Attached files
Exhibit 10.35
State of Florida:
County of Hillsborough:
OFFICE LEASE
THIS LEASE (this "Lease"), made this
9 day of December,
2015, by and between Rivergate
Tower Owner, LLC, a Delaware limited liability company
("Landlord"), and Autobytel
Inc., a Delaware corporation ("Tenant"), provides as
follows:
1. BASIC DEFINITIONS AND PROVISIONS. The
following basic definitions and provisions apply to this
Lease:
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a. Premises.
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Rentable
Square Feet:
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8,724
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Suite:
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C400
and C500
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Building:
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Rivergate
Tower
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Street
Address:
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400
North Ashley Drive
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City/County:
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Tampa,
Hillsborough
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State/Zip
Code:
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Florida
33602
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b. Term.
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Number
of Months:
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Eighty-four
(84) months
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Commencement
Date:
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The
earlier of (i) the date Tenant commences business operations in the
Premises, or (ii) the date the Tenant Improvements (as defined in
the Work Letter) are substantially complete, which Commencement
Date is anticipated to be January 1, 2016
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Expiration
Date:
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The
last day of the eighty-fourth (84th) full calendar
month following the Commencement Date
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c. Permitted
Use.
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General
office purposes
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d. Occupancy
Limitation.
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No more
than five (5) persons per one thousand (1,000) rentable
square feet.
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e. Base Rent. The Base Rent for the Term
is payable in monthly installments on the 1st day of each month
in accordance with the following Base Rent Schedule:
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FROM MONTH
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THROUGH MONTH
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RENTABLE SQUARE FEET
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ANNUAL BASE RENT PER RENTABLE SQUARE FOOT*
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ANNUAL BASE RENT*
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MONTHLY BASE RENT*
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Commencement
Date
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12
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8,724
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$28.25
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$246,453.00
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$20,537.75
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13
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24
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8,724
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$29.17
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$254,479.08
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$21,206.59
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25
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36
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8,724
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$30.12
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$262,766.88
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$21,897.24
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37
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48
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8,724
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$31.09
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$271,229.16
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$22,602.43
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49
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60
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8,724
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$32.11
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$280,127.64
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$23,343.97
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61
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72
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8,724
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$33.15
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$289,200.60
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$24,100.05
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73
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84
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8,724
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$34.23
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$298,622.52
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$24,885.21
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* Plus applicable State of Florida Sales Tax
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-1-
The
above Base Rent schedule does not include operating expense pass
through adjustments to be computed annually in accordance with
Lease Addendum Number Two attached hereto.
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f. Rent
Payment Address.
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Rivergate
Tower Owner LLC
℅
Banyan Street Capital
One
Independent Drive, Suite 1850
Jacksonville,
Florida 32202
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Tax
ID#: 47-4419479
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g. Security
Deposit.
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$53,254.35
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h. Business
Hours.
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8:00
A.M. to 6:00 P.M. Monday through Friday (excluding National and
State Holidays).
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i. Electrical
Service.
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No more
than three (3) watts for convenience outlets per each rentable
square foot contained in the Premises.
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j. After
Hours HVAC Rate.
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Current
charge of $45.00 per hour, per zone, with a minimum of two
(2) hours per occurrence.
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k. Parking.
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Unreserved;
not to exceed 1.5 spaces per each 1,000 rentable square feet
contained in the Premises.
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l. Construction
SupervisionFee.
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The
Construction Supervision Fee for alterations made subsequent to the
Commencement Date shall be four percent (4%) of the cost of the
work to be performed. The Construction Supervision Fee for Tenant
Improvements is set forth in the Work Letter attached hereto as
Lease Addendum Number One.
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m. Notice
Addresses.
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LANDLORD:
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Rivergate
Tower Owner, LLC
c/o
Banyan
Street Capital
80 SW
8th
Street, Suite 2200
Miami,
Florida 33130
Attn:
Managing Director
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with a
copy to:
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Rivergate
Tower Owner, LLC
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c/o
Banyan Street Capital
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80 SW
8th
Street, Suite 2200
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Miami,
Florida 33130
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Attn:
Notice Department
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TENANT:
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Autobytel
Inc.
400
North Ashley Drive, Suite C400
Tampa,
Florida 33602
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with a
copy to:
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Autobytel
Inc.
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18872
MacArthur Blvd., Suite 200
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Irvine,
California 92612
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Attn:
Chief Legal Officer
Email:
glennf@autobytel.com
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-2-
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n. Broker(s).
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(Tenant)
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Coolidge
Commercial and Residential Real Estate
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1765
West Fletcher Avenue
Tampa,
Florida 33612
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(Landlord)
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Cushman
& Wakefield
4301
Anchor Plaza Parkway, Suite 400
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Tampa,
Florida 33634
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2. LEASED
PREMISES.
a. Premises. Landlord leases to Tenant and
Tenant leases from Landlord the Premises identified in
Section 1a and as more particularly shown on Exhibit A, attached
hereto.
b. Rentable Square Foot Determination. The
parties acknowledge that all square foot measurements are
approximate and agree that the square footage figures in
Section 1a shall be conclusive for all purposes with respect
to this Lease.
c. Common Areas. The common areas of the
Building generally include space that is not included in portions
of the Building set aside for leasing to tenants or reserved for
Landlord's exclusive use, including entrances, hallways, lobbies,
elevators, restrooms, parking areas, walkways and plazas (the
"Common Areas"). Tenant shall have non-exclusive access to the
Common Areas. Landlord has the exclusive right to
(i) designate the Common Areas, (ii) change the
designation of any Common Area and otherwise modify the Common
Areas, and (iii) permit special use of the Common Areas,
including temporary exclusive use for special occasions; provided
that in exercising the foregoing rights, Tenant's rights under this
Lease shall not be materially diminished and Tenant's obligations
shall not be materially increased. Tenant shall not interfere with
the rights of others to use the Common Areas. All use of the Common
Areas shall be subject to the reasonable rules and regulations
promulgated by Landlord from time to time.
3. TERM.
a. Commencement and Expiration Dates. The
Lease Term commences on the Commencement Date and expires on the
Expiration Date, as set forth in Section 1b.
b. Adjustments to Commencement Date. The
Commencement Date shall be adjusted as follows:
i.
If Tenant requests
possession of the Premises prior to the Commencement Date, and
Landlord consents, the Commencement Date shall be the date of
delivery of possession. Subject to any express abatement or free
rent periods set forth in this Lease, all rent and other
obligations under this Lease shall begin on the date of delivery of
possession, but the Expiration Date shall remain the
same.
ii.
If Landlord, for
any reason, cannot deliver possession of the Premises to Tenant on
the Commencement Date determined in accordance with
Section 1b, then the Commencement Date, Expiration Date, and
all other dates that may be affected by their change, shall be
revised to conform to the date of Landlord's delivery of possession
of the Premises to Tenant. Any such delay shall not relieve Tenant
of its obligations under this Lease, and neither Landlord nor
Landlord's agents shall be liable to Tenant for any loss or damage
resulting from the delay in delivery of possession; provided,
however, that Tenant shall have no obligation to pay any Rent prior
to the date of Landlord's delivery of possession of the Premises to
Tenant in accordance with the terms of this Lease. Any delays to
the extent resulting from force majeure or caused by Tenant are
hereinafter referred to as "Excused Delays".
-3-
c. Delivery of Possession. Unless
otherwise specified in the Work Letter, if any, attached as Lease
Addendum Number One, "delivery of possession" of the Premises shall
mean the earlier of: (i) the date Landlord has the Premises
ready for occupancy by Tenant as evidenced by a permanent or
temporary Certificate of Occupancy issued by proper governmental
authority, or (ii) the date Landlord could have had the
Premises ready had there been no Excused Delays attributable to
Tenant.
d. Adjustment of Expiration Date. If the
Expiration Date does not occur on the last day of a calendar month,
then Landlord shall extend the Term by the number of days necessary
to cause the Expiration Date to occur on the last day of the last
calendar month of the Term. Tenant shall pay Base Rent and
Additional Rent for such additional days at the same rate payable
for the portion of the last calendar month immediately preceding
such extension.
e. Right to Occupy. Tenant shall not
occupy the Premises until Tenant has complied with all of the
following requirements to the extent applicable under the terms of
this Lease: (i) delivery of all certificates of insurance,
(ii) payment of Security Deposit, and (iii) if Tenant is
an entity, receipt of a good standing certificate from the State
where it was organized and a certificate of authority to do
business in the State in which the Premises are located (if
different). Tenant's failure to comply with these (or any other
conditions precedent to occupancy under the terms of this Lease)
shall not delay the Commencement Date.
f. Commencement Agreement. The
Commencement Date, Term, and Expiration Date may be set forth in a
Commencement Agreement similar in form to Exhibit C, attached hereto, to be
prepared by Landlord and, subject to Tenant’s review and
reasonable approval, executed by the parties.
4. USE.
a. Permitted Use. The Premises may be used
only for general office purposes in connection with Tenant's
Permitted Use as defined in Section 1c and in accordance with
the Occupancy Limitation as set forth in
Section 1d.
b. Prohibited Uses. Tenant shall not use
the Premises:
i.
In any manner that
constitutes a nuisance or trespass;
ii.
In any manner which
increases any insurance premiums, or makes such insurance
unavailable to Landlord on the Building; provided that, in the
event of an increase in Landlord's insurance premiums which results
from Tenant's use of the Premises, Landlord may elect to permit the
use and charge Tenant for the increase in premiums, and Tenant's
failure to pay Landlord, within thirty (30) days of demand, the
amount of such increase shall be an event of default;
iii.
In any manner that
creates unusual demands for electricity, heating or air
conditioning; or
iv.
For any purpose
except the Permitted Use, unless consented to by Landlord in
writing.
c. Prohibited Equipment in Premises.
Tenant shall not install any equipment in the Premises that places
unusual demands on the electrical, heating or air conditioning
systems (collectively, "High Demand Equipment") without Landlord's
prior written consent. No such consent will be given if Landlord
determines, in its opinion, that such equipment may not be safely
used in the Premises or that electrical service is not adequate to
support the equipment. Landlord's consent may be conditioned,
without limitation, upon separate metering of the High Demand
Equipment and Tenant's payment of all engineering, equipment,
installation, maintenance, removal and restoration costs and
utility charges associated with the High Demand Equipment and the
separate meter. If High Demand Equipment used in the Premises by
Tenant affect the temperature otherwise maintained by the heating
and air conditioning system, Landlord shall have the right to
install supplemental air conditioning units in the Premises with
the cost of purchase, engineering, installation, operation and
maintenance of the units to be paid by Tenant. All costs and
expenses relating to High Demand Equipment and Landlord's
administrative costs (such as reading meters and calculating
invoices) shall be Additional Rent, payable by Tenant upon
demand.
-4-
5. RENT.
a. Payment Obligations. Tenant shall pay
Base Rent and Additional Rent (collectively, "Rent") on or before
the first day of each calendar month during the Term, as
follows:
i.
Rent payments shall
be sent to the Rent Payment Address set forth in
Section 1f.
ii.
Rent shall be paid
without previous demand or notice and without set off or deduction.
Tenant's obligation to pay Rent under this Lease is completely
separate and independent from any of Landlord's obligations under
this Lease.
iii.
If the Term
commences on a day other than the first day of a calendar month,
then Rent for such month shall be (i) prorated for the period
between the Commencement Date and the last day of the month in
which the Commencement Date falls, and (ii) due and payable on
the Commencement Date.
iv.
Without limiting
the default remedies to which Landlord is entitled as provided
under the terms of this
Lease, for each Base Rent payment Landlord receives after the fifth
(5th) day of the month and each Additional Rent payment
Landlord receives after its due date, Landlord shall be entitled to
a late charge in the amount of five percent (5%) of such Rent
due.
v.
Without limiting
the default remedies to which Landlord is entitled as provided
under the terms of this
Lease, if Landlord presents Tenant's check to any bank and Tenant
has insufficient funds to pay for such check, then Landlord shall
be entitled to the maximum lawful bad check fee or five percent
(5%) of the amount of such check, whichever amount is
less.
b. Base Rent. Tenant shall pay Base Rent as set
forth in Section 1e.
c. Additional Rent. In addition to Base Rent, Tenant shall
pay as Rent all sums and charges due and payable by Tenant under
this Lease (collectively "Additional Rent"), including, but not
limited to, the following:
i.
Tenant's
Proportionate Share of the increase in Landlord's Operating
Expenses as set forth in Lease Addendum Number Two;
and
ii.
Any sales or use
tax imposed on rents collected by Landlord or any tax on rents in
lieu of ad valorem taxes on the Building, even though laws imposing
such taxes attempt to require Landlord to pay the same; provided,
however, if any such sales or use tax are imposed on Landlord and
Landlord is prohibited by applicable law from collecting the amount
of such tax from Tenant as Additional Rent, then Landlord, upon
sixty (60) days prior notice to Tenant, may terminate this
Lease; provided further, that Tenant may, within ten (10) days
after receipt of Landlord’s notice of termination, negate
such termination by entering into an amendment to this Lease
increasing the Base Rent by an amount sufficient to offset the
additional tax burden on Landlord such that the net effect of the
amendment is to permit Landlord to receive the same amount of Rent
that Landlord would have received had there been no sales or use
tax imposed on rents collected by Landlord or any tax on rents in
lieu of ad valorem taxes on the Building.
6. SECURITY DEPOSIT.
a. Amount of Deposit. Tenant shall deposit
with Landlord a Security Deposit within ten (10) days
following the date of this Lease in the amount set forth in
Section 1g, which sum Landlord shall retain as security for
the performance by Tenant of each of its obligations hereunder. The
Security Deposit shall not bear interest.
-5-
b. Application of Deposit. If Tenant at
any time fails to perform any of its obligations under this Lease,
including its Rent or other payment obligations, its restoration
obligations, or its insurance and indemnity obligations, then
Landlord may, at its option, apply the Security Deposit (or any
portion) to cure Tenant's default or to pay for damages caused by
Tenant's default. If the Lease has been terminated, then Landlord
may apply the Security Deposit (or any portion) against the damages
incurred as a consequence of Tenant's breach. The application of
the Security Deposit shall not limit Landlord's remedies for
default under the terms of this Lease. If Landlord depletes the
Security Deposit, in whole or in part, prior to the Expiration Date
or any termination of this Lease, then Tenant shall restore
immediately the amount so used by Landlord.
c. Refund of Deposit. Unless Landlord uses
the Security Deposit to cure a default of Tenant, to pay damages
for Tenant's breach of the Lease, or to restore the Premises to the
condition to which Tenant is required to leave the Premises upon
the expiration or any termination of the Lease, then Landlord
shall, within thirty (30) days after the Expiration Date or
any termination of this Lease, refund to Tenant any funds remaining
in the Security Deposit. Tenant may not credit the Security Deposit
against any month's Rent.
7. SERVICES BY LANDLORD.
a. Base Services. Landlord shall cause to
be furnished to the Building, or as applicable, the Premises, in
common with other tenants the following services:
i.
Water (if available
from city mains) for drinking, lavatory and toilet
purposes.
ii.
Electricity (if
available from the utility supplier) for the building standard
fluorescent lighting and for the operation of general office
machines, such as electric typewriters, desk top computers,
dictating equipment, adding machines and calculators, and general
service non-production type office copy machines; provided that
Landlord shall have no obligation to provide more than the amount
of power for convenience outlets and the number of electrical
circuits as set forth in Section 1i.
iii.
Building standard
fluorescent lighting composed of 2' x 4' fixtures; Tenant shall
service, replace and maintain at its own expense any incandescent
fixtures, table lamps, or lighting other than the Building standard
fluorescent light, and any dimmers or lighting controls other than
controls for the Building standard fluorescent
lighting.
iv.
Heating and air
conditioning for the reasonably comfortable use and occupancy of
the Premises during Business Hours as set forth in Section 1h,
and at no additional cost to Tenant, from 8:00 A.M. to 1:00 P.M. on
Saturday so long as Landlord receives written request from Tenant
no later than 2:00 P.M. on the immediately prior Friday; provided
that, heating and cooling conforming to any governmental regulation
prescribing limitations thereon shall be deemed to comply with this
service.
v.
