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1. Basic Lease Provisions.
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1.1. |
Parties: This
Lease is made and entered into as of the 13 th day
of November 2007
(the” Effective Date”) by and between FROST REAL ESTATE
HOLDINGS, LLC, a Florida limited liability company
(“Landlord”), and OPKO HEALTH, INC., a Delaware
corporation (“Tenant”).
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1.2. |
Premises: Suite
Numbers 1500 and 1180, as shown on Exhibit "A" attached hereto (the
"Premises").
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1.3. |
Rentable Square Footage of the Premises:
8,320
Square feet (3,245 SF on 15
TH Floor-North
+ 5,075 on 11
th Floor
North). Landlord and Tenant stipulate and agree that the rentable
square footage of the Premises is correct.
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1.4. |
Building Address: 4400
Biscayne Boulevard, Miami, Florida 33137.
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1.5. |
Permitted Use: General
office use in the 15
th and
11
th floor
office space, subject to the requirements and limitations contained
in Section 6.
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1.6. |
Term: Five
(5) years.
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1.7. |
Commencement Date:
August
1, 2007.
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1.8. |
Rent: Tenant
shall make rent payments under this Lease on a “gross”
basis (the “Rent”), plus applicable sales tax. The rent
shall be increased annually by four and one half percent (4.5%) on
each anniversary date as follows:
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Lease Period in Months
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Annual Rent
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August
1, 2007- July 31, 2008
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$211,280
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August
1, 2008- July 31, 2009
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$252,138
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August
1, 2009- July 31, 2010
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$263,484
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August
1, 2010- July 31, 2011
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$275,341
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August
1, 2011- July 31, 2012
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$287,731
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1.9. |
Intentionally Omitted.
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1.10. |
Security Deposit: N/A.
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1.11. |
Sales Taxes. Tenant
shall pay to Landlord with the monthly payment of Rent all
applicable sales taxes imposed directly upon such rent or this
Lease.
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1.12. |
Number of Parking Spaces :
Up to
twenty seven (27) total
spaces of which
twenty
(20) are
unreserved and seven (7) are reserved spaces, all in accordance
with the terms of Section 24 hereof.
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1.13. |
Real Estate Brokers:
Landlord:
None
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1.14. |
Attachments to Lease: Exhibit
A - "Premises"; and Exhibit B - "Rules and Regulations
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1.15. |
Addresses for Notices:
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Landlord:
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Frost Real Estate Holdings,
LLC |
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4400 Biscayne Boulevard |
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Miami, Florida 33137 |
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| Tenant :
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Prior to the Commencement Date:
N/A |
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After the Commencement
Date: |
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OPKO HEALTH Inc., |
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4400 Biscayne Blvd. |
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Suites:1580, Annex 1 &
1100, |
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Miami, Florida 33137 |
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Attention: Kate Inman |
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1.16.
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Interpretation. The
Basic Lease Provisions shall be interpreted in conjunction with all
of the other terms and conditions of this Lease. Other terms and
conditions of this Lease modify and expand on the Basic Lease
Provisions. If there is a conflict between the Basic Lease
Provisions and the other terms and conditions of this Lease, the
other terms and conditions shall control.
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2. Premises.
2.1. Lease of Premises .
Landlord hereby leases the Premises to Tenant, together with the
right to use any portions of the Project, as hereinafter defined,
that are designated by Landlord for the common use of tenants and
others (the “Common Areas”). The “Project”
consists of the building of which the Premises is a part (the
"Building"), the Common Areas, the land upon which the same are
located, along with all other buildings and improvements thereon or
hereunder, including all parking facilities.
2.2. Acceptance. Tenant
agrees to accept the Premises in its “as-is” condition
existing as of the Commencement Date.
3. Term.
This
Lease shall be in full force and effect from the Effective Date.
The Term and Commencement Date of this Lease are as specified in
Sections 1.6 and 1.7, if any. If for any reason Landlord cannot
deliver possession of the Premises to Tenant on the Commencement
Date, Landlord shall not be subject to any liability therefore, nor
shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder; provided, however, in such a case,
the Commencement Date shall be extended to the date Landlord
delivers possession of the Premises to Tenant.
4.
Rent.
