THE GATEWAY OFFICE LEASE INDEX

Exhibit 10.30

 

THE GATEWAY OFFICE LEASE

INDEX

 

 

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LIST OF EXHIBITS

 

 

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THE GATEWAY

 

BUILDING D OFFICE LEASE

 

THIS LEASE made as of November      , 2005, between SARASOTA GATEWAY BUILDING D, LLLP., a Florida Limited Liability Limited Partnership, having an office at 401 N Cattlemen Road, Sarasota, Florida 34232, hereinafter called “Landlord,” and JACKSON HEWITT INC. , a Virginia Corporation having its principal office at 3 Sylvan Way, Parsippany, New Jersey hereinafter called “Tenant”.

 

ARTICLE ONE - PREMISES

 

Section 1.01. LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, upon and subject to the covenants, agreements, provisions and conditions of this Lease, the Leased Premises located in the building (the “Building”) known by the name and street address of 501 N. Cattlemen Road, Sarasota, Florida 34232, The GATEWAY, PHASE ID Building (“Building Name”), situated on a plot of land (the “Land”) described on EXHIBIT A. The Land, Building, Leased Premises, Common Building Facilities, Building Services Systems, Leased Premises Service Systems, and Building Parking Area are collectively referred to in this Lease as the “Project” .

 

Section 1.02. LEASED PREMISES.

 

(a) The Leased Premises shall mean that portion of the Building, as shown on EXHIBIT B, which includes the Leased Premises Service Systems, (i) together with such additional space as Tenant may lease in the Building when added to the Leased Premises (ii) less such space as may be deleted from the Leased Premises when so deleted from this Lease. The Rentable Area of the Leased Premises is deemed to be 33,645 square feet and the total Rentable Area of the Building is 66,926 square feet, which square footage Landlord and Tenant represents and warrants has been determined as set forth in Section 1.02(b) below.

 

(b) The Rentable Area of the Building and the Leased Premises has been computed, whenever required pursuant to this Lease, in accordance with the BOMA Method. The “BOMA Method” shall mean the methodology, standards and definitions set forth in the “Standard Method for Measuring Floor Area in Office Buildings” published by the Building Owners and Managers Association International (“BOMA”)

 

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as publication ANSI/BOMA z65.1-1996, approved on June 7, 1996 by the American National Standards Institute, Inc. (“ANSI”). The Usable Area of the Leased Premises and the Building shall be calculated using the BOMA Method. Rentable Area shall be calculated by multiplying the Usable Area of the Leased Premises by the applicable R/U Factor which is 1.12 .

 

Section 1.03. COMMON BUILDING FACILITIES. This Lease includes the right of Tenant to use the Common Building Facilities in common with other tenants of the Building subject to reasonable regulation by the Landlord. The words “Common Building Facilities” shall mean all of the facilities in or around the Project designed and intended for use by tenants of the Building in common with Landlord and each other, including corridors; elevators; fire stairs; telephone and electric closets; telephone trunk lines and electric risers; aisles; walkways; truck docks; plazas; and the Building Parking area to the extent not reserved for exclusive use by Landlord or other tenants of the Building; the driveway entrances and drive aisles serving the Building and Gateway Building C; restrooms; service areas; lobbies; landscaped and irrigation areas, and all other common and service areas of the Project intended for such use on the date hereof.

 

ARTICLE TWO - TERM AND COMMENCEMENT DATE

 

Section 2.01. INITIAL TERM. Tenant shall lease the Leased Premises for an initial term of Eight (8) years (“Initial Term”) to commence on the Term Commencement Date (as defined in Section 2.04), the target date for which is June 1, 2006 , subject to extension as hereinafter provided. If the Initial Term commences on a date other than the first day of a month, it shall expire at the end of the day Eight (8)  years from the last day of the month in which it commenced. If the Initial Term commences on the first day of a month, it shall expire at the end of the day Eight (8)  years from the last day of the preceding month. Upon acceptance of the Leased Premises pursuant to Section 4.02 of Article Four, the parties shall enter into a Supplemental Agreement, in the form marked EXHIBIT C, setting forth the commencement and expiration dates of the Initial Term.

 

Section 2.02 EXTENDED TERM. Tenant shall have the option to extend the term of this Lease for the Leased Premises for two (2) five (5) year term(s) (“Extended Term(s)”). The option shall be exercised by written notice to Landlord given at least Nine (9)  months prior to the expiration of the Initial Term. Extended Term shall be upon the same covenants, agreements, provisions and conditions that are contained herein for the Initial Term, except as expressly provided herein to the contrary and except for provisions that are inapplicable to an Extended Term. The Annual Rent specified in Section 3.03 shall be payable during any Extended Term.

 

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Section 2.03. TERM OF THIS LEASE. The word “Term” and the words “term of this Lease” shall mean the Initial Term and any Extended Term which may become effective.

 

Section 2.04. COMMENCEMENT DATE. The words “Term Commencement Date”, “Lease Commencement Date” or “Commencement Date” shall mean the earlier of (i) the first day of the first full calendar month (not earlier than June 1, 2006) after the date on which the conditions in the following subparagraphs (A), (B) and (C) have been satisfied: (A) the Leased Premises have received a Certificate of Completion and the Improvements, as defined on Exhibit N, have been substantially completed, subject only to minor or insubstantial punch list items, the noncompletion of which does not materially interfere with Tenant’s use of or access to the Leased Premises, (B) Landlord has obtained a temporary or permanent certificate of occupancy for the Leased Premises, and (C) thirty (30) days have elapsed since the Tenant Access Date (defined below) ; or (ii) the first day of the first full calendar month after physical occupancy by Tenant for the actual conduct of Tenant’s business, as approved by Landlord. As used herein, the “Tenant Access Date” means the date on which (a) Landlord has given Tenant access to the Leased Premises for installation of its furniture, fixtures and equipment, and (b) the construction of the Improvements by Landlord is sufficiently complete that Tenant can proceed in an orderly fashion without interruption or delay to install its furniture, fixtures and equipment in the Leased Premises. If Landlord obtains a temporary or conditional certificate of occupancy the Landlord agrees to satisfy all conditions within the time required, take all actions necessary to maintain the temporary certificate of occupancy in effect and obtain the permanent certificate of occupancy at Landlord’s cost and expense. ***See Exhibit N*** If the Lease Commencement Date does not occur on or before July 1, 2006 (as the same may be extended pursuant to Exhibit N for Tenant Delay) for any reason, other than a delay caused by Tenant (a “Tenant Delay”), then, until the Lease Commencement Date occurs, Tenant shall receive to a credit against the first installments of Annual Rent equal to two (2) days for each one (1) day of delay. Further, if for any reason the Lease Commencement Date does not occur on or before October 31, 2006, Tenant may, in its discretion, terminate this Lease by written notice to Landlord, in which event the security deposit and any other payment previously made by Tenant to Landlord under this Lease will be returned to Tenant by Landlord, and neither party will have any further obligation under this Lease. Notwithstanding anything to the contrary in this Lease, Tenant’s obligation to pay utilities and operating expenses directly related to the Leased Premises shall commence on the earlier of the Lease Commencement

 

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Date or the date on which Tenant takes physical occupancy by Tenant for the actual conduct of Tenant’s business.