Janitorial services
five (5) days a week (excluding National and State holidays)
after Business Hours.
vi.
A reasonable
pro-rata share of the unreserved parking spaces of the Building,
not to exceed the Parking specified in Section 1k, for use by
Tenant's employees and visitors in common with the other tenants
and their employees and visitors.
vii.
After Business
Hours, weekend and holiday heating and air conditioning at the
After Hours HVAC rate set forth in Section 1j, with such
charges subject to commercially reasonable annual increases as
determined by Landlord.
-6-
b. Landlord's Maintenance. Landlord shall
make all repairs and replacements to the Building (including
Building fixtures and equipment), Common Areas and Building
Standard Improvements in the Premises, except for repairs and
replacements that Tenant must make under Section 8. Landlord's
maintenance shall include the roof, foundation, exterior walls,
interior structural walls, all structural components, and all
Building systems, such as mechanical, electrical, HVAC, and
plumbing. Repairs or replacements shall be made within a reasonable
time (depending on the nature of the repair or replacement needed)
after receiving notice from Tenant or Landlord having actual
knowledge of the need for a repair or replacement.
c. No Abatement. Except as expressly set
forth in this Section 7c, there shall be no abatement or reduction
of Rent by reason of any of the foregoing services not being
continuously provided to Tenant. Landlord shall have the right to
shut down the Building systems (including electricity and HVAC
systems) for required maintenance and safety inspections, and in
cases of emergency. Notwithstanding the foregoing sentence, except
in the event of a Casualty as provided for in Section 19 of this
Lease, in the event of an interruption of any service set forth in
Section 7a(i) through 7a(iv) that results directly from the gross
negligence or willful misconduct of Landlord, its employees or
agents, and continues for more than five (5) consecutive business
days after Landlord’s receipt of written notice from Tenant
of such interruption (the “Initial Interruption
Period”), and which results in the Premises, or a portion
thereof, becoming untenantable, Rent shall be abated in an
equitable and just proportion relative to such interruption from
the expiration of the Initial Interruption Period until restoration
of such service.
d. Tenant's Obligation to Report Defects.
Tenant shall report to Landlord, as soon as reasonably possible
under the circumstances, any defective condition in or about the
Premises actually known to Tenant, and if such defect is not so
reported and such failure to promptly report results in additional
damage to the Premises or the Building that could have been
prevented or mitigated but for Tenant’s failure to notify
Landlord, Tenant shall be liable for the additional amount of
damage to the Premises and/or the Building resulting from
Tenant’s failure or delay in notification. For purposes of
this Section 7d, "actually known to Tenant" shall mean the
actual knowledge, without any duty to inquire or investigate, of
any employees of Tenant at the management level or higher;
provided, however, that nothing herein shall create any personal
liability for any such employees.
e. Limitation on Landlord's Liability.
Landlord shall not be liable to Tenant for any damage caused to
Tenant and its property due to the Building or any part or
appurtenance thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water,
sewer or steam pipes, or from problems with electrical
service.
8. TENANT'S ACCEPTANCE AND MAINTENANCE OF
PREMISES.
a. Acceptance of Premises. Subject to the
terms of the attached Work Letter, if any, Tenant's occupancy of
the Premises is Tenant's representation to Landlord that
(i) Tenant has examined and inspected the Premises,
(ii) finds the Premises to be as represented by Landlord and
satisfactory for Tenant's intended use, and (iii) constitutes
Tenant's acceptance of the Premises "as is". Landlord makes no
representation or warranty as to the condition of the Premises
except as may be specifically set forth in the Work
Letter.
b. Move-In Obligations. Tenant shall
schedule its move-in with the Landlord's Property Manager. Unless
otherwise approved by Landlord's Property Manager, move-in shall
not take place during Business Hours. During Tenant's move-in, a
representative of Tenant must be on-site with Tenant's moving
company to insure proper treatment of the Building and the
Premises. Elevators, entrances, hallways and other Common Areas
must remain in use for the general public during Business Hours.
Any specialized use of elevators or other Common Areas must be
coordinated with Landlord's Property Manager. Tenant must properly
dispose of all packing material and refuse in accordance with the
Rules and Regulations. Any damage or destruction to the Building or
the Premises due to moving will be the sole responsibility of
Tenant.
c. Tenant's Maintenance. Tenant shall:
(i) keep the Premises and fixtures in good order;
(ii) make repairs and replacements to the Premises or Building
needed because of Tenant's misuse or negligence; (iii) repair
and replace Non-Standard Improvements, including any special
equipment or decorative treatments, installed by or at Tenant's
request that serve the Premises (unless the Lease is ended because
of casualty loss or condemnation); and (iv) not commit
waste.
-7-
d. Alterations to Premises. Tenant shall
make no alterations to the Premises without obtaining the prior
written consent of Landlord to such alterations, which consent
shall not be unreasonably withheld or delayed; provided, however,
Landlord may withhold its consent in its sole and absolute
discretion with respect to any alterations which may affect the
structural components of the Building or Building systems or which
can be seen from outside the Premises. If Tenant requests such
alterations, then Tenant shall provide Landlord's Property Manager
with a complete set of construction drawings. Landlord may impose,
as a condition of its consent to all alterations to the Premises,
such requirements as Landlord in its reasonable discretion may deem
desirable, including, but not limited to, the requirement that
Tenant utilize only contractors, materials, mechanics and
materialmen reasonably approved by Landlord; provided, however,
Landlord may impose such requirements as Landlord may determine, in
its sole and absolute discretion, with respect to any work
affecting the structural components of the Building or Building
systems (including designating specific contractors to perform such
work). Tenant shall construct such alterations in conformance with
any and all applicable laws. All work with respect to any
alterations must be done in a good and workmanlike manner and
diligently prosecuted to completion. In performing the work of any
such alterations, Tenant shall have the work performed in such
manner as not to obstruct access to the Building or the Common
Areas for any other tenant of the Building, and as not to obstruct
the business of Landlord or other tenants of the Building. With
respect to all alterations performed after the Commencement Date,
Tenant shall pay a Construction Supervision Fee in the amount set
forth in Section 1l. of this Lease.
e. Restoration of Premises. At the
expiration or earlier termination of this Lease, Tenant shall
(i) deliver each and every part of the Premises in as good
repair and condition as existed at the Commencement Date, ordinary
wear and tear, repairs which are expressly made the responsibility
of Landlord hereunder and damage by casualty excepted, and
(ii) restore the Premises at Tenant's sole expense to the same
condition as existed at the Commencement Date and as thereafter
improved by Landlord and/or Tenant, ordinary wear and tear, repairs
which are expressly made the responsibility of Landlord hereunder
and damage by casualty excepted. If Tenant has required or
installed Non-Standard Improvements, so long as Landlord has
notified Tenant in writing that such improvements constitute
Non-Standard Improvements at the time Tenant requests Landlord's
consent to such improvements, such Non-Standard Improvements shall
be removed as part of Tenant's restoration obligation. Tenant shall
repair any damage caused by Tenant’s removal of any
Non-Standard Improvements. The term "Non-Standard Improvements"
means such items as (i) High Demand Equipment and separate
meters, (ii) all wiring and cabling from the point of origin
to the termination point, (iii) raised floors for computer or
communications systems, (iv) telephone equipment, security
systems, and UPS systems, (iv) equipment racks,
(v) alterations installed by or at the request of Tenant after
the Commencement Date, and (vi) any other improvements that
are not part of the Building Standard Improvements.
f. Landlord's Performance of Tenant's
Obligations. If Tenant does not perform its maintenance or
restoration obligations in a timely manner, commencing the same
within five (5) days after receipt of notice from Landlord
specifying the work needed, and thereafter diligently and
continuously pursuing the work until completion, then Landlord
shall have the right, but not the obligation, to perform such work.
Any amounts expended by Landlord on such maintenance or restoration
shall be Additional Rent to be paid by Tenant to Landlord within
thirty (30) days after demand. Notwithstanding the foregoing,
Tenant's maintenance and restoration obligations are not contingent
upon Landlord first notifying Tenant of the specific work needed to
be performed.
g. Construction Liens. Tenant shall have
no power to cause or permit any lien, mortgage or other encumbrance
upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS
FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED TO THE PREMISES
SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO THE
PREMISES OR THE BUILDING. Tenant shall keep the Premises and the
Building free from any liens arising out of any work performed,
materials furnished, or obligations incurred by or on behalf of
Tenant. Should any lien or claim of lien be filed against the
Premises or the Building by reason of any act or omission of Tenant
or any of Tenant's agents, employees, contractors or
representatives, then Tenant shall cause the same to be canceled
and discharged of record by bond or otherwise within ten
(10) days after the filing thereof. Should Tenant fail to
discharge the lien within ten (10) days, then Landlord may
discharge the lien. The amount paid by Landlord to discharge the
lien (whether directly or by bond), plus all administrative and
legal costs incurred by Landlord, shall be Additional Rent payable
on demand. The remedies provided herein shall be in addition to all
other remedies available to Landlord under this Lease or
otherwise.
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h. TENANT
SHALL NOTIFY ANY CONTRACTOR PERFORMING ANY CONSTRUCTION WORK IN THE
PREMISES ON BEHALF OF TENANT THAT THIS LEASE SPECIFICALLY PROVIDES
THAT THE INTEREST OF LANDLORD IN THE PREMISES SHALL NOT BE SUBJECT
TO LIENS FOR IMPROVEMENTS MADE BY TENANT, AND NO MECHANIC'S LIEN OR
OTHER LIEN FOR ANY SUCH LABOR, SERVICES, MATERIALS, SUPPLIES,
MACHINERY, FIXTURES OR EQUIPMENT SHALL ATTACH TO OR AFFECT THE
STATE OR INTEREST OF LANDLORD IN AND TO THE PREMISES, THE BUILDING,
OR ANY PORTION THEREOF. IN ADDITION, LANDLORD SHALL HAVE THE RIGHT
TO POST AND KEEP POSTED AT ALL REASONABLE TIMES ON THE PREMISES ANY
NOTICES WHICH LANDLORD SHALL BE REQUIRED SO TO POST FOR THE
PROTECTION OF LANDLORD AND THE PREMISES FROM ANY SUCH
LIEN. TENANT AGREES TO PROMPTLY
EXECUTE SUCH INSTRUMENTS IN RECORDABLE FORM IN ACCORDANCE WITH THE
TERMS AND PROVISIONS OF FLORIDA STATUTE SECTION
713.10.
9. PROPERTY OF TENANT.
a. Property Taxes. Tenant shall pay when
due all taxes levied or assessed upon Tenant's equipment, fixtures,
furniture, leasehold improvements and personal property located in
the Premises.
b. Removal. Provided Tenant is not in
default, Tenant may remove all fixtures and equipment which it has
placed in the Premises; provided, however, Tenant must repair all
damages caused by such removal. If Tenant does not remove its
property from the Premises upon the expiration or earlier
termination (for whatever cause) of this Lease, such property shall
be deemed abandoned by Tenant, and Landlord may dispose of the same
in whatever manner Landlord may elect without any liability to
Tenant.
10. SIGNS. Tenant may not erect, install or
display any sign or advertising material upon the exterior of the
Building or Premises (including any exterior doors, walls or
windows) without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole discretion. Door and
directory signage shall be provided and installed by the Landlord
in accordance with Building standards at Tenant's
expense.
11. ACCESS TO PREMISES.
a. Tenant's Access. Tenant, and its
agents, employees, invitees, and guests, shall have access to the
Premises and reasonable ingress and egress to and from common and
public areas of the Building twenty-four (24) hours a day,
seven (7) days a week; provided, however, Landlord by
reasonable regulation may control such access for the comfort,
convenience, safety and protection of all tenants in the Building,
or as needed for making repairs and alterations. Tenant shall be
responsible for providing access to the Premises to its agents,
employees, invitees and guests after Business Hours and on weekends
and holidays, but in no event shall Tenant's use of and access to
the Premises during non-business hours compromise the security of
the Building.
b. Landlord's Access. Landlord shall have
the right, at all reasonable times and upon reasonable oral notice,
either itself or through its authorized agents, to enter the
Premises (i) to make repairs, alterations or changes as
Landlord is obligated or permitted to make under the terms of this
Lease, (ii) to inspect the Premises, mechanical systems and
electrical devices, and (iii) to show the Premises to
prospective mortgagees and purchasers. Landlord will attempt to
minimize disruption to Tenant's business when accessing the
Premises pursuant to this Section 11b. Within one hundred eighty
(180) days prior to the Expiration Date, Landlord shall have
the right, either itself or through its authorized agents, to enter
the Premises at all reasonable times to show prospective
tenants.
c. Emergency Access. Landlord shall have
the right to enter the Premises at any time without notice in the
event of an emergency.
12. TENANT'S COMPLIANCE.
a. Laws. Tenant shall comply with all
applicable laws, ordinances and regulations affecting the Premises,
whether now existing or hereafter enacted.
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b. Rules and Regulations. Tenant shall
comply with the Rules and Regulations attached hereto as
Exhibit B. The Rules
and Regulations may be modified from time to time by Landlord,
effective as of the date delivered to Tenant or posted on the
Premises, provided such rules are uniformly applicable to all
tenants in the Building. Any conflict between this Lease and the
Rules and Regulations shall be governed by the terms of this
Lease.
13. ADA COMPLIANCE.
a. Tenant's Compliance. Tenant, at
Tenant's sole expense, shall comply with all laws, rules, orders,
ordinances, directions, regulations and requirements of federal,
state, county and municipal authorities now or hereafter in force,
which shall impose any duty upon Landlord or Tenant with respect to
the use or occupation of the Premises or alteration of the Premises
to accommodate persons with special needs, including using all
reasonable efforts to comply with The Americans With Disabilities
Act (the "ADA").
b. Landlord's Compliance. Landlord, at
Landlord's sole expense, shall use commercially reasonable efforts
to comply with the requirements of the ADA as it applies to the
Common Areas and restrooms of the Building. Landlord represents and
warrants to Tenant that, as of the Commencement Date, the Premises
shall comply with the ADA in effect as of the Commencement Date as
evidenced by the issuance of a permanent or temporary certificate
of occupancy by the applicable governmental body. Except as set
forth in the preceding sentence, Landlord shall have no
responsibility for ADA compliance with respect to the Premises.
Landlord shall not be required to make changes to the Common Areas
or restrooms of the Building to comply with ADA standards adopted
after construction of the Building unless specifically required to
do so by law.
c. ADA Notices. If Tenant receives any
notices alleging a violation of ADA relating to any portion of the
Building or Premises (including any governmental or regulatory
actions or investigations regarding non-compliance with ADA), then
Tenant shall notify Landlord in writing within ten (10) days
of such notice and provide Landlord with copies of any such
notice.
14. INSURANCE REQUIREMENTS.
a. Tenant's Liability Insurance.
Throughout the Term, Tenant, at its sole cost and expense, shall
keep or cause to be kept for the mutual benefit of Landlord,
Landlord's Property Manager (presently Banyan Street Realty
Services, and its affiliates), and Tenant, Commercial General
Liability Insurance (1986 ISO Form or its equivalent) with a
combined single limit, each occurrence and general aggregate-per
location of at least Two Million and No/100 Dollars
($2,000,000.00), which policy shall insure against liability of
Tenant, arising out of and in connection with Tenant's use of the
Premises, and which shall insure the indemnity provisions contained
in this Lease. Not more frequently than once every three
(3) years, Landlord may require the limits to be increased to
commercially reasonable levels if in its reasonable judgment (or
that of its mortgagee) the coverage is insufficient.
b. Tenant's Property Insurance. Tenant
shall also carry the equivalent of ISO Special Form Property
Insurance on Tenant's Property for full replacement value and with
coinsurance waived. For purposes of this provision, the term
"Tenant's Property" shall mean Tenant's personal property and
fixtures, and any Non-Standard Improvements to the Premises. Tenant
shall neither have, nor make, any claim against Landlord for any
loss or damage to the Tenant's Property, regardless of the cause of
the loss or damage.
c. Certificates of Insurance. Prior to
taking possession of the Premises, and annually thereafter, Tenant
shall deliver to Landlord certificates or other evidence of
insurance satisfactory to Landlord. If Tenant fails to provide
Landlord with such certificates or other evidence of insurance
coverage, Landlord may obtain such coverage and the cost of such
coverage shall be Additional Rent payable by Tenant upon
demand.
