EXHIBIT 10.40
OFFICE LEASE
This Lease is made this 20 day of March, 2000 by and between BOCA II
ASSOCIATES, LTD., a Florida limited partnership ("LANDLORD") and MACKENZIE
INVESTMENT MANAGEMENT, INC., A Delaware Corporation ("TENANT").
WITNESSETH:
1. BASIC LEASE PROVISIONS:
1.1. Project Name: First Union Plaza
The Project includes: An office building designated as
Building Two (Building Two is also referred to herein as the
"Building"), a bank building designated as Building One
(Building One and Building Two collectively referred to as
the "Office Property"), a parking garage facility, and the
land and other improvements within the Project boundaries.
The term Project does not include any residential property.
Project Boundaries: See Exhibit A
Address: 000 Xxxxx Xxxxxxx Xxxxxxx -
as to Building Two
Xxxx Xxxxx, Xxxxxxx 00000
Building: Two
Unit/Suite No.: TBD
Floor: The entire 4th, 5th, & 6th
1.2. Area of Premises: Approximately 40,786 rentable square feet
as reflected on the floor plan attached hereto as Schedule 1.
(said Area shall be adjusted in the event the final plans and
specifications or, only to the extent provided in this
Section 1.2, the as-built condition for the Premises reflect
an alternate rentable square footage). After Landlord's
completion of the Building, the area of the Premises and the
Building shall be measured by Landlord's architect at
Landlord's sole expense using the BOMA ANSI Z65.1 1996
measurement standards as further limited by Landlord's
representation to Tenant that the common area loss factor of
the Building shall not exceed 12%, and Landlord's architect
shall certify the accuracy of such measurements to Tenant. If
Landlord's architect determines that in fact the Premises
contain less than 40,786 square feet of rentable area (or if
Tenant causes the Premises to be re-measured by its architect
and determines a 5% or greater error in the measurement by
Landlord's architect, in which case Landlord shall reimburse
Tenant for its out-of-pocket costs in re-measuring the
Premises), Base Rent and Tenant's Percentage Share shall be
ratably reduced. If the Premises contain more than 40,786
square feet of rentable area, there shall be no adjustment to
Base Rent and Tenant's Percentage Share. Notwithstanding
anything herein to the contrary, in no event will be Premises
be deemed to contain more rentable area than results by
multiplying the usable area (as determined by BOMA ANSI Z65.1
1996) of the Premises not including the bathrooms and
increasing such usable area by 12%.
1.3. Tenant's Percentage Share: 46.08 % (said Percentage Share
shall be adjusted in the event the rentable area of the
Building or the Project is other than as stated herein or is
increased or decreased).
Based upon Premises of 40,786 rentable square feet in
Building Two, which contains approximately 88,509 rentable
square feet.
1.4. Commencement Date of Lease: March 1, 2001 subject to the
Landlord delivering Tenant possession of the Premises in
shell condition four (4) months prior to Commencement Date,
subject to extension for Force Majeure or Tenant Delay
("Delivery Date"). Said four (4) month period is referred to
as the Construction Period. Provided, however, if the
Delivery Date (defined below) does not for any reason
including Force Majeure (but excluding Tenant Delay) occur by
the Outside Date (defined as January 1, 2001), Tenant shall,
as its sole and exclusive remedy, be entitled to either (i)
cancel this Lease by notice to Landlord given within 20 days
after the expiration of the Outside Date, in which case
Landlord shall have no further liability to Tenant or (ii)
extend the Outside Date for a thirty (30) day period.
