LEASE AGREEMENT

 

 

LEASE INDEX

 

1.	CERTAIN DEFINITIONS	1
2.	PREMISES AND TERM	4
3.	RENT	6
4.	OPERATING COSTS	7
5.	USE OF PREMISES	8
6.	ASSIGNMENT AND SUBLETTING	9
7.	ACCESS TO PREMISES	10
8.	SERVICES	10
9.	ELECTRICAL AND STRUCTURAL	11
10.	PARKING	11
11.	LEASEHOLD IMPROVEMENTS	12
12.	REPAIRS AND MAINTENANCE	13
13.	ALTERATIONS AND IMPROVEMENTS	13
14.	INDEMNITIES; LIABILITY	14
15.	DAMAGE BY FIRE OR THE ELEMENTS	15
16.	INTENTIONALLY OMITTED	16
17.	EMINENT DOMAIN	16
18.	SIGNS AND ADVERTISING	17
19.	DEFAULT	17
20.	SUBORDINATION	19
21.	QUIET ENJOYMENT	19
22.	CONSTRUCTION AND LIENS	19
23.	FORCE MAJEURE	20
24.	SEVERABILITY	20
25.	RENT A SEPARATE COVENANT	20
26.	HOLDING OVER	20
27.	EXECUTION	20
28.	ABSENCE OF OPTION	20
29.	AMENDMENTS	20
30.	NOTICES	20
31.	INSURANCE	21
32.	RECORDING	22
33.	TAX ON RENT	22
34.	ESTOPPEL CERTIFICATES	22
35.	ACCESS	23
36.	BROKERAGE COMMISSION	23
37.	SUCCESSORS	23
38.	CONSTRUCTION OF LEASE AGREEMENT	23
39.	RADON GAS	23
40.	SECURITY DEPOSIT	23
41.	SATELLITE DISH	23
42.	COMMUNICATION SYSTEMS	24
43.	INTENTIONALLY OMITTED	24
44.	MISCELLANEOUS	24
45.	CONFIDENTIALITY	24
46.	EXHIBITS AND RIDERS	25
47.	GOVERNING LAW	25
48.	ENVIRONMENTAL PROVISIONS	25
49.	NO PARTNERSHIP	25
50	RIGHT OF FIRST OFFER	25
51.	FINANCING	26
52.	PUBLIC GRANT FUNDS	26
53.	WAIVER OF JURY TRIAL	26

 

 

EXHIBITS

 

	EXHIBIT	A	–	FLOOR PLANS OF PREMISES
	EXHIBIT	B	–	LEGAL DESCRIPTION OF LAND
	EXHIBIT	C	–	WORKLETTER
	EXHIBIT	D	–	SHELL IMPROVEMENTS
	EXHIBIT	E	–	INTENTIONALLY OMITTED
	EXHIBIT	F	–	NOTICE OF LIEN PROHIBITION
	EXHIBIT	G	–	SITE PLAN OF PARKING AREA
	EXHIBIT	H	–	LETTER OF CREDIT REQUIREMENTS

 

RIDER

 

RIDER NO.

1

–

RENEWAL RIDER

 

 

LEASE

 

THIS LEASE (this “Lease”) is dated as of the         day of                      , 1998, between “Landlord” and “Tenant” hereinafter set forth and is effective as provided in Section 28 of this Lease.

 

W   I   T   N   E   S   S   E   T   H :

 

1.                                        CERTAIN DEFINITIONS .

 

a.                                        “ Landlord ”:                                  FRANK W. GUILFORD, JR., INDIVIDUALLY AND AS TRUSTEE

 

b.                                       “ Tenant ”:                                               INTERVAL INTERNATIONAL, INC., a Florida corporation, its permitted successors and/or assigns

 

c.                                        “ Premises ”:                                   Two (2) office buildings consisting of approximately sixty thousand fifteen (60,015) square feet of Rentable Area, to be developed in two (2) phases, and to be occupied solely by Tenant. “Phase 1” shall be an office building consisting of approximately thirty-two thousand three hundred forty-nine (32,349) square feet of Rentable Area (which includes, without limitation, the common lobby area and restrooms to serve Phase 2), and “Phase 2” shall be an office building consisting of approximately twenty-seven thousand six hundred sixty-six (27,666) square feet of Rentable Area, all as more particularly shown on Exhibit A , attached hereto and made a part hereof. The buildings comprising the Premises will be located on North Kendall Drive at S.W. 99th Avenue, Miami-Dade County, Florida (each hereinafter called a “Building” and collectively called the “Buildings”), located on a tract of land (the “Land”) more particularly described in Exhibit B , attached hereto and made a part hereof. The Premises, the Buildings, the Land, all appurtenances thereto, all parking facilities and other buildings and improvements relating to the Buildings are hereinafter collectively called the “Project.” As soon as reasonably practicable prior to Substantial Completion of construction of the Tenant Improvements for each Phase, Landlord shall direct the architect to remeasure the Rentable Area of the Premises as actually constructed and certify as to same to both Landlord and Tenant. All measurements shall be done in accordance with the then-current BOMA Standard Method for Measuring Floor Area in Office Buildings. From the Commencement Date for Phase 1 through the Commencement Date for Phase 2, the common area factor for Phase 1 shall not exceed twenty (20%) percent. Upon the Commencement Date for Phase 2, the total common area factor for both Phases shall not exceed fifteen (15%) percent in the aggregate. If the Rentable Area of the Premises (based on the measurement of the Usable Area of the Premises plus the common area factor) determined by the architect is greater or less than the amount specified in this Lease, then the Rentable Area of the Premises shall be adjusted to equal the amount as so determined, and the Base Rent and any other amounts specified in this Lease as a function of the Rentable Area of the Premises shall be adjusted proportionately.

 

If Tenant disputes the measurement of the Rentable Area of the Premises (as evidenced by written notice to Landlord within twenty (20) days after Tenant’s receipt of the architect’s certification of the actual measurement), then, within ten (10) days after the date Tenant disputes the measurement, Landlord and Tenant shall each select an independent disinterested architect, which architects shall determine the Rentable Area of the Premises based on the measurement standard described above within twenty (20) days thereafter. Landlord and Tenant shall each bear the costs of their respective architects. If the difference between the two measurements is equal to or less than ten (10%) percent of the higher square footage measurement, then the average of such two measurements shall be the Rentable Area of the Premises. If the difference between the two measurements is more than ten (10%) percent of the higher measurement, then the architects shall mutually select a third independent disinterested architect. Such third architect shall then (within ten (10) days) make its determination of the Rentable Area of the Premises based on the measurement standard described above, and the average of such three measurements shall be the Rentable Area of the Premises. Landlord and Tenant shall each pay one-half (1/2) of the fees and costs of such third architect. At a minimum, each of the architects shall be disinterested architects, with substantial experience in the Miami-Dade County commercial real estate office market.

 

However, notwithstanding anything to the contrary contained in this Lease:

 

(i)            If the final measurement of the Rentable Area of Phase 1 exceeds one hundred five (105%) percent of the measurement of the Rentable Square Feet shown in the final approved plans and specifications for Phase 1 (except to the extent caused by any changes to the final approved plans and specifications caused by Tenant or any act or omission of Tenant, its agents, employees or contractors), in no event is Tenant required to pay any Base Rent or other charges in connection with Phase 1 attributable to any portion of Phase 1 in excess of such 105% amount;

 

(ii)           If the final measurement of the Rentable Area of Phase 2 exceeds one hundred five (105%) percent of the measurement of the Rentable Square Feet shown in the final approved plans and specifications for Phase 2 (except to the extent caused by any changes to the final approved plans and specifications caused by Tenant or any act or omission of Tenant, its agents, employees or

 

 

contractors), in no event is Tenant required to pay any Base Rent or other charges in connection with Phase 2 attributable to any portion of Phase 2 in excess of such 105% amount;

 

(iii)          If the final measurement of the Rentable Area of Phase 1 is less than ninety (90%) percent of the measurement of the Rentable Square Feet shown in the final approved plans and specifications for Phase 1 (except to the extent caused by any changes to the final approved plans and specifications caused by Tenant or any act or omission of Tenant, its agents, employees or contractors), then Tenant shall have the right to (x) accept Phase 1 as-built, with the Rent adjusted as described above or (y) provided that Tenant has not taken occupancy of Phase 1, terminate this Lease by written notice to Landlord delivered within ten (10) days after the date the parties receive the final measurement of the Rentable Area of Phase 1, whereupon Landlord shall return to Tenant the Prepaid Rent and Security Deposit, plus Landlord shall reimburse Tenant for the actual, reasonable out-of-pocket costs incurred by Tenant regarding this Lease (but not to exceed One Hundred Fifty Thousand and No/100 ($150,000.00) Dollars), and both parties shall be relieved of all further obligations hereunder; and

 

(iv)          If the final measurement of the Rentable Area of Phase 2 is less than ninety (90%) percent of the measurement of the Rentable Square Feet shown in the final approved plans and specifications for Phase 2 (except to the extent caused by any changes to the final approved plans and specifications caused by Tenant or any act or omission of Tenant, its agents, employees or contractors), then Tenant shall have the right to (x) accept Phase 2 as-built, with the Rent adjusted as described above or (y) provided that Tenant has not taken occupancy of Phase 2, terminate this Lease by written notice to Landlord delivered within ten (10) days after the date the parties receive the final measurement of the Rentable Area of Phase 2, whereupon Tenant shall vacate and surrender Phase 1 to Landlord in the manner required by this Lease, Landlord shall return to Tenant the Security Deposit, plus Landlord shall reimburse Tenant for the actual, reasonable out-of-pocket costs incurred by Tenant regarding this Lease (but not to exceed One Hundred Fifty Thousand and No/100 ($150,000.00) Dollars), and both parties shall be relieved of all further obligations hereunder. Within ninety (90) days after Tenant’s termination notice, Tenant shall notify Landlord of the exact date that Tenant will vacate and surrender Phase 1, which date shall be (a) no earlier than ninety (90) days after the date of Tenant’s notification of such exact date, and (b) no later than one (1) year after the date of Tenant’s termination notice. Rent for Phase 1 shall be prorated through the date that Tenant so vacates and surrenders Phase 1 to Landlord.