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d. Insurance Policy Requirements. Tenant's
insurance policies required by this Lease shall: (i) be issued
by insurance companies licensed to do business in the state in
which the Premises are located with a general policyholder's
ratings of at least A- and a financial rating of at least VI in the
most current Best's Insurance Reports available on the Commencement
Date, or if the Best's ratings are changed or discontinued, the
parties shall agree to a comparable method of rating insurance
companies; (ii) include Landlord as an additional insured as
its interest may appear [other landlords or tenants may be added as
additional insureds in a blanket policy]; (iii) provide that
the insurance not be canceled, be non-renewed or have coverage
materially reduced unless thirty (30) days advance notice is
given to Tenant, and Tenant shall promptly provide a copy of any
such advance notice received by Tenant within five (5) business
days of Tenant's receipt of same; (iv) be primary policies and
non-contributing with any insurance that Landlord may carry;
(v) provide that any loss shall be payable notwithstanding any
act or gross negligence of Landlord or Tenant which might otherwise
result in a forfeiture thereunder of such insurance or the amount
of proceeds payable; (vi) have no deductible exceeding Ten
Thousand and No/100 Dollars ($10,000.00), unless approved in
writing by Landlord; and (vii) be maintained during the entire
Term and any extension terms.
e. Landlord's Property Insurance. Landlord
shall keep the Building, including the improvements (but excluding
Tenant's Property), insured against damage and destruction by
perils insured by the equivalent of ISO Special Form Property
Insurance in the amount of the full replacement value of the
Building.
f. Mutual Waiver of Subrogation. Anything
in this Lease to the contrary notwithstanding, Landlord hereby
releases and waives unto Tenant (including all partners,
stockholders, officers, directors, employees and agents thereof),
its successors and assigns, and Tenant hereby releases and waives
unto Landlord (including all partners, stockholders, officers,
directors, employees and agents thereof), its successors and
assigns, all rights to claim damages for any injury, loss, cost or
damage to persons or to the Premises or any other casualty, as long
as the amount of such injury, loss, cost or damage has been paid
either to Landlord, Tenant, or any other person, firm or
corporation, under the terms of any property, general liability, or
other policy of insurance, to the extent such releases or waivers
are permitted under applicable law. As respects all policies of
insurance carried or maintained pursuant to this Lease and to the
extent permitted under such policies, Tenant and Landlord each
waive the insurance carriers' rights of subrogation.
g. Worker's Compensation Insurance. Tenant
shall also carry a worker's compensation insurance policy with
applicable statutory limits, and employers liability insurance with
limits of not less than One Million and No/100 Dollars
($1,000,000.00).
h. Automobile Liability Insurance. Tenant
shall also carry automobile liability insurance with single limit
coverage of at least One Million and No/100 Dollars ($1,000,000.00)
for all owned, leased/hired or non-owned vehicles, if
any.
15. INDEMNITY. Subject to the insurance
requirements, releases and mutual waivers of subrogation set forth
in this Lease, Tenant and Landlord agree as follows:
a. Tenant’s Indemnity. Tenant shall
indemnify and hold Landlord harmless from and against any and all
claims, damages, losses, liabilities, lawsuits, costs and expenses
(including reasonable attorneys' fees at all tribunal levels) to
the extent arising out of or related to (i) any activity,
work, or other thing done, permitted or suffered by Tenant in or
about the Premises or the Building, contractors, servants or agents
in or about the Building, except to the extent arising out of or
related to (a) any gross negligence and willful misconduct of
Landlord or any officer, agent, employee, contractor, or servant of
Landlord or by any invitee or guest of Landlord with the expressed
invitation of Landlord, it being understood and agreed that other
tenants of the Building are not Landlord’s invitees or
guests, or (b) any act or omission of any other third party not
affiliated with Tenant, (ii) any breach or default by Tenant
in the performance of any of its obligations under this Lease which
continues beyond applicable notice and cure periods, or
(iii) any act or neglect of Tenant, or any officer, agent,
employee, contractor, servant, invitee or guest of Tenant. If any
such action is brought against Landlord, then Tenant, upon notice
from Landlord, shall defend the same through counsel selected by
Landlord's insurer, or other counsel reasonably acceptable to
Landlord. The provisions of this Section shall survive the
termination of this Lease.
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b. Landlord’s Indemnity. Landlord
shall indemnify and hold Tenant and its officers, directors,
shareholders, partners, agents and employees harmless from and
against any and all claims, damages, losses, liabilities, lawsuits,
costs and expenses (including reasonable attorneys' fees at all
tribunal levels) to the extent arising out of or related to any
gross negligence or willful misconduct of Landlord or any officer,
agent, employee, contractor, servant, invitee or guest of Landlord.
If any such action is brought against Tenant, then Landlord, upon
notice from Tenant, shall defend the same through counsel selected
by Tenant’s insurer, or other counsel reasonably acceptable
to Tenant. The provisions of this Section shall survive the
termination of this Lease.
16. QUIET ENJOYMENT. Tenant shall have quiet
enjoyment and possession of the Premises provided Tenant promptly
and fully complies with all of its obligations under this Lease. No
action of Landlord or other tenants working in other space in the
Building, or in repairing or restoring the Premises, shall be
deemed a breach of this covenant, nor shall such action give to
Tenant any right to modify this Lease either as to Term, Rent
payables or other obligations to be performed.
17. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE; AND
ESTOPPEL CERTIFICATE.
a. Subordination and Attornment. This
Lease and all rights of Tenant hereunder are and shall be subject
and subordinate at all times and in all respects to the mortgage of
Landlord's interest in the Building and the Premises. Such
subordination and the agreement of Tenant to attorn to Landlord's
mortgagee in the event that such mortgagee succeeds as the owner of
the Landlord's interest in the Building and the Premises shall be
self operative, and no further instrument shall be required to
create, perfect or preserve the superior right or lien of any such
mortgage. Notwithstanding the foregoing, Tenant agrees to execute
within ten (10) days after request to do so from Landlord or
its mortgagee an agreement:
i.
Making this Lease
superior or subordinate to the interests of the
mortgagee;
ii.
Agreeing to attorn
to the mortgagee;
iii.
Giving the
mortgagee notice of, and a reasonable opportunity (which shall in
no event be less than thirty (30) days after notice thereof is
delivered to mortgagee) to cure any Landlord default and agreeing
to accept such cure if effected by the mortgagee;
iv.
Permitting the
mortgagee (or other purchaser at any foreclosure sale), and its
successors and assigns, on acquiring Landlord's interest in the
Premises and the Lease, to become substitute Landlord hereunder,
with liability only for such Landlord obligations as accrue after
Landlord's interest is so acquired;
v.
Agreeing to attorn
to any successor Landlord; and
vi.
Containing such
other agreements and covenants on Tenant's part as Landlord's
mortgagee may reasonably request.
b. Non-Disturbance. In the event of
foreclosure of such mortgage, Tenant shall not be disturbed in its
possession of the Premises so long as Tenant is not in default
under this Lease and, subsequent to such foreclosure, Tenant
attorns to the party acquiring title by virtue of the foreclosure,
and this Lease shall continue in full force and effect as a direct
lease, in accordance with its terms, between the successor Landlord
and Tenant.
c. Estoppel Certificates. Tenant agrees to
execute within ten (10) business days after request, and as
often as requested, estoppel certificates confirming any factual
matter requested by Landlord which is true and is within Tenant's
knowledge regarding this Lease, and the Premises, including but not
limited to: (i) the date of occupancy, (ii) Expiration
Date, (iii) the amount of Rent due and date to which Rent is
paid, (iii) whether Tenant has any defense or offsets to the
enforcement of this Lease or the Rent payable, (iv) any
default or breach by Landlord, and (v) whether this Lease,
together with any modifications or amendments, is in full force and
effect. Tenant shall attach to such estoppel certificate copies of
any modifications or amendments to the Lease.
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18. ASSIGNMENT –
SUBLEASE.
a. Landlord Consent. Tenant may not assign
or encumber this Lease or its interest in the Premises arising
under this Lease, and may not sublet all or any part of the
Premises without first obtaining the written consent of Landlord,
which consent shall not be withheld unreasonably. Factors which
Landlord may consider in deciding whether to consent to an
assignment or sublease include (without limitation), (i) the
creditworthiness of the assignee or sublessee, (ii) the
proposed use of the Premises, (iii) whether there is other
vacant space in the Building, (iv) whether the assignee or
sublessee will vacate other space owned by Landlord,
(v) whether Landlord is negotiating with the proposed
sublessee or assignee for a lease of other space owned by Landlord,
and (vi) any renovations to the Premises or special services
required by the assignee or sublessee. Landlord will not consent to
an assignment or sublease that might result in a use that conflicts
with the rights of any existing tenant. One consent shall not be
the basis for any further consent.
b. Definition of Assignment. For the
purpose of this Section 18, the word "assignment" shall be
defined and deemed to include the following: (i) if Tenant is
a partnership, the withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners owning thirty
percent (30%) or more of the partnership, or the dissolution of the
partnership; (ii) if Tenant consists of more than one person,
an assignment, whether voluntary, involuntary, or by operation of
law, by one person to one of the other persons that is a Tenant;
(iii) if Tenant is a corporation, any dissolution or
reorganization of Tenant, or the sale or other transfer of a
controlling percentage (hereafter defined) of capital stock of
Tenant other than to a wholly owned subsidiary or the sale of
fifty-one percent (51%) in value of the assets of Tenant;
(iv) if Tenant is a limited liability company, the change of
members whose interest in the company is fifty percent (50%) or
more. The phrase "controlling percentage" means the ownership of,
and the right to vote, stock possessing at least fifty-one percent
(51%) of the total combined voting power of all classes of Tenant's
capital stock issued, outstanding and entitled to vote for the
election of directors, or such lesser percentage as is required to
provide actual control over the affairs of the corporation; except
that, if the Tenant is a publicly traded company, public trades or
sales of the Tenant's stock on a national stock exchange shall not
be considered an assignment hereunder even if the aggregate of the
trades of sales exceeds fifty percent (50%) of the capital stock of
the company.
c. Permitted Assignments/Subleases.
Notwithstanding the foregoing, Tenant may assign this Lease or
sublease part or all of the Premises without Landlord's consent to:
(i) any corporation, limited liability company, or partnership
that controls, is controlled by, or is under common control with,
Tenant; or (ii) any corporation or limited liability company
resulting from the merger or consolidation with Tenant or to any
entity that acquires all of Tenant's assets as a going concern of
the business that is being conducted on the Premises (each such
transfer shall be referred to herein as a "Permitted Transfer");
provided however, the assignor remains liable under the Lease and
the assignee or sublessee is a bona fide entity and assumes the
obligations of Tenant, is as creditworthy as the Tenant, and
continues the same Permitted Use as provided under
Section 4.
d. Notice to Landlord. Landlord must be
given prior written notice of every assignment or subletting, and,
except with respect to a Permitted Transfer, failure to do so shall
be a default hereunder; provided, however, failure to provide
Landlord with written notice of a Permitted Transfer within thirty
(30) days after the effective date of such transfer shall
constitute a default under this Lease.
e. Prohibited Assignments/Subleases. In no
event shall this Lease be assignable by operation of any law, and
Tenant's rights hereunder may not become and shall not be listed by
Tenant as an asset under any bankruptcy, insolvency or
reorganization proceedings. Acceptance of Rent by Landlord after
any non-permitted assignment or sublease shall not constitute
approval thereof by Landlord.
f. Limitation on Rights of
Assignee/Sublessee. Any assignment or sublease for which
Landlord's consent is required shall not include the right to
exercise any options to renew the Lease Term, expand the Premises,
or similar options, unless specifically provided for in the
consent.
g. Tenant Not Released. No assignment or
sublease shall release Tenant of any of its obligations under this
Lease.
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h. Landlord's Right to Collect Sublease Rents
upon Tenant Default. If the Premises (or any portion) is
sublet and Tenant defaults under its obligations to Landlord, then
Landlord is authorized, at its option, to collect all sublease
rents directly from the Sublessee. Tenant hereby assigns the right
to collect the sublease rents to Landlord in the event of Tenant
default. The collection of sublease rents by Landlord shall not
relieve Tenant of its obligations under this Lease, nor shall it
create a contractual relationship between Sublessee and Landlord or
give Sublessee any greater estate or right to the Premises than
contained in its Sublease.
i. Excess Rents. If Tenant assigns this
Lease or subleases all or part of the Premises at a rental rate
that exceeds the rentals paid to Landlord, then fifty percent (50%)
of any "Transfer Premium" (as that term is defined below) received
by Tenant from such transferee shall be paid over to Landlord by
Tenant. "Transfer Premium" shall mean all rent or additional rent
payable by such transferee in excess of the Base Rent and
Additional Rent payable by Tenant under this Lease on a per
rentable square foot basis if less than all of the Premises is
transferred, after deducting the reasonable expenses incurred by
Tenant for (i) any reasonable changes, alterations and improvements
to the Premises in connection with the assignment or sublease (but
only to the extent approved by Landlord), and (ii) any reasonable
brokerage commissions, marketing costs and attorneys' fees in
connection with the assignment or sublease.
j. Landlord's Fees. Tenant shall reimburse
Landlord for Landlord's reasonable out-of-pocket attorneys' fees in
connection with any assignment or sublease transaction for which
consent is required or requested by Tenant, not to exceed three
thousand dollars ($3,000.00). If Landlord assists Tenant in finding
an assignee or subtenant, Landlord shall be paid a reasonable fee
for such assistance.
k. Unauthorized Assignment or Sublease.
Any unauthorized assignment or sublease shall constitute a default
under the terms of this Lease. In addition to its other remedies
for default, Landlord may elect to increase Base Rent to 150% of
the Base Rent reserved under the terms of this Lease.
19. DAMAGES TO PREMISES.
a. Landlord's Restoration Obligations. If
the Building or Premises are damaged by fire or other casualty
(collectively "Casualty"), then Landlord shall repair and restore
the Premises to substantially the same condition of the Premises
immediately prior to such Casualty, subject to the following terms
and conditions:
i.
The casualty must
be insured under Landlord's insurance policies, and Landlord's
obligation is limited to the extent of the insurance proceeds
received by Landlord. Landlord's duty to repair and restore the
Premises shall not begin until receipt of the insurance
proceeds.
ii.
Landlord's
lender(s) must permit the insurance proceeds to be used for such
repair and restoration.
iii.
Landlord shall have
no obligation to repair and restore Tenant's trade fixtures,
decorations, signs, contents, or any Non-Standard Improvements to
the Premises.
b. Termination of Lease by Landlord.
Landlord shall have the option of terminating the Lease if:
(i) the Premises are rendered wholly untenantable;
(ii) the Premises are damaged in whole or in part as a result
of a risk which is not covered by Landlord's insurance policies;
(iii) Landlord's lender does not permit a sufficient amount of
the insurance proceeds to be used for restoration purposes;
(iv) the Premises are damaged in whole or in part during the
last two years of the Term; or (v) the Building containing the
Premises is damaged (whether or not the Premises are damaged) to an
extent of fifty percent (50%) or more of the fair market value
thereof. If Landlord elects to terminate this Lease, then it shall
give notice of the termination to Tenant within sixty
(60) days after the date of the Casualty. Tenant shall vacate
and surrender the Premises to Landlord within fifteen
(15) days after receipt of the notice of
termination.
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c. Termination of Lease by Tenant. Tenant
shall have the option of terminating the Lease if:
(i) Landlord has failed to substantially restore the damaged
Building or Premises within one hundred eighty (180) days of
the Casualty (the "Restoration Period"), the Restoration
Period being subject to extension for any force majeure delays; and
(ii) Tenant gives Landlord notice of the termination within
fifteen (15) days after the end of the Restoration Period (as
extended by any force majeure delays). If Landlord is delayed by
force majeure, then Landlord must provide Tenant with notice of the
delays within fifteen (15) days of the force majeure event
stating the reason for the delays and a good faith estimate of the
length of the delays.
d. Tenant's Restoration Obligations.