 

ARTICLE THREE - ANNUAL RENT, ADDITIONAL RENT,

OPERATING EXPENSES

 

Section 3.01. ANNUAL RENT. Commencing on the Term Commencement Date and subject to the provisions of this Lease, Tenant shall pay the Annual Rent as set forth in EXHIBIT D attached hereto. Such Annual Rent and Additional Rent (“Rent”) as defined in this Section and in Section 3.04, shall be payable in equal monthly installments in advance on the first day of each calendar month during the Initial Term. Rent for any period of less than one month shall be apportioned based on the number of days in that month. Tenant shall pay the Rent to Landlord at 401 N Cattlemen Rd #100, Sarasota, FL 34232 or to such other person or at such other place as Landlord may designate in writing. Each and every payment of Rent and other payments required to be paid by Tenant to Landlord under this Lease shall be accompanied by the payment of all applicable sales taxes and assessments in the nature of sales taxes required by law from time to time in the State of Florida or in the county or municipality in which the Leased Premises are located. Tenant shall pay Landlord a late fee equal to 5% of any monthly rental payment not received by Landlord within 10 days after written notice that the payment was not made when due as an additional handling fee.

 

Section 3.02. INTENTIONALLY OMITTED.

 

Section 3.03. EXTENDED TERM RENT. The Annual Rent for the Extended Term shall be determined in the manner agreed upon in EXHIBIT “E”.

 

Section 3.04. ADDITIONAL RENT. In addition to Annual Rent, Tenant shall pay Additional Rent which shall mean all sums of money payable by Tenant under this Lease other than Annual Rent. The Additional Rent shall be paid in the same manner as the Annual Rent as herein provided in Section 3.01.

 

Section 3.05. OPERATING EXPENSES.

 

(a) Tenant shall pay, as Additional Rent, its proportionate share of the “Operating Expenses” as hereafter defined and as herein provided. Tenant’s proportionate share shall be according to the ratio that the Rentable Area of the Leased Premises bears to the total Rentable Area of the Building. For purposes of this Lease, the parties stipulate that Tenant’s pro rata share is 50%.

 

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(b) “Operating Expenses” shall mean the operating costs actually incurred by the Landlord in an Operating Expense Year, (Calendar Year) to the extent such operating costs are properly allocable (in accordance with generally accepted accounting principles and practices consistently applied) to the operation, repair and maintenance of the Project. Any cost allocable to the items specified below in sub-paragraphs 15 through 36, and any costs incurred within or allocated to the period after the expiration of the Term or applicable Renewal Term shall be excluded from Operating Expenses.

 

ITEMS INCLUDED IN OPERATING EXPENSES:

 

(1) salaries, wages, fringe benefits and all other expenses incurred for the employment of the Project operating personnel including Project and Building manager and Building engineer, excluding Landlord’s officers and partners, general partnership or corporate overhead, any off-site Project and Building manager and engineer and off-site headquarters staff;

 

(2) the cost of materials and supplies utilized for the Project;

 

(3) the cost of replacements for tools and maintenance equipment;

 

(4) amounts paid by Landlord to independent contractors for Project services and materials, excluding janitorial services for individual tenant leased premises;

 

(5) water and sewer charges predicated on standard office usage;

 

(6) the cost of cleaning, maintaining, repairing, touch-up repainting or otherwise redecorating any part of Common Building Facilities and the exterior of the Building; excluding roof repairs and substantial exterior Building repairs and maintenance.

 

(7) the cost of telephone and fax service, postage, office supplies, maintenance and repair of office equipment and similar charges for Landlord’s management office solely related to operation of the Project;

 

(8) certified audit expenses for preparation of the annual Operating Expense statement;

 

(9) premiums for insurance purchased by Landlord pursuant to Section 10.02(a), subject to subparagraph 25 herein below and office park association dues;

 

(10) management fee not to exceed 4% of Annual Rent of the Project;

 

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(11) all costs and expenses of repairing and maintaining paving, curbs, walkways, landscaping and irrigation and all other portions of the Building Parking Area;

 

(12) the cost of electricity, fuel and other utilities used by tenants not in excess of standard office usage, subject to subparagraph 20 herein below and the Common Building Facilities; the maintenance, repair and operating costs of any emergency generator;

 

(13) the cost of normal maintenance and repair of mechanical and electrical equipment, including heating, ventilating and air conditioning and elevator equipment, including all maintenance and service contracts, but excluding capital expenditures except as otherwise allowed herein.

 

(14) depreciation of capital expenditures on a straight line basis, without interest, over the useful life of capital item, if the capital expenditure is in lieu of a repair that would otherwise be allowed as an Operating Expense but the repair is of such nature that it is not economically feasible or practical.

 

Operating Expenses shall be reduced by the amounts of any reimbursement, refund or credit received or receivable by Landlord with respect to any item of Operating Expenses net of any expense incurred by Landlord to receive such sums. If any such sum is received or receivable by Landlord in a later Operating Expense Year, it shall be applied against the Operating Expenses for such later Operating Expense Year; and, if the Term has expired, Tenant’s Share of such item shall be promptly refunded by Landlord to Tenant.

 

ITEMS EXCLUDED FROM OPERATING EXPENSES:

 

(15) the cost of any work (including the cost of permits, licenses and inspections) performed (such as preparing space for occupancy, including painting and decorating), or services furnished by Landlord without charge as an inducement to lease (such as free rent, decorations, painting, or improvement allowances);

 

(16) the cost of constructing, installing, operating and maintaining any specialty service or facility, such as an observatory, broadcasting facility, restaurant, luncheon club, retail space, sundry shop, newsstand, concession, or athletic or recreational club, or the costs associated with services or benefits not offered or available to Tenant;

 

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(17) salaries, wages, fringe benefits and other expenses for Landlord’s officers and partners, general partnership or corporate overhead, Landlord’s offsite Building engineer and offsite Project and Building manager and its off-site headquarters staff;

 

(18) the cost of any service not similarly provided to all tenants and occupants of the Building; janitorial services for the leased premises of individual tenants;

 

(19) the cost of any work performed, or service provided, or Landlord’s overhead, for any facility other than the Project;

 

(20) the cost of any items for which Landlord is reimbursed by insurance proceeds, condemnation awards, a tenant of the Building, or otherwise, or which Landlord bills or is entitled to bill to a tenant of the Building, including utilities separately metered or sub-metered to a tenant;

 

(21) the cost of any material changes or additions to the Project (such as the addition of a garage, tower or floor) or Operating Expenses generated by such changes or additions, made after the date of this Lease except if requested by Tenant;

 

(22) the cost of any repairs, alterations, additions, changes, replacements and the like, which under generally accepted accounting principles and practices are properly classified as capital expenditures except to the extent otherwise allowed herein;