Tenant's right to cancel this Lease or extend the Outside
Date (as extended) shall continue for successive thirty (30)
day periods until the Delivery Date has occurred. Shell
condition means that all of the following have occurred: (i)
substantial completion all of Landlord's Building Standard
Improvements have been fully completed but for punch list
items that do not materially or adversely interfere with or
delay performance or completion of Initial Tenant
Improvements (such capitalized terms are defined in the
Construction Rider attached to this Lease); and (ii) if
Tenant cannot obtain a building permit for the Initial Tenant
Improvements because Landlord's Building Standard
Improvements have not been completed or by reason of any
outstanding permit or approval related to the Project or the
Building ("Tenant Building Permit Condition"), then Shell
condition shall not occur until Landlord has remedied the
situation. The Commencement Date shall be delayed by the
number of days (not to exceed 3 months) in which completion
of the Initial Tenant Improvements is delayed due to Force
Majeure and Landlord Delay, but in no event shall the
Commencement Date be extended for Tenant Delays. The
Commencement Date shall also be delayed based on the number
of days in which issuance of a certificate of occupancy for
the Premises following completion of the Initial Tenant
Improvements is delayed on account of there not having been
issued such necessary governmental approvals as are a
condition precedent to Tenant receiving a certificate of
occupancy for the Premises. Landlord Delay includes without
limitation the following (but only to the extent, and only
for such period, that the event actually causes a delay in
completion of the Initial Tenant Improvement): failure of
Landlord (i) to deliver the detailed Building drawings
(including mechanical, electrical, structural and plumbing)
to Tenant, at Landlord's expense, within 15 days after the
date of this Lease; (ii) to construct Landlord's Building
Standard improvements in compliance with Laws as of the
Delivery Date; (iii) to correct any latent defects in
Landlord's Building Standard Improvements; (iv) to construct
in accordance with approved detailed Building drawings,
subject to changes which do not materially or adversely
effect Tenant's use or occupancy of the Premises or
construction of the Initial Tenant Improvements and any other
modification approved in writing by Tenant or required by Law
(v) material discrepancies between the Building drawings
submitted to Tenant and the actual as-built condition of
Landlord's Building Standard Improvements and the Premises.
1.5. Expiration Date of Lease: The last day of the Lease Term. The
Lease tern is a period of One Hundred and Forty Four (144)
months commencing on the Rent Commencement Date, as such
Lease Term may be extended in accordance with this Lease.
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1.6. Rent Commencement Date: the earlier of (i) Commencement Date
of Lease or (ii) when Tenant opens for business; but in no
event will the Commencement Date be sooner than March 1,
2001.
1.7. Base Rent: $856,506.00 per year OR $ 21.00 per rentable
square foot per year, payable in equal monthly installments
of $71,375.50 per month, subject to rental adjustment as
hereinafter provided. In addition to Base Rent, Tenant shall
pay Operating Expense Rent in accordance with Paragraph 1.14
& 6.1. Notwithstanding the foregoing, Landlord will xxxxx the
Base Rent for 28,624 rentable square feet for the initial six
(6) months of the lease term. Total base rental abatement is
$300,552.
1.8. Security Deposit: None
1.9. Permitted Use: Tenant has the use of Premises for general
office purposes only. Landlord agrees not to lease any space
(within Building Two) over 7,500 rentable square feet to any
company or corporation whose primary business is in the sale
or administration of mutual funds. Landlord warrants and
represents that it (i) has not entered into any agreement or
other undertaking that would in any way preclude, limit or
restrict Tenant's permitted use including Tenant's sale and
administration of mutual funds and (ii) is not aware of any
such agreement, undertaking or restriction of record
encumbering the Building that would in any way preclude,
limit or restrict Tenant's sale and administration of mutual
funds.
1.10. Trade Name: Xxx Xxxxxxxxx or any other name under which
Tenant or any permitted assignee or subtenant chooses to
operate.
1.11. Parking Spaces: Landlord shall make available to Tenant
without charge a number of unreserved and unassigned parking
spaces within the Parking Garage equal to 2.5 parking spaces
for every 1,000 square feet of the Premises and any
additional space leased by Tenant, without charge to Tenant.