Unless terminated, the Lease shall remain in full force and effect,
and Tenant shall promptly repair, restore, or replace Tenant's
trade fixtures, decorations, signs, contents, and any Non-Standard
Improvements to the Premises. All repair, restoration or
replacement shall be at least to the same condition as existed
prior to the Casualty. The proceeds of all insurance carried by
Tenant on its property shall be held in trust by Tenant for the
purposes of such repair, restoration, or replacement.
e. Rent Abatement. If the Premises are
rendered wholly untenantable by the Casualty, then the Rent payable
by Tenant shall be fully abated. If the Premises are only partially
damaged, then Tenant shall continue the operation of Tenant's
business in any part not damaged to the extent reasonably
practicable from the standpoint of prudent business management, and
Rent and other charges shall be abated proportionately to the
portion of the Premises rendered untenantable. The abatement shall
be from the date of the Casualty until the Premises have been
substantially repaired and restored, or until Tenant's business
operations are restored in the entire Premises, whichever shall
first occur. However, if the Casualty is caused by the negligence
or other wrongful conduct of Tenant or of Tenant's subtenants,
licensees, contractors, or invitees, or their respective agents or
employees, there shall be no abatement of Rent.
f. Waiver of Claims. The abatement of the
Rent set forth above is Tenant's exclusive remedy against Landlord
in the event of a Casualty. Tenant hereby waives all claims against
Landlord for any compensation or damage for loss of use of the
whole or any part of the Premises and/or for any inconvenience or
annoyance occasioned by any Casualty and any resulting damage,
destruction, repair, or restoration.
20. EMINENT DOMAIN.
a. Effect on Lease. If all of the Premises
are taken under the power of eminent domain (or by conveyance in
lieu thereof), then this Lease shall terminate as of the date
possession is taken by the condemnor, and Rent shall be adjusted
between Landlord and Tenant as of such date. If only a portion of
the Premises is taken and Tenant can continue use of the remainder,
then this Lease will not terminate, but Rent shall abate in a just
and proportionate amount to the loss of use occasioned by the
taking.
b. Right to Condemnation Award. Landlord
shall be entitled to receive and retain the entire condemnation
award for the taking of the Building and Premises. Tenant shall
have no right or claim against Landlord for any part of any award
received by Landlord for the taking. Tenant shall have no right or
claim for any alleged value of the unexpired portion of this Lease,
or its leasehold estate, or for costs of removal, relocation,
business interruption expense or any other damages arising out of
such taking. Tenant, however, shall not be prevented from making a
claim against the condemning party (but not against Landlord) for
any moving expenses, loss of profits, or taking of Tenant's
personal property (other than its leasehold estate) to which Tenant
may be entitled; provided that any such award shall not reduce the
amount of the award otherwise payable to Landlord for the taking of
the Building and Premises.
21. ENVIRONMENTAL COMPLIANCE.
a. Environmental Laws. The term "
Environmental Laws" shall mean all now existing or hereafter
enacted or issued statutes, laws, rules, ordinances, orders,
permits and regulations of all state, federal, local and other
governmental and regulatory authorities, agencies and bodies
applicable to the Premises, pertaining to environmental matters or
regulating, prohibiting or otherwise having to do with asbestos and
all other toxic, radioactive, or hazardous wastes or materials
including, but not limited to, the Federal Clean Air Act, the
Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
from time to time amended.
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b. Tenant's Responsibility. Tenant
covenants and agrees that it will keep and maintain the Premises at
all times in compliance with Environmental Laws. Tenant shall not
(either with or without negligence) cause or permit the escape,
disposal or release of any biologically active or other hazardous
substances, or materials on the Property. Tenant shall not allow
the storage or use of such hazardous substances or materials in any
manner not sanctioned by law or in compliance with the highest
standards prevailing in the industry for the storage and use of
such hazardous substances or materials, nor allow to be brought
onto the Property any such hazardous substances or materials except
to use in the ordinary course of Tenant's business, and then only
after written notice is given to Landlord of the identity of such
hazardous substances or materials. No such notice shall be
required, however, for commercially reasonable amounts of ordinary
office supplies and janitorial supplies. Tenant shall execute
affidavits, representations and the like, from time to time, at
Landlord's request, concerning Tenant's actual knowledge and belief
regarding the presence of hazardous substances and/or materials on
the Premises.
c. Tenant's Liability. Tenant shall hold
Landlord free, harmless, and indemnified from any penalty, fine,
claim, demand, liability, cost, or charge whatsoever which Landlord
shall incur, or which Landlord would otherwise incur, by reason of
Tenant's failure to comply with this Section 21 including, but
not limited to: (i) the cost of full remediation of any
contamination to bring the Property into the same condition as
prior to the Commencement Date and into full compliance with all
Environmental Laws; (ii) the reasonable cost of all
appropriate tests and examinations of the Premises to confirm that
the Premises and any other contaminated areas have been remediated
and brought into compliance with all Environmental Laws; and
(iii) the reasonable fees and expenses of Landlord's
attorneys, engineers, and consultants incurred by Landlord in
enforcing and confirming compliance with this
Section 21.
d. Limitation on Tenant's Liability.
Tenant's obligations under this Section 21 shall not apply to
any condition or matter constituting a violation of any
Environmental Laws: (i) which existed prior to the
commencement of Tenant's use or occupancy of the Premises;
(ii) which was not caused, in whole or in part, by Tenant or
Tenant's agents, employees, officers, partners, contractors or
invitees; or (iii) to the extent such violation is caused by,
or results from the acts or neglects of Landlord or Landlord's
agents, employees, officers, partners, contractors, guests, or
invitees.
e. Inspections by Landlord. Landlord and
its engineers, technicians, and consultants (collectively,
"Auditors") may, from time to time as Landlord deems appropriate,
conduct periodic tests and examinations (collectively, "Audits") of
the Premises to confirm and monitor Tenant's compliance with this
Section 21. Such Audits shall be conducted in such a manner as
to minimize the interference with Tenant's Permitted Use; however
in all cases, the Audits shall be of such nature and scope as shall
be reasonably required by then existing technology to confirm
Tenant's compliance with this Section 21. Tenant shall fully
cooperate with Landlord and its Auditors in the conduct of such
Audits. The cost of such Audits shall be paid by Landlord unless an
Audit shall disclose a material failure of Tenant to comply with
this Section 21, in which case, the cost of such Audit, and
the cost of all subsequent Audits made during the Term (provided
that either (i) any such subsequent audits bear a reasonable
connection to Tenant's original material failure to comply with
this Section 21 disclosed by Landlord's audit or (ii) Landlord
reasonably believes Tenant to otherwise have materially failed to
comply with this Section 21 prior to any such subsequent audit) and
within thirty (30) days thereafter (not to exceed two
(2) such Audits per calendar year), shall be paid for on
demand by Tenant.
f. Property. For the purposes of this
Section 21, the term "Property" shall include the Premises,
Building, all Common Areas, the real estate upon which the Building
is located; all personal property (including that owned by Tenant);
and the soil, ground water, and surface water of the real estate
upon which the Building is located.
g. Tenant's Liability After Termination of
Lease. The covenants contained in this Section 21 shall
survive the expiration or termination of this Lease, and shall
continue for so long as Landlord and its successors and assigns may
be subject to any expense, liability, charge, penalty, or
obligation against which Tenant has agreed to indemnify Landlord
under this Section 21.
-16-
22. DEFAULT.
a. Tenant's Default. Tenant shall be in
default under this Lease if Tenant:
i.
Fails to pay when
due any Base Rent, Additional Rent, or any other sum of money which
Tenant is obligated to pay, as provided in this Lease, where such
failure continues for five (5) business days after written notice
thereof from Landlord to Tenant;
ii.
Breaches any other
agreement, covenant or obligation in this Lease and such breach is
not remedied within fifteen (15) days after Landlord gives
Tenant notice specifying the breach, or if such breach cannot, with
reasonable diligence, be cured within fifteen (15) days,
Tenant does not commence curing within fifteen (15) days and
with reasonable diligence completely cure the breach within a
reasonable period of time after the notice, provided, however, such
period of time shall not exceed sixty (60) days after such
notice by Landlord;
iii.
Files any petition
or action for relief under any creditor's law (including
bankruptcy, reorganization, or similar action), either in state or
federal court, or has such a petition or action filed against it
which is not stayed or vacated within sixty (60) days after
filing; or
iv.
Makes any transfer
in fraud of creditors as defined in Section 548 of the United
States Bankruptcy Code (11 U.S.C. 548, as amended or replaced), has
a receiver appointed for its assets (and the appointment is not
stayed or vacated within thirty (30) days), or makes an
assignment for benefit of creditors.
b. Landlord's Remedies. In the event of a
Tenant default, Landlord at its option may do one or more of the
following:
i.
Terminate this
Lease and recover all damages caused by Tenant's breach, including
consequential damages for lost future rent;
ii.
Repossess the
Premises, with or without terminating, and relet the Premises at
such amount as Landlord deems reasonable;
iii.
Declare the entire
remaining Base Rent and Additional Rent immediately due and
payable, such amount to be discounted to its present value at a
discount rate equal to the U.S. Treasury Bill or Note rate
with the closest maturity to the remaining term of the Lease as
selected by Landlord;
iv.
Bring action for
recovery of all amounts due from Tenant;
v.
Seize and hold any
personal property of Tenant located in the Premises and assert
against the same a lien for monies due Landlord; or
vi.
Pursue any
other remedy available in law or equity.
c. Landlord's Expenses; Attorneys Fees. In
the event of Tenant default that results in a termination of this
Lease or in a termination of Tenant’s possession of the
Premises, all reasonable expenses of Landlord in repairing,
restoring, or altering the Premises for reletting as general office
space, together with leasing fees and all other expenses in seeking
and obtaining a new Tenant, shall be charged to and be a liability
of Tenant. Landlord's reasonable attorneys' fees in pursuing any of
the foregoing remedies, or in collecting any Rent or Additional
Rent due by Tenant hereunder, shall be paid by Tenant.
-17-
d. Remedies Cumulative. All rights and
remedies of Landlord are cumulative, and the exercise of any one
shall not be an election excluding Landlord at any other time from
exercise of a different or inconsistent remedy. No exercise by
Landlord of any right or remedy granted herein shall constitute or
effect a termination of this Lease unless Landlord shall so elect
by notice delivered to Tenant. The failure of Landlord to exercise
its rights in connection with this Lease or any breach or violation
of any term, or any subsequent breach of the same or any other
term, covenant or condition herein contained shall not be a waiver
of such term, covenant or condition or any subsequent breach of the
same or any other covenant or condition herein
contained.
e. No Accord and Satisfaction. No
acceptance by Landlord of a lesser sum than the Rent, Additional
Rent and other sums then due shall be deemed to be other than on
account of the earliest installment of such payments due, nor shall
any endorsement or statement on any check or any letter
accompanying any check or payment be deemed as accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy provided in this
Lease.
f. No Reinstatement. No payment of money
by Tenant to Landlord after the expiration or termination of this
Lease shall reinstate or extend the Term, or make ineffective any
notice of termination given to Tenant prior to the payment of such
money. After the service of notice or the commencement of a suit,
or after final judgment granting Landlord possession of the
Premises, Landlord may receive and collect any sums due under this
Lease, and the payment thereof shall not make ineffective any
notice or in any manner affect any pending suit or any judgment
previously obtained.
g. Summary Ejectment. Tenant agrees that
in addition to all other rights and remedies Landlord may obtain an
order for summary ejectment from any court of competent
jurisdiction without prejudice to Landlord's rights to otherwise
collect rents or breach of contract damages from
Tenant.
23. MULTIPLE DEFAULTS.
a. Loss of Option Rights. Tenant
acknowledges that any rights or options of first refusal, or to
extend the Term, to expand the size of the Premises, to purchase
the Premises or the Building, or other similar rights or options
which have been granted to Tenant under this Lease are conditioned
upon the prompt and diligent performance of the terms of this Lease
by Tenant. Accordingly, should Tenant default under this Lease on
three (3) or more occasions during any twelve (12) month
period, in addition to all other remedies available to Landlord,
all such rights and options shall automatically, and without
further action on the part of any party, expire and be of no
further force and effect.
b. Increased Security Deposit. Should
Tenant default in the payment of Base Rent, Additional Rent, or any
other sums payable by Tenant under this Lease on three (3) or
more occasions during any twelve (12) month period, regardless
of whether Landlord permits such default to be cured, then, in
addition to all other remedies otherwise available to Landlord,
Tenant shall, within ten (10) days after demand by Landlord,
post a Security Deposit in, or increase the existing Security
Deposit to, a sum equal to three (3) months' installments of
Base Rent. The Security Deposit shall be governed by the terms of
this Lease.
c. Effect on Notice Rights and Cure
Periods. Should Tenant default under this Lease on three
(3) or more occasions during any twelve (12) month
period, in addition to all other remedies available to Landlord,
any notice requirements or cure periods otherwise set forth in this
Lease with respect to a default by Tenant shall not
apply.
24. BANKRUPTCY.
a. Trustee's Rights. Landlord and Tenant
understand that, notwithstanding contrary terms in this Lease, a
trustee or debtor in possession under the United States Bankruptcy
Code, as amended, (the "Code") may have certain rights to assume or
assign this Lease. This Lease shall not be construed to give the
trustee or debtor in possession any rights greater than the minimum
rights granted under the Code.
-18-
b. Adequate Assurance. Landlord and Tenant
acknowledge that, pursuant to the Code, Landlord is entitled to
adequate assurances of future performance of the provisions of this
Lease. The parties agree that the term "adequate assurance" shall
include at least the following:
i.
In order to assure
Landlord that any proposed assignee will have the resources with
which to pay all Rent payable pursuant to the provisions of this
Lease, any proposed assignee must have, as demonstrated to
Landlord's satisfaction, a net worth (as defined in accordance with
generally accepted accounting principles consistently applied) of
not less than the net worth of Tenant on the Effective Date (as
hereinafter defined), increased by seven percent (7%), compounded
annually, for each year from the Effective Date through the date of
the proposed assignment. It is understood and agreed that the
financial condition and resources of Tenant were a material
inducement to Landlord in entering into this Lease.
ii.
Any proposed
assignee must have been engaged in the conduct of business for the
five (5) years prior to any such proposed assignment, which
business does not violate the Use provisions under Section 4
above, and such proposed assignee shall continue to engage in the
Permitted Use under Section 4. It is understood that
Landlord's asset will be substantially impaired if the trustee in
bankruptcy or any assignee of this Lease makes any use of the
Premises other than the Permitted Use.
c. Assumption of Lease Obligations. Any
proposed assignee of this Lease must assume and agree to be
personally bound by the provisions of this Lease.
25. NOTICES.
a. Addresses. All notices, demands and
requests by Landlord or Tenant shall be sent to the Notice
Addresses set forth in Section 1n, or to such other address as
a party may specify by duly given notice.
b. Form; Delivery; Receipt. ALL NOTICES, DEMANDS AND REQUESTS WHICH MAY BE
GIVEN OR WHICH ARE REQUIRED TO BE GIVEN BY EITHER PARTY TO THE
OTHER MUST BE IN WRITING UNLESS OTHERWISE SPECIFIED.
Notices, demands or requests shall be deemed to have been properly
given for all purposes if (i) delivered against a written
receipt of delivery, (ii) mailed by express, registered or
certified mail of the United States Postal Service, return receipt
requested, postage prepaid, or (iii) delivered to a nationally
recognized overnight courier service for next business day delivery
to the receiving party's address as set forth above. Each such
notice, demand or request shall be deemed to have been received
upon the earlier of the actual receipt or refusal by the addressee
or three (3) business days after deposit thereof at any main
or branch United States post office if sent in accordance with
subsection (ii) above, and the next business day after deposit
thereof with the courier if sent pursuant to subsection
(iii) above.
c. Address Changes. The parties shall
notify the other of any change in address, which notification must
be at least fifteen (15) days in advance of it being
effective.
d. Notice by Legal Counsel. Notices may be
given on behalf of any party by such party's legal
counsel.