 

(23) the cost of any repair or replacement made in accordance with ARTICLES TEN and TWELVE of this Lease entitled, respectively, “CASUALTY INSURANCE” and “CONDEMNATION”;

 

(24) insurance premiums to the extent any other tenant causes Landlord’s insurance premiums to increase or requires Landlord to purchase additional insurance;

 

(25) costs associated with financing or refinancing the Project or personal property associated therewith and interest, principal and amortization payments on any debt, points and financing fees, cost to service a loan, depreciation, or rental under any ground lease or other underlying lease, and interest, fines or penalties incurred by reason of Landlord’s failure to perform an obligation hereunder;

 

(26) real estate brokerage commissions, legal fees, moving expenses, design or engineering fees, rental concessions or credits, allowances, lease assumption, or cancellation fees or other costs incurred in procuring tenants or other occupants;

 

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(27) advertising, promotional and marketing expenses; management fees in excess of 4% of the Annual Rent of the Project;

 

(28) any compensation representing an amount paid to an Affiliated Person of Landlord which is in excess of the amount which would have been paid in the absence of such relationship;

 

(29) rental payments for items (i) the cost of which would constitute a capital expenditure if the equipment were purchased, but, if Landlord would have been permitted to include depreciation on an item in Operating Expense had the item been purchased, then the rental payments will be excluded only to the extent the rent for such items exceeds the amount of depreciation for such capital expenditure that Landlord would have been be allowed to include in Operating Expense; or (ii) unless the item is temporary in nature and necessary for Landlord to properly maintain or repair the Project;

 

(30) costs or expenses for (i) repairs or maintenance which are covered by warranties, guarantees or service and maintenance contracts to the extent collectable or enforceable (excluding reasonable and customary deductibles) or (ii) repair of construction or design defects or (iii) completion of items not completed as part of the initial construction of the Project;

 

(31) legal expenses arising out of the construction, and leasing of the Project, and costs associated with the enforcement of the provisions of any agreements, including this Lease, affecting the Project, and claims, disputes, issues concerning interpretation of documents relating to such agreements, in each case including the costs of settlement, collection and court and arbitration proceedings;

 

(32) costs incurred to satisfy any of the representations and warranties made by Landlord in this Lease such as costs to upgrade the Building to comply with environmental, health and safety Laws and Laws covering the disabled;

 

(33) costs of overtime or other costs incurred by Landlord to cure its default hereunder or the default of a tenant, or incurred by reason of the misconduct or negligence of Landlord or a tenant or their respective agents, invitees, employees or contractors including costs associated with death or injury to persons, damage to or loss of property;

 

(34) any costs associated with a change of ownership, including financing or refinancing the transfer of an interest in the Project or in Landlord, or related costs;

 

(35) costs for which Landlord has been compensated by a management fee;

 

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(36) costs resulting from charitable or political contributions.

 

(37) Costs of office expenses not related to common areas; i.e., legal fees, advertising, rent collections, etc.

 

(38) costs associated with hazardous substances or wastes on or about the Project, including, but not limited to, costs of encapsulation or remediation.

 

Section 3.06. COMPUTATION AND PAYMENT OF OPERATING EXPENSES AND TAXES.

 

(a) Tenant shall pay Landlord on the Commencement Date hereof, and on the first day of each calendar month thereafter until the end of the current Operating Expense Year, the sum of Eleven Thousand Seven Hundred Nineteen and 68/100 Dollars ($11,719.68) , as Additional Rent, which sum is estimated by Landlord to be Tenant’ s monthly pro rata share of the above Operating Expenses as determined pursuant to the Estimated Operating Budget for the current Operating Expense Year attached hereto as EXHIBIT F ; and the sum of Five Thousand Four Hundred Sixty Seven and 31/100 Dollars ($5,467.31) estimated to be Tenant’s monthly pro rata share of Real Estate Taxes and assessments for the current Operating Expense Year assessed against the property during the term of the lease, as required to be paid pursuant to Section 3.07 herein.

 

Within sixty (60) days after the end of the current Operating Expense Year, Landlord shall furnish Tenant a statement covering such year just expired, certified as correct by an independent public accountant or an authorized representative of the Landlord, detailing (i) the Operating Expenses and Real Estate Taxes and assessments, (ii) the amount of Tenant’s pro rata share of such costs for such year, (iii) the payments made by Tenant with respect to such year, and (iv) the estimated Operating Expenses and Real Estate Taxes for the new year. If Tenant’s monthly payments for such costs with respect to such expired year (or fraction of a year) are less than Tenant’s monthly pro rata share of such costs, then Tenant shall pay the deficiency with the monthly payment next becoming due to Landlord, while any excess payments made by Tenant shall be credited against the next monthly payment due. Thereafter, commencing with the first month following delivery of said certified statement, Tenant shall pay its monthly pro rata share of Operating Expenses and Real Estate Taxes for the next Operating Expense Year according to Landlord’s good faith estimate of such Costs based on the above certified statement, and known or estimated changes, which shall be contained in a new Operating Expense Budget (the “Budget”) prepared by Landlord and delivered to Tenant within the same sixty (60) day period. This process shall

 

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be repeated at the end of each and every year during the term hereof, and all extensions and renewals, with the final adjustment being made within sixty (60) days after the termination date of this Lease.

 

(b) Landlord may not always be able to furnish a new Operating Expense Budget prior to the year covered by the new Budget. If Landlord shall furnish the Budget after the beginning of the year covered by the Budget then, until the first day of the first month which is at least thirty (30) days following the date Tenant receives the Budget (the “payment date”), Tenant shall continue to pay Landlord the same monthly sum then being paid by Tenant pursuant to this Lease. Landlord shall notify Tenant whether Operating Expenses paid by Tenant during the period between the end of the prior year and the “payment date” is greater or less than the estimated monthly payments to be made in accordance with the Budget. If there is a deficiency, Tenant shall pay the lump sum amount thereof to Landlord on the “payment date”. If there was an overpayment, Landlord shall promptly credit the same to Tenant.

 

(c) If the Term Commencement Date occurs on a date other than the first day of a calendar month, or the Term expires on a date prior to the end of a calendar month, the monthly installments of Annual Rent and Additional Rent for the fractional months shall be appropriately prorated based upon a thirty (30) day month.

 

(d) Tenant may, at Tenant’s sole cost and expense, audit Landlord’s books and records relating to the computation of Operating Expenses and Real Estate Taxes for any year or portion thereof that falls within the Term within twelve (12) months after the receipt of Landlord’s statement for any calendar year, or as to the last year of the term, the later to occur of the expiration of the Term or the date Tenant receives Landlord’s statement pursuant to this Section with respect to the last year of the Term (including a partial year). Landlord agrees that it will make available to Tenant and its designated auditors, at Landlord’s office during business hours, all appropriate records or copies thereof required for the performance of the audit. Tenant’s access to these books and records may be restricted to periods of time during which Landlord does not reasonably require access to them in connection with the operation or management of the Project. If any audit reveals that the Operating Expenses or Real Estate Taxes for a period of time have been incorrectly computed, and if Landlord agrees with such audit, Landlord and Tenant shall make appropriate reconciliation payments, in cash, between themselves based on the correct amount of Operating Expenses or Real estate Taxes for such period.