 

All references to “Premises” herein shall be deemed to be a reference as well for such additional square footage, if any, by which the Premisos are increased.

 

d.                                     “ Buildings ”:  Shall mean the two (2) office buildings (any and all appurtenances thereto) located upon the Land, to be constructed as set forth in the Workletter and the Shell Improvements description attached hereto and made a part hereof as Exhibit C and Exhibit D , respectively.

 

e.                                      Intentionally Omitted .

 

f.                                        “ Commencement Date ”:  The Commencement Date for Phase 1 shall be the earlier of (i) the date of Substantial Completion (but in no event prior to October 1, 1999), or (ii) the date Tenant commences business operations in all or any portion of Phase 1. The Commencement Date for Phase 2 shall be the earlier of (i) the date of Substantial Completion (but in no event prior to October 1, 2001 except as set forth in Section 2.n, below), or (ii) the date Tenant commences business operations in all or any portion of Phase 2.

 

g.                                       Intentionally Omitted .

 

h.                                       “ Comparable Class Building ”:  Shall mean comparable buildings (of comparable size with uncovered parking equal to the Minimum Parking Spaces, as hereinafter defined) that are located in the Kendall Drive area of Miami-Dade County, Florida and such criteria shall be based on but not be limited to (i) ownership and property management by an institutional entity, (ii) the quality or aesthetic exterior and interior building design and finish, (iii) the mechanical, electrical and plumbing systems, (iv) common areas and amenities, (v) buildings where the total project costs are similar to the subject Project on a per square foot basis, and (vi) tenants of similar quality and creditworthiness as in the subject Project.

 

i.                                           “ Default Rate ”:  Shall mean the lesser of (i) the prime rate of interest published by Citibank, N.A., New York (or its successors) from time to time as of the date that an interest calculation at the Default Rate is to be made plus six (6%) percent, or (ii) sixteen (16%) percent per annum or (iii) the highest rate of interest permitted by law.

 

j.                                           Intentionally Omitted .

 

k.                                        “ Operating Costs ”:  The amount of Operating Costs (as hereinafter defined in Section 4) incurred with respect to the Project during the term of this Lease.

 

l.                                           “ Original Tenant ”:  The Tenant name in Section 1, subsection b.

 

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m.                                     “ Parking Area ”:  The parking area for the Buildings shall be on-site/on-grade parking accommodating one hundred eighty (180) automobiles for the minimum parking required by code (which are the Minimum Parking Spaces defined in Section 10.a below), plus an additional three hundred forty (340) parking spaces to accommodate Tenant’s extraordinary parking requirements for the Premises (which are the Additional Parking Spaces defined in Section 10.b below), plus an additional one hundred thirty (130) parking spaces to the extent permitted by applicable Legal Requirements and the physical constraints of the Land (which are the Supplemental Parking Spaces defined in Section 10.b below) (collectively, the “Parking Area”), as more particularly shown on Exhibit G , attached hereto and made a part hereof.

 

n.                                       “ Prepaid Rent ”:  Shall mean the sum of $50,480.52, which shall be paid by Tenant simultaneously with its execution of this Lease, and which shall be applied by Landlord to the Rent payable for the first full month that Rent is due for Phase 1. The Prepaid Rent is based on (i) the first (1st) month’s Base Rent for Phase 1 (based on $13.50 per square foot of Phase 1 per annum), (ii) Landlord’s Operating Costs (based on $.56 per square foot of Phase 1 per annum), (iii) parking rental for the Additional Parking Spaces (as hereinafter defined) for Phase 1 (based on $42.13 per space per month) and (iv) security wall rental (based on $650.00 per month), in each case plus sales tax. Simultaneously with Tenant’s delivery of the Prepaid Rent, Landlord shall pay to Tenant the sum of Thirty-Five Thousand and No/100 ($35,000.00) Dollars, which is a reimbursement by Landlord to Tenant for certain costs paid by Tenant on Landlord’s behalf prior to the date hereof.

 

o.                                       “ Proportionate Share ”:  Tenant’s Proportionate Share is stipulated to be one hundred (100%) percent.

 

p.                                       “ Real Estate Taxes ”:  Shall mean all general and special real estate taxes, special assessments and other ad valorem and non ad valorem taxes, levies and assessments (including any refund) assessed during the Term of this Lease, paid upon or in respect of the Land and the Project, and all taxes or other charges imposed in lieu of any such taxes. Notwithstanding the foregoing, the term “Real Estate Taxes” shall not include any net income, franchise or capital gains tax, inheritance tax or estate tax imposed or constituting a lien upon Landlord or all or any part of the Project, or any impact fees or taxes specifically related to Landlord’s development of the Project. Tenant will pay all Real Estate Taxes prior to delinquency. Without limiting the generality of the foregoing, Tenant acknowledges that it will be responsible for the Real Estate Taxes with respect to all of the Land and the entire Project commencing on the Commencement Date for Phase 1, even though Phase 2 will not be built as of such date.

 

q.                                       “ Rent ”:  Rent shall mean Base Rent, Landlord’s Operating Costs, as hereinafter defined (if any), parking rental for the Additional Parking Spaces (as hereinafter defined), security wall rental, and any and all other amounts (“Additional Rent”), payable by Tenant to Landlord pursuant to this Lease. Rent, plus any applicable tax as defined herein, shall be paid to Landlord, without deduction, counterclaim or offset, except as otherwise specifically set forth herein, at its office located at the address set forth in Section 30 hereof, or at such other place as Landlord may hereafter specify in writing.

 

r.                                          “ Rentable Area of the Buildings” or “Rentable Area of the Premises”:  Is hereby stipulated By Landlord and Tenant to be sixty thousand fifteen (60,015) square feet (subject to adjustment as described above). The Rentable Area of Phase 1 is hereby stipulated by Landlord and Tenant to be thirty-two thousand three hundred forty-nine (32,349) square feet, and the Rentable Area of Phase 2 is hereby stipulated by Landlord and Tenant to be twenty-seven thousand six hundred sixty-six (27,666) square feet (in each case subject to adjustment as described above). Rentable Area is intended to be the Usable Area plus the common area factor.

 

s.                                       Intentionally Omitted .

 

t.                                         Intentionally Omitted .

 

u.                                       “ Security Deposit ”:  Letter of Credit, pursuant to Section 40 and Exhibit H , attached hereto and made a part hereof.

 

v.                                       Intentionally Omitted .

 

w.                                     “ Shell Improvements ”:  Shall mean those certain improvements which will be constructed and installed in each Building by Landlord, at its sole cost and expense, as provided in Exhibit D , attached hereto and made a part hereof.

 

x.                                         “ Substantial Completion ”:  Shall mean fourteen (14) days following the date that a certificate of occupancy (whether temporary or final, so long as Tenant can occupy the applicable Building as hereinafter described) has been obtained for the applicable Building and that the Tenant Improvements therein are sufficiently complete so as to allow Tenant to occupy the applicable Building for the use and purposes intended without unreasonable disturbance or interruption; provided that Landlord, its employees, agents and contractors, shall be allowed to enter upon the Premises at any reasonable time(s) following Substantial Completion as necessary to complete any unfinished details pursuant to a

 

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punchlist to be mutually prepared by Landlord and Tenant prior to Tenant taking occupancy of the applicable Phase. Landlord shall use its best commercially reasonable efforts to complete all punchlist items within forty-five (45) days after the parties have finalized the punchlist for each Phase. Punchlist items shall be deemed to be completed when confirmed in writing by Tenant.

 

y.             “ Tenant Improvements ”:  Shall mean those improvements constructed or installed on the Premises by or for Tenant as provided in the Workletter.

 

z.             “ Term ”:  The Term of this Lease shall commence on the Commencement Date for Phase 1 and shall expire on the date that is fifteen (15) years after the Commencement Date for Phase 2, subject, however, to the provisions for earlier cancellation or renewal as provided herein. A “Lease Year” of the Term means the twelve (12) full calendar months commencing on the Commencement Date. However, the final Lease Year may contain less than twelve (12) months due to sooner termination of the Term.

 

If Phase 2 is not completed and Tenant does not terminate this Lease as set forth below, then the expiration date for Phase 1 will be fifteen (15) years after the Commencement Date for Phase 1.

 

aa.           “ Usable Area of the Premises ”:  Shall mean the total number of Usable Square Feet of the Premises, as adjusted from time to time to reflect changes, if any, in the space constituting the Premises, and in any event based on the BOMA standard of measurement described above. The Usable Area of Phase 1 is hereby stipulated by Landlord and Tenant to be twenty-eight thousand nine hundred twenty-six (28,926) square feet, and the Usable Area of Phase 2 is hereby stipulated by Landlord and Tenant to be twenty-seven thousand one hundred fifty-four (27,154) square feet (in each case subject to adjustment as described above).

 

bb.          “ Use of Premises ”:  All lawful purposes and uses ancillary and related thereto (which permitted use may include, but is not limited to, the supporting use of conference and computer facilities, and employee kitchen and related non-commercial facilities for employee and guest use only).