Additionally, Tenant hereby agrees to pay Landlord for
reserved and assigned parking spaces equal to 1 parking
spaces within the Parking Garage for every 1,000 square feet
of the Premises and any additional space leased by Tenant, at
a charge of $50.00 per parking space per month throughout the
term of the Lease, which payment shall be due and payable at
the time of payment of Base Rent and shall be considered
additional rent due under this Lease. The location of the
reserved parking spaces shall be mutually agreed to by Tenant
and Landlord. Tenant acknowledges and agrees that the parking
in the Project Garage is on a co-usage basis with other
owners and permitted users in the Project, except that
Tenant's reserved parking spaces in the Project Garage shall
be available for its exclusive use between the hours 8:00
a.m. and 6:00 p.m., Monday through and including Friday,
excluding any and all municipally recognized holidays (the
"Normal Parking Hours"). After Normal Parking Hours, fifty
percent (50%) of the reserved parking allocated to Tenant
shall remain available for Tenant's exclusive use and the
remaining fifty percent (50%) of the reserved and one hundred
percent (100%) of the unreserved parking allocated to Tenant
shall be on a co-usage basis with other owners and permitted
users in the Project, subordinate to the rights of the
adjoining residential development and subject to
availability. Notwithstanding the foregoing, Landlord will
xxxxx the reserved parking additional rent for the initial
twelve (12) months of the lease terms. Total parking
additional rent abatement is $24,000.
1.12. Late Charges: The parties agree that late payment by Tenant
to Landlord of rent will cause Landlord to incur costs not
contemplated by this Lease, the amount of which is extremely
difficult to ascertain. Therefore, the parties agree that if
any installment of rent is not received by Landlord within
Five (5) days after rent is due, Tenant will pay to Landlord
a sum equal to ten percent (10%) as a percentage of the
delinquent monthly payment as a late charge; provided,
however, that no more than once in any calendar year,
Landlord agrees to waive its right to collect such late
charge on such payment of rent if such payment is made no
later than the fifth
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(5th) day after Landlord delivers to Tenant written notice of
such late payment. In addition all rental and other charges
due hereunder which are not paid when due shall bear interest
from the due date until paid at the Default Rate.
1.13. Rental Adjustment(s) during initial term, commencing on the
first anniversary of the Rental Commencement Date (subject
to modification as set forth in Section 1.2 above):
Adjustment Date Adjusted Monthly Rent
--------------- ---------------------
YEAR 2 $73,074.91
YEAR 3 $74,774.33
YEAR 4 $76,473.75
YEAR 5 $78,173.16
YEAR 6 $79,872.58
YEAR 7 $81,572.00
YEAR 8 $83,271.41
YEAR 9 $84,970.83
YEAR 10 $86,670.25
YEAR 11 $88,369.67
YEAR 12 $90,069.08
1.14. Calculation of Operating Expense Rent: Landlord estimates
that the Operating Expense Rent will be $8.75 per rentable
square foot for Year One (1) of the Term of the Lease. See
PARAGRAPH 6.
Notwithstanding the foregoing, Landlord will xxxxx the
operating expense rent for 28,624 per rentable square feet
for the initial six (6) months of the lease term. Total
operating expense rent abatement is $125,230.
Notwithstanding the foregoing the operating expense rent will
be capped as to not exceed $8.75 per rental square feet for
the first twelve months of the lease term. Also, Landlord
will cap controllable operating expenses as to not exceed a
sum greater than five percent (5%) over the preceding twelve
(12) months of the term. Controllable expenses do not include
real state taxes, property and casualty insurance and
utilities.
1.15. Guarantee is purposely omitted.
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1.16. Address for payment of rent and notices:
Landlord: Tenant:
Boca II Associates, Ltd. Mackenzie Investment Management, Inc.
0000 Xxxxxxxxx Xxxx 000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 Xxxx Xxxxx, XX 00000
Attn: Accounts Payable Attention: Xxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copies of all notices shall be sent to: Copies of all notices shall be sent to:
Xxxxx Partners Realty, Ltd. Mackenzie Investment Management, Inc.
000 Xxxxx Xxxxxxx Xxxxxxx 000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000 Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, XX 00000
Attn: Property Manager Attention: Xxxxx Xxxxx
phone (000) 000-0000 Phone: (000) 000-0000
fax (000) 000-0000 Fax: (000) 000-0000
Xxxxx X. Xxxxx, Esq.