 

(e) If during the Term, Tenant in good faith, disputes the Operating Expenses or Real Estate Taxes, or a portion thereof, for

 

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the period in question, Tenant shall not be obligated to pay the disputed portion until the dispute is resolved. However, if not resolved within thirty (30) days after either party declares an impasse, Landlord and Tenant shall arbitrate any dispute regarding the amount of such costs in accordance with ARTICLE THIRTY-THREE (33). If determined by arbitration that all or a portion of the disputed amount should have been paid, the Tenant shall pay that amount plus interest at the Interest Rate. If determined by the arbitration that all or a portion of the disputed amount should not have been paid, Landlord shall fully credit Tenant by the disputed amount awarded plus interest from the date when paid by Tenant at the Interest Rate.

 

(f) The words “Interest Rate” shall mean two percent (2%) above the prime rate reported by The Wall Street Journal on the date such payment was made.

 

(g) If, upon the expiration of the term of the Lease, there is any credit to which Tenant is entitled from Landlord pursuant to any provision of the Lease which has not been used as a credit, then Landlord shall refund the amount equal to the amount of any such remaining credit to Tenant; similarly if there are any such funds due Landlord, Tenant shall immediately pay same.

 

(h) Landlord represents to Tenant that based on Landlord’s experience in operation of similar buildings it anticipates that Operating Expenses and Real Estate Taxes will total $6.13 per rentable square foot (prorated for a partial year) or the year in which the Commencement Date occurs. Notwithstanding anything to the contrary in this Lease, the parties agree that the total Operating Expenses and Real Estate Taxes for the year in which the Commencement Date occurs shall be in an amount not to exceed $6.25 per rentable square foot per annum (prorated for a partial year).

 

(i) This Article shall survive the expiration or earlier termination of the Lease, but shall expire one year thereafter.

 

Section 3.07. REAL ESTATE TAXES. Tenant agrees to pay as Additional Rent its share of all real property taxes and assessments (Real Estate Taxes) levied or assessed by any lawful authority on the Project during the term of the lease, in the same proportion as stated in Section 3.05(a), i.e. 50% .

 

ARTICLE FOUR - PREPARATION FOR OCCUPANCY

 

Section 4.01. CONSTRUCTION.

 

(a) Landlord, at its own cost and expense, has or will complete construction of the Project and the Landlord Work described in EXHIBIT G and H . Landlord reserves the right from

 

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time to time to make changes, additions and eliminations in and to the Project (other than the Tenant Improvements, as defined in Exhibit N) , provided same do not unreasonably interfere with Tenant’s use thereof, nor materially (i) diminish the quality of The Building or services, (ii) reduce Tenant’s rights nor (iii) increase its obligations or costs; provided, however, that (i) the first floor lobby shall have granite floors, wood detailing with wall coverings, chandelier lighting; (ii) the bathrooms shall have granite countertops; (ii) the Building shall have a security card access system with video monitoring of entry points and common areas; (iii) the Building shall have automatic wet pipe sprinklers with monitored fire alarm system and emergency battery powered lighting in office space and egress corridors as required by applicable codes.

 

(b) Landlord has established or otherwise agreed to certain Building Standards for constructing the Tenant Improvements which are described on EXHIBIT G.

 

(c) Landlord will complete construction and installation of the Tenant Improvements to the Leased Premises described in EXHIBIT H (the Improvements).

 

Section 4.02. ACCEPTANCE OF PREMISES. Tenant will examine the Building and Leased Premises, as well as the fixtures attached thereto, be generally familiar with the condition thereof and rely upon such examination in entering into this Lease and shall accept same in their existing condition at the Term Commencement Date with the exception of latent defects and any “punch list” items which shall remain the responsibility of Landlord. Upon physical occupancy of the Leased Premises, Tenant shall be deemed to have accepted same in their then existing condition with the exception of latent defects, and any remaining “punch list” items, and Landlord shall be deemed to have complied with all its undertakings relative to the condition thereof and the completion of the Improvements.

 

Section 4.03. TENANT’S RIGHTS OF ACCESS. Tenant shall have the right, prior to the Commencement Date, to install Tenant’s Owned property; Tenant’s Personal Property; construct any additional improvements authorized by Landlord and to perform such other related activity in the Leased Premises preparatory to its occupancy. Landlord shall cooperate fully with Tenant to allow Tenant access for such purposes as early as possible without interfering with the progress of Landlord’s work, and in any event prior to the Tenant Access Deadline, as defined in Exhibit N.

 

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ARTICLE FIVE - LANDLORD’S TITLE AND ALLOWABLE USE

 

Section 5.01. LANDLORD’S REPRESENTATIONS REGARDING TITLE AND USE. Landlord represents and warrants as a condition of this Lease, that it possesses good marketable fee title to the Project, subject only to matters described in Section 5.03; that it is authorized to make this Lease for the Term; that the provisions of this Lease do not or will not conflict with or violate the provisions of existing or future agreements between Landlord and third parties; that the certificate of occupancy for the Project allows, or not later than the Term Commencement Date will allow Tenant to use and enjoy the Leased Premises and Common Building Facilities for the purposes set forth in this Lease; that the Leased Premises, the Land and Common Building Facilities and the uses thereof for the purposes specified in this Lease are, and on the Term Commencement Date will be, and will thereafter continue to be, in compliance with all applicable Laws, including, but not limited to, all construction, environmental, asbestos, hazardous materials, health and safety Laws and Laws covering the disabled (including, without limitation, Americans with Disabilities Act and barrier free regulations) and free from hazardous substances or wastes; and that Landlord will deliver the Leased Premises and the Building Parking Areas and any reserved parking spaces to Tenant, free of all tenants and occupants and claims thereof.

 

Section 5.02. LANDLORD’S REPRESENTATIONS REGARDING LEGAL PROCEEDINGS. Landlord represents and warrants that as of the date hereof there are (a) no pending or, to the best of its knowledge, threatened claims, causes of action, foreclosure proceedings, filing of involuntary or voluntary bankruptcy or insolvency petitions, appointments of receivers, assignments for the benefit of creditors, lawsuits, or judgments against the Project or Landlord, or (b) none of the foregoing affecting other properties controlled by or under common control with Landlord or an Affiliated Person of Landlord, if the same may affect title to the Project, Landlord’s ability to comply with its obligations under this Lease, or Tenant’s use of the Project as herein provided.

 

Section 5.03. TITLE MATTERS. Landlord has delivered to Tenant a copy of Landlord’s title insurance policy for the Project and represents and warrants that the policy is a true and complete copy of the original; that there have been no changes as of the date of this Lease to any matters set forth in such policy, and that on the date of this Lease the policy is, and will continue during the Term to be in full force and effect. A list of all encumbrances, restrictions, agreements, covenants, declarations, Lis pendens, mechanics’ liens, and other matters affecting title, whether of record or known by Landlord on the date hereof to exist or which Landlord anticipates will exist or will be recorded within six (6) months from the date hereof (including all mortgages and superior leasehold interests), are listed on EXHIBIT I.