4.1. Rent.
Tenant
shall pay Landlord the Rent for the Premises on the first day of
each calendar month during the Term of this Lease in advance,
without notice or demand, deduction, abatement or offset (unless
expressly set forth in this Lease). Rent for any partial month
during the Term shall be prorated. Rent and all other amounts
payable to Landlord hereunder shall be payable to Landlord in
lawful money of the United States and Tenant shall be responsible
for delivering said amounts to Landlord at the address stated
herein or to such other persons or to such other places as Landlord
may designate in writing. The Rent payments to be made by Tenant
hereunder are made on a “gross” basis and, except as
may be expressly stated otherwise herein, Tenant shall not be
required to make any additional payments to Landlord for
Tenant’s share of any real estate taxes on the Premises or
the Building, for any insurance on the Premises or the Building,
for any common area maintenance charges, for the use of the
cafeteria in the Building, for use of the furniture located within
the Premises, for the use of the unreserved and reserved parking
spaces provided to Tenant herein, or for the services to be
provided by Landlord under Section 11.1.
4.2 Landlord
and Tenant acknowledge and agree that Tenant and its employees
shall have the right to use the existing cafeteria located within
the Building for so long as such cafeteria remains open and
available. Notwithstanding the foregoing, Tenant expressly
acknowledges and agrees that the cafeteria may be shut down by
Landlord at any time during the Term of this Lease and that the
Landlord has no obligation to provide a cafeteria under the terms
of this Lease.
5.
Security Deposit
.
N/A .
6. Use.
6.1. Use.
The
15
th and
11
th floor
shall be used and occupied only for general office use and other
uses compatible with general office use, and for no other purpose.
Notwithstanding any permitted use provided for in this Lease,
Tenant shall not use the 15
th and
11
th floors
for any purpose which would violate the Project's certificate of
occupancy, any conditional use permit or variance applicable to the
Project or violate any covenants, conditions or other restrictions
applicable to the Project. No exclusive use has been granted to
Tenant hereunder.
6.2. Compliance with Law. Landlord
warrants to Tenant that, to the best of Landlord's knowledge, the
Premises, in the state existing on the Effective Date, does not
violate any covenants or restrictions of record, or any applicable
building code, regulation or ordinance in effect on such date and
may be used for office purposes. Tenant shall, at Tenant's sole
expense, promptly comply with all laws, statutes, codes,
ordinances, orders, covenants, restrictions or record, rating
bureaus or governmental agencies, rules and regulations of any
municipal or governmental entity whether in effect now or later,
including, the Americans With Disabilities Act and all federal,
state and local laws and regulations governing occupational safety
and health (“Law(s)”) regarding the operation of
Tenant’s business and the use, condition, configuration and
occupation of the Premises. Tenant shall conduct its business and
use the Premises in a lawful manner and shall not use or permit the
use of the Premises or the Common Areas in any manner that
constitutes waste or a nuisance or shall unreasonably disturb other
occupants of the Project. Tenant shall obtain, at its sole expense,
any permit or other governmental authorization required to operate
its business from the Premises. Landlord shall not be liable for
the failure of any other tenant or person to abide by the
requirements of this Section or to otherwise comply with applicable
Laws, and Tenant shall not be excused from the performance of its
obligations under this Lease due to such a failure.
7. Maintenance, Repairs and
Alterations.
7.1. Landlord's Obligations .
Landlord
shall keep and maintain in good repair and working order and
perform maintenance upon the (a) structural elements of the
Building; (b) mechanical (including HVAC), electrical, plumbing and
fire/life safety systems serving the Building in general and the
Premises; (c) Common Areas; (d) roof of the Building; (e) exterior
windows of the Building; and (f) elevators serving the Building.
Landlord shall promptly make repairs for which Landlord is
responsible.
7.2. Tenant's Obligations.
(a) Subject
to the requirements of Section 7.3, Tenant shall, at its sole
cost and expense, promptly perform all maintenance and repairs
to the Premises that are not Landlord’s express
responsibility under this Lease and shall keep the Premises in
good condition and repair, reasonable wear and tear excepted.