Holland & Knight LLP
0 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
phone (000) 000-0000
fax (000) 000-0000
1.17. Broker: The Brokers are: Xxxxx Partners Realty, Ltd. and
Xxxxxxx & Wakefield of Florida, Inc. and Landlord will bear
the cost of the commission payable to Broker in connection
with this Lease. Landlord and Tenant warrant and represent to
each other that they have not consulted or negotiated with
any broker or finder with regard to the Premises or this
Lease other than Broker. If either party shall be in breach
of the foregoing warranty, such party shall indemnify the
other against any loss, liability and expense (including
attorneys' fees and court costs) arising out of claims for
fees or commissions from anyone having dealt with such party
in breach.
2. DEFINITIONS: Unless the context otherwise specifies or requires, the
following terms will have the meanings set forth below:
2.1. COMMON AREAS: All areas and facilities outside the Premises
and within the exterior boundaries of the Project that do not
consist of rentable area and that are provided and designated
by Landlord, in sole and absolute discretion from time to
time, for the general use and convenience of Tenant and other
tenants of the Project and their authorized representatives,
invitees and the general public. Common Areas are areas
within and outside of the Building in the Project, such as
common entrances, lobbies, pedestrian walkways, patios,
landscaped areas, sidewalks, service corridors, elevators,
restrooms (other than those entirely within any tenant's
leased premises), stairways, decorative walls, plazas,
loading areas, roads, and parking areas (including the
parking garage, the use of which is shared by the owners,
tenants and occupants of the real
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property which is adjacent to the Project). Notwithstanding
the foregoing, only for purposes of Landlord's obligations to
maintain and effect compliance with laws, but not for
purposes of affording rights of use with respect to persons
or entities other than Tenant and its invitees, the Common
Areas shall also include bathrooms located in the Premises.
2.2. OPERATING EXPENSES: All costs of operating, servicing,
administering, repairing and maintaining the Building
(excluding costs paid directly by Tenant and other tenants in
the Project or otherwise reimbursable to Landlord). In
addition, Operating Costs shall include approximately 86.50%
of the cost of operating, servicing, administering, repairing
and maintaining the Common Areas of the Office Property
including but not limited to the landscaping within the
Office Property and approximately 42.40% (apportioned to the
Building) for the cost of operating, servicing,
administering, repairing and maintaining the parking lot
and/or garage within the Project boundaries (the "Project
Costs"). The proportionate share as used in the preceding
sentence shall be calculated using a fraction, the numerator
of which is the rentable area of the Building and the
denominator of which is the leasable area of all existing and
planned improvements in the Project and the adjoining
residential development (leasable area includes without
limitation rentable area of office buildings and floor area
of the residential units, as applicable). All costs of
operating, servicing, administering, repairing and
maintaining the Project that are within the definition of
Project Expenses include any reasonable and necessary costs
of operation, maintenance and repair, computed in accordance
with generally accepted accounting principles applied on a
consistent basis ("GAAP"), and will include, by way of
illustration, but not limitation the following (only as used
in the definition of Project Expenses for items (i) through
(iv) below, the term "Project" does not include Building
One):
(i) all costs of managing, operating and
maintaining the Project, including, without
limitation, wages, salaries, fringe benefits and
payroll burden for employees utilized in the day to
day operation of the Project; public liability,
flood, windstorm property damage, rent loss, all
risk and all other insurance premiums typically
maintained for other comparable properties in
downtown Boca Raton Florida and paid by Landlord
with respect to the Project; heating, air
conditioning and ventilating ("HVAC") for the
Building and the building engineer's office located
within the parking garage, water, sewer, and
electric utility charges (other than with respect to
utilities separately metered and paid directly by
Tenant or other tenants); the cost of contesting the
validity or amount of real estate and personal
property taxes and other Taxes or any governmental
requirements; janitorial services; access control;
window cleaning; elevator maintenance; fire
detection and security devices and services;
gardening and landscape maintenance; trash, rubbish,
garbage and other refuse removal; pest control;
painting; facade maintenance; repairs, replacement,
and maintenance of personal property, fixtures, and
improvements in the Common Areas; lighting including
light bulbs (it being understood that due to
inclusion of this item, Landlord agrees to replace
building standard light bulbs in the Premises);
exterior and partition (demising) wall repairs;
routine roof maintenance needed to continue roof
warranties including but not limited to the cost of
a roof maintenance agreement (however, this shall
not include any repairs contemplated by the roof
warranty or replacement costs); maintenance of all
steam, water and other water retention and
discharging piping, culverts, fountains, pumps,
weirs, lift stations, catch basins and other areas
and facilities whether or not on-site; repair and
repainting of sidewalks and roads due to settlement
and potholes and general repairs, sealing, striping,
blacktopping and maintenance but not resurfacing of
parking areas (including the parking garage);
sanitary control; depreciation of machinery and
equipment used in any of such maintenance and repair
activities; management fees not in excess of 4.5% of
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rents (Landlord agrees that management fees will be
in lieu of any administrative fees or overhead);
road sidewalk and driveway maintenance other than
resurfacing; and all other Project maintenance,
repairs and insurance.