 

2.                                        PREMISES AND TERM .

 

a.                                        Landlord, in consideration of the Rent hereinafter reserved to be paid and of the covenants, conditions and agreements to be kept and performed by Tenant, hereby leases, lets and demises to Tenant, and Tenant hereby leases and hires from Landlord, the Project. Upon the Commencement Date for Phase 1, Tenant shall be entitled to the exclusive use and occupancy of Phase 1 and that portion of the Parking Area allocated for Phase 1 plus such spaces in addition to the spaces allocated for Phase 1, if any, that may be constructed by Landlord at the time, so long as Tenant’s use of such spaces in addition to the spaces allocated for Phase 1 does not interfere with the construction of the remainder of the Project by Landlord. Upon the Commencement Date for Phase 2, Tenant shall be entitled to the exclusive use and occupancy of Phase 2 and the entire Parking Area, and at which time Tenant will have the exclusive use and occupancy of the entire Project.

 

b.                                       Promptly after the actual Commencement Date for each Phase, the parties shall execute an instrument in which the Commencement Date and expiration date for such Phase will be specified, as well as any adjustments to the Rentable Area of the Premises as described above and any corresponding adjustments to the Base Rent.

 

c.                                        Notwithstanding anything to the contrary contained in this Lease, although Landlord has estimated a completion date for Phase 1 of October 1, 1999, the parties agree that if Landlord has not achieved Substantial Completion of Phase 1 on or before November 1, 1999 (the “Phase 1 Completion Date”) (subject to any Tenant Delays and Force Majeure events, as hereinafter defined), then, commencing on November 1, 1999, Tenant shall receive a credit against the Base Rent to become due under this Lease in connection with Phase 1, such credit to be equal to one (1) day’s Base Rent for Phase 1 for each day of Landlord’s delay beyond the Phase 1 Completion Date that Landlord has not achieved Substantial Completion, subject to the limitations thereon pursuant to subsection (m), below.

 

d.                                       If Landlord has not achieved Substantial Completion of Phase 1 on or before November 15, 1999 (the “Phase 1 Extended Completion Date”) (subject to any Tenant Delays and Force Majeure events), then, commencing on November 16, 1999, the Base Rent credit available to Tenant for Phase 1 shall be increased to two (2) days’ Base Rent for each day of Landlord’s delay beyond the Phase 1 Extended Completion Date that Landlord has not achieved Substantial Completion, subject to the limitations thereon pursuant to subsection (m), below.

 

e.                                        If Landlord has not achieved Substantial Completion of Phase 1 on or before December 17, 1999 (the “Phase 1 Second Extended Completion Date”) (subject to any Tenant Delays and Force Majeure events), then, commencing on December 18, 1999, (x) the Base Rent credit available to Tenant for Phase 1 shall be decreased back to one (1) day’s Base Rent for each day of Landlord’s delay beyond the Phase 1 Second Extended Completion Date that Landlord has not achieved Substantial Completion, plus (y) Tenant shall be entitled to receive, as liquidated damages and not as a penalty, the sum of Ten Thousand and No/100 ($10,000.00) Dollars per day, subject to the limitations thereon pursuant to subsection (m), below.

 

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f.              If Landlord has not achieved Substantial Completion of Phase 1 on or before January 17, 2000 (the “Phase 1 Outside Completion Date”) (subject to any Tenant Delays and Force Majeure events), then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within ten (10) days after the Phase 1 Outside Completion Date, whereupon (i) Landlord shall return to Tenant the Prepaid Rent and Security Deposit, and (ii) Landlord shall pay to Tenant liquidated damages equal to (x) the total of the Base Rent abatements for Phase 1 accrued to the date of Tenant’s termination notice, plus (y) the total of the $10,000.00 per day damages for Phase 1 accrued to the date of Tenant’s termination notice, plus (z) the actual, reasonable out-of-pocket costs incurred by Tenant directly in connection with this Lease, subject to the limitations thereon pursuant to subsection (m), below, and thereupon both parties shall be relieved of all further obligations hereunder; provided, however, that if Landlord achieves Substantial Completion of Phase 1 within fifteen (15) days after receipt of Tenant’s termination notice, then the termination notice will be deemed to be void and rescinded, and the Lease shall continue in full force and effect.

 

g.             If Tenant does not elect to terminate the Lease as provided above, and Landlord has not achieved Substantial Completion of Phase 1 on or before May 17, 2000 (the “Phase 1 Extended Outside Completion Date”) (subject to any Tenant Delays but regardless of Force Majeure events), then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within ten (10) days after the Phase 1 Extended Outside Completion Date, whereupon (i) Landlord shall return to Tenant the Prepaid Rent and Security Deposit, and (ii) Landlord shall pay to Tenant liquidated damages equal to (x) the total of the Base Rent abatements for Phase 1 accrued to the date of Tenant’s termination notice, plus (y) the total of the $10,000.00 per day damages for Phase 1 accrued to the date of Tenant’s termination notice, plus (z) the actual, reasonable out-of-pocket costs incurred by Tenant directly in connection with this Lease, subject to the limitations thereon pursuant to subsection (m), below, and thereupon both parties shall be relieved of all further obligations hereunder. If Tenant intends to exercise its termination right under this paragraph, then Tenant will use its best efforts to notify Landlord in writing between April 1, 2000 and May 1, 2000 of such intent, but Tenant’s failure to so notify Landlord shall not constitute a waiver of Tenant’s termination right.

 

h.             Although Landlord has estimated a completion date for Phase 2 of October 1, 2001, the parties agree that if Landlord has not achieved Substantial Completion of Phase 2 on or before November 1, 2001 (the “Phase 2 Completion Date”) (subject to any Tenant Delays and Force Majeure events, as hereinafter defined), then, commencing on November 1, 2001, Tenant shall receive a credit against the Base Rent to become due under this Lease in connection with Phase 2, such credit to be equal to one (1) day’s Base Rent for Phase 2 for each day of Landlord’s delay beyond the Phase 2 Completion Date that Landlord has not achieved Substantial Completion, subject to the limitations thereon pursuant to subsection (m), below.

 

i.              If Landlord has not achieved Substantial Completion of Phase 2 on or before November 15, 2001 (the “Phase 2 Extended Completion Date”) (subject to any Tenant Delays and Force Majeure events), then, commencing on November 16, 2001, the Base Rent credit available to Tenant for Phase 2 shall be increased to two (2) days’ Base Rent for Phase 2 for each day of Landlord’s delay beyond the Phase 2 Extended Completion Date that Landlord has not achieved Substantial Completion, subject to the limitations thereon pursuant to subsection (m), below.

 

j.              If Landlord has not achieved Substantial Completion of Phase 2 on or before December 17, 2001 (the “Phase 2 Second Extended Completion Date”) (subject to any Tenant Delays and Force Majeure events), then, commencing on December 18, 2001, (x) the Base Rent credit available to Tenant shall be decreased back to one (1) day’s Base Rent for Phase 2 for each day of Landlord’s delay beyond the Phase 2 Second Extended Completion Date that Landlord has not achieved Substantial Completion, plus (y) Tenant shall be entitled to receive, as liquidated damages and not as a penalty, the sum of Ten Thousand and No/100 ($10,000.00) Dollars per day, subject to the limitations thereon pursuant to subsection (m), below.

 

k.             If Landlord has not achieved Substantial Completion of Phase 2 on or before January 17, 2002 (the “Phase 2 Outside Completion Date”) (subject to any Tenant Delays and Force Majeure events), then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within ten (10) days after the Phase 2 Outside Completion Date, whereupon (i) Tenant shall vacate and surrender the Premises to Landlord in the manner required by this Lease, (ii) Landlord shall return to Tenant the Security Deposit, (iii) Landlord shall pay to Tenant liquidated damages equal to (x) the total of the Base Rent abatements for Phase 2 accrued to the date of Tenant’s termination notice, plus (y) the total of the $10,000.00 per day damages for Phase 2 accrued to the date of Tenant’s termination notice, plus (z) the actual, reasonable out-of-pocket costs incurred by Tenant directly in connection with this Lease between the Commencement Date for Phase 1 and the date of Tenant’s termination notice, subject to the limitations thereon pursuant to subsection (m), below, and thereupon both parties shall be relieved of all further obligations hereunder; provided, however, that if Landlord achieves Substantial Completion of Phase 2 within fifteen (15) days after receipt of Tenant’s termination notice, then the termination notice will be deemed to be void and rescinded, and the Lease shall continue in full force and effect. Within ninety (90) days after Tenant’s termination notice, Tenant shall notify Landlord of the exact date that Tenant will vacate and surrender Phase 1, which date shall be (a) no earlier than ninety (90) days after the date of Tenant’s notification of such exact date, and (b) no later than one (1) year after the date of

 

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Tenant’s termination notice. Rent for Phase 1 shall be prorated through the date that Tenant so vacates and surrenders Phase 1 to Landlord.

 

l.              If Tenant does not elect to terminate the Lease as provided above, and Landlord has not achieved Substantial Completion of Phase 2 on or before May 17, 2002 (the “Phase 2 Extended Outside Completion Date”) (subject to any Tenant Delays but regardless of Force Majeure events), then Tenant shall have the right to terminate this Lease by written notice to Landlord delivered within ten (10) days after the Phase 2 Extended Outside Completion Date, whereupon (i) Tenant shall vacate and surrender the Premises to Landlord in the manner required by this Lease, (ii) Landlord shall return to Tenant the Security Deposit, (iii) Landlord shall pay to Tenant liquidated damages equal to (x) the total of the Base Rent abatements for Phase 2 accrued to the date of Tenant’s termination notice, plus (y) the total of the $10,000.00 per day damages for Phase 2 accrued to the date of Tenant’s termination notice, plus (z) the actual, reasonable out-of-pocket costs incurred by Tenant directly in connection with this Lease between the Commencement Date for Phase 1 and the date of Tenant’s termination notice, subject to the limitations thereon pursuant to subsection (m), below, and thereupon both parties shall be relieved of all further obligations hereunder. Within ninety (90) days after Tenant’s termination notice, Tenant shall notify Landlord of the exact date that Tenant will vacate and surrender Phase 1, which date shall be (a) no earlier than ninety (90) days after the date of Tenant’s notification of such exact date, and (b) no later than one (1) year after the date of Tenant’s termination notice. Rent for Phase 1 shall be prorated through the date that Tenant so vacates and surrenders Phase 1 to Landlord. If Tenant intends to exercise its termination right under this paragraph, then Tenant will use its best efforts to notify Landlord in writing between April 1, 2002 and May 1, 2002 of such intent, but Tenant’s failure to so notify Landlord shall not constitute a waiver of Tenant’s termination right.