Tenant’s repair and maintenance obligations include,
without limitation, repairs to: (a) floor coverings; (b)
interior partitions; (c) doors; (d) the interior side of
demising walls; (e) electronic, fiber, phone and data cabling
and related equipment that is installed by or for the
exclusive benefit of Tenant (collectively,
“Cable”); (f) supplemental air conditioning units,
kitchens, including hot water heaters, plumbing, and similar
facilities exclusively serving Tenant; and (g) Alterations. If
Tenant fails to keep the Premises in good condition and
repair, Landlord may, but shall not be obligated to, make any
necessary repairs. If Landlord makes such repairs, Landlord
shall bill Tenant for the cost of the repairs as additional
rent, and said additional rent shall be payable by Tenant
within ten (10) days.
(b) On
the last day of the Term hereof, or on any sooner termination,
Tenant shall remove all Tenant’s Property, as
hereinafter defined, Cable and all designated Required
Removables, as hereinafter defined, from the Premises and quit
and surrender the Premises to Landlord, broom clean, in the
same condition as received, ordinary wear and tear and damage
which Landlord is obligated to repair hereunder excepted.
Tenant shall repair any damage to the Premises occasioned by
the installation or removal of Tenant's Property, Cable and
Required Removables. Tenant shall leave the electrical
distribution systems, plumbing systems, lighting fixtures,
HVAC ducts and vents, window treatments, wall coverings,
carpets and other floor coverings, doors and door
hardware
, millwork,
ceilings and other tenant improvements at the Premises and in good
condition, ordinary wear and tear excepted.
7.3. Alterations and Additions.
(a) Tenant
shall not make any alterations, repairs, additions or
improvements or install any Cable (collectively referred to as
"Alteration(s)") in, on or about the Premises or the Project
without Landlord's prior written consent, which may be given
or withheld in Landlord's reasonable discretion. However,
Landlord’s consent shall not be required for any
Alteration that satisfies all of the following criteria (a
“Cosmetic Alteration”): (a) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and
installing carpeting; (b) is not visible from the exterior of
the Premises or the Building; (c) will not affect the base
Building; and (d) does not require work to be performed inside
the walls or above the ceiling of the Premises. Cosmetic
Alterations shall be subject to all the other provisions of
this Section 7.3. Prior to starting work, Tenant shall furnish
Landlord with plans and specifications; names of contractors
reasonably acceptable to Landlord (provided that Landlord may
designate specific contractors with respect to base Building);
required permits and approvals; evidence of contractor’s
and subcontractor’s insurance in amounts reasonably
required by Landlord and naming Landlord as an additional
insured; and any security for performance in amounts
reasonably required by Landlord. Changes to the plans and
specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and
workmanlike manner using materials of a quality reasonably
approved by Landlord. Upon completion, Tenant shall furnish
“as-built” plans for non-Cosmetic Alterations,
completion affidavits and full and final waivers of lien.
Landlord’s approval of an Alteration shall not be deemed
a representation by Landlord that the Alteration complies with
Law. If as a result of any Alteration made by Tenant, Landlord
is obligated to comply with any Law and such compliance
requires Landlord to make any improvement or Alteration to any
portion of the Project, as a condition to Landlord's consent,
Landlord shall have the right to require Tenant to pay to
Landlord prior to the construction of any Alteration by
Tenant, the entire cost of any improvement or Alteration
Landlord is obligated to complete by such Law.
(b)
All improvements in and to the Premises, including any
Alterations, shall remain upon the Premises at the end of the
Term without compensation to Tenant, provided that Tenant, at
its expense, in compliance with the National Electric Code or
other applicable Laws, shall, on or before the expiration of
the Term, remove any Cable. In addition, and specifically
excepting any improvements made by Landlord prior to the
Commencement Date, Landlord, by written notice to Tenant at
least thirty (30) days prior to the expiration of the Term,
may require Tenant, at its expense, to remove any Alterations
that in Landlord’s reasonable judgment are not standard
office improvements and are of a nature that would require
removal and repair costs that are materially in excess of the
removal and repair costs associated with standard office
improvements (collectively referred to as “Required
Removables”). Tenant shall repair any damage caused by
the installation or removal of the Cable and Required
Removables.