26. HOLDING OVER. If Tenant holds over after
the Expiration Date or other termination of this Lease, such
holding over shall not be a renewal of this Lease but shall be
deemed to create a tenancy-at-sufferance. Tenant shall continue to
be bound by all of the terms and conditions of this Lease, except
that during such tenancy-at-sufferance Tenant shall pay to Landlord
(A) the greater of (i) one hundred fifty percent (150%)
of the monthly Base Rent Landlord is then charging new tenants for
space in the Building, or (ii) one hundred fifty percent
(150%) of the Base Rent payable hereunder during the last month of
the Term, and (B) any and all Operating Expenses and other
forms of Additional Rent payable under this Lease. The increased
Rent during such holding over is intended to compensate Landlord
partially for losses, damages and expenses, including frustrating
and delaying Landlord's ability to secure a replacement tenant.
Tenant shall indemnify, defend and hold Landlord harmless from and
against any claim, damage, loss, liability, judgment, suit,
disbursement or expense (including consequential damages and
reasonable attorneys' fees and disbursements) (collectively,
"Claims") resulting from failure to surrender possession upon the
Expiration Date or sooner termination of the Term, including any
Claims made by any succeeding tenant, and such obligations shall
survive the expiration or sooner termination of this
Lease.
-19-
27. INTENTIONALLY OMITTED.
28. BROKER'S COMMISSIONS. Landlord and
Tenant each represents and warrants to the other party that it has
not dealt with any real estate broker, finder or other person with
respect to this Lease in any manner, except the Broker(s)
identified in Section 1n. Landlord shall pay only any
commissions or fees that are payable to the above-named Broker(s)
or finder(s) with respect to this Lease pursuant to Landlord's
separate agreement with such Broker(s) or finder(s). Each party
shall indemnify and hold the other party harmless from any and all
damages resulting from claims by any broker(s), finder(s) or other
person (including, without limitation, any substitute or
replacement broker claiming to have been engaged in the future),
other than the Broker(s) identified in Section 1n, claiming to
have dealt with the indemnifying party in connection with this
Lease or any amendment or extension hereto, or which may result in
Tenant leasing other or enlarged space from Landlord. The
provisions of this paragraph shall survive the termination of this
Lease.
29. MISCELLANEOUS.
a. No Agency. Tenant is not, may not
become, and shall never represent itself to be an agent of
Landlord, and Tenant acknowledges that Landlord's title to the
Building is paramount, and that it can do nothing to affect or
impair Landlord's title.
b. Force Majeure. The term "force majeure"
means: fire, flood, extreme weather, labor disputes, strike,
lock-out, riot, terrorist act, government interference (including
regulation, appropriation or rationing), unusual delay in
governmental permitting, unusual delay in deliveries or
unavailability of materials, unavoidable casualties, Act of God, or
other causes beyond Landlord's reasonable control.
c. Building Standard Improvements. The
term "Building Standard Improvements" shall mean the standards for
normal construction of general office space within the Building as
specified by Landlord, including design and construction standards,
electrical load factors, materials, fixtures and
finishes.
d. Limitation on Damages. Notwithstanding
any other provisions in this Lease, Landlord shall not be liable to
Tenant for any special, consequential, incidental or punitive
damages.
e. Satisfaction of Judgments Against
Landlord. If Landlord, or its employees, officers,
directors, stockholders or partners are ordered to pay Tenant a
money judgment because of Landlord's default under this Lease, said
money judgment may only be enforced against and satisfied out of:
(i) Landlord's interest in the Building in which the Premises
are located including the rental income and proceeds from sale; and
(ii) any insurance or condemnation proceeds received because
of damage or condemnation to, or of, said Building that are
available for use by Landlord. No other assets of Landlord or said
other parties exculpated by the preceding sentence shall be liable
for, or subject to, any such money judgment.
f. Interest. Should Tenant fail to pay any
amount due to Landlord within 30 days of the date such amount is
due (whether Base Rent, Additional Rent, or any other payment
obligation), then the amount due shall begin accruing interest at
the rate of 18% per annum, compounded monthly, or the highest
permissible rate under applicable usury law, whichever is less,
until paid.
g. Legal Costs. Should either party
prevail in any legal proceedings against the other party for breach
of any provision in this Lease, then the non-prevailing party shall
be liable for the costs and expenses of the prevailing party,
including its reasonable attorneys' fees (at all tribunal levels).
Landlord shall also be entitled to recover reasonable attorneys'
fees and disbursements incurred in connection with a Tenant default
hereunder which does not result in the commencement of any action
or proceeding.
-20-
h. Communications Compliance. Tenant
acknowledges and agrees that any and all telephone and
telecommunication services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord requests
otherwise or consents in writing, all of Tenant's
telecommunications equipment shall be located and remain solely in
the Premises in accordance with rules and regulations adopted by
Landlord from time to time. Landlord shall not have any
responsibility for the maintenance of Tenant's telecommunications
equipment, including wiring; nor for any wiring or other
infrastructure to which Tenant's telecommunications equipment may
be connected. Tenant agrees that, to the extent any
telecommunications service is interrupted, curtailed or
discontinued, Landlord shall have no obligation or liability with
respect thereto. Landlord shall have the right, upon reasonable
prior oral or written notice to Tenant, to interrupt or turn off
telecommunications facilities in the event of emergency or as
necessary in connection with repairs to the Building or
installation of telecommunications equipment for other tenants of
the Building. In the event that Tenant wishes at any time to
utilize the services of a telephone or telecommunications provider
whose equipment is not then servicing the Building, the provider
shall not be permitted to install its lines or other equipment
within the Building without first securing the prior written
approval of Landlord. Landlord's approval may be conditioned in
such a manner so as to protect Landlord's financial interests, the
interest of the Building, and the other tenants therein. The
refusal of Landlord to grant its approval to any prospective
telecommunications provider shall not be deemed a default or breach
by Landlord of its obligation under this Lease. The provision of
this paragraph may be enforced solely by Tenant and Landlord, are
not for the benefit of any other party, and specifically but
without limitation, no telephone or telecommunications provider
shall be deemed a third party beneficiary of this Lease. Tenant
shall not utilize any wireless communications equipment (other than
usual and customary cellular telephones), including antennae and
satellite receiver dishes, within the Premises or the Building,
without Landlord's prior written consent. Landlord's consent may be
conditioned in such a manner so as to protect Landlord's financial
interests, the interests of the Building, and the other tenants
therein. At Landlord's option, Tenant may be required to remove any
and all telecommunications equipment (including wireless equipment)
installed in the Premises or elsewhere in or on the Building by or
on behalf of Tenant, including wiring, or other facilities for
telecommunications transmittal prior to the expiration or
termination of the Lease and at Tenant's sole cost.
i. Sale of Premises or Building. Landlord
may sell the Premises or the Building without affecting the
obligations of Tenant hereunder; upon the sale of the Premises or
the Building, Landlord shall be relieved of all responsibility for
the Premises and shall be released from any liability thereafter
accruing under this Lease.
j. Time of the Essence. Time is of the
essence in the performance of all obligations under the terms of
this Lease.
k. Transfer of Security Deposit. If any
Security Deposit or prepaid Rent has been paid by Tenant, Landlord
may transfer the Security Deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be released from
any liability for return of the Security Deposit or prepaid
Rent.
l. Tender of Premises. The delivery of a
key or other such tender of possession of the Premises to Landlord
or to an employee of Landlord shall not operate as a termination of
this Lease or a surrender of the Premises unless requested in
writing by Landlord.
m. Tenant's Financial Statements. If at
any time Tenant is not a publicly traded company, within ten (10)
days after written request by Landlord, Tenant agrees to furnish to
Landlord copies of Tenant's most recent annual, quarterly and
monthly financial statements, audited if available. The financial
statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied. The financial
statements shall include a balance sheet and a statement of profit
and loss, and the annual financial statement shall also include a
statement of changes in financial position and appropriate
explanatory notes. Landlord may deliver the financial statements to
any prospective or existing mortgagee or purchaser of the Building.
All such financial statements will be delivered to any such
mortgagee or purchaser in confidence and shall only be used for
purposes of evaluating the financial strength of
Tenant.
-21-
n. Recordation. This Lease may not be
recorded without Landlord's prior written consent, but Tenant
agrees, upon the request of Landlord, to execute a memorandum
hereof for recording purposes.
o. Partial Invalidity. The invalidity of
any portion of this Lease shall not invalidate the remaining
portions of the Lease.
p. Binding Effect. This Lease shall be
binding upon the respective parties hereto, and upon their heirs,
executors, successors and assigns.
q. Entire Agreement. This Lease supersedes
and cancels all prior negotiations between the parties, and no
changes shall be effective unless in writing signed by both
parties. Tenant acknowledges and agrees that it has not relied upon
any statements, representations, agreements or warranties except
those expressed in this Lease, and that this Lease contains the
entire agreement of the parties hereto with respect to the subject
matter hereof.
r. Good Standing. If requested by
Landlord, Tenant shall furnish appropriate legal documentation
evidencing the valid existence in good standing of Tenant, and the
authority of any person signing this Lease to act for the Tenant.
If Tenant signs as a corporation, each of the persons executing
this Lease on behalf of Tenant does hereby covenant and warrant
that Tenant is a duly authorized and existing corporation, that
Tenant has and is qualified to do business in the State in which
the Premises are located, that the corporation has a full right and
authority to enter into this Lease and that each of the persons
signing on behalf of the corporation is authorized to do
so.
s. Terminology. The singular shall include
the plural, and the masculine, feminine or neuter includes the
other.
t. Headings. Headings of sections are for
convenience only and shall not be considered in construing the
meaning of the contents of such section.
u. Choice of Law. This Lease shall be
interpreted and enforced in accordance with the laws of the State
in which the Premises are located.
v. Effective Date. The submission of this
Lease to Tenant for review does not constitute a reservation of or
option for the Premises, and this Lease shall become effective as a
contract only upon the execution and delivery by both Landlord and
Tenant. The date of execution shall be entered on the top of the
first page of this Lease by Landlord, and shall be the date on
which the last party signed the Lease, or as otherwise may be
specifically agreed by both parties. Such date, once inserted,
shall be established as the final day of ratification by all
parties to this Lease, and shall be the date for use throughout
this Lease as the "Effective Date".
w. Jury Trial Waiver. Landlord and Tenant
each hereby irrevocably, knowingly and voluntarily waive trial by
jury in any action, proceeding or counterclaim brought by either of
the parties against the other or their successors in respect to any
matter arising out of or in connection with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of
the Premises, and/or any claim for injury or damage, or any
emergency or statutory remedy.
x. Approval. Tenant acknowledges and
agrees that Landlord's lender(s)/mortgagee(s) may require approval
of the terms and conditions of this Lease prior to Landlord's
execution and that Landlord's execution of this Lease is subject to
and contingent upon such lender(s)/mortgagee(s) approval.
Accordingly, prior to the execution and delivery of a definitive
agreement, this Lease, and the terms and conditions contained
herein remain subject to change and no contract will be deemed to
be entered into unless and until Landlord and Tenant execute and
deliver a definitive lease document.
-22-
30. RADON. The following notification is
provided pursuant to Section 404.056(5), Florida Statutes
(2014): "Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding
radon gas and radon testing may be obtained from your county health
department."
31. ADDENDA AND EXHIBITS. If any addenda are
noted below, such addenda are incorporated herein and made a part
of this Lease.
a. Lease
Addendum Number One – "Work Letter"
b. Lease
Addendum Number Two – "Additional Rent - Operating Expense
Pass Throughs"
c. Lease
Addendum Number Three - "Renewal Options"
d. Lease
Addendum Number Four – "Rights of First Offer"
e. Exhibit A
– Premises
f. Exhibit B
– Rules and Regulations
g. Exhibit C
– Commencement Agreement
[SIGNATURES APPEAR ON THE FOLLOWING PAGE.]
-23-
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
three (3) originals, to be effective as of the Effective
Date.
|
WITNESSES
/s/ D. Michael
Beck
Printed
Name: D. Michael Beck
/s/ Ella M.
Peterson
Printed
Name: Ella M. Peterson
|
"TENANT"
Autobytel Inc.,
a
Delaware corporation
By: /s/
Glenn E. Fuller
Name: Glenn
E. Fuller
Title: EVP,
Chief Legal and Administrative Officer and Secretary
|
|
WITNESSES
/s/Zac
Gruber
Printed
Name: Zac Gruber
/s/ Kate
King
Printed
Name: Kate King
|
"LANDLORD"
Rivergate Tower Owner, LLC,
a
Delaware limited liability company
By: /s/
Lorri Dunne
Name: Lorri
Dunne
Title: Authorized
Signatory
|
-24-
LEASE ADDENDUM NUMBER ONE [ALLOWANCE]
WORK LETTER
This
Lease Addendum Number One (this "Work Letter") sets forth the
rights and obligations of Landlord and Tenant with respect to space
planning, engineering, final workshop drawings, and the
construction and installation of any improvements to the Premises
to be completed before the Commencement Date (the "Tenant
Improvements"). This Work Letter contemplates that the performance
of this work will proceed in four stages in accordance with the
following schedule: (i) preparation of a space plan;
(ii) final design and engineering and preparation of final
plans and working drawings; (iii) preparation by the
Contractor (as hereinafter defined) of an estimate of the
additional cost of the initial Tenant Improvements;
(iv) submission and approval of plans by appropriate
governmental authorities and construction and installation of the
Tenant Improvements by the Commencement Date.
In
consideration of the mutual covenants hereinafter contained,
Landlord and Tenant do mutually agree to the
following:
1. Allowance.
Landlord agrees to provide an allowance of up to $25.00 per
rentable square foot, to design, engineer, install, supply and
otherwise to construct the Tenant Improvements in the Premises,
that when completed, will become a part of the Building (the
"Allowance"). Tenant acknowledges and agrees that the Allowance
shall be used only for the Tenant Improvements. In the event that
the cost of the Tenant Improvements exceeds the Allowance amount,
Tenant shall be fully responsible for the payment of all such
excess costs in connection with the Tenant Improvements. In the
event that the cost of the Tenant Improvements is less than the
Allowance amount, any difference shall be retained by Landlord.
Notwithstanding anything to the contrary contained in this Work
Letter or the Lease, Landlord shall be solely responsible for any
and all expenses related to the construction of the improvements
set forth on Schedule 1 attached to this Work Letter and such
expenses shall not be applied against or reduce the
Allowance.
2. Space Planning,
Design and Working Drawings. On Tenant's behalf, Landlord
shall select architects and engineers (collectively, "Architect"),
who will do the following at Tenant's expense (which expense may be
deducted from the Allowance):
a. Attend a reasonable
number of meetings with Tenant and Landlord's agent to define
Tenant's requirements. The Architect shall provide one complete
space plan. Tenant shall approve such space plan, in writing,
within ten (10) days after receipt of the space
plan.
b. Complete
construction drawings for Tenant's partition layout, reflected
ceiling grid, telephone and electrical outlets, keying, and finish
schedule.
c. Complete building
standard mechanical plans where necessary (for installation of air
conditioning system and duct work, and heating and electrical
facilities) for the work to be done in the Premises.
d. All plans and
working drawings for the construction and completion of the
Premises (the "Plans") shall be subject to Landlord's prior written
approval. Any changes or modifications Tenant desires to make to
the Plans shall also be subject to Landlord's prior approval.
Landlord agrees that it will not unreasonably withhold its approval
of the Plans, or of any changes or modifications thereof; provided,
however, Landlord shall have sole and absolute discretion to
approve or disapprove any improvements that will be visible to the
exterior of the Premises, or which may affect the structural
integrity of the Building. Any approval of the Plans by Landlord
shall not constitute approval of any Excused Delays caused by
Tenant and shall not be deemed a waiver of any rights or remedies
that may arise as a result of such Excused Delays. Landlord may
condition its approval of the Plans if: (i) the Plans require
design elements or materials that would cause Landlord to deliver
the Premises to Tenant after the scheduled Commencement Date, or
(ii) the estimated cost for any improvements under the Plan is
more than the Allowance unless Tenant pays fifty percent (50%) of
such overage simultaneously with any approval by Landlord and fifty
percent (50%) when due.