 

m.            The abatements, liquidated damages and termination rights in favor of Tenant as described above shall be Tenant’s sole and exclusive remedies in the event of any late delivery of the Buildings by Landlord, and notwithstanding anything to the contrary contained in this Lease, in no event shall the entire liability of Landlord in connection with the total aggregate amounts of the Base Rent credits, plus the $10,000.00 per day damages, plus the out-of-pocket costs incurred by Tenant exceed a total amount of Seven Hundred Fifty Thousand and No/100 ($750,000.00) Dollars in the aggregate, regardless of the length of time such rent credits, and/or liquidated damages and/or out-of-pocket costs actually accrue and regardless of whether Tenant terminates this Lease.

 

n.             Although the completion date for Phase 2 is intended to be October 1, 2001, Tenant may notify Landlord in writing of Tenant’s election to have the Commencement Date for Phase 2 be on October 1, 2000. Tenant must provide such notice no later than April 1, 1999. If Tenant timely provides such notice, then the anticipated Commencement Date for Phase 2 will be deemed to be October 1, 2000, and subparagraphs 2.h through 2.I above will be deemed to be modified as follows: All references to the year “2001” in such subparagraphs will be deemed to be “2000,” and all references to the year “2002” in such subparagraphs will be deemed to be “2001.”

 

3.             RENT .  Beginning on the Commencement Date, Tenant covenants and agrees to pay, without abatement, deduction or offset except as otherwise specifically provided herein, to Landlord, “Base Rent” for the Premises, on or before the first (1st) day of the first (1st) full calendar month of the Term hereof and on or before the first (1st) day of each and every successive calendar month thereafter during the full Term of this Lease and any renewal thereof, subject to the adjustments as provided hereinafter along with any applicable tax as defined herein, at the then current rate. If the Commencement Date occurs on a day other than the first (1st) day of a calendar month, the first Base Rent payment shall be in the amount of the Base Rent for one (1) full calendar month plus the prorated Base Rent for the calendar month in which the Commencement Date falls, such payment to be due on the Commencement Date. The Prepaid Rent described above shall be applied by Landlord to the Rent payable for the first full month that Rent is due.

 

If Tenant fails to pay any regular monthly installment of Base Rent or Landlord’s Operating Costs or any other monthly amounts by the seventh (7th) day of the month in which such installment is due (provided that Landlord will be required to give Tenant written notice of Tenant’s failure to pay any such monthly payments two (2) times in any twelve (12) month period prior to such late fees being charged), or if Tenant fails to pay any other sum of money within thirty (30) days after written notice by Landlord to Tenant, or if any check delivered for the payment of Rent is returned for insufficient funds, there will be added to the unpaid amount a late charge based on the monthly prorata percentage of the Default Rate and applied to the amount due to compensate Landlord for the extra administrative expenses incurred. Notwithstanding anything to the contrary above, Landlord agrees that it will not impose the aforesaid late charges unless Tenant has failed to pay any installment of Rent on the due date thereof (and such failure shall not have been cured on or before the last day of any grace period, if any) two (2) times in any twelve (12) month period.

 

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The Base Rent payable by Tenant to Landlord shall be in accordance with the following schedule:

 

a.             Phase 1:

 

		ANNUAL BASE RENT RATE			MONTHLY PAYMENT
LEASE YEAR		PER RENTABLE SQUARE FOOT			(PLUS SALES TAX)
1		$	13.50		$	36,392.63
2		$	13.50		$	36,392.63
3		$	13.50		$	36,392.63

 

The Base Rent shall be adjusted at the beginning of the fourth (4th) Lease Year by multiplying the Base Rent then being paid by a fraction, the numerator of which shall be the Consumer Price Index - U.S. City average for urban wage earners and clerical workers ail items (1982-84 equals 100) (“CPI”) for the third (3rd) month preceding the month of adjustment, and the denominator of which shall be the CPI for the third (3rd) month preceding the Commencement Date for Phase 1. Thereafter, the Base Rent shall be adjusted at the beginning of the fifth (5th) Lease Year and the beginning of each succeeding Lease Year during the Term of this Lease (not to include the Renewal Periods, as hereinafter defined, if applicable) by multiplying the Base Rent then being paid by a fraction, the numerator of which shall be the Consumer Price Index - U.S. City average for urban wage earners and clerical workers all items (1982-84 equals 100) (“CPl”) for the third (3rd) month preceding the month of adjustment, and the denominator of which shall be the CPI for the fifteenth (15th) month preceding the month of adjustment.

 

Anything herein to the contrary notwithstanding, in no event shall Base Rent in any Lease Year be less than the Base Rent paid for the immediately prior Lease Year. Should the CPI become unavailable, a reasonable substitute prepared by the U.S. Department of Labor or other source, as reasonably acceptable to Landlord and Tenant, shall be used. Base Rent shall continue to be payable in monthly installments as otherwise described above until Landlord notifies Tenant of the new monthly Base Rent installment amount. Landlord shall attempt to so notify Tenant prior to the commencement of each new Lease Year. However, failure of Landlord to timely notify Tenant of the new monthly Base Rent installment amount shall not be deemed a waiver by Landlord of the increased rental; the new monthly amount (or any portion not previously paid) shall be payable, retroactive to the commencement of the new Lease Year, upon notification by Landlord to Tenant of the new monthly Base Rent installment amount; provided, however, that if Landlord fails to so notify Tenant within nine (9) months after the date of adjustment, then the CPI adjustment for that year shall be deemed to be waived.

 

In no event shall Base Rent increases exceed three and one-half (3.5%) percent of the Base Rent paid for the immediately prior Lease Year, on a non-cumulative basis.

 

b.             The Base Rent for Phase 2 shall be at the same rental rate per-square-foot (and shall be adjusted in the same manner and on the same annual adjustment dates) as the Base Rent then being paid for Phase 1, commencing on the Commencement Date for Phase 2.

 

4.             OPERATING COSTS .

 

a.             Operating Costs .  Tenant, at its sole cost and expense, shall pay all Operating Costs in the repair, maintenance and operation of the Project as required hereby. It is intended that this Lease is a completely “triple-net” lease to the Landlord, except as otherwise expressly herein stated. Landlord is not responsible for any expenses or outlays of any nature arising from or relating to the Premises, the use or occupancy thereof, the contents thereof, or the business carried on therein, except as otherwise expressly herein stated. Tenant shall pay all charges, impositions, and outlays of every nature and kind relating to the Project, except as otherwise expressly herein stated. For these purposes, “Operating Costs” shall mean all expenses, costs and disbursements in connection with the operation, repair and maintenance of the Project and the personal property used in connection therewith, including, but not limited to, the following: Real Estate Taxes; expenses incurred for heat, cooling and other utilities; cost of insurance and deductibles applicable to any claims; cost of janitorial and cleaning service, security services, trash collection services and pest control; charges under maintenance and service contracts for elevators, chillers, boilers or controls; window cleaning; Building and grounds maintenance (including without limitation Building painting and Parking Area maintenance, restriping, resealing and lighting); permits and licenses for Tenant’s business operations; and placing and replacing and maintaining landscaping.

 

b.             In connection with Tenant’s payment of Real Estate Taxes, Tenant shall deliver to Landlord, prior to the date of delinquency, receipts or other reasonably satisfactory evidence of payment of all Real Estate Taxes so paid by Tenant. Tenant, at its sole cost and expense, may dispute and contest any assessment of Real Estate Taxes (in its own name or in the name of Landlord, or in the name of both, as it may deem appropriate, and Landlord, at Tenant’s expense, will cooperate in any such dispute and contest), and in such cases the disputed charge need not be paid until finally adjudged to be valid, except as otherwise required by law. At the conclusion of such contest, Tenant shall pay the charge contested to the extent it is held valid, together with all court costs, interest, penalties and other expenses relating thereto and will indemnify and hold harmless Landlord from any costs, expenses and damages incurred in connection with such proceedings, including reasonable attorneys’ fees. Nothing herein contained, however, shall be construed as to allow such items to remain unpaid for such length of time as

 

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shall permit the Project (or any part thereof) to be sold by governmental, city or municipal authorities for the non-payment of the same. Despite contesting such taxes, Tenant shall be responsible for all other charges and payments due under this Lease.

 

c.             If, at any time, in the judgment of Landlord reasonably exercised, it shall become necessary so to do, Landlord, after written notice to Tenant, may, under protest if so requested by Tenant, pay such monies as may be required to prevent the sale of the Project or any part thereof, or foreclosure of the lien created thereon by such item, and such amount shall become immediately due and payable by Tenant to Landlord and shall constitute Additional Rent hereunder, or at Tenant’s option and at Tenant’s sole cost and expense, in lieu thereof, Tenant shall obtain lien release bonds in amounts equal to the claims of any such liens or as otherwise required by applicable law (or shall provide Landlord with other security reasonably acceptable to Landlord).

 

d.             Commencing on the Commencement Date, Tenant agrees to pay, as Additional Rent, Tenant’s Proportionate Share of the amount of the “Landlord’s Operating Costs” for each calendar year of this Lease. Landlord’s Operating Costs shall be defined as including only the costs of insurance to be obtained by Landlord pursuant to this Lease, if any, and a reserve for capital replacements to be made by Landlord to the Project in accordance with this Lease. The reserve for capital replacements shall be equal to Zero and 56/100 ($.56) Dollars per Rentable Square Foot of the Premises per annum for the entire Term hereof, plus tax, and is to be spent by Landlord for the replacement of capital improvements for the Project needed from time to time: Such amounts shall be paid by Tenant on a monthly basis in the same manner as Base Rent.