 

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ARTICLE SIX - SERVICES

 

Section 6.01. SERVICES PROVIDED BY LANDLORD.

 

(a) Landlord shall, at its expense and subject to Section 3.05 hereof, furnish to Tenant the following services, utilities, supplies and facilities pursuant to the Project Rules and Regulations as specified in EXHIBIT J.

 

(1) Access to the Leased Premises;

 

(2) Passenger elevator service and padded elevator service reasonably required by Tenant;

 

(3) Heat, ventilation and air conditioning (“HVAC”). Landlord represents and warrants that the Building’s HVAC systems, have the capacity, flexibility and ability to maintain the design conditions specified in EXHIBITS G and H throughout the Leased Premises and Common Building Facilities;

 

Landlord shall furnish HVAC beyond the above-stated hours. This service shall be furnished at “Landlord’s Cost” which shall mean the actual labor and utility costs incurred by Landlord to provide such overtime service relating to overtime HVAC expenses, without markup of any kind. Landlord’s Cost shall be paid by Tenant. Landlord shall bill Tenant on or before the last day of the month following the month in which Landlord’s Cost are incurred, and shall submit with its invoice a tabulation of the hours and the dates on which the overtime HVAC was furnished. Tenant shall reimburse Landlord therefor within fifteen (15) days after receipt of the invoice.

 

(4) Cleaning and janitorial services in the Common Building Facilities, all restrooms whether or not within the Leased Premises, and the Building Parking Area, including removal of refuse and rubbish and furnishing and installing wash room supplies;

 

(5) Cold running potable water, electricity for lighting and for the operation of Tenant’s office machines appliances and equipment per Building Standard, for the Common Building Facilities and Building Parking Area;

 

(6) Installing and replacing light bulbs, tubes and ballasts in the Leased Premises, Common Building Facilities and Building Parking Area;

 

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(7) Removing of debris from the Common Building Facilities and Building Parking Area, including maintenance of all landscape areas;

 

(8) Vermin extermination and repair and replacing any item in the Building or Leased Premises damaged by vermin;

 

(9) Access control for after hours access to the Building, and periodic security patrol services for the Project seven (7) days per week.

 

(b) Such services, utilities, supplies and facilities shall be of a quality which is consistent with those customarily furnished by prudent landlords in Class A commercial office buildings located in the same geographical area as the Project.

 

Section 6.02. LANDLORD’S FAILURE TO PROVIDE SERVICES.

 

(a) If after notice to Landlord of a default in furnishing any utilities, services or facilities to be furnished to Tenant hereunder, Landlord fails or refuses to cure such default within thirty (30) days, except in the case of default that renders the Leased Premises or part thereof untenable, for which Landlord shall have only three (3) consecutive business days to cure, Tenant may declare an event of default and cure such default. Landlord shall reimburse Tenant for Tenant’s costs incurred in curing Landlord’s default within thirty (30) days after Landlord receives Tenant’s invoice failing which the parties shall arbitrate in accordance with ARTICLE THIRTY THREE herein.

 

(b) The remedies set forth in this Article shall be in addition to other remedies granted to Tenant elsewhere in this Lease or at law or in equity, and shall not affect any claim for actual or constructive eviction or other claim for damages or relief to which Tenant may be entitled.

 

(c) If Landlord disputes any default declared by Tenant pursuant to this Article or the reasonableness of time granted to cure the default, Landlord may submit the disputed matter to arbitration in accordance with ARTICLE THIRTY-THREE within ten (10) days after receiving Tenant’s notice or invoice.

 

ARTICLE SEVEN - PARKING

 

Section 7.01. TENANT’S PARKING SPACES.

 

(a) Landlord shall, at its expense, provide Tenant with ( 168 ) non-exclusive, self-parking spaces, which number is based on a minimum of 5 parking spaces per 1,000 square feet of Usable Area in the Leased Premises, for Tenant’s use within the Building Parking Area, as shown on EXHIBIT K. The Building Parking Area

 

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shall be available for use twenty-four (24) hours a day, every day of the year during the Term and shall be illuminated as provided in the Project Rules and Regulations. Further, Landlord shall keep and maintain the Building Parking Area in a clean, safe and first-class condition. Landlord agrees that it shall not allocate or otherwise authorize use of more than 100% of the spaces in the Building Parking Area.

 

(b) If Tenant, its employees, licensees or guests are not able to use the Building Parking Area and access ways thereto because of unauthorized use by others, Landlord shall take whatever steps are necessary to end and prevent further unauthorized use including, if appropriate, posting signs, distributing parking stickers and towing unauthorized vehicles. ***See Exhibit N***

 

Section 7.02. ADDITIONAL SPACES. Whenever Tenant shall lease additional space in the Building, the minimum number of parking spaces in the Building Parking Area allocated non-exclusively to Tenant may, at Tenant’s option, be increased at no additional cost to Tenant by 5 parking spaces per 1,000 square feet of additional Usable area leased by Tenant.

 

Section 7.03. VISITORS’ SPACES. During the Term, Landlord shall reserve at least five percent (5%) of the parking spaces in the Building Parking Area for use by invitees of tenants in the Building. These parking spaces shall be designated for transient use, and Landlord shall take reasonable steps to insure that these parking spaces are available for such use at all times.

 

ARTICLE EIGHT - USE OF LEASED PREMISES

 

Section 8.01. GENERAL USES. Tenant shall use and occupy the Leased Premises only for executive and administrative offices and such other uses as authorized in EXHIBIT L and no other use shall be made thereof without the prior, express and written consent of Landlord which shall not be unreasonably withheld. Tenant shall not engage in the sale or distribution of any goods or inventory items, nor any activity that violates any rules, regulations or ordinances of any governmental authority having jurisdiction over the Leased Premises, or of the terms and conditions of this Lease. In the event Tenant uses the Leased Premises for purposes not expressly permitted herein, Landlord may restrain said improper use by injunction without waiving any other rights and remedies conferred on Landlord by the terms of this Lease or as otherwise provided by Law.