-25-
3. Tenant
Plan Delivery Date.
a. Tenant acknowledges
that the Architect is acting on behalf of the Tenant and that
Tenant (not Landlord) is responsible for the timely completion of
the Plans.
b. Tenant covenants
and agrees to deliver to Landlord the final Plans for the Tenant
Improvements on or before the date that is ten (10) days after the
Effective Date (the "Tenant Plan Delivery Date"). Time is of the
essence in the delivery of the final Plans. It is vital that the
final Plans be delivered to Landlord by the Tenant Plan Delivery
Date in order to allow Landlord sufficient time to review such
Plans, to discuss with Tenant any changes therein which Landlord
believes to be necessary or desirable, to enable the Contractor to
prepare an estimate of the cost of the Tenant Improvements, to
obtain required permits, and to substantially complete the Tenant
Improvements within the time frame provided in the
Lease.
4. Work
and Materials at Tenant's Expense. Landlord shall submit the
improvement work to one or more licensed contractors to bid for the
Tenant Improvement work (Tenant being entitled to select one
contractor to participate in such bidding process). On Tenant's
behalf, Landlord, using its reasonable discretion, shall select,
from the contractors submitting a bid, the contractor (the
"Contractor") to construct and install the Tenant Improvements in
accordance with the Plans (the "Work") at Tenant's expense (which
expense may be deducted from the Allowance). For the avoidance of
doubt, Tenant understands, acknowledges, and agrees that Landlord
shall not be required to select as the Contractor the contractor
selected by Tenant to participate in the bidding
process. Tenant agrees
that the Contractor may be an affiliate of Landlord, provided that
the affiliate’s cost for completing the Work (including the
affiliate’s general conditions, overhead and profit) does
not, in the aggregate, exceed the competitive cost of the Work had
the Contractor not been an affiliate of Landlord. Landlord shall
coordinate and facilitate all communications between Tenant and the
Contractor.
a. Prior to commencing
any Work, Landlord shall submit to Tenant in writing the cost of
the Work, which shall include (i) the Contractor's cost for
completing the Work (including the Contractor's general conditions,
overhead and profit) and (ii) a Construction Supervision Fee
of four percent (4%) of the cost of the Work to be paid to Landlord
to manage and oversee the work to be done on Tenant's behalf.
Tenant shall have five (5) business days to review and approve
the cost of the Work. Landlord shall not authorize the Contractor
to proceed with the Work until the cost is mutually agreed upon and
approved in writing and delivered to Landlord.
b. Any changes in the
approved cost of the Work shall be by written change order signed
by the Tenant. Tenant agrees to process change orders in a timely
fashion. Tenant acknowledges that the following items may result in
change orders:
i. Municipal or other
governmental inspectors require changes to the Premises such as
additional exit lights, fire damper or whatever other changes they
may require. In such event, Landlord will notify the Tenant of the
required changes, but the cost of such changes and any delay
associated with such changes shall be the responsibility of the
Tenant.
ii. Tenant makes
changes to the Plans or requests additional work. Tenant will be
notified of the cost and any delays that would result from the
change by a change order signed by Tenant before the changes are
implemented. Any delays caused by such changes shall not delay the
Commencement Date of the Lease.
iii. Any
errors or omissions in the Plans or specifications which require
changes. Landlord will notify the Tenant of the required changes,
but the cost of such changes and any delay associated with such
changes shall be the responsibility of the Tenant, and shall not
delay the Commencement Date of the Lease.
-26-
iv. Materials are not
readily available, require quick ship charges, or require
substitution.
v. The upfit schedule
requires express review to get permits, which will increase the
costs of the permitting process.
c. All Work performed
in connection with the construction of the Tenant Improvements
shall be performed (i) in a good and workmanlike manner,
(ii) in accordance with all applicable laws and regulations
and with the final approved Plans, (iii) utilizing Building
Standard (as hereinafter defined) materials and finishes designated
by Landlord. Tenant understands, acknowledges and agrees that
notwithstanding anything to the contrary, Landlord may require
(a) the Contractor (and its subcontractors) to purchase
materials and finishes for the performance of the Work through
Landlord's preferred vendor(s) provided the cost of such materials
and finishes does not, in the aggregate, exceed the competitive
cost of the same materials and finishes not purchased from
Landlord's preferred vendor(s), and (b) specific vendors to
perform portions of the Work affecting Building systems. The term
"Building Standard" shall mean the type, brand, grade, or quality
of materials and finishes Landlord designates from time to time to
be used in the Building or, as the case may be, the exclusive type,
brand, grade, or quality of materials and finishes to be used in
the Building.
5. Signage and
Keys. Landlord shall provide the following in accordance
with Building standards at Tenant's expense (which expense may be
deducted from the Allowance): (i) door and directory signage;
(ii) suite and Building keys or entry cards.
6. Commencement
Date.
a. The Commencement
Date shall be the date when the work to be performed by Landlord is
substantially completed, excluding items of work and adjustment of
equipment and fixtures that can be completed after the Premises are
occupied without causing material interference with Tenant's use of
the Premises (collectively, "Punch List Items"), and the Landlord
delivers possession of the Premises to Tenant in accordance with
Section 3 of the Lease.
b. Notwithstanding the
foregoing, if Landlord shall be delayed in delivering possession of
the Premises as a result of:
i. Tenant's failure to
approve the space plan within the time specified;
ii. Tenant's
failure to furnish to Landlord the final Plans on or before the
Tenant Plan Delivery Date;
iii. Tenant's
failure to approve Landlord's cost estimates within the time
specified;
iv. Tenant's failure to
timely respond to change orders;
v. Tenant's changes in
the Tenant Improvements or the Plans (notwithstanding Landlord's
approval of any suchchanges);
vi. Tenant's request
for changes in or modifications to the Plans subsequent to the
Tenant Plan Delivery Date;
vii. Inability
to obtain materials, finishes or installations requested by Tenant
that are not part of the Building Standard Improvements;
viii. The
performance of any work by any person, firm or corporation employed
or retained by Tenant;
-27-
ix. Any other act or
omission by Tenant or its agents, representatives, and/or
employees; or
x. A force majeure
event;
then,
in any such event, for purposes of determining the Commencement
Date, the Premises shall be deemed to have been delivered to Tenant
on the date that Landlord and Architect reasonably determine that
the Premises would have been substantially completed and ready for
delivery if such delay or delays had not occurred.
7. Tenant Improvement
Expenses in Excess of the Allowance. Tenant agrees to pay to
Landlord, promptly upon being billed therefor, all costs and
expenses in excess of the Allowance incurred in connection with the
Tenant Improvements. If unpaid within thirty (30) days after
receipt of invoice, then the outstanding balance shall accrue at
the rate of one percent (1%) per month until paid in
full.
8. Repairs and
Corrections. Tenant, at its sole cost and expense, shall
repair or correct any defective work or materials installed by
Tenant or any contractor other than the Contractor selected by
Landlord, or any work or materials that prove defective as a result
of any act or omission of Tenant or any of its employees, agents,
invitees, licensees, subtenants, customers, clients, or
guests.
9. Inspection of
Premises; Possession by Tenant. Prior to taking possession
of the Premises, Tenant and Landlord shall inspect the Premises and
Tenant shall give Landlord written notice of any Punch List Items.
Tenant's possession of the Premises constitutes acknowledgment by
Tenant that the Premises are in good condition and that all work
and materials provided by Landlord are satisfactory as of such date
of delivery of possession, except as to (i) any Punch List
Items, (ii) latent defects, and (iii) any equipment that
is used seasonally if Tenant takes possession of the Premises
during a season when such equipment is not in use.
10. Access During
Construction. During construction of the Tenant Improvements
and with prior approval of Landlord, Tenant shall be permitted
reasonable access to the Premises for the purposes of taking
measurements, making plans, installing trade fixtures, and doing
such other work as may be appropriate or desirable to enable Tenant
to assume possession of and operate in the Premises; provided,
however, that such access does not interfere with or delay
construction work on the Premises. Prior to any such entry, Tenant
shall comply with all insurance provisions of the Lease. Tenant
agrees to indemnify, defend, and hold Landlord harmless from and
against any suits, claims, damages, costs, expenses and liabilities
asserted against or incurred by Landlord or the property as a
result of Tenant accessing the Premises during construction of the
Tenant Improvements.
-28-
SCHEDULE 1 TO LEASE ADDENDUM NUMBER ONE [ALLOWANCE]
-29-
LEASE ADDENDUM NUMBER TWO [BASE YEAR]
ADDITIONAL RENT - OPERATING EXPENSE PASS THROUGHS
For the
calendar year commencing on January 1ST of the first
calendar year after the Base Year (as hereinafter
defined) and for each
calendar year thereafter, Tenant shall pay to Landlord as
Additional Rent, Tenant's Proportionate Share of any increase in
Operating Expenses (as hereinafter defined) incurred by Landlord's
operation or maintenance of the Building over the Operating
Expenses incurred by Landlord during calendar year 2016 (the "Base
Year"). Tenant's Proportionate Share shall be calculated by
dividing the 8,724 rentable square feet of the Premises by the
515,965 net rentable square feet of the Building, which equals
1.70%. If during any calendar year (including, without limitation,
the Base Year) the occupancy of the rentable area of the Building
is less than 95% full, then any variable components of Operating
Expenses (as hereinafter defined) will be adjusted for such
calendar year at a rate of 95% occupancy.
As used
herein, the term "Operating Expenses" shall mean direct costs of
operation, repair and maintenance as determined by standard
accounting practices, including, but not limited to ad valorem real
and personal property taxes, hazard and liability insurance
premiums, utilities, heat, air conditioning, janitorial service,
labor, materials, supplies, equipment and tools, permits, licenses,
inspection fees, management fees (but not including the cost of
management personnel above the level of property manager), and
Common Area expenses; provided, however, the term "Operating
Expenses" shall not include depreciation on the Building or
equipment therein, interest, executive salaries, real estate
brokers' commissions, or other expenses that do not relate to the
operation of the Building. Furthermore, "Operating Expenses" shall
not include the costs of capital repairs, replacements,
alterations, improvements and equipment, except "Operating
Expenses" may include the amortized portion of any Includable
Capital Expenditure (as defined below), to be amortized over the
useful life of such Includable Capital Expenditure on a straight
line basis together with interest thereon at the actual interest
rate incurred by Landlord (or, in the event Landlord has paid cash
for such capital expenditure, at an imputed interest rate equal to
eight percent (8%). "Includable Capital Expenditures" means the
costs of capital repairs, replacements, alterations, improvements
and equipment: (i) required to comply with laws that are first
enacted after the Commencement Date; (ii) performed primarily
to reduce current or future Operating Expenses or otherwise improve
the operating efficiency of the Building; or (iii) due to
normal wear and tear. The annual statement of Operating Expenses
shall be accounted for and reported in accordance with generally
accepted accounting principles (the "Annual Statement"). Landlord
may use related or affiliated entities to provide services or
furnish materials for the Building if the rates or fees charged by
such entities are competitive with those charged by unrelated or
unaffiliated entities with respect to similar buildings in the
Tampa, Florida area for the same services or
materials.
Notwithstanding
anything herein to the contrary, Controllable Operating Expenses
(defined as total Operating Expenses less those expenses related to
property taxes and assessments, insurance, debris removal,
utilities, and fuel surcharges) shall not increase by more than
seven percent (7%) annually on a cumulative compound basis over the
actual Controllable Operating Expenses for the Base
Year.
-30-
For the
calendar year commencing on January 1st of the first
calendar year after the Base Year and for each calendar year
thereafter during the Term, Landlord shall estimate the amount the
Operating Expenses shall increase for such calendar year above the
Operating Expenses incurred during the Base Year. Landlord shall
send to Tenant a written statement of the amount of Tenant's
Proportionate Share of any estimated increase in Operating Expenses
and Tenant shall pay to Landlord, monthly as Additional Rent,
Tenant's Proportionate Share of such increase in Operating
Expenses. Within ninety (90) days after the end of each
calendar year, Landlord shall send a copy of the Annual Statement
to Tenant. Pursuant to the Annual Statement, Tenant shall pay to
Landlord Additional Rent in a lump sum as owed or Landlord shall
adjust Tenant's Rent payments if Landlord owes Tenant a credit,
such payment or adjustment to be made within thirty (30) days
after the Annual Statement is received by Tenant. After the
Expiration Date, Landlord shall send Tenant the final Annual
Statement for the Term, and Tenant shall pay to Landlord Additional
Rent as owed or if Landlord owes Tenant a credit, then Landlord
shall pay Tenant a refund, such payment or refund to be made within
thirty (30) days after the Annual Statement is received by
Tenant. If this Lease expires or terminates on a day other than
December 31st, then Additional
Rent shall be prorated on a 365-day calendar year (or 366 if a leap
year).
Tenant
shall have the right to examine and review Landlord's books and
records pertaining to Operating Expenses (“Tenant's
Review”), at Tenant’s expense, one time during each
calendar year provided that (i) Tenant provides Landlord with
written notice of its election to conduct Tenant’s Review no
later than three (3) months following Tenant's receipt of the
Annual Statement and completes Tenant’s Review within sixty
(60) days after giving such notice; (ii) there is no event of
default under the Lease as of the date that Tenant delivers such
notice or any default that occurs during Tenant’s Review
after the giving of notice and that is not cured or in the process
of being cured within any applicable cure periods, provided,
however, that Tenant shall lose the right to perform Tenant’s
Review if such default is not cured during the applicable cure
period; (iii) Tenant fully and promptly pays all Rent, including
Tenant's Proportionate Share of Operating Expenses as billed by
Landlord pending the outcome of Tenant’s Review; (iv)
Tenant's Review is conducted by a qualified employee of Tenant or
by an accounting firm engaged by Tenant on a non-contingency fee
basis, and full and complete copy of the results of Tenant’s
Review is provided to Landlord; (v) Tenant and the person(s)
conducting Tenant’s Review agree that they will not divulge
the contents of Landlord’s books and records or the result of
their examination to any other person, including any other tenant
in the Building other than Tenant’s attorneys, accountants,
employees and consultants who have need of the information for
purposes of administering this Lease for Tenant or as otherwise
required by law or in connection with legal proceedings against
Landlord. Tenant shall not be entitled to challenge
Landlord’s calculation of Operating Expenses in any year(s)
prior to the year for which Tenant’s Review is being
conducted, all such Operating Expenses to be deemed final and
binding on the parties once Tenant’s Review for that year has
been conducted or Tenant’s right to conduct Tenant’s
Review for such year has lapsed. Tenant's Review shall be conducted
at Landlord's office where the accounting records are maintained
during Landlord's normal business hours. In the event that
Tenant’s Review demonstrates that Landlord has overstated
Operating Expenses, Landlord shall reimburse Tenant for any
overpayment of Tenant's Proportionate Share of such Operating
Expenses within thirty (30) days of Landlord’s receipt of
reasonably sufficient documentation of such overstatement from
Tenant; provided, however, that Tenant’s Review must be
completed within the time frames set forth in (i) above or Landlord
shall have no obligation to reimburse Tenant for any overstatement
of Operating Expenses for that year then under review. In the event
that Tenant’s Review demonstrates that Landlord has
overstated Operating Expenses by more than seven and one-half
percent (7.5%) of the actual Operating Expenses owed by Tenant,
Landlord shall reimburse Tenant for the reasonable out of pocket
costs Tenant paid to unrelated third parties for the performance of
Tenant’s Review; provided, however, Landlord shall not be
obligated to reimburse Tenant for more than $5,000 of expenses with
respect to any one Tenant’s Review. In the event that
Tenant’s Review demonstrates that Landlord has understated
Operating Expenses, Tenant shall promptly reimburse Landlord for
any underpayment of Tenant's Proportionate Share of such Operating
Expenses.
-31-
ADDENDUM NUMBER THREE
RENEWAL OPTIONS
1. Option to Renew. Tenant shall have the
right and option to renew the Lease (a "Renewal Option") for two
(2) additional periods of five (5) years (each a “Renewal
Lease Term”); provided, however, such Renewal Option is
contingent upon the following: (i) Tenant is not in default at the
time Tenant gives Landlord notice of Tenant’s intention to
exercise the Renewal Option; (ii) upon the Expiration Date or the
expiration of any Renewal Lease Term, Tenant has no outstanding
default; (iii) no event has occurred that upon notice or the
passage of time would constitute a default; (iv) Tenant is not
disqualified by multiple defaults as provided in Section 23 of the
Lease; and (v) Tenant (or a transferee (other than a sublessee
subleasing fifty percent (50%) or more of the Premises) pursuant to
a Permitted Transfer) is occupying and actively conducting business
from the entirety of the Premises. Following the expiration of the
Renewal Lease Term, Tenant shall have no further right to renew the
Lease pursuant to this Addendum Number Three.