 

One-half (1/2) of the reserve for capital replacements (i.e., Zero and 28/100 ($.28) Dollars per Rentable Square Foot of the Premises) shall be deposited by Landlord into a separate interest-bearing account {not to be commingled with Landlord’s other funds) (the “Escrowed Reserve”). Upon the expiration of the Term (or any renewals), to the extent that the Escrowed Reserve has not been utilized (or if a capital replacement is not then-needed and then-scheduled to be utilized) for capital replacements required to be made by Landlord as described below, and provided that Tenant has exercised the upcoming Renewal Option (as hereinafter defined), then such amount, plus the interest, may be utilized by Tenant toward refurbishing the leasehold improvements in the Premises during the first (1st) year of the applicable Renewal Period or to reimburse Tenant for such expenses incurred by Tenant in the final year of the then-current Term (the “Reserve Allowance”). The Reserve Allowance shall be paid by Landlord to Tenant within thirty (30) days after submission of invoices to Landlord and receipt by Landlord of releases of lien from the applicable contractors and suppliers, if applicable. In no event may the Reserve Allowance be used to purchase any furniture for the Premises, it being the parties’ intent that the Reserve Allowance be used solely for refurbishing the leasehold improvements in the Premises, such as (without limitation) re-carpeting, re-painting, remodeling, landscaping, upgrading Building systems, and purchasing fixtures and equipment (including without limitation data, communication, and telecommunication equipment) that will remain with the Project and be surrendered by Tenant upon expiration of the Term. Tenant shall receive no credit or payment for any unused portion of the Reserve Allowance.

 

e.             As of the date hereof, Landlord’s good faith estimate of the Landlord’s Operating Costs for 1999 is Zero and 56/100 ($.56) Dollars per Rentable Square Foot of the Premises. Such estimate is not a guaranty or a cap, it being acknowledged that the actual Operating Costs for 1999 may be higher or lower than such amount.

 

f.              If Landlord’s mortgage lender requires that Real Estate Taxes and/or insurance for which Lender is an additional insured (unless insurance is provided by Tenant as part of a blanket policy meeting the conditions described in Section 31 below) be paid on a monthly basis into an escrow account held by such mortgage lender, then Tenant shall be required to pay to Landlord sufficient funds on a monthly basis in order for Landlord to fund such escrow, and Landlord, Tenant and the lender will enter into a mutually reasonably acceptable agreement regarding such escrow.

 

5.             USE OF PREMISES .

 

a.             The Premises shall be used by Tenant for the Use of Premises, and for no other purpose.  Tenant shall not knowingly permit to be done in or about the Premises, nor bring or keep or permit to be brought or kept therein, anything which is prohibited by or will in any way violate any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated, or which is prohibited by any fire insurance policy, or cause a cancellation of any insurance policy covering the Project or any part thereof or any of its contents. Tenant shall not allow the Project to be used for any unlawful purpose; nor shall Tenant cause, maintain, or permit any nuisance in or about the Project or commit or suffer to be committed any waste of the Project, other than ordinary reasonable wear and tear. Tenant, without paying any Additional Rent for such space, shall also be entitled to use available space in the core and/or equipment rooms of the Building as needed for telephone, power and/or electric feeds, supplies and connections, at Tenant’s sole risk and expense (except for matters arising out of Landlord’s negligence, willful misconduct or breach of this Lease), and subject to compliance with all applicable federal, state, and local laws, codes, ordinances, rules and regulations of any governmental entity or agency having jurisdiction of the Premises (“Legal Requirements”).

 

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b.                                       Tenant agrees to comply with all applicable Legal Requirements, including, without limitation, the Americans with Disabilities Act and the regulations promulgated thereunder (the “ADA”). If due to Tenant’s specific use of the Premises, repairs, improvements or alterations are necessary to comply with any Legal Requirements, Tenant shall pay the entire cost thereof. Notwithstanding the foregoing, Landlord covenants that, as of the Commencement Date for each Phase, the Project will comply with all Legal Requirements applicable to the ownership and operation of the Project as of each Commencement Date arising out of the construction of each Phase by Landlord, including, without limitation, environmental laws and regulations and the ADA (other than as a result of the negligence or willful misconduct of Tenant or its agents, employees, or contractors, or breach of this Lease by Tenant). If Landlord receives a notice of violation of any such Legal Requirements (other than as a result of the negligence or willful misconduct of Tenant or its agents, employees, or contractors, or breach of this Lease by Tenant), then the work required to bring the applicable item into compliance will be performed by Landlord, at its expense. Landlord agrees to indemnify and hold harmless Tenant from and against any environmentally-related remediation costs arising from the failure of the Project to comply with such environmental laws and regulations as of the Commencement Date for each Phase.

 

6.                                        ASSIGNMENT AND SUBLETTING .  Tenant shall not assign the Lease, the right of occupancy under this Lease, or any other interest therein (including, without limitation, a mortgage or pledge of Tenant’s interest in this Lease), or sublet the Premises, or any portion thereof, without the prior written consent of Landlord, which shall not be unreasonably withheld or delayed. Among other items Landlord may consider, in its reasonable judgment, Tenant’s right to assign this Lease or sublet the Premises shall be based on the transferee being a creditworthy tenant. A creditworthy tenant shall mean a tenant that has the financial ability to perform the Tenant’s obligations under this Lease, and with a net worth at least equal to the net worth of Tenant as of the date hereof. Notwithstanding the foregoing, Tenant may, without Landlord’s consent, assign this Lease or sublet the Premises, In whole or in part, to any corporation or other legal entity that is an affiliate, subsidiary, parent or successor of Tenant, or to a corporation or other legal entity into or with which Tenant may be merged or consolidated. Tenant shall notify Landlord within thirty (30) days after any such transfer not requiring Landlord’s consent. For the purpose of this Section 6, a “subsidiary,” “affiliate” or a “successor” of Tenant shall mean the following (for purposes of this Lease, any “parent,” “subsidiary,” “affiliate” and “successor” of Tenant shall be collectively referred to as “Affiliated Company”):

 

a.                                        An “affiliate” shall mean any corporation or other legal entity which, directly or indirectly, controls or is controlled by or is under common control with Tenant. For the purposes of this Section 6, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such corporation or other legal entity, whether through the ownership of voting securities or by contract or otherwise.

 

b.                                       A “subsidiary” shall mean any corporation or other legal entity not less than fifty (50%) percent owned directly or indirectly by Tenant.

 

c.                                        A “successor” of Tenant shall mean:

 

(1)           A corporation or other legal entity in which or with which Tenant is merged or consolidated, provided that by operation of law or by effective provisions contained in the instruments of merger or consolidation, the liabilities of the corporations or other legal entities participating in such merger or consolidation are assumed by the corporation or other legal entity surviving such merger or created by such consolidation; or

 

(2)           A corporation or other legal entity acquiring this Lease and the Term hereby demised and a substantial portion of the property and assets of Tenant; or

 

(3)           Any corporation successors or other legal entity successors to a successor corporation or other legal entity becoming such by either of the methods described in Section 6, subsection c (1) or (2) above.

 

Acquisition by Tenant, its successors or assigns, of a substantial portion of the assets, together with the assumption of all or substantially all the obligations and liabilities of any corporation or other legal entity, shall be deemed a merger or consolidation of such corporation or other legal entity into Tenant for purposes of this Section 6. In addition, the transfer of the outstanding capital stock of any corporate tenant shall be deemed not to include the sale of such stock by persons or parties through the “over-the-counter market” or through any recognized stock exchange, other than those deemed “insiders” within the meaning of the Securities Exchange Act of 1934, as amended.

 

Notwithstanding the foregoing, no such assignment or sublease set forth in this Section 6 shall be permitted without Landlord’s consent if the assignment or series of assignments or sublease or series of subleases is/are for the purpose of “spinning-off” this Lease to independent third parties.

 

With any assignment of the Lease, the assignee must assume all obligations and liabilities of Tenant under this Lease. With any subletting of any portion of the Premises to an Affiliated Company, such Affiliated Company must assume all obligations and liabilities of Tenant under the Lease as to the sublet portion of the Premises and Landlord shall have the right, as an identified third-party beneficiary of

 

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such subletting, to hold the Affiliated Company primarily liable for the performance of such assumed obligations and liabilities. Notwithstanding any assignment or sublease whatsoever, whether Landlord’s consent is or is not required, Tenant shall in no event be released from any obligations under this Lease accruing prior to or from and after the effective date of such assignment or sublease. Consent by Landlord to one or more assignments or sublettings shall not operate as a waiver of Landlord’s rights as to any subsequent assignments or sublettings.

 

As to any proposed subletting for which Landlord’s consent is required, if the sublease is for at least an entire Building, if so requested, Landlord will, as part of its review of the proposed transaction, consider granting nondisturbance rights to the subtenant, which will not be unreasonably withheld or delayed so long as the subtenant agrees to pay all of the Rent and abide by all of the obligations of Tenant hereunder as applicable to the space to be subleased in the event that the sublease becomes a direct lease pursuant to the nondisturbance agreement.

 

Tenant agrees to promptly provide Landlord with such information regarding a proposed assignee or subtenant as is requested by Landlord, as well as with plans and specifications regarding any proposed alterations of the Premises which will be required in connection with such assignment or sublettin. In connection with Landlord’s review of any proposed assignment or subletting, Tenant shall pay to Landlord the reasonable attorneys’ fees incurred by Landlord not to exceed $1,500.00 for each such transfer.