(c) Tenant
shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant
at or for use in the Premises, which claims are or may be
secured by any mechanic's or materialmen's lien against the
Premises or the Project, or any interest therein. If Tenant
shall, in good faith, contest the validity of any such lien,
Tenant shall furnish to Landlord a surety bond satisfactory to
Landlord in an amount equal to not less than one and one half
times the amount of such contested lien or claim indemnifying
Landlord against liability arising out of such lien or claim.
Such bond shall be sufficient in form and amount to free the
Project from the effect of such lien. In addition, Landlord
may require Tenant to pay Landlord's reasonable attorneys'
fees and costs in participating in such action.
7.4. Failure of Tenant to Remove
Property.
If
Tenant fails to remove any of Tenant’s Property as required
by Section 7.2 on or before the expiration or earlier termination
of this Lease, Landlord may remove and store Tenant’s
Property at the expense and risk of Tenant. Tenant shall pay
Landlord, upon demand, the expenses and storage charges incurred.
If Tenant fails to remove Tenant’s Property from the Premises
or storage, within thirty (30) days after notice, Landlord may deem
all or any part of Tenant’s Property to be abandoned and
title to Tenant’s Property shall vest in
Landlord.
8. Insurance.
8.1. Insurance-Tenant.
Tenant
shall maintain at all times during the Term of this Lease
commercial general liability insurance with coverages acceptable to
Landlord, which by way of example and not limitation, protects
Tenant and Landlord (as an additional insured) against claims for
bodily injury, personal injury and property damage based upon,
involving or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be on an occurrence basis providing single limit
coverage in an amount of not less than Two Million Dollars
($2,000,000) per occurrence with an "Additional Insured-Managers
and Landlords of Premises Endorsement" and contain the "Amendment
of the Pollution Exclusion" for damage caused by heat, smoke or
fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed
under this Lease as an "insured contract" for the performance of
Tenant's indemnity obligations under this Lease. If, in the
commercially reasonable opinion of the insurance broker retained by
Landlord, the amount of public liability or property damage
insurance coverage at any time during the Term is not adequate,
Tenant shall increase the insurance coverage as required by
Landlord’s insurance broker. In no event shall the limits of
such policy be considered as limiting the liability of Tenant under
this Lease.
Tenant
may also obtain and keep in force during the Term of this
Lease "all risk" extended coverage property insurance on
Tenant's personal property, all tenant improvements installed
at the Premises by Tenant and Tenant's trade fixtures and
other property (collectively, “Tenant’s Personal
Property”). Tenant expressly acknowledges and agrees
that in the event its insurance policy fails to cover any of
Tenant’s Personal Property or excludes coverage for
flood, earthquake, windstorm or any other peril, that neither
Tenant nor its insurance company shall have any right or claim
against Landlord or its insurance company as a result of
damage to Tenant's Personal Property resulting from such
failure of coverage or excluded peril.
8.2. Insurance-Landlord.
Landlord
shall maintain general liability insurance with coverage against
such risks and in such amounts as Landlord deems advisable insuring
Landlord against liability arising out of the ownership, operation
and management of the Project. Landlord shall also maintain a
policy or policies of insurance covering loss or damage to the
Project in the amount of not less than eighty percent (80%) of the
full replacement cost thereof, as determined by Landlord from time
to time. The terms and conditions of said policies and the perils
and risks covered thereby shall be determined by Landlord, from
time to time, in Landlord's sole discretion. In addition, at
Landlord's option, Landlord shall obtain and keep in force, during
the Term of this Lease, a policy of rental interruption insurance,
with loss payable to Landlord, which insurance shall, at Landlord's
option, also cover all Operating Expenses. In addition, Landlord
shall have the right to obtain such additional insurance as is
customarily carried by owners or operators of other comparable
office buildings in the geographical area of the Project. Tenant
will not be named as an additional insured in any insurance
policies carried by Landlord and shall have no right to any
proceeds therefrom. The policies purchased by Landlord shall
contain such deductibles as Landlord may determine. In addition to
amounts payable by Tenant in accordance with Section 4.2, Tenant
shall pay any increase in the property insurance premiums for the
Project over what was payable immediately prior to the increase to
the extent the increase is specified by Landlord's insurance
carrier as being caused by the nature of Tenant's occupancy (other
than general office use) or any act or omission of
Tenant.