 

Section 8.02. RESTRICTIONS ON USE. Tenant shall comply with the requirements of all laws, orders, ordinances and regulations of all governmental authorities having jurisdiction over the Leased Premises, shall not use the Leased Premises in violation of the

 

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Certificate of Occupancy for the Building, and shall not do or permit any act upon the Leased Premises, which might subject Landlord to any liability or responsibility for injury to any person or damage to any property. Tenant shall not use the Leased Premises or allowed the Leased Premises to be used for, the generation, storing or disposal of any Hazardous Substances. “Hazardous Substances” means any toxic or hazardous waste or substance, including, without limitation, asbestos, PCBs, substances defined as “hazardous substances” or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., U.S.C. 6901 et seq. and in the Toxic Substance Control Act of 1976, as amended, 15 U.S.A. 2601 et seq., or in any applicable State Environmental Statutes, other than customary office, janitorial and cleaning supplies. Tenant shall comply with all rules, orders or requirements of the National Board of Fire Underwriters or any other similar body or any subdivision thereof and shall not do or permit or bring or keep anything in the Leased Premises or on the Project which shall increase the rate of insurance on the Project, or on the property kept therein, over that in effect at the commencement of the Term and should Tenant fail to do so, Tenant shall reimburse Landlord, on demand as additional rental hereunder, for the increase on all insurance premiums thereafter payable and which shall be charged because of such violation by Tenant. In any action or proceeding wherein Landlord and Tenant are parties, a schedule or makeup of rates for the building or the Leased Premises issued by the Florida Rating and Inspection Bureau or other similar body shall be conclusive of the facts therein stated and of the items and charges in the fire insurance rate then applicable to the Project.

 

ARTICLE NINE - REPAIRS AND MAINTENANCE

 

Section 9.01. LANDLORD’S REPAIRS. Subject to the provisions of Section 3.05, Landlord shall perform all maintenance and perform all repairs, restoration work, and replacements to the Project not specifically imposed upon Tenant by the provisions hereof and such repairs, restoration work and replacements shall be of a quality which is consistent with that of the Project. Without limiting the generality of the foregoing sentence or the following, Landlord shall maintain, repair and replace, as necessary, and keep in good order, safe and clean condition (i) the plumbing, sprinkler, HVAC and electrical and mechanical lines and equipment associated therewith, elevators and boilers, broken or damaged glass and damage by vandals; (ii) utility and trunk lines, tanks and transformers and the interior and exterior structure of the Building, including the roof, exterior walls, bearing walls, support beams, floor slabs, foundation, support columns and window frames and windows; (iii) the interior walls, ceilings, and floor coverings in the Common Building Facilities, (including carpets and

 

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tiles in the Common Building Facilities only but not in the Leased Premises); (iv) improvements to the Land, including ditches, shrubbery, landscaping and fencing, and (v) the Common Building Facilities located within or outside the Building, including the common entrances, corridors, interior and exterior doors and windows, loading areas, stairways, lavatory facilities and the Building Parking Area and access ways therefor. Further, Landlord shall perform all repairs and restoration work required by ARTICLE TEN, CASUALTY INSURANCE and ARTICLE TWELVE, CONDEMNATION.

 

Section 9.02. TENANT’S REPAIRS. Tenant shall maintain and repair, at Tenant’s sole expense, the interior of the Leased Premises, including interior ceilings, walls, floors, doors, as well as any interior windows or glass (but excluding any plumbing, electrical, sprinkler, HVAC and mechanical lines whether or not located in the Leased Premises), in a safe, clean, sightly and sanitary condition, in good and substantial repair and in the same condition, order and repair as they were at the inception of this Lease, ordinary wear and tear excepted. Tenant shall be solely responsible for all damages to the Leased Premises, or parts thereof, resulting from the negligence or misuse by Tenant, its employees, agents, invites, licensees or guests, including damage caused by removal of Tenant’s Owned Property. Tenant shall also be solely responsible for supplemental or special heating and air conditioning systems, and all light bulbs and fixtures in the Leased Premises that are not the Building’s Standard 2 foot by 4 foot fluorescent light fixtures and bulbs.

 

Section 9.03. LANDLORD’S FAILURE TO MAKE REPAIRS.

 

(a) If after notice by Tenant, Landlord fails or refuses to perform any repairs, restoration work, or replacements which it is required to perform under Section 9.01 or elsewhere in this Lease within thirty (30) days, unless as otherwise provided in Section 6.02 (a), Tenant may declare an event of default and cure such default. Landlord shall reimburse Tenant within thirty (30) days after Landlord receives Tenant’s invoice failing which the parties will arbitrate in accordance with Article Thirty Three herein.

 

(b) The remedies set forth in this Article shall be in addition to other remedies granted to Tenant elsewhere in this Lease or at law or in equity, and shall not affect any claim for actual or constructive eviction or other claim for damages or relief to which Tenant may be entitled.

 

(c) If Landlord disputes any default declared by Tenant pursuant to this Article or the reasonableness of time granted to cure the default, Landlord may submit the disputed matter to arbitration in accordance with ARTICLE THIRTY-THREE within ten (10) days after receiving Tenant’s notice or invoice.

 

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Section 9.04. EMERGENCY REPAIRS. If during the Term, repairs, restoration work or replacements become necessary because of an emergency and the provisions hereof require the Landlord to make those repairs and replacements, Tenant may perform them if, in Tenant’s opinion, they are necessary to preserve the Leased Premises, or the safety or health of the occupants in the Leased Premises, or Tenant’s Owned Property, or are required by Law; provided, however, that Tenant shall first inform Landlord before performing same.

 

ARTICLE TEN - CASUALTY INSURANCE

 

Section 10.01. DAMAGE OR DESTRUCTION.

 

(a) If any portion of the Project is damaged by fire, earthquake, flood or other casualty, or by any other cause of any kind or nature (the “Damaged Property”), and the Damaged Property can, in the reasonable opinion of Landlord’s Architect, be repaired within one hundred twenty (120) days from the date of the damage, Landlord shall proceed immediately to make such repairs as required by paragraph (c). This Lease shall not terminate, but Tenant shall be entitled to a pro rata abatement of Annual Rent and Additional Rent payable during the period commencing on the date of the damage and ending on the date the Damaged Property is repaired as aforesaid and the Leased Premises and Common Building Facilities are delivered to Tenant. The extent of rent abatement shall be based upon the portion of the Leased Premises rendered untenantable, unfit or inaccessible for use by Tenant for the purposes stated in this Lease during such period. When required by this Article, the architect’s opinion shall be delivered to Tenant within thirty (30) days from the date of the damage. The architect’s opinion shall be made in good faith after a thorough investigation of the facts required to make an informed judgment. The architect shall consider and include as part of his evaluation the period of time necessary to obtain the required approvals of the mortgagee, insurer, and municipal authorities, to order and obtain materials, and to engage contractors.

 

(b) If (i) in the opinion of Landlord’s architect the Damaged Property cannot be repaired within one hundred twenty (120) days from the date of the damage and the damage prevents use of a substantial portion of the Leased Premises, or (ii) Landlord commences and proceeds with due diligence but fails to complete the repair of the Damaged Property as required by sub-paragraph (c) within the one hundred twenty (120) day period, subject to an extension of time allowed for an Excusable Delay, not to exceed 90 days or (iii) the Term will expire within two (2) years from the date of the damage and Tenant fails to extend the Term in accordance with any right granted in Section 2.02 within sixty (60)

 

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days from the date of the damage, either party may terminate this Lease as follows: (iv) for the reason stated in subparagraph (i), by notice to the other immediately upon the date on which the architect’s opinion is delivered to Tenant; provided that a termination by Landlord under subparagraph (i) shall not be effective unless Landlord is terminating the Leases of all tenants in the Building and the damage renders the Leased Premises substantially unusable, (v) for the reason stated in sub-paragraph (ii), by such notice within ten (10) days from the end of the one hundred twenty (120) day period, as it may have been extended by an Excusable Delay, provided, however, that a termination by Landlord shall not be effective if Tenant agrees to extend the time for completion by Landlord; and (vi) for the reason stated in subparagraph (iii), by such notice within ninety (90) days from the date of the damage. Upon termination, Rent shall be apportioned as of the date of the damage and all prepaid Rent and shall be repaid.