 

Landlord shall be entitled to receive fifty (50%) percent of the net profits arising out of any assignment or sublease (other than an assignment or sublease not requiring Landlord’s consent), which net profits shall be determined by subtracting all Rent due from Tenant with respect to the time period and square footage applicable to the assignment or sublease, and the improvement costs, brokerage fees, and other reasonable expenses payable by Tenant pursuant to such assignment or sublease, from the total consideration to be paid by such assignee or sublessee. Any consideration received by Tenant in connection with a merger or consolidation or sale of all or substantially all of Tenant’s assets shall be excluded from the determination of net profits to which Landlord may be entitled.

 

Affiliated Companies will be permitted to utilize all or any portion of the Project from time to time without Landlord’s consent for the purpose of their business operations.

 

At any time, Landlord may transfer, sell, lease, convey, or otherwise dispose of its interest in this Lease. If the Project is sold or transferred after the Commencement Date of Phase 2, voluntarily or involuntarily, Landlord’s Lease obligations and liabilities accruing after the transfer shall be the sole responsibility of the new owner provided that such new owner assumes such obligations and liabilities and the transferor Landlord shall be deemed to be released from further liability under this Lease (including, without limitation, for the return of any security deposit). Notwithstanding the foregoing, prior to the Commencement Date of Phase 2, Landlord may not transfer this Lease or sell the Project without the prior written consent of Tenant, which shall not be unreasonably withheld or delayed; provided, however, that Tenant’s consent is not required for any (i) assignment of Landlord’s interest in this Lease and the Project to (x) a lender as part of a financing by Landlord or (y) any corporation or other legal entity that is an affiliate, subsidiary, parent or successor of Landlord, or to a corporation or other legal entity into or with which Landlord may be merged or consolidated or to any entity as part of an intra-family transfer for estate planning purposes or otherwise, and/or (ii) transfer of Landlord’s interest pursuant to a foreclosure or deed in lieu thereof; so long as the transferee assumes Landlord’s obligations hereunder (and until the Commencement Date of Phase 2, the transferor Landlord is not released from further liability hereunder); provided, further, that Landlord shall not may not effect such a transfer not requiring Tenant’s consent if the principal purpose of the transfer is to transfer the Project to an unrelated third party and to circumvent Tenant’s right of first offer set forth in Section 50 hereof.

 

7.             ACCESS TO PREMISES .  Upon reasonable prior notice to Tenant under the circumstances, Tenant shall permit Landlord or its representatives, who shall be properly identified to Tenant, to enter into and upon any part of the Premises: (i) Mondays through Fridays (excluding Holidays); and (ii) for maintenance and repairs at all reasonable times under the circumstances, and (iii) in emergencies, at all times, to inspect the condition, occupancy or use, to show the Premises to prospective purchasers, mortgagees or insurers (or tenants, in the last year of the Term or any renewals), or to clean or make repairs, alterations or additions. Tenant shall have the right to provide an employee or other representative of Tenant to accompany Landlord or Landlord’s agents or representatives while in the Premises; provided, however, that if Tenant fails to provide an employee or other representative to accompany such persons promptly following Landlord’s notice, Landlord may proceed notwithstanding the absence of Tenant’s employee or representative. In exercising its right of entry, Landlord shall make good faith efforts to (i) minimize any interference with the conduct of Tenant’s business, (ii) prevent breaches in security or customer confidentiality and (iii) avoid damage to the Premises or the equipment, fixtures or personal property of Tenant.

 

8.             SERVICES .

 

a.             As described above, it is agreed that this Lease is a completely “triple-net” lease to the Landlord, except as otherwise expressly herein stated. Therefore, except for replacements of capital items as described below, Landlord is not responsible for the expenditures for any utilities or services in connection with Tenant’s use and occupancy of the Project.

 

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b.             Any and all utilities serving the Project (including, without limitation, electricity, HVAC and water and sewer) will be separately metered and paid for directly by Tenant to the applicable utility companies. Tenant shall pay all bills for utility services prior to delinquency. Upon written request by Landlord, Tenant shall provide Landlord with copies of any utility bills received by Tenant. In addition, Tenant agrees to execute any documentation required by any utility companies to enable such companies to provide copies of Tenant’s utility bills to Landlord.

 

c.             In connection with Tenant’s repair and maintenance of the HVAC, elevator systems and other building controls for which Tenant is responsible, Tenant, at its expense, shall enter into industry-standard service contracts. Upon request from time to time, Tenant shall provide Landlord with true, correct and complete copies of such service contracts, as well as with true, correct and complete copies of any other service agreements entered into by Tenant in connection with the Project, including, without limitation, janitorial, security and landscaping. At a minimum, Tenant’s provision of the various services, repairs and maintenance of the Project shall be consistent with such services, repairs and maintenance in Comparable Class Buildings and the companies to be engaged by Tenant shall be professional, licensed and insured. If Tenant provides any limited access systems for the Buildings, Tenant shall provide Landlord with the access codes and keys necessary to gain entry to the Buildings. Tenant is also responsible, at it expense, to replace all electric light bulbs, tubes, and tube casings located within or serving the Premises and the Project generally, including, without limitation, Tenant’s signage, and the Parking Area.

 

9.             ELECTRICAL AND STRUCTURAL .  Tenant’s use of electrical services shall be subject to the following:

 

a.             If through the electrical design evaluation of the Construction. Documents it is determined that additional electrical capacities beyond the amount indicated as part of the Shell Improvements as described in Exhibit D is required by the Tenant for the Premises (excluding Building HVAC), Landlord, at Tenant’s cost and as part of the Tenant Improvements (and the Tenant Allowance, as available, may be applied to cover the cost thereof), shall install such additional panel boards, transformers, electrical risers and other items as reasonably required by Landlord to meet any additional electrical capacity requirements for the Premises.

 

b.             Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot area which such floor was designed to carry as agreed upon in the final approved Construction Documents for the Premises and which may be allowed by law. Landlord reserves the right to reasonably prescribe the weight limitations and position of all heavy equipment and similar items, and to prescribe the reinforcing necessary, if any, which in the reasonable opinion of the Landlord may be required under the circumstances, such reinforcing to be at Tenant’s expense.

 

10.           PARKING .

 

a.             As a minimum, Landlord will provide Tenant with one hundred eighty (180) parking spaces in the Parking Area, at no charge (the “Minimum Parking Spaces”). One-half (1/2) of the Minimum Parking Spaces shall be made available upon the Commencement Date for Phase 1 of the Project, and the remaining one-half (1/2) of the Minimum Parking Spaces shall be made available upon the Commencement Date for Phase 2 of the Project.

 

b.             In addition to the Minimum Parking Spaces, Landlord shall provide Tenant, and Tenant hereby takes from Landlord, three hundred forty (340) additional parking spaces to accommodate Tenant’s extraordinary parking requirements for the Premises (the “Additional Parking Spaces”). Two hundred ten (210) of the Additional Parking Spaces shall be made available upon the Commencement Date for Phase 1 of the Project, and the remaining one hundred thirty (130) of the Additional Parking Spaces shall be made available upon the Commencement Date for Phase 2 of the Project. Upon Tenant’s written request, Landlord will use reasonable efforts to make available upon the Commencement Date for Phase 1 more than the required two hundred ten (210) of the Additional Parking Spaces. In addition, to the extent permitted by applicable Legal Requirements and the physical constraints of the Land, Landlord will use best efforts (not to include the bringing of lawsuits) to provide up to an additional one hundred thirty (130) parking spaces (the “Supplemental Parking Spaces”), which Supplemental Parking Spaces shall be deemed to be part of the Additional Parking Spaces and shall be subject to the provisions hereof applicable to the Additional Parking Spaces, including, without limitation, payment of parking rental therefor as described below. However, if Landlord fails to provide the Supplemental Parking Spaces, on or before the Commencement Date for Phase 2 for any reason whatsoever (or, once provided, all or any portion of the Supplemental Parking Spaces are no longer usable by Tenant as a result of the acts or omissions of Landlord), then the following provisions shall apply: From the Commencement Date for Phase 2 until the expiration of eight (8) years after the Commencement Date for Phase 2, Tenant shall be entitled to receive a monthly credit against the Base Rent to become due hereunder, such credit to be equal to (i) Twenty and No/100 ($20.00) Dollars per space (not to exceed eighty (80) spaces) per month for each space between one (1) and eighty (80) of the Supplemental Parking Spaces that Landlord fails to provide, and (ii) Ten and No/100 ($10.00) Dollars per space per month for each space between eighty-one (81) and one hundred thirty (130) of the Supplemental Parking Spaces that Landlord fails to provide. For example purposes only, if Landlord provides sixty-five (65) of the Supplemental Parking Spaces, then the Base Rent credit shall be a total of $76,800.00, prorated at

 

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Lease by Tenant. The warranty contained herein is not intended to reduce Landlord’s obligations expressly set forth in Section 12 of this Lease.

 

12.           REPAIRS AND MAINTENANCE .  Landlord, at its sole cost and expense, will promptly make all replacements (as opposed to repairs and maintenance) of capital items serving the Project in a manner consistent with the standards prevailing from time to time for Comparable Class Buildings, including, but not limited to the roof, foundation and structural elements of the Buildings, the HVAC system, major elevator components and the main equipment and systems providing services to the Project including without limitation, the Project-wide sprinkler systems, mechanical, electrical, life safety and plumbing systems, elevators, the fire alarm systems and repaving of the Parking Area, unless the need for any such replacement is caused by the negligence or willful misconduct of Tenant or its agents, employees, or contractors, or breach of this Lease by Tenant, in which event Tenant will bear the cost of such repairs to the extent as provided in this Lease. In no event will Landlord be liable to Tenant for failure to make any required replacement unless written notice of the need for such replacement has been delivered by Tenant to Landlord and Landlord shall fail to make such replacement within a reasonable period after receipt of such notice.