8.3. Insurance Policies.
Tenant
shall deliver to Landlord certificates of the insurance policies
required under Section 8.1 prior to the earlier of the Commencement
Date or the date Tenant is provided with possession of the Premises
and thereafter as necessary to assure that Landlord always has
current certificates evidencing Tenant’s insurance. Tenant's
insurance policies shall not be cancelable or subject to reduction
of coverage or other modification except after thirty (30) days
prior written notice to Landlord. Tenant shall, at least thirty
(30) days prior to the expiration of such policies, furnish
Landlord with certificates of renewals thereof. Tenant's insurance
policies shall be issued by insurance companies authorized to do
business in the state in which the Project is located, and said
companies shall maintain during the policy term a "General
Policyholders’ Rating" of at least "A" and a financial rating
of at least "Class X" (or such other rating as may be required by
any lender having a lien on the Project), as set forth in the most
recent edition of "Best Insurance Reports." All insurance obtained
by Tenant shall be primary to and not contributory with any similar
insurance carried by Landlord, whose insurance shall be considered
excess insurance only. Landlord, and at Landlord's option, the
holder of any mortgage or deed of trust encumbering the Project and
any person or entity managing the Project on behalf of Landlord,
shall be named as an additional insured on all insurance policies
Tenant is obligated to obtain by Section 8.1 above. Tenant's
commercial general liability insurance policy shall not include
deductibles in excess of Twenty Thousand Dollars ($20,000) and
Tenant’s Property insurance policy shall not include
deductibles in excess of Fifity Thousand Dollars ($50,000), except
for any windstorm policy.
8.4. Waiver of Subrogation.
Landlord
and Tenant hereby waive and shall cause their respective insurance
carriers to waive any and all rights of recovery, claims, actions
or causes or action against the other for any loss or damage with
respect to Tenant’s Property, the Building, the Premises, or
any contents thereof, including rights, claims, actions and causes
of action based on negligence, which loss or damage is (or would
have been, had the insurance required by this Lease been carried)
covered by insurance. For the purposes of this wavier, any
deductible with respect to a party’s insurance shall be
deemed covered by and recoverable by such party under valid and
collectable policies of insurance.
9. Damage or Destruction.
Tenant
shall give prompt notice to Landlord in case of any fire or other
damage to the Premises. If the Premises or the Building are damaged
by fire or other casualty, Landlord shall diligently and as soon as
practicable after such damage occurs (taking into account the time
necessary to effectuate a satisfactory settlement with Landlord's
insurance company) repair such damage at its own expense, and, the
Rent and additional rent shall be abated in proportion to the part
of the Premises which is rendered untenantable until such repairs
have been completed (in no event shall damage to any parking areas
be deemed to render the Premises untenantable). However, if
available insurance proceeds are insufficient or if the Premises or
the Building are damaged by fire or other casualty to such an
extent that the damage, in Landlord's reasonable opinion, cannot be
fully repaired within one hundred eighty (180) days from the date
such damage occurs, Landlord shall provide Tenant with written
notice of such fact, and thereafter either Landlord or Tenant shall
have the right, exercised by giving written notice within such one
hundred eighty (180) day period, to terminate this Lease effective
as of the date of such damage.
10.
Personal Property Taxes .
Tenant
shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises or related to
Tenant's use of the Premises. If any of Tenant's personal property
shall be assessed with Landlord's real or personal property, Tenant
shall pay to Landlord the taxes attributable to Tenant within ten
(10) days after receipt of a written statement from Landlord
setting forth the taxes applicable to Tenant's property. Landlord
agrees that Landlord shall be responsible to pay all real property
taxes assessed against the Premises or the Building of which the
Premises is a part.
11. Building Services; Utilities.
11.1. Services Provided by Landlord.
Subject
to all governmental rules, regulations and guidelines applicable
thereto, Landlord shall provide HVAC to the Premises for normal
office use during the times described in Section 11.2, reasonable
amounts of electricity for normal office lighting and desk-type
office machines, water in the Premises or in the Common Areas for
reasonable and normal drinking and lavatory use, replacement light
bulbs and/or fluorescent tubes and ballasts for standard overhead
fixtures, building standard janitorial services (as more
particularly described on Schedule 1 attached hereto), elevator
service and access to the Building for the Tenant and its employees
24 hours per day/ 7 days per week subject to the terms of this
Lease and such protective services or monitoring systems, if any,
as Landlord may reasonably impose and such other services as
Landlord reasonably determines are necessary or appropriate for the
Project.