2. Exercise of Option. Tenant shall
exercise each Renewal Option by giving Landlord written notice at
least nine (9) months prior to the Expiration Date of the Lease
Term or the expiration of any Renewal Lease Term. If Tenant fails
to deliver such written notice to Landlord prior to such nine (9)
month period, then Tenant shall forfeit the Renewal Option. If
Tenant exercises any Renewal Option, then during the Renewal Lease
Term, Landlord’s and Tenant’s respective rights, duties
and obligations shall be governed by the terms and conditions of
the Lease. Time is of the essence in exercising the Renewal
Option.
3. Term. If Tenant exercises any Renewal
Option, then during the Renewal Lease Term, all references to the
term “Term”, as used in the Lease, shall mean the
“Renewal Lease Term”.
4. Termination of Renewal Option on Transfer by
Tenant. Except with respect to a Permitted Transfer, in the
event Landlord consents to an assignment or sublease by Tenant,
then all Renewal Options shall automatically terminate unless
otherwise agreed in writing by Landlord.
5. Base Rent for Renewal Lease Term. The
Base Rent for the Renewal Lease Term shall be the Fair Market
Rental Rate, determined as follows:
Definition. The term
"Fair Market Rental
Rate" shall mean the market rental rate for the time period
such determination is being made for office space in office
buildings in the Tampa downtown area ("Area") of comparable quality
and condition to the Building and for space of equivalent quality,
size, utility, and location. Such determination shall take into
account all relevant factors, including, without limitation, the
following matters: the credit standing of Tenant; the length of the
term; expense stops; the fact that Landlord will experience no
vacancy period and that Tenant will not suffer the costs and
business interruption associated with moving its offices and
negotiating a new lease; construction allowances and other tenant
concessions that would be available to tenants comparable to Tenant
in the Area (such as moving expense allowance, free rent periods,
and lease assumptions and take-over provisions, if any, but
specifically excluding the value of improvements installed in the
Premises at Tenant's cost), and whether adjustments are then being
made in determining the rental rates for renewals in the Area
because of concessions being offered by Landlord to Tenant (or the
lack thereof for the Renewal Lease Term in question). For purposes
of such calculation, it will be assumed that Landlord is paying a
representative of Tenant a brokerage commission in connection with
the Renewal Lease Term, based on the then current market
rates.
-32-
Determination. So long as
Tenant properly exercised its Renewal Option pursuant to Section 2
above, Landlord shall, within thirty (30) days after receipt of
written request from Tenant for the determination of the Fair
Market Rental Rate (which request must be delivered no earlier than
twelve (12) months and no later than nine (9) months prior to the
Expiration Date of the Lease Term or the expiration of any Renewal
Lease Term), deliver to Tenant notice of the Fair Market Rental
Rate (the "FMRR Notice") for the Premises for the Renewal Lease
Term in question. If Tenant disagrees with Landlord's assessment of
the Fair Market Rental Rate specified in a FMRR Notice, then it
shall so notify Landlord in writing within ten (10) business days
after delivery of such FMRR Notice (the “FMRR
Response”). If Tenant fails to timely deliver the FMRR
Response, the rate set forth in the FRMM Notice shall be the Fair
Market Rental Rate. If Tenant timely delivers the FMRR Response,
then Landlord and Tenant shall meet to attempt to determine the
Fair Market Rental Rate. If Tenant and Landlord are unable to agree
on such Fair Market Rental Rate within ten (10) business days after
delivery of the FMRR Response, then Landlord and Tenant shall each
appoint an independent real estate broker with at least five (5)
years' commercial real estate leasing experience in the Area
market. The two brokers shall then, within ten (10) days after
their designation, select an independent third broker with like
qualifications. If the two brokers are unable to agree on the third
broker within such ten (10) day period, either Landlord or Tenant,
by giving five (5) days prior notice thereof to the other, may
apply to the then presiding Clerk of Court of Hillsborough County
for selection of a third broker who meets the qualifications stated
above. Within twenty (20) business days after the selection of the
third broker, a majority of the brokers shall determine the Fair
Market Rental Rate. If a majority of the brokers is unable to agree
upon the Fair Market Rental Rate by such time, then the two (2)
closest broker values shall be averaged and the average will be the
Fair Market Rental Rate. Tenant and Landlord shall each bear the
entire cost of the broker selected by it and shall share equally
the cost of the third broker.
Administration. If Tenant has
exercised the Renewal Option and the Fair Market Rental Rate for
the Renewal Lease Term has not been determined in accordance with
this Addendum Number Three by the time that Rent for the Renewal
Lease Term is to commence in accordance with the terms hereof, then
Tenant shall pay Rent for the Renewal Lease Term based on the Fair
Market Rental Rate proposed by Landlord pursuant to the FMRR Notice
until such time as the Fair Market Rental Rate has been so
determined, at which time appropriate cash adjustments shall be
made between Landlord and Tenant such that Tenant is charged Rent
based on the Fair Market Rental Rate (as finally determined
pursuant to this Addendum Number Three) for the Renewal Lease Term
during the interval in question.
-33-
ADDENDUM NUMBER FOUR
RIGHT
OF FIRST OFFER
Provided (i) this
Lease is in full force and effect and Tenant is not in default
hereunder beyond any applicable notice and cure period at the time
Landlord gives the First Offer Notice (as hereinafter defined),
(ii) no event has occurred that upon notice or the passage of time
would constitute a default, (iii) Tenant (or transferee (other than
a sublessee subleasing fifty percent (50%) or more of the Premises)
pursuant to a Permitted Transfer) is occupying and actively
conducting business from the entirety of the Premises, and (iv)
Tenant is not disqualified by multiple defaults as provided in
Section 23 of the Lease, then in the event any space located on the
second (2nd) and third
(3rd)
floors of the 5-Story Pavilion Building more particularly described
in Exhibit “D” attached to the Lease (the “First
Offer Space”) becomes available during the Term or any
Renewal Lease Term, Landlord shall, subject to offers to any
existing tenants but prior to leasing said available First Offer
Space to another tenant, first offer said available First Offer
Space to Tenant by providing written notice to Tenant (the
“First Offer Notice”) of its opportunity to lease the
available First Offer Space on the terms and conditions contained
in the First Offer Notice; provided, however, Tenant shall be
required to lease the entire available First Offer Space identified
in the First Offer Notice. Notwithstanding anything contained
herein, no First Offer Space shall be deemed to come available if
such First Offer Space is assigned or subleased by the current
tenant of the First Offer Space, leased again by the current tenant
of the space by way of renegotiation of its lease terms, leased
again by the current tenant pursuant to a right to renew or extend
its lease which right exists as of the Effective Date of the Lease,
or if such space is not vacant, or is subject to a specific
expansion right (existing as of the Effective Date of this Lease)
of another tenant in the Building. In the event such First Offer
Notice is made, Tenant shall have ten (10) business days from
receipt of the First Offer Notice to exercise this right of first
offer and lease the entire amount of First Offer Space identified
in the First Offer Notice. In the event Tenant has timely notified
Landlord of its decision to exercise this right of first offer,
Landlord and Tenant shall execute an agreement or amendment to the
Lease embodying substantially the same terms as those in the First
Offer Notice. In the event Tenant has timely notified Landlord of
its decision not to exercise this right of first offer, or has
failed to timely make its election, Landlord may market and/or
lease the space on terms and conditions acceptable to Landlord in
its sole discretion; provided, however, that in the event that
Landlord does not lease the First Offer Space within twelve (12)
months after Landlord's delivery of its First Offer Notice,
Landlord shall be obligated to comply once again with this Addendum
in favor of Tenant.
-34-
EXHIBIT A
PREMISES
-35-
-36-
EXHIBIT B
RULES AND REGULATIONS
1.
Access to Building. On Saturdays,
Sundays, legal holidays and weekdays between the hours of 6:00 P.M.
and 8:00 A.M., access to the Building and/or to the halls,
corridors, elevators or stairways in the Building may be restricted
and access shall be gained by use of a key or electronic card to
the outside doors of the Buildings. Landlord may from time to time
establish security controls for the purpose of regulating access to
the Building. Tenant shall be responsible for providing access to
the Premises for its agents, employees, invitees and guests at
times access is restricted, and shall comply with all such security
regulations so established.
2.
Protecting Premises. The last member of
Tenant to leave the Premises shall close and securely lock all
doors or other means of entry to the Premises and shut off all
lights and equipment in the Premises.
3.
Building Directories. Any directories
for the Building in the form selected by Landlord shall be used
exclusively for the display of the name and location of tenants.
Any additional names and/or name change requested by Tenant to be
displayed in the directories must be approved by Landlord and, if
approved, will be provided at the sole expense of
Tenant.
4.
Large Articles. Furniture, freight and
other large or heavy articles may be brought into the Building only
at times and in the manner designated by Landlord and always at
Tenant's sole responsibility. All damage done to the Building, its
furnishings, fixtures or equipment by moving or maintaining such
furniture, freight or articles shall be repaired at Tenant's
expense.
5.
Signs. Tenant shall not paint, display,
inscribe, maintain or affix any sign, placard, picture,
advertisement, name, notice, lettering or direction on any part of
the outside or inside of the Building, or on any part of the inside
of the Premises which can be seen from the outside of the Premises,
including windows and doors, without the written consent of
Landlord, and then only such name or names or matter and in such
color, size, style, character and material as shall be first
approved by Landlord in writing. Landlord, without notice to
Tenant, reserves the right to remove, at Tenant's expense, all
matters other than that provided for above.
6.
Compliance with Laws. Tenant shall
comply with all applicable laws, ordinances, governmental orders or
regulations and applicable orders or directions from any public
office or body having jurisdiction, whether now existing or
hereinafter enacted with respect to the Premises and the use or
occupancy thereof. Tenant shall not make or permit any use of the
Premises which directly or indirectly is forbidden by law,
ordinance, governmental regulations or order or direction of
applicable public authority, which may be dangerous to persons or
property or which may constitute a nuisance to other
tenants.
7.
Hazardous Materials. Tenant shall not
use or permit to be brought into the Premises or the Building any
flammable oils or fluids, or any explosive or other articles deemed
hazardous to persons or property, or do or permit to be done any
act or thing which will invalidate, or which, if brought in, would
be in conflict with any insurance policy covering the Building or
its operation, or the Premises, or any part of either, and will not
do or permit to be done anything in or upon the Premises, or bring
or keep anything therein, which shall not comply with all rules,
orders, regulations or requirements of any organization, bureau,
department or body having jurisdiction with respect thereto (and
Tenant shall at all times comply with all such rules, orders,
regulations or requirements), or which shall increase the rate of
insurance on the Building, its appurtenances, contents or
operation.
-37-
8.
Defacing Premises and Overloading.
Tenant shall not place anything or allow anything to be placed in
the Premises near the glass of any door, partition, wall or window
that may be unsightly from outside the Premises. Tenant shall not
place or permit to be placed any article of any kind on any window
ledge or on the exterior walls; blinds, shades, awnings or other
forms of inside or outside window ventilators or similar devices
shall not be placed in or about the outside windows in the Premises
except to the extent that the character, shape, color, material and
make thereof is approved by Landlord. Tenant shall not do any
painting or decorating in the Premises or install any floor
coverings in the Premises or make, paint, cut or drill into, or in
any way deface any part of the Premises or Building without in each
instance obtaining the prior written consent of Landlord. Tenant
shall not overload any floor or part thereof in the Premises, or
any facility in the Building or any public corridors or elevators
therein by bringing in or removing any large or heavy articles and
Landlord may direct and control the location of safes, files, and
all other heavy articles and, if considered necessary by Landlord
may require Tenant at its expense to supply whatever supplementary
supports necessary to properly distribute the weight.
9.
Obstruction of Public Areas. Tenant
shall not, whether temporarily, accidentally or otherwise, allow
anything to remain in, place or store anything in, or obstruct in
any way, any sidewalk, court, hall, passageway, entrance, or
shipping area. Tenant shall lend its full cooperation to keep such
areas free from all obstruction and in a clean and sightly
condition, and move all supplies, furniture and equipment as soon
as received directly to the Premises, and shall move all such items
and waste (other than waste customarily removed by Building
employees) that are at any time being taken from the Premises
directly to the areas designated for disposal. All courts,
passageways, entrances, exits, elevators, escalators, stairways,
corridors, halls and roofs are not for the use of the general
public and Landlord shall in all cases retain the right to control
and prevent access thereto by all persons whose presence, in the
judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interest of the Building and its tenants;
provided, however, that nothing herein contained shall be construed
to prevent such access to persons with whom Tenant deals within the
normal course of Tenant's business so long as such persons are not
engaged in illegal activities.
10.
Keys, Locks, and Access Cards. To the
extent applicable, Tenant shall be provided, at no additional
charge, a reasonable number of after hour access cards or keys not
to exceed five (5) per each one thousand (1,000) rentable
square feet contained in the Premises upon commencement. Tenant
shall pay Landlord a fee in the amount of $10.00 or $25.00 per
additional card/key or replacement card/key, respectively. Tenant
shall not attach, or permit to be attached, additional locks or
similar devices to any door or window, change existing locks or the
mechanism thereof, or make or permit to be made any keys for any
door other than those provided by Landlord. Upon termination of
this Lease or of Tenant's possession, Tenant shall immediately
surrender all cards/keys to the Premises.
11.
Communications or Utility Connections.
If Tenant desires signal, alarm or other utility or similar service
connections installed or changed, then Tenant shall not install or
change the same without the approval of Landlord, and then only
under direction of Landlord and at Tenant's expense. Tenant shall
not install in the Premises any equipment which requires a greater
than normal amount of electrical current for the permitted use
without the advance written consent of Landlord. Tenant shall
ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the
Premises, taking into account the capacity of the electric wiring
in the Building and the Premises and the needs of other tenants in
the Building, and Tenant shall not in any event connect a greater
load than that which is safe.
12.
Office of the Building. Service
requirements of Tenant will be attended to only upon application at
the office of Landlord or its Property Manager. Employees of
Landlord shall not perform, and Tenant shall not engage them to do
any work outside of their duties unless specifically authorized by
Landlord.
13.
Restrooms. The restrooms, toilets,
urinals, vanities and the other apparatus shall not be used for any
purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant whom, or whose
employees or invitees, shall have caused it.
-38-
14.
Intoxication. Landlord reserves the
right to exclude or expel from the Building any person who, in the
judgment of Landlord, is intoxicated, or under the influence of
liquor or drugs, or who in any way violates any of the Rules and
Regulations of the Building.
15.
Nuisances and Certain Other Prohibited
Uses. Tenant shall not (a) install or operate any
internal combustion engine, boiler, machinery, refrigerating,
heating or air conditioning apparatus in or about the Premises;
(b) engage in any mechanical business, or in any service in or
about the Premises or Building, except those ordinarily embraced
within the Permitted Use as specified in Section 1c of the
Lease; (c) use the Premises for housing, lodging, or sleeping
purposes; (d) prepare or warm food in the Premises or permit
food to be brought into the Premises for consumption therein
(heating coffee and individual lunches of employees excepted)
except by express permission of Landlord; (e) place any radio
or television antennae on the roof or on or in any part of the
inside or outside of the Building other than the inside of the
Premises, or place a musical or sound producing instrument or
device inside or outside the Premises which may be heard outside
the Premises; (f) use any power source for the operation of
any equipment or device other than dry cell batteries or
electricity; (g) operate any electrical device from which may
emanate waves that could interfere with or impair radio or
television broadcasting or reception from or in the Building or
elsewhere; (h) bring or permit to be in the Building any
bicycle, other vehicle, dog (except in the company of a blind
person), other animal or bird; (i) make or permit any
objectionable noise or odor to emanate from the Premises;
(j) disturb, harass, solicit or canvass any occupant of the
Building; (k) do anything in or about the Premises which could
be a nuisance or tend to injure the reputation of the Building;
(i) allow any firearms in the Building or the Premises except
as approved by Landlord in writing.
16.