 

If Landlord fails to perform a required replacement or fails to repair a warranted item within a reasonable period after receipt of notice as set forth above, and such failure causes the Project to be without an essential building service (such as electricity or HVAC but not to include elevators) which renders all or any portion of the Premises untenantable for five (5) consecutive business days, and so long as the correction of the problem is within Landlord’s reasonable control, then Tenant shall be entitled to an abatement of Rent (in proportion to the area so untreatable) until such essential service is restored. If such failure aggregates to a total of forty-five (45) days in any twelve (12) month period, and so long as the correction of the problem is within Landlord’s reasonable control, then Tenant shall have the right to terminate this Lease.

 

Landlord will consult with Tenant regarding the need for replacement of capital items. In the event of a dispute between Landlord and Tenant as to whether a particular item is a capital replacement to be made by Landlord (or whether such item is not in need of replacement and is instead part of Tenant’s repair and maintenance of capital items), which dispute is not resolved by the parties within fifteen (15) days after Tenant’s notice to Landlord of the Tenant’s request for such replacement, then, within ten (10) days after the expiration of such fifteen (15) day period, Landlord and Tenant shall each select an independent disinterested engineer, which engineers shall mutually determine (within ten (10) days) whether the item in question is a capital replacement to be made by Landlord or whether such item is not in need of replacement and is instead part of Tenant’s repair and maintenance of capital items. The losing party shall bear the costs of both engineers. If the engineers cannot agree, then the engineers shall mutually select a third independent disinterested engineer. Such third engineer shall then (within ten (10) days) make its determination whether the item in question is a capital replacement or whether such item is not in need of replacement and is instead a repair and maintenance item, whose decision shall be final and binding. The losing party shall pay the fees and costs of such third engineer. At a minimum, each of the engineers shall be disinterested engineers, with substantial experience in the Miami-Dade County commercial real estate office market.

 

Except for the specific capital items to be replaced by Landlord as described above and the items warranted by Landlord as described above , Tenant, at its sole cost and expense, will repair and maintain (and replace if necessary) the Project (including, without limitation, all furniture, trade fixtures and equipment of Tenant, all areas devoted to corridors, elevator lobbies, restrooms, mechanical rooms, janitorial closets, electrical and telephone closets, vending areas, lobby areas, refuse dumpsters, loading docks and other similar facilities, Building stairs, Building elevator shafts, elevator mechanical rooms, fire towers, Building electrical, mechanical and telephone rooms, electrical, communications and mechanical chases, projections, flues, vents, stacks, pipe shafts and other vertical penetrations, ducts and chases) in a clean, attractive and safe condition and in a manner consistent with the standards prevailing from time to time in Comparable Class Buildings, except as to reasonable wear and tear. Upon expiration or earlier termination of this Lease, Tenant will surrender and deliver the Premises to Landlord in a similar condition in which they existed at the commencement of this Lease excepting reasonable wear and tear and damage arising from either an insurable casualty or any cause not required to be repaired by Tenant. Tenant shall be obligated to repair any damage incurred in connection with any removal of Tenant’s furniture, equipment or other personal property by Tenant or its agents, representatives or employees, provided that Tenant shall not be obligated to repair any damage to any area which Landlord has notified Tenant in writing that it intends to refurbish or remove in connection with renovation of the Project for re-letting. This Section shall not apply in the case of damage or destruction by fire or other casualty which is covered by insurance maintained by Landlord or Tenant on the Project (as to which Section 15 hereof shall apply) or damage resulting from an eminent domain taking (as to which Section 17 hereof shall apply). To the extent possible, Landlord will assign to Tenant the benefit of any manufacturer’s warranties and guaranties with respect to the items installed by Landlord but to be maintained by Tenant regarding the Project. Landlord will obtain the warranties and guaranties as may be expressly required in the final approved Construction Documents for the Premises. Landlord will use reasonable efforts to cause Tenant to be a third party beneficiary of Landlord’s construction contract with its general contractor.

 

13.          ALTERATIONS AND IMPROVEMENTS .  After completion of the initial Tenant Improvements, Tenant shall make no alterations, additions or improvements to the Project without the

 

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prior written approval of Landlord. In the case of alterations, additions or improvements to the interior of the Project which are nonstructural, do not affect any base building systems, and do not alter the exterior of the Buildings, such approval shall not be unreasonably withheld or delayed. However, (i) if the cost of an alteration, addition or improvement does not exceed in the aggregate Ten Thousand and No/100 ($10,000.00) Dollars, then such approval shall not be required and no notice need be given to Landlord, and (ii) if the cost of an alteration, addition or improvement is more than Ten Thousand and No/100 ($10,000.00) Dollars in the aggregate but less than Thirty-Five Thousand and No/100 ($35,000.00) Dollars in the aggregate, then such approval shall not be required, but Tenant shall be required to give Landlord prior written notice thereof. In any event, Tenant shall conduct its work in such a manner as to maintain harmonious labor relations and shall, prior to the commencement of the work, submit to Landlord copies of all necessary permits. All alterations, additions and improvements to the Project made by or on behalf of Tenant will be made only in a good and workmanlike manner, using new, first-class materials, in conformity with all required permits, and in compliance with all applicable building codes and other Legal Requirements. Landlord reserves the right to approve the contractors hired by Tenant, which approval shall not be unreasonably withheld or delayed. Tenant shall pay to Landlord all reasonable architectural and engineering fees incurred by Landlord in connection with the review of any proposed alterations, additions or improvements for which Landlord’s consent is required. All alterations, additions or improvements, whether temporary or permanent in character, made in or upon the Project prior to the Commencement Date of each Phase, as applicable, either by Landlord or Tenant, shall, at the end of the Term hereof, be Landlord’s property and at the end of the Term hereof shall remain in or upon the Project without compensation to Tenant. Tenant shall not be required to remove and restore any alterations, additions or improvements which were made after the Commencement Date, unless Landlord expressly requires in writing the removal of such alteration, addition or improvement, and the restoration occasioned by such removal, at the time Landlord’s consent is granted.

 

Notwithstanding the foregoing, all of Tenant’s furniture, personal property, movable trade fixtures, work stations, file systems, appliances, art, and equipment including without limitation all movable cabinets, loose woodwork and shelving, and telephone and communication equipment and data transmission equipment may be removed by Tenant at the termination of this Lease, and if Tenant so removes, Tenant shall at its sole expense repair any damage to the Project caused by such removal which damage is beyond what may be reasonably expected in connection with such move and reasonable wear and tear. If not so removed by Tenant, such property shall become the property of Landlord without any accounting to Tenant. In no event may Tenant remove any leasehold improvements or any base building mechanical, electrical, HVAC, plumbing, or life safety systems, except that Tenant may remove its separate generator.

 

14.           INDEMNITIES; LIABILITY.

 

a.             Landlord shall not be liable for any death or injury arising from or out of any occurrence in, upon, at, or relating to the Project or damage to property of Tenant or of others located on the Premises or elsewhere in the Project, nor shall it be responsible for any loss of or damage to any property of Tenant or others from any cause, unless such death, injury, loss, or damage results from the negligence or willful misconduct of Landlord or its agents, employees, or contractors, or breach of this Lease by Landlord. Without limiting the generality of the foregoing, Landlord shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, falling ceiling tile, falling fixtures, steam, gas, electricity, water, rain, flood, or leaks from any part of the Buildings or from the pipes, sprinklers, appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of the Buildings or from the street or any other place or by dampness, or for losses due to theft or burglary, or by any other cause whatsoever, unless such death, injury, loss, or damage results from the negligence or willful misconduct of Landlord or its agents, employees, or contractors, or breach of this Lease by Landlord. Tenant agrees to indemnify Landlord and hold it harmless from and against any and all loss (including loss of Base Rent and Additional Rent payable in respect to the Premises), claims, actions, damages, liability, and expense of any kind whatsoever (including reasonable attorneys’ fees and costs at all tribunal levels), unless such death, injury, loss, or damage results from the negligence or willful misconduct of Landlord or its agents, employees, or contractors, or breach of this Lease by Landlord, arising from any occurrence in, upon, or at the Premises, or the occupancy, use, or improvement by Tenant or its agents or invitees of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant its agents, employees, and invitees or by anyone permitted to be on the Premises by Tenant. This indemnity shall survive the expiration or sooner termination of this Lease. In connection with any indemnity of Landlord by Tenant in this Lease, such indemnity shall also include the defense of Landlord, if Landlord so requests. The limitation of liability set forth in this Section 14a does not relieve Landlord of its obligation for the construction warranty described in Section 11 hereof.

 

b.             Tenant shall not be liable for any death or injury arising from or out of any occurrence in, upon, at, or relating to the Project or damage to property of Landlord or of others located on the Premises or elsewhere in the Project, nor shall it be responsible for any loss of or damage to any property of Landlord or others from any cause, to the extent such death, injury, loss, or damage results from the negligence or willful misconduct of Landlord or its agents, employees, or contractors, or breach of this Lease by Landlord. Landlord agrees to indemnify Tenant and hold it harmless from and against any and all loss, claims, actions, damages, liability, and expense of any kind whatsoever (including reasonable attorneys’ fees and costs at all tribunal levels), to the extent such death, injury, loss, or damage results from the negligence or willful misconduct of Landlord or its agents, employees, or contractors, or breach

 

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of this Lease by Landlord. This indemnity shall survive the expiration or sooner termination of this Lease. In connection with any indemnity of Tenant by Landlord in this Lease, such indemnity shall also include the defense of Tenant, if Tenant so requests.

 

c.             The indemnification provisions in this Section or elsewhere in this Lease are subject to the waiver of recovery and waiver of subrogation provisions set forth in Section 31 of this Lease. To the extent of the proceeds received by either party under any insurance required to be maintained in this Lease, such party’s obligation to indemnify and hold harmless the other party against the hazard which is the subject of such insurance shall be deemed to be satisfied.