11.2. Hours of Service.
Building
services and utilities shall be provided Monday through Friday
from
6:00 a.m.
to
10:00 p.m.
HVAC and janitorial service shall not be provided at other times or
on nationally recognized holidays. Nationally recognized holidays
shall include, but shall not necessarily be limited to, New Year's
Day, Martin Luther King Jr. Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Landlord shall use its best efforts to provide HVAC to Tenant at
times other than those set forth above subject to (a) the payment
by Tenant of Landlord's then standard charge for after hours HVAC
and (b) Tenant providing to Landlord at least one (1) business
day's advance written notice of Tenant's need for after hours
HVAC.
11.3. Excess Usage by Tenant.
Tenant’s
use of Building utilities and services shall not exceed the
standard usage for the Building. If Tenant does use Building
utilities or services in excess of the standard usage for the
Building, Landlord shall have the right, in addition to any other
rights or remedies it may have under this Lease, to (a) at Tenant's
expense, install separate metering devices at the Premises, and to
charge Tenant for its usage, (b) require Tenant to pay to Landlord
all costs, expenses and damages incurred by Landlord as a result of
such usage, and (c) require Tenant to stop using excess utilities
or services.
11.4. Interruptions.
Tenant
agrees that Landlord shall not be liable to Tenant for its failure
to furnish, or any interruption, diminishment or termination of
services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations,
utility interruptions or the occurrence of a Force Majeure Event
and such failures shall never be deemed to constitute a
constructive eviction of Tenant or relieve Tenant from the
obligation of paying rent or performing any of its obligations
under this Lease. Furthermore, Landlord shall not be liable under
any circumstances for loss of property or for injury to, or
interference with, Tenant's business, including, without
limitation, loss of profits, however occurring, through or in
connection with or incidental to a failure to furnish any such
services or utilities. Landlord may comply with voluntary controls
or guidelines promulgated by any governmental entity relating to
the use or conservation of energy, water, gas, light or electricity
or the reduction of automobile or other emissions without creating
any liability of Landlord to Tenant under this Lease.
11.5
Failure to Provide Essential Services .
Notwithstanding the provisions of Section 11.4, in the event
the Building experiences an interruption of electrical, telephone,
water or HVAC which prevents Tenant from utilizing the Premises to
conduct its business (an “Interruption”) which
Interruption is within the control of Landlord to cure (i.e. not as
a result of the inability of Landlord to obtain the applicable
utility service through no fault of Landlord) (a
“Controllable Interruption.”) Landlord shall commence
and diligently pursue the curative action within a commercially
reasonable amount of time after written notice from Tenant of a
Controllable Interruption. If Landlord fails to commence and
diligently pursue the curative action within a commercially
reasonable amount of time after written notice from Tenant, then
Tenant shall have the right, after written notice to Landlord to
expend commercially reasonable market sums to cure the Controllable
Interruption and offset said amount against the next payments of
Rent due hereunder. This self help provision is specifically
limited to Controllable Interruptions of service which Landlord is
responsible for correction. Notwithstanding the foregoing, Tenant
shall be entitled to an abatement of Rent with respect to a
Controllable Interruption commencing with the sixth (6th)
consecutive business day of the Controllable Interruption until
such time as the services are restored .
12. Assignment and Subletting.
12.1. Landlord's Consent Required.
Tenant
shall not voluntarily or by operation of law assign, transfer,
hypothecate, mortgage, sublet, or otherwise transfer or encumber
all or any part of Tenant's interest in this Lease or in the
Premises (hereinafter collectively a "Transfer"), without
Landlord's prior written consent, which consent shall not be
unreasonably withheld. Landlord shall respond to Tenant’s
written request for consent hereunder within fifteen (15) days
after Landlord’s receipt of the written request from Tenant.