Solicitation. Tenant shall not canvass
other tenants in the Building to solicit business or contributions
and shall not exhibit, sell or offer to sell, use, rent or exchange
any products or services in or from the Premises unless ordinarily
embraced within the Tenant's Permitted Use as specified in
Section 1c of the Lease.
17.
Energy Conservation. Tenant shall not
waste electricity, water, heat or air conditioning and agrees to
cooperate fully with Landlord to insure the most effective
operation of the Building's heating and air conditioning, and shall
not allow the adjustment (except by Landlord's authorized Building
personnel) of any controls.
18.
Building Security. At all times other
than normal business hours the exterior Building doors and suite
entry door(s) must be kept locked to assist in security. Problems
in Building and suite security should be directed to
Landlord.
19.
Parking. Parking is in designated
parking areas only. There shall be no vehicles in "no parking"
zones or at curbs. Handicapped spaces are for handicapped persons
only and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces. Landlord reserves the
right to remove vehicles that do not comply with the Lease or these
Rules and Regulations and Tenant shall indemnify and hold harmless
Landlord from its reasonable exercise of these rights with respect
to the vehicles of Tenant and its employees, agents and
invitees.
20.
Janitorial Service. The janitorial staff
will remove all trash from trashcans. Any container or boxes left
in hallways or apparently discarded unless clearly and
conspicuously labeled DO NOT REMOVE may be removed without
liability to Tenant. Any large volume of trash resulting from
delivery of furniture, equipment, etc., should be removed by the
delivery company, Tenant, or Landlord at Tenant's expense.
Janitorial service will be provided after hours five (5) days
a week. All requests for trash removal other than normal janitorial
services should be directed to Landlord.
21.
Construction. Tenant shall make no
structural or interior alterations of the Premises. All structural
and nonstructural alterations and modifications to the Premises
shall be coordinated through Landlord as outlined in the Lease.
Completed construction drawings of the requested changes are to be
submitted to Landlord or its designated agent for pricing and
construction supervision.
-39-
EXHIBIT C
COMMENCEMENT
AGREEMENT
This
COMMENCEMENT AGREEMENT (the "Commencement Agreement"), made and
entered into as of this _______ day of ________________, 201__, by
and between ______________________________________, a
Delaware limited liability company ("Landlord") and ______________________________________,
a __________________ ("Tenant");
W
I T N E S S E T H:
WHEREAS, Tenant and
Landlord entered into that certain Lease Agreement dated
___________________ (the "Lease"), for space designated as Suite
________, comprising approximately ___________ rentable square
feet, in the ______________________ Building, located at
___________________________________________, City of _____________,
County of _______________, State of _______________;
and
WHEREAS, the
parties desire to establish the Commencement Date and Expiration
Date as set forth below,
NOW,
THEREFORE, in consideration of the mutual and reciprocal promises
herein contained, Tenant and Landlord hereby agree that said Lease
hereinafter described be, and the same is hereby modified in the
following particulars:
1. The
term of the Lease by and between Landlord and Tenant actually
commenced on ___________________ (the "Commencement Date"). The
initial term of said Lease shall terminate on ___________________
(the "Expiration Date"). Section 1b, entitled "Term", and all
references to the Commencement Date and Expiration Date in the
Lease are hereby amended.
2. Except
as modified and amended by this Commencement Agreement, the Lease
shall remain in full force and effect.
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be duly executed, as of the day and year first above
written.
|
LANDLORD:
|
TENANT:
|
|
_____________________________________
_____________________________________
_____________________________________
_____________________________________
|
TENANT
[NOT FOR EXECUTION]
|
|
By:
________________________________________________
|
By:
________________________________________________
|
-40-
EXHIBIT D
FIRST OFFER SPACE
-41-
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE
(“First Amendment”), is entered into this 21 day of November, 2016 (the
“First Amendment Effective Date”), by and between
RIVERGATE TOWER OWNER, LLC,
a Delaware limited liability company (“Landlord”), and
AUTOBYTEL INC., a Delaware
corporation (“Tenant”).
R E C I T A L S :
WHEREAS, Landlord and Tenant entered
into that certain Office Lease dated December 9, 2015 (the
“Lease”), for the premises located in Suites C400 and
C500 (the “Original Premises”) consisting of 8,724
rentable square feet, in the building located at 400 North Ashley
Drive, Tampa, Florida, 33602 (“Building”);
and
WHEREAS, Landlord and Tenant desire to
modify the Lease so that the Premises is relocated from the
Original Premises to the 2nd and 3rd Floor Bi-Level
Suites of the Building consisting of 13,162 rentable square
feet;
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by both parties, Landlord and Tenant agree to amend
the Lease as follows:
1. Recitals.
The Recitals set forth above are true and correct and are
incorporated as if fully set forth herein.
2. Definitions.
Capitalized terms shall have the meaning ascribed to such terms in
the Lease unless otherwise defined herein.
3. New
Premises. As used in this First Amendment, the term
“New Premises” shall mean the 2nd and 3rd Floor Bi-Level
Suites in the Building consisting of 13,162 rentable square feet.
The New Premises is shown on Exhibit A attached hereto. Effective
upon the First Amendment Effective Date, Section 1a of the Lease
shall be amended to provide that the term “Premises”
shall mean the New Premises as described in this Section 3 of this
First Amendment and shown on Exhibit A attached hereto. Exhibit A
of the Lease shall be deleted in its entirety and replaced with
Exhibit A attached hereto.
4. Term.
Effective upon the First Amendment Effective Date, Section 1b of
the Lease shall be amended to provide that the Commencement Date
shall mean the earlier of (i) the date Tenant commences business
operations in the Premises, or (ii) the date the Tenant
Improvements (as defined in the Work Letter) are substantially
complete, which Commencement Date is anticipated to be December 1,
2016.
5.
Base Rent Schedule.
Effective upon the First Amendment Effective Date, Section 1e of
the Lease shall be deleted in its entirety and replaced with the
following:
“e.
Base Rent. The Base Rent
for the Term is payable in monthly installments on the
1st day of
each month in accordance with the following Base Rent
Schedule:
|
FROM MONTH
|
THROUGH MONTH
|
RENTABLE SQUARE FEET
|
ANNUAL BASE RENT PER RENTABLE SQUARE FOOT*
|
ANNUAL BASE RENT*
|
MONTHLY BASE RENT*
|
|
Commencement
Date
|
12
|
13,162
|
$30.00
|
$394,860.00
|
$32,905.00
|
|
13
|
24
|
13,162
|
$30.98
|
$407,758.76
|
$33,979.90
|
|
25
|
36
|
13,162
|
$31.99
|
$421,052.38
|
$35,087.70
|
|
37
|
48
|
13,162
|
$33.03
|
$434,740.86
|
$36,228.41
|
|
49
|
60
|
13,162
|
$34.10
|
$448.824.20
|
$37,402.02
|
|
61
|
72
|
13,162
|
$35.21
|
$463,434.02
|
$38,619.50
|
|
73
|
84
|
13,162
|
$36.35
|
$478,438.70
|
$39,869.89
|
* Plus applicable State of Florida Sales Tax
-42-
The
above Base Rent schedule does not include operating expense pass
through adjustments to be computed annually in accordance with
Lease Addendum Number Two attached hereto. Provided that no default
exists at the time of the abatement provided below, Tenant’s
monthly installments of Base Rent shall be abated for a two (2)
month period (the “Abated Rent”), with such abatement
commencing on the Commencement Date and continuing up through the
date that is two (2) months thereafter (the “Abatement
Period”). The principal amount of the Abated Rent shall be
amortized evenly over the initial Term. So long as no uncured event
of default occurs under the Lease, then upon Landlord’s
receipt of the final monthly installment of Rent, Tenant shall have
no liability to Landlord for the repayment of any portion of the
Abated Rent. In the event of an uncured default, then in addition
to all of Landlord’s other remedies available under the
Lease, Tenant shall also become immediately liable to Landlord for
the unamortized portion of the Abated Rent existing as of the date
of such uncured event of default.”
6. Proportionate
Share. Effective upon the First Amendment Effective Date,
the first paragraph of Lease Addendum No. 2 to the Lease shall be
amended to reflect an increase in Tenant’s Proportionate
Share from 1.70% to 2.55% as determined by dividing the 13,162
rentable square feet of the New Premises by the 515,965 net
rentable square feet of the Building.
7. Work
Letter. Effective upon the First Amendment Effective Date,
Lease Addendum Number One [Allowance] shall be deleted in its
entirety and replaced with Lease Addendum Number One attached
hereto as Exhibit B.
8. Inapplicable
Provisions. Effective upon the First Amendment Effective
Date, Lease Addendum Number Four (Right of First Offer) and Exhibit
D to the Lease (First Offer Space) are hereby deleted in their
entireties and are of no further force and effect.
9. Brokers.
Tenant represents and warrants that it has neither consulted nor
negotiated with any broker or finder with respect to the New
Premises or this First Amendment. Tenant agrees to indemnify,
protect, defend, and save Landlord harmless from and against any
claims for fees or commissions, including, but not limited to,
attorneys’ fees incurred in connection with the defense of
any such claim, from anyone with whom Tenant has dealt in
connection with the New Premises and/or this First
Amendment.
10. Counterparts
and Signatures. This First Amendment may be executed in
multiple counterparts but such multiple counterparts shall
constitute a single agreement. Signatures of this First Amendment
that are transmitted by either or both electronic or telephonic
means (including, without limitation, facsimile, email, and .pdf
format) are valid for all purposes.
11. Ratification.
The Lease remains in full force and effect except as expressly
modified by this First Amendment and is ratified and confirmed. If
there is a conflict between the terms of the Lease and this First
Amendment, the terms of this First Amendment shall control. Tenant
further acknowledges that it has no claims, counterclaims, defenses
or setoffs against Landlord, Landlord’s managing member or
Landlord’s property manager arising in connection with the
Lease or Tenant’s occupancy of the Premises, including,
without limitation, in connection with any amounts paid by Tenant
to Landlord, throughout the Term of the Lease.
[Signature
Page Follows.]
-43-
IN
WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment in three originals, all as of the day and year first
above written.
|
WITNESSES
/s/ D. Michael
Beck
Printed
Name: D. Michael
Beck
/s/Ella M.
Peterson
Printed
Name: Ella M.
Peterson
|
AUTOBYTEL INC.,
a
Delaware corporation
By: /s/
Glenn E. Fuller
Name: Glenn
E.
Fuller
Title: Executive
Vice President, Chief Legal and Administrative Officer and
Secretary
“TENANT”
|
|
WITNESSES
/s/Kate
King
Printed
Name: Kate
King
/s/ Roger M.
Smoek
Printed
Name: Roger M.
Smoek
|
RIVERGATE TOWER OWNER, LLC,
a
Delaware limited liability company
By: /s/Lorri
Dunne
Name: Lorri
Dunne
Title: Authorized
Signatory
“LANDLORD”
|
|
|
|
-44-
EXHIBIT A
THE NEW PREMISES
-45-
EXHIBIT B
LEASE ADDENDUM NUMBER ONE
WORK LETTER
This
Lease Addendum Number One (this "Work Letter") sets forth the
rights and obligations of Landlord and Tenant with respect to the
construction and installation of any improvements to the Premises
to be completed before the Commencement Date (the "Tenant
Improvements") excluding Landlord’s obligations to complete
the construction of the Premises as set forth below. Tenant
acknowledges and agrees that the Premises is currently being
completed on a “spec” basis.
In
consideration of the mutual covenants hereinafter contained,
Landlord and Tenant do mutually agree to the
following:
11.
Premises.
Landlord is leasing the Premises to Tenant, and Tenant accepts the
Premises from Landlord in its “AS IS” condition.
Notwithstanding the foregoing, Landlord agrees to complete the
construction of the Premises using Building Standard (as
hereinafter defined) materials on a “spec” basis in
accordance with the specifications attached hereto as Schedule 1
(the “Specifications”).
12.
Work
and Materials at Tenant's Expense.
a. Any improvements
requested by Tenant that are not a part of, or are otherwise
inconsistent with, the Specifications shall be at Tenant’s
sole cost and expense and shall be subject to Landlord’s
prior written approval. Tenant agrees to pay to Landlord, promptly
upon receipt of any invoice, for all costs and expenses incurred
for any improvements that are not a part of, or are otherwise
inconsistent with, the Specifications, plus a Construction
Supervision Fee equal to four percent (4%) of such total costs and
expenses in exchange for Landlord providing construction management
services. If unpaid within ten (10) days after receipt of invoice,
then the outstanding balance shall accrue at the rate of one
percent (1%) per month until paid in full.
b. Tenant understands,
acknowledges and agrees that notwithstanding anything to the
contrary, Landlord may require (a) any contractor (and its
subcontractors) to purchase materials and finishes for the
performance of the Tenant Improvements through Landlord's preferred
vendor(s) provided the cost of such materials and finishes does
not, in the aggregate, exceed the competitive cost of the same
materials and finishes not purchased from Landlord's preferred
vendor(s), and (b) specific vendors to perform portions of the
Tenant Improvements affecting Building systems. The term "Building
Standard" shall mean the type, brand, grade, or quality of
materials and finishes Landlord designates from time to time to be
used in the Building or, as the case may be, the exclusive type,
brand, grade, or quality of materials and finishes to be used in
the Building.
13.
Signage and
Keys. Landlord shall provide the following in accordance
with Building standards at Tenant's expense: (i) door and
directory signage; (ii) suite and Building keys or entry
cards.
14.
Commencement
Date.
a. The Commencement
Date shall be the date when the work to be performed by Landlord is
substantially completed, excluding items of work and adjustment of
equipment and fixtures that can be completed after the Premises are
occupied without causing material interference with Tenant's use of
the Premises (collectively, "Punch List Items"), and the Landlord
delivers possession of the Premises to Tenant in accordance with
Section 3 of the Lease.
-46-
b. Notwithstanding the
foregoing, if Landlord shall be delayed in delivering possession of
the Premises as a result of:
i. Tenant's request
for changes in or modifications to the Tenant Improvements or the
Specifications (notwithstanding Landlord's approval of any such
changes);
ii. Inability to obtain
materials, finishes or installations requested by
Tenant;
iii. The
performance of any work by any person, firm or corporation employed
or retained by Tenant;
iv. Any other act or
omission by Tenant or its agents, representatives, and/or
employees; or
v. A force majeure
event;
then,
in any such event, for purposes of determining the Commencement
Date, the Premises shall be deemed to have been delivered to Tenant
on the date that Landlord reasonably determines that the Premises
would have been substantially completed and ready for delivery if
such delay or delays had not occurred.
15. Repairs and
Corrections. Tenant, at its sole cost and expense, shall
repair or correct any defective work or materials installed by
Tenant or any contractor other than the contractor selected by
Landlord, or any work or materials that prove defective as a result
of any act or omission of Tenant or any of its employees, agents,
invitees, licensees, subtenants, customers, clients, or
guests.
16. Inspection of
Premises; Possession by Tenant. Prior to taking possession
of the Premises, Tenant and Landlord shall inspect the Premises and
Tenant shall give Landlord written notice of any Punch List Items.
Tenant's possession of the Premises constitutes acknowledgment by
Tenant that the Premises are in good condition and that all work
and materials provided by Landlord are satisfactory as of such date
of delivery of possession, except as to (i) any Punch List
Items, (ii) latent defects, and (iii) any equipment that
is used seasonally if Tenant takes possession of the Premises
during a season when such equipment is not in use.
17. Access During
Construction. During construction of the Tenant Improvements
and with prior approval of Landlord, Tenant shall be permitted
reasonable access to the Premises for the purposes of taking
measurements, making plans, installing trade fixtures, and doing
such other work as may be appropriate or desirable to enable Tenant
to assume possession of and operate in the Premises; provided,
however, that such access does not interfere with or delay
construction work on the Premises. Prior to any such entry, Tenant
shall comply with all insurance provisions of the Lease. Tenant
agrees to indemnify, defend, and hold Landlord harmless from and
against any suits, claims, damages, costs, expenses and liabilities
asserted against or incurred by Landlord or the property as a
result of Tenant accessing the Premises during construction of the
Tenant Improvements.
[The
remainder of this page is intentionally left blank.]
-47-
SCHEDULE 1 TO LEASE ADDENDUM NUMBER ONE
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-55-