 

15.           DAMAGE BY FIRE OR THE ELEMENTS.

 

a.             If during the Term all or any part of the Project shall be damaged or destroyed by fire or other casualty, Tenant shall promptly give notice thereof to Landlord and Landlord shall, at Landlord’s sole cost and expense subject to availability and receipt from Tenant’s insurance company(ies) of the insurance proceeds and the receipt from Tenant of the deductible amount of such insurance, if any, (except as provided in Section 15(b)), repair, restore or replace the applicable Phase as nearly as possible to its value, condition and character as of the Commencement Date of the applicable Phase. Landlord shall within thirty (30) days following such notice from Tenant of the casualty advise Tenant the amount of time such repairs are reasonably estimated to require.

 

b.             If during the Term the Project shall be substantially damaged or destroyed in any single casualty in such a manner that such damage cannot, in Landlord’s reasonable judgment, be repaired within nine (9) months from the date of such casualty, Landlord shall so notify Tenant within sixty (60) days after Landlord’s receipt of the notice required pursuant to Section 15(a) hereof, or if such damage or destruction occurs during the last three (3) years of the Term (taking into account any previously exercised renewal option), then Landlord may by written notice terminate this Lease. If Landlord shall give such notice of termination, this Lease shall terminate on the sixtieth (60th) day following the date Tenant receives notice of termination from Landlord in accordance with the provisions of this Section.

 

c.             If during the Term the Project shall be damaged or destroyed in any single casualty and Landlord (if permitted to do so) does not give notice of its intention to terminate this Lease, as provided above, this Lease shall continue in force and effect, and Landlord shall repair, restore or replace the same as provided above; provided, however, if (i) the estimated time period for repair exceeds nine (9) months, or (ii) such statement estimating the repair time is not timely delivered (and Tenant notified Landlord of its failure to timely deliver the statement and Landlord fails to respond to Tenant within five (5) days after Tenant’s notice), or (iii) such damage or destruction occurs during the last three (3) years of the Term (taking into account any previously exercised renewal option), then Tenant may elect to terminate this Lease by notice to Landlord delivered not later than thirty (30) days after (x) in the case of subsection(c)(i), the date Landlord delivers the statement estimating the repair time, or (y) in the case of subsection(c)(ii), five (5) days after Tenant’s notice of Landlord’s failure to deliver the statement or the date Landlord delivers the statement, if Landlord so delivers or (z) in the case of subsection(c)(iii), the date of damage or destruction. If Tenant makes such election, the Term shall expire on the sixtieth (60th) day following the date Landlord receives notice of termination from Tenant in accordance with the provisions of this Section. Notwithstanding anything herein to the contrary, Landlord shall not be required to proceed with repairs or restoration if the repair estimate exceeds nine (9) months and the casualty occurs within the last three (3) years of the existing Term (taking into account any previously exercised renewal option).

 

d.             Landlord shall not be required to rebuild, repair or replace any part of the furniture, equipment, fixtures and Tenant’s personal property which were placed by or for Tenant within the Project. Tenant will maintain fire and extended coverage insurance on such furniture, equipment, fixtures and Tenant’s personal property and Tenant will restore or replace the same promptly following the repair or restoration of the Project after an event of casualty. Any insurance, if any, which may be carried by Landlord in its discretion (at Landlord’s sole cost) against loss or damage to the Premises or any other part of the Project shall be for the sole benefit of Landlord and under its sole control.

 

e.             If the Project shall be partially damaged or partially destroyed by a casualty, the Base Rent and Additional Rent payable hereunder shall be equitably abated to the extent that the Project shall have been rendered untenantable for the period from the date of such damage or destruction to the date the damage shall be repaired or restored. If the Project or a major part thereof shall be damaged or destroyed that it is rendered untenantable on account of a casualty, the Base Rent and Additional Rent shall abate as of the date of the damage or destruction and until Landlord shall repair, restore and rebuild the Project; provided, however, that if Tenant reoccupies for the conduct of its business a portion of the Project during the period the restoration work is taking place and prior to the date that the same are made Substantially Completed, Base Rent and Additional Rent allocable to such portion shall be payable by Tenant from the date of such occupancy.

 

f.              All property insurance proceeds received by Landlord or Tenant on account of such damage or destruction to the Buildings in excess of a casualty loss for which the proceeds are less than $375,000.00, in which case the proceeds are not required to be placed in an escrow account (excluding proceeds relating to Tenant’s personal property, which proceeds shall be used in accordance with

 

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Section 15.d, above), less the actual costs, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be retained in escrow in such bank or title company as shall be selected by Landlord and approved by Tenant, which approval shall not be unreasonably withheld or delayed, for the purpose of reimbursing Landlord for expenditures made to repair, restore or replace any part of the Project so damaged or destroyed (which expenditures shall include expenditures made for temporary repairs for the protection of property pending the completion of permanent repairs, restorations or replacements to the Project, or to prevent interference with the business operated thereon, and repairs, restorations or replacements thereto then in process insofar as actually made or constructed) or to pay contractors, subcontractors, material suppliers, engineers, architects or other persons who have rendered services or furnished materials for said repairs, restorations or replacements (herein called “Restoration”), and shall be withdrawn from the escrow account as hereinafter provided from time to time as the Restoration progresses upon the written request of Landlord to the escrow agent (with a copy to Tenant), which shall be accompanied by the following:

 

(i)            A certificate of the architect or engineer in charge of the Restoration (who shall be selected by Landlord and be reasonably satisfactory to Tenant) dated not more than thirty (30) days prior to such request, stating in effect that the work done through the date of such request has been substantially completed; and

 

(ii)           An affidavit from the general contractor for any partial or final payment in the form prescribed by Chapter 713, Florida Statutes.

 

Upon compliance with the foregoing provisions of this Section, the escrow agent shall be deemed to be authorized, without further instrument, to pay or cause to be paid to Landlord or to the persons, named in the contractor affidavit the respective amounts stated therein to have been paid by Landlord or to be due to them, as the case may be.

 

16.           INTENTIONALLY OMITTED .

 

17.           EMINENT DOMAIN .

 

a.             The terms “eminent domain,” “condemnation,” “taken” and the like in this Section 17 include takings for public or quasi-public use and private purchases in place of condemnation by any authority authorized to exercise the power of eminent domain.

 

b.                                          If the entire Premises or the portions of the Project required for reasonable access to, or the reasonable use of, the Project are taken by eminent domain, this Lease shall automatically end on the earlier of:

 

(1)                                the date title vests; or

 

(2)                                the date Tenant is dispossessed by the condemning authority.

 

c.             If the taking of a part of the Premises materially interferes with Tenant’s ability to continue its business operations in substantially the same manner and space, then Tenant may end this Lease on the earlier of:

 

(1)                                 the date when title vests; or

 

(2)                                 the date Tenant is dispossessed by the condemning authority.

 

If there is a partial taking and this Lease continues, then the Lease shall end as to the part taken and the Rent shall abate in proportion to the part of the Premises and/or Parking Area, as applicable, taken, and all other matters under this Lease that are a function of Rentable Area shall be so reduced. A taking of fifteen (15%) percent or more of the Parking Area shall be deemed a material interference with Tenant’s business operations.

 

d.             Intentionally omitted.

 

e.             If this Lease is canceled as provided in this Section 17, then the Base Rent, Additional Rent, and any other charges shall be payable up to the date Tenant ceases business operations and vacates the Premises in the manner required by this Lease, and shall account for any abatement. Landlord, considering any abatement, shall promptly refund to Tenant any prepaid, unaccrued Base Rent and Additional Rent, if any, less any sum then owing by Tenant to Landlord.

 

f.             If this Lease is not canceled as provided for in this Section 17, then Landlord at its expense shall promptly repair and restore the Project to the condition that existed immediately before the taking, except for the part taken, to render the Project a complete architectural unit, including the Tenant improvements, to the extent of the condemnation award received for the damage.

 

g.            Landlord reserves all rights to damages and awards paid because of any partial or entire taking of the Premises or other portion of the Project. Tenant assigns to Landlord any right Tenant may

 

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have to any damages or awards. Further, Tenant shall not make claims against Landlord or the condemning authority for damages. Notwithstanding the foregoing, Tenant may claim and recover from the condemning authority a separate award for Tenant’s expenses, damages and costs (including, without limitation, cost of removal of, trade fixtures, furniture and other personal property belonging to Tenant, Tenant’s moving expenses and other relocation damages, such as loss of business, and the unamortized portion of leasehold improvements paid for by Tenant with no contribution or reimbursement from Landlord), so long as any such award to Tenant would not reduce the award payable to Landlord and in no event may Tenant seek any award for Tenant Improvements paid for by Landlord or for leasehold value. Each party shall seek its own award, as limited by this paragraph, at its own expense, and neither shall have any right to the award made to the other.

 

h.             If part or all of the Premises are condemned for a period of time not to exceed one hundred eighty (180) days (a “temporary taking”), this Lease shall remain in effect. The Rent and Tenant’s obligations for the part of the Premises taken shall abate during the temporary taking in proportion to the part of the Premises that Tenant is unable to use in its business operations as a result of the temporary taking. Landlord shall receive the entire award for any temporary taking.

 

18.           SIGNS AND ADVERTISING .

 

a.             Subject to compliance with all applicable Legal Requirements, and the terms hereof, Tenant, at Tenant’s sole cost and expense, shall have the exclusive right to install and maintain signage of Tenant’s choosing on exterior facades of each of the Buildings or elsewhere in or about the Project (collectively, the “Exterior Signs”). However, Tenant’s right to erect and install the Exterior Signs shall be conditioned upon (a) this Lease being in full force and effect; and (b) compliance with all applicable Legal, Requirements, and insurance requirements, as the same may from time to time be amended or promulgated. In addition, Tenant shall coordinate the installation or removal of any Exterior Signs with Landlord so that Landlord or its contractors may monitor such installation or removal. Tenant, at Tenant’s sole expense, shall exer