Any attempted Transfer without such consent shall be void and shall
constitute a default of this Lease. If the entity(ies) which
directly or indirectly controls the voting shares/rights of Tenant
changes at any time, such change of ownership or control shall
constitute a Transfer unless Tenant is an entity whose outstanding
stock is listed on a recognized securities exchange or if at least
80% of its voting stock is owned by another entity, the voting
stock of which is so listed. Tenant's written request for
Landlord's consent shall include all of the following information:
(a) financial statements for the proposed assignee or subtenant,
(b) a detailed description of the business the assignee or
subtenant intends to operate at the Premises, (c) a copy of the
fully executed sublease or assignment agreement, and (d) such other
information as Landlord may reasonably request
.
12.2. Standard For Approval.
Landlord
shall not unreasonably withhold its consent to a Transfer provided
that Tenant has complied with each and every requirement, term and
condition of this Section 12. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement,
term or condition of this Section 12 is not complied with or: (i)
the Transfer would cause Landlord to be in violation of its
obligations under another lease or agreement to which Landlord is a
party; (ii) in Landlord's reasonable judgment, a proposed assignee
or subtenant is not a creditworthy party; (iii) a proposed
assignee's or subtenant's business will impose a burden on the
Building's parking facilities, elevators, Common Areas or utilities
that is greater than the burden imposed by Tenant, in Landlord's
reasonable judgment; (iv) a proposed assignee or subtenant refuses
to enter into a written assignment agreement or sublease,
reasonably satisfactory to Landlord, which provides that it will
abide by and assume all of the terms and conditions of this Lease
for the term of any assignment or sublease and containing such
other terms and conditions as Landlord reasonably deems necessary;
(v) the use of the Premises by the proposed assignee or subtenant
will be for a use not permitted by this Lease; (vi) any guarantor
of this Lease refuses to consent to the Transfer or to execute a
written agreement reaffirming the guaranty; (vii) Tenant is in
default as defined in Section 13.1 at the time of the request
(taking into account any grace and cure periods); (viii) if
requested by Landlord, the assignee or subtenant refuses to sign a
non-disturbance and attornment agreement in favor of Landlord's
lender; (ix) Landlord has sued or been sued by the proposed
assignee or subtenant or has otherwise been involved in a legal
dispute with the proposed assignee or subtenant; (x) the assignee
or subtenant is involved in a business which is not in keeping with
the then current standards of the Building; (xi) the proposed
assignee or subtenant is a person or entity then negotiating with
Landlord for the lease of space in the Building; or (xii) the terms
of a proposed assignment or subletting will allow the proposed
assignee or subtenant to pay a rent less than the prevailing rental
rate in the Building at the time of Tenant’s request to such
Transfer.
12.3.
Additional Terms and Conditions .
Regardless of Landlord's consent, no Transfer shall release Tenant
from Tenant's obligations hereunder or alter the primary liability
of Tenant to pay the rent and other sums due Landlord hereunder and
to perform all other obligations to be performed by Tenant
hereunder or release any guarantor from its obligations under its
guaranty. Landlord may accept rent from any person other than
Tenant pending approval or disapproval of an assignment or
subletting. The consent by Landlord to any Transfer
shall not constitute a consent to any subsequent Transfer by Tenant
or to any subsequent or successive Transfer by an assignee or
subtenant and no assignment or sublease may be modified or amended
without Landlord's prior written consent. However, Landlord may
consent to subsequent Transfers or any amendments or modifications
thereto without notifying Tenant or anyone else liable on the Lease
and without obtaining their consent, and such action shall not
relieve such persons from liability under this Lease. In the event
of any default under this Lease, Landlord may proceed directly
against Tenant, any guarantors or anyone else responsible for the
performance of this Lease, including any subtenant or assignee,
without first exhausting Landlord's remedies against any other
person or entity responsible therefore to Landlord, or any security
held by Landlord. The discovery of the fact that any financial
statement relied upon by Landlord in giving its consent to an
assignment or subletting was materially false shall, at Landlord's
election, render Landlord's consent null and void. Landlord shall
not be liable under this Lease or under any sublease to any
subtenant. Any assignee of, or subtenant under, this Lease shall,
by reason of accepting such assignment or entering into such
sublease, be deemed, for the benefit of Landlord, to have assumed
and agreed to conform and comply with each and every term,
covenant, condition and obligation herein to be observed or
performed by Tenant during the term of said assignment or sublease,
other than such obligations as are contrary or inconsistent with
provisions of an assignment or sublease to which Landlord has
specifically consented in writing.