 

(c) If neither party exercises its option to terminate hereunder, Landlord shall, with due diligence, repair the Damaged Property as a complete architectural unit of substantially the same usefulness, design and construction existing immediately prior to the damage; provided, that, with respect to Tenant Improvements Tenant shall pay all sums which exceed the Landlord’s original contribution to Tenant Improvements, if any.

 

(d) The word “repair” shall include rebuilding, replacing, and restoring the Damaged Property.

 

Section 10.02. LANDLORD INSURANCE.

 

(a) From and after the date hereof, Landlord shall maintain a policy of insurance covering the Project including Tenant Improvements, to extent paid for by Landlord and Landlord’s Property located within the Project against loss, damage, or destruction caused by boiler explosion, machine breakdown, fire and the perils specified in the standard extended coverage endorsement, by vandalism and malicious mischief, and by sprinkler, gas, water, steam and sewer leakage. The amount of insurance shall equal at least one hundred percent (100%) of the replacement cost of the Project, subject to commercially reasonable deductible amounts not in excess of $20,000, excluding the Land but including Tenant Improvements as aforesaid and Landlord’s Property. Landlord represents and warrants that such insurance policy during the Term will continue to be in full force and effect. The words “Landlord’s Property” shall mean trade and other fixtures, machinery, equipment, tools, furniture and other tangible personal property owned by Landlord.

 

(b) Landlord and Tenant each hereby waive its respective right of recovery against the other and each release the other from

 

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any claim arising out of loss, damage or destruction to the Project, and contents thereon or therein whether or not such loss, damage or destruction may be attributable to the fault or negligence of either party or its respective agents, invitees, contractors or employees, but only to the extent that the required insurance of a party covers such claim. Each casualty insurance policy shall include a waiver of the insurer’s rights of subrogation against the party hereto who is not an insured under said policy. Each party shall first look to the proceeds of its respective casualty insurance policy (and to its own funds to the extent it is self-insured) to compensate it for any such loss, damage or destruction.

 

(c) Landlord hereby represents and warrants that if Landlord is required by the operation of this Article to repair the Damaged Property the proceeds, which are payable under policies of insurance carried by Landlord, shall first be made available for repair of the Damaged Property to the extent required by this Lease before such proceeds are applied in any other manner, including the satisfaction of debts secured by a mortgage or other lien instrument, or interest or penalties imposed thereon, unless otherwise required by a mortgagee or Law; provided, however, that Landlord’s obligation to repair shall not be affected by the unavailability of insurance proceeds.

 

10.03. TENANT INSURANCE. Tenant shall carry “all risk” coverage insurance insuring Tenant’s Owned Property and the Tenant Improvements and betterments to the Leased Premises, not otherwise required to be insured by Landlord, and any and all of Tenant’s Personal Property, as defined hereinafter, and other tangible property owned, leased, held or possessed by it and contained therein, in an amount equal to the full replacement cost thereof, subject to deductible amounts. Tenant agrees to purchase at its expense and to keep in force during the term of this Lease (i) a policy of workman’s compensation and comprehensive general liability insurance, including personal injury, property damage to contents and Tenant improvements (ii) a policy in the amount of not less than $2,000,000 per occurrence for personal injury or death occurring in or about the Premises. Each such policy shall: (i) name Landlord as an additional insured (except for the workman’s compensation policy and Tenant’s “all risk” property damage policy), (ii) be issued by an insurance company which is licensed to do business in the State of Florida, and (iii) provide that said insurance shall not be canceled unless ten (10) days prior written notice in the case of non-payment, and forty-five (45) days in the case of underwriting, shall be given to Landlord. Such policy or policies or certificates thereof shall be delivered to Landlord by Tenant upon commencement of the term of the Lease.

 

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ARTICLE ELEVEN - INDEMNIFICATION

 

Section 11.01. INDEMNIFICATION BY TENANT. Subject to the provisions of Section 10.02(b), during the initial term hereof, and any extensions or renewals, Tenant shall indemnify and hold Landlord harmless from and against any and all claims, demands, liability, loss or damage for injuries to persons or loss of life or damage to property, occurring in or on the Leased Premises, as a result of any of the following: (i) the use, occupancy, management or control by Tenant of the Leased Premises and any area of the Project exclusively allocated to or exclusively used by Tenant or its agents, employees, invitees, or guests; (ii) any negligent acts, omissions or fault of Tenant, its agents, servants, employees or licensees; (iii) Tenant’s failure to comply with any laws, statutes, ordinances or regulations applicable to Tenant’s use and occupancy of the Leased Premises; (iv) any breach, violation or nonperformance of any covenant, condition or agreement contained herein on the part of Tenant to be kept and performed; or (v) any work or thing whatever done by Tenant, its agents, servants or employees, or any condition created or permitted to exist by Tenant, its agents, servants or employees in or about the Leased Premises during the Term or during the period of time, if any, prior to the commencement of the Term hereof, that Tenant may have been given access to the Leased Premises. In the event Landlord shall be made a party to any litigation arising with respect to the foregoing, then Tenant shall resist and defend same and shall satisfy, pay and discharge any and all judgments, orders and decrees that may be recovered against Landlord in any such action or proceeding. Tenant, for itself, and for any person, firm or corporation claiming by, through, under or against Tenant, hereby expressly waives all claims against Landlord for damages to any improvements that are now or hereafter placed or built on the Leased Premises and to Tenant’s Owned Property and Tenant’s Personal Property in, on or about the Leased Premises or the Project, and for injuries to persons or property in on or about the Leased Premises, or any area of the Project allocated to or used by Tenant, from any cause arising at any time during the term hereof, except such damage or injury resulting from the negligence of Landlord, its agents, employees or sub-contractors.

 

Tenant further agrees to indemnify and hold Landlord harmless against liability for the payment of all reasonable legal costs and charges, inclusive of attorneys’ fees, lawfully and legally incurred or expended by Landlord in or about the defense of any suit, action or proceeding in discharging the Leased Premises or any part thereof from any liens, judgments or encumbrances created by Tenant on or against the same, or against Tenant’s leasehold estate.

 

Notwithstanding anything to the contrary herein, in no event shall Tenant be required to indemnify, defend or hold Landlord

 

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harmless against any claims, demands, liability, loss or damage to the extent arising from the negligence of Landlord, its employees, agents, representatives, contractors or subcontractors.

