 Palmetto Frontage Road

Miami Lakes, FL 33016

And

Camner Lipsitz & Poller

Neale Poller, Attorney

550 Biltmore Way, Suite 700

Coral Gables, FL 33134

 

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Section 4.3 - Removal of Fixtures :

Lessee shall have the right to install office furniture, fixtures and equipment necessary or convenient to the use permitted under this Lease, all of which shall remain the property of Lessee and which may be removed by Lessee at the end of the Lease Term provided that Lessee is not then in default. However, if any damage results to the Leased Premises by reason of installation or removal of such office furniture, office fixtures and equipment, Lessee shall repair the same at its own expense prior to the expiration of the Lease term and immediately upon quitting the Premises. In the event that Lessor consents as required under Section 2.7 to any alterations, additions and improvements to the Premises, then all such alterations, additions and improvements shall immediately become and remain part of the real estate and the property of Lessor, or else shall be removed by Lessee and the Premises restored, as Lessor may elect.

Section 4.4 - Force Majeure :

The term “Force Majeure” as used in this Lease shall include acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars, terrorism or bioterrorism, blockades, riots, acts of armed forces, epidemics, delays by carriers, inability to obtain materials, acts of public authorities and any other causes, whether or not enumerated in this Section, which causes are beyond the control of the party required to perform.

Section 4.5 - Hazard Insurance :

Lessor shall carry fire and extended coverage insurance on the Premises and the Building. Such insurance may be effected by a blanket policy or policies of insurance. Should Lessee engage in any activity which causes an increase in the fire and extended coverage cost to Lessor, Lessee will pay the cost of said increase to Lessor within thirty (30) days after demand. Lessor reserves the right at any time and from time to time to change the insurance company, and such change will not relieve Lessee of any obligation under this Section. Lessee shall provide its own insurance against any damage to Lessee’s fixtures, equipment or other personal property of Lessee or any other party, and against water damage, vandalism, malicious mischief, or any other cause. Lessor shall have no responsibility for such insurance. Notwithstanding anything herein to the contrary, Lessor shall have no liability of any nature for property damage to Lessee’s or any other parties’ personal property or fixtures arising from any cause whatsoever including, but not limited to, theft, vandalism, or casualty.

Section 4.6 - Charges for Service :

Any charges against Lessee by Lessor for services or for work done on the Premises by order of Lessee or otherwise accruing under this Lease shall be considered as rent due and shall be included in any lien for rent due and unpaid.

Section 4.7 - Delay of Possession :

(a) If Lessor is unable to give possession of the Premises on the date of the commencement of the aforesaid term because Lessor is performing or is delayed in performing work to ready the Premises for Lessee’s occupancy or for any other reason or combination of reasons which are not caused by Lessee, an abatement of the rent to be paid hereunder shall be allowed Lessee under such circumstances, and the Term of the Lease shall be extended by the amount of the delay. Said abatement in the rent shall be the full extent of Lessor’s liability to Lessee for any loss or damage to Lessee on account of said delay in obtaining possession of the Premises. Lessor shall not be liable for any damages related to Loss of Profits.

(b) If the delay of possession is caused by acts of Lessee, then there shall be no delay of the commencement of the term or abatement of rent for the period which can reasonably be determined to be caused by Lessee’s acts or failure to act.

(c) If Lessor is unable to give possession of the Premises to Lessee within one hundred twenty (120) days after the commencement of the term of this Lease, then Lessee shall have the right to cancel this Lease upon written notice thereof delivered to Lessor within ten (10) days after the lapse of said one hundred twenty (120) day period, and upon such cancellation, Lessor and Lessee shall each be released and discharged from all liability under this Lease. Failure by Lessee to take possession of the Premises on the date of commencement of the aforesaid term, or as soon thereafter as possession is offered by Lessor, shall constitute a default by Lessee entitling Lessor to all of the remedies provided in case of default.

 

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Section 4.8 - Casualty Loss :

If the Premises (or a portion thereof) are rendered untenantable by reason of fire, bad weather, an act of war, terrorism, or bioterrorism, or other casualty loss, the rent or a just proportion thereof shall abate while untenantable. Lessor, in such case, shall have the option either to continue this Lease in effect, in which event Lessor shall cause the Premises to be repaired (except as to any improvements made by Lessee) within six (6) months after the date of the loss (subject to the delay caused by any Force Majeure affecting the work), or to cancel this Lease as of the date of the loss. Lessor shall notify Lessee within sixty (60) days after a loss as to which option Lessor elects. Should Lessor elect to repair the Premises, Lessee shall repair and/or restore any damaged improvements made by Lessee to the Premises.

Section 4.9 - Condemnation :

In the event that the Premises or any part thereof are taken for any public or quasi-public use by condemnation or by right of eminent domain, or purchase in avoidance or settlement of a condemnation or eminent domain proceeding, Lessor and Lessee agree as follows:

(a) If all of the Premises or such a part of the Premises are taken so as to render the Premises unsuitable for the business of Lessee, then this Lease shall be cancelled, and rent shall abate as of the date of taking.

(b) In the event of a partial taking which does not render the Premises unsuitable for the business of Lessee, a fair and just proportion of the rent shall abate as of the date of taking, and Lessor shall have the option either to continue this Lease (in which event Lessor shall proceed to repair the damage to the Premises caused by such partial taking), or to cancel this Lease as of the date of taking, with rent abating as of that date. Lessor shall notify Lessee after a taking as to which option Lessor elects. Lessor shall not be liable to Lessee in the event any Force Majeure delays completion of repairs.

(c) Lessor and Lessee shall each be entitled to receive such sums as may be awarded by the court, or if the award is not apportioned by the court, each shall be entitled to receive su