12.4. Transfer Premium from Assignment or
Subletting.
Landlord
shall be entitled to receive from Tenant (as and when received by
Tenant) as an item of additional rent fifty percent (50%) of all
amounts received by Tenant from the subtenant or assignee in excess
of the amounts payable by Tenant to Landlord hereunder (hereinafter
the “Transfer Premium”). The Transfer Premium shall be
reduced by the reasonable brokerage commissions and legal fees
actually paid by Tenant in order to assign the Lease or to sublet a
portion of the Premises. "Transfer Premium" shall mean all Rent,
additional rent or other consideration of any type whatsoever
payable by the assignee or subtenant in excess of the Rent and
additional rent payable by Tenant under this Lease. If less than
all of the Premises is transferred, the Rent and the additional
rent shall be determined on a per rentable square foot basis. For
purposes of calculating the Transfer Premium, expenses will be
amortized over the life of the sublease.
12.5. Landlord's Option to Recapture
Space.
Notwithstanding
anything to the contrary contained in this Section 16,
Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of any request by Tenant to
assign this Lease or to sublease space in the Premises, to
terminate this Lease with respect to said space as of the date
thirty (30) days after Landlord's election. In the event of a
recapture by Landlord, if this Lease shall be canceled with respect
to less than the entire Premises, the Rent and the number of
parking spaces Tenant may use shall be adjusted on the basis of the
number of rentable square feet retained by Tenant in proportion to
the number of rentable square feet contained in the original
Premises, and this Lease as so amended shall continue thereafter in
full force and effect, and upon request of either party, the
parties shall execute written confirmation of same.
12.6.
Transfers to Affiliates and Collateral Assignments to
Lenders. Notwithstanding
anything to the contrary contained in the Lease,
Tenant shall have the right, without Landlord’s
consent, to
assign this Lease or sublet
all or any portion of the Premises to: (a) a parent, subsidiary or
affiliated entity of Tenant, or (b) any entity to which all or a
substantial portion of the assets of Tenant have been transferred,
or (c) any entity in connection with a merger, sale of stock,
consolidation or other corporate reorganization or transaction
involving Tenant (collectively, a “Permitted
Transfer”). Tenant shall also have the right to collaterally
assign its interest as a tenant in this Lease as security for
loan(s) to be made to Tenant (a ‘Collateral
Assignment”). Tenant shall provide Landlord with at least ten
(10) business days prior written notice of a Permitted Transfer or
a Collateral Assignment.
13. Default; Remedies.
13.1.
Default by Tenant.
Landlord
and Tenant hereby agree that the occurrence of any one or more of
the following events is a default by Tenant under this Lease and
that said default shall give Landlord the rights described in
Section 13.2. Landlord or Landlord's authorized agent shall have
the right to execute and deliver any notice of default, notice to
pay rent or quit or any other notice Landlord gives
Tenant.
(a) Tenant's
failure to make any payment of Rent, late charges or any other
payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of ten
(10) days after written notice thereof from Landlord to
Tenant
(provided
however that in no event shall Landlord be obligated to
provide written notice more than twice in any twelve month
period).
(b) The
abandonment of the Premises by Tenant in which event Landlord
shall not be obligated to give any notice of default to
Tenant.
(c) Tenant’s
failure to comply with any of the covenants, conditions or
provisions of this Lease to be observed or performed by Tenant
(other than those referenced in Sections 13.1(a) and (b)
above), where such failure shall continue for a period of
twenty (20) days after written notice thereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's
nonperformance is such that more than twenty (20) days are
reasonably required for its cure, then Tenant shall be allowed
additional time (not to exceed 60 days) as is reasonably
necessary to cure the failure so long as Tenant commences such
cure within said twenty (20) day period and thereafter
diligently pursues such cure to completion. In the event that
Landlord serves Tenant with a notice to quit or any other
notice pursuant to applicable unlawful detainer statutes, said
notice shall also constitute the notice required by this
Section 13.1(c).
(d)
(i)
The
making by Tenant or any guarantor of Tenant's obligations
hereunder of any general arrangement or general assignment for
the benefit of creditors; (ii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this
Lease,
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