 

Section 11.02. INDEMNIFICATION BY LANDLORD. Subject to the provisions of Section 10.02(b), Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all any and all claims, demands, liability, loss or damage for bodily injury (including death) or property damage made against Tenant if (i) arising from any breach or default by Landlord (including its agents, invitees, employees or sub-contractors) in the performance of any covenant or agreement on its part to be performed pursuant to the provisions of this Lease, or (ii) occurring within the Project limits (and/or the limits of Gateway) and arising from the misconduct or negligence of Landlord (including its agents, invitees, employees or sub-contractors), or (iii) arising out of a representation in this Lease of Landlord which was intentionally false or misleading in any material respect when made, or material breach of any of the warranties made in this Lease by Landlord. This indemnity shall include all court costs, reasonable attorneys’ fees, expenses and liabilities incurred by Tenant. If any action or proceeding is brought against Tenant by reason of any such claim, the Landlord agrees to defend the action or proceeding, at its expense, upon notice from Tenant.

 

ARTICLE TWELVE - CONDEMNATION

 

Section 12.01. TAKING - LEASE ENDS. If at any time during the Term the whole of the Building or Project shall be taken for any public or quasi-public use, under any statute or by right of eminent domain, this Lease shall terminate on the date of such taking except as provided in Section 12.03. Rent shall be apportioned and paid to the date of such termination. If less than all of the Building or Project shall be so taken and the remaining part is insufficient for the conduct of Tenant’s business, Tenant may, by notice to Landlord within thirty (30) days after the date Tenant is notified of such taking, terminate this Lease. If Tenant exercises its option, this Lease and the Term shall end on the date specified in Tenant’s notice and the Rent shall be apportioned and paid to the date specified in Tenant’s notice.

 

Section 12.02. TAKING - LEASE CONTINUES. If less than all of the Building or Project shall be taken and, in Tenant’s reasonable opinion communicated by notice to Landlord within thirty (30) days after Tenant is notified of such taking, Tenant is able to gain access to and continue the conduct of its business in the part not taken, this Lease shall remain unaffected, except that Tenant shall be entitled to a pro rata abatement of Rent based upon the proportion that the area of the Leased Premises so taken bears to the total area of the Leased Premises immediately prior to such taking.

 

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Section 12.03. TEMPORARY TAKING. If the use and occupancy of the whole or any part of the Building is temporarily taken for a public or quasi-public use for a period less than the balance of the Term, at Tenant’s option to be exercised in writing and delivered to Landlord not later than thirty (30) days after the date Tenant is notified in writing of such taking, this Lease and the Term shall terminate on the date specified in Tenant’s notice or shall continue in full force and effect. If this lease remains in effect Tenant shall be entitled to a pro rata abatement of Rent in the manner and to the extent provided in Section 12.02 or, at its request (subject to Landlord approval), receive that portion of the award for such taking which represents compensation for the value of Tenant’s leasehold estate and the Term demised hereunder, in which case Tenant shall continue to pay the Rent in full when due.

 

Section 12.04. LANDLORD’S AWARD. Landlord shall be entitled to receive the entire award or awards in any condemnation proceeding without deduction therefrom for any estate vested in Tenant, specifically any damage awarded as compensation for diminution in value to Tenant’s leasehold, and Tenant shall receive no part of such award or awards from Landlord or in the proceedings except as otherwise expressly allowed in Sections 12.03 and 12.05 herein. Subject to the foregoing, Tenant hereby assigns to Landlord any and all of Tenant’s right, title and interest in or to such award or awards or any part thereof.

 

Section 12.05. TENANT’S AWARD. If there is a taking hereunder, Tenant shall be entitled, if allowed by Law, to appear, claim, prove and receive in the condemnation proceeding (1) the value of Tenant’s Personal Property that is damaged, destroyed or taken hereunder; (2) the cost of relocation; and (3) special awards or allowances paid to tenants when their rental space is taken by eminent domain such as business damages.

 

Section 12.06. RESTORATION BY LANDLORD. If there is a taking hereunder and this Lease is continued, Landlord shall, at its expense, proceed with reasonable diligence to repair, replace and restore the Building as a complete architectural unit of substantially the same proportionate usefulness, design and construction existing immediately prior to the date of taking.

 

ARTICLE THIRTEEN - ALTERATIONS AND IMPROVEMENTS

 

Section 13.01. TENANT’S CHANGES.

 

(a) The words “Leased Premises Service Systems” shall mean the electrical, HVAC, mechanical, plumbing, safety and health and

 

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telecommunication (voice/data/signal) systems that directly service the Leased Premises from a localized point of distribution. Such systems are dedicated to the Leased Premises at their available capacities and do not service any space other than the Leased Premises.

 

(b) The words “Building Service Systems” shall mean the electrical, HVAC, mechanical, plumbing, safety and health and telecommunication (voice/data/signal) systems that service the Building up to the point of localized distribution. Such systems provide the main source of supply and distribution throughout the Building and service the Common Building Facilities.

 

(c) The word “Structure” shall mean bearing walls, roof, exterior walls, support beams, foundation, window frames, floor slabs and support columns of the Building.

 

(d) Tenant may, without Landlord’s consent, at Tenant’s expense (i) place and replace its trade fixtures, tools, machinery, furniture, equipment, supplies and other tangible personal property (“Tenant’s Personal Property”) in the Leased Premises; (ii) make cosmetic or decorative changes to the Leased Premises, including, but not limited to, carpeting, wall coverings and painting; and/or (iii) make alterations and improvements not affecting the Building Structure or Building Service Systems that cost less than $40,000. Except as permitted in the previous sentence, Tenant shall not alter, improve, replace or change the Building Service Systems or the Structure, or the Leased Premises Service Systems, without the prior consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed. Landlord agrees to cooperate with Tenant, including, but not limited to, signing documents reasonably required for Tenant to obtain any permit needed by Tenant to construct any alteration or improvement permitted or approved pursuant to this Lease.

 

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(e) Subject to the provisions of Section 10.02(b), Tenant covenants and agrees with Landlord, at Tenant’s own cost and expense, to repair and replace any damage done to the Building or Project or any part thereof, caused by Tenant or Tenant’s agents, employees or contractors. Such repairs shall restore the Building or Project to as good a condition as it was in prior to such damage and shall be effected in compliance with all applicable Laws; provided, however, that if Tenant fails to commence to make such repairs or replacements within thirty (30) days of the date of damage, then Landlord may, at its option, upon thirty (30) days written notice to Tenant, make necessary repairs or replacements and Tenant (30) days written shall pay as Additional Rent the cost thereof to the Landlord within thirty (30) days from receipt of a written invoice therefor. In the event the parties are in dispute with regard to any of the aforesaid restoration the parties agree to arbitrate in accordance with ARTICLE THIRTY THREE herein. Tenant will not permit any mechanic’s or materialmen’s or other liens to stand against the Leased Premises for any labor or material furnished to Tenant in connection with alterations, repairs or work of any character performed on the Leased Premises by or at the discretion of Tenant. All rep