(ii) the costs (amortized over the useful life
of the item in question together with a reasonable
finance charge in accordance with GAAP) of any
capital improvements made to the Building by
Landlord for the purpose of reducing Operating
Expenses but only to the extent of actual savings
achieved in Operating Expenses (provided, however,
the limitation that such costs be limited to the
actual savings achieved in Operating Expenses shall
be inapplicable to any capital item for which
Landlord obtains Tenant's prior written approval,
which approval shall not be unreasonably withheld,
conditioned or delayed);
(iii) the costs of supplies, materials and tools;
(iv) all real and personal property taxes (but
not including any personal property taxes levied
with respect to any personal property other than
Landlord's located in the Project), assessments
(whether they be general or special and whether they
be imposed by any state, federal, local or
governmental body or special district), sewer rents,
rates and charges, transit taxes, taxes based upon
the receipt of rent (except to the extent paid
directly by tenants to Landlord) and any other
federal, state or local government charge, general,
special, ordinary or extraordinary (but not
including income taxes), which may now or hereafter
be levied or assessed against the land upon which
the Project stands, benefiting the Project or the
Project for such year or the furniture, fixtures,
machinery, equipment, apparatus, systems and
appurtenances used in connection with the Project or
the operation thereof (the "TAXES"). Notwithstanding
the foregoing, Taxes shall not include penalties,
fines, late charges.
Except as provided above, Operating Expenses shall not include:
(a) depreciation on the Project or any Common Areas;
(b) costs of space planning, tenant improvements,
marketing expenses, finders fees and real estate broker
commissions or any other work with respect to the leasing of
rentable area;
(c) any and all expenses reimbursable either by an
insurer, condemnor or other person or entity, and any and all
expenses for which Landlord is reimbursed or entitled to
reimbursement by a tenant in the Project pursuant to a lease
provision in such tenant's lease and any expenses
attributable to the parking garage for which Landlord is
reimbursed by the owner of the adjacent parcel which shares
use of such garage;
(d) salaries for personnel above the grade of property
manager(s) and engineer(s);
(e) costs in connection with services or benefits of a
type which are not provided to Tenant, but are provided to
another tenant or occupant;
(f) xxxx-ups on electricity and condenser cooling water
for heat pumps in excess of Landlord's costs therefor;
(g) Landlord's general overhead and administrative
expenses;
(h) cost of repair or other work necessitated by the
gross negligence or willful misconduct of Landlord or
Landlord's employee's contractors or agents.
(i) the cost of repairs or replacements (a) necessitated
by the exercise of the power of eminent domain or (b)
incurred by reason of fire or other casualty.
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(j) costs incurred in connection with the sale,
financing or refinancing of the Building (including mortgage
debt), and rent payable under any lease to which this Lease
is or may become subject.
(k) costs incurred in negotiating or enforcing leases
against tenants (or prospective tenants), including
attorneys' fees.
(1) advertising and promotional expenditures, and costs
of signs in or on the Building identifying the owner of the
Building or other tenants' signs, other than Building
standard signage of the type offered to tenants.
(m) the incremental cost of furnishing services such as
non-Business Hours HVAC to any tenant and costs incurred in
performing work or furnishing services for individual
tenants.
(n) costs incurred by Landlord due to the violation by
Landlord or any tenant of the terms and conditions of any
lease for space in the Building.
(o) compensation paid by Landlord to persons engaged in
commercial concessions operated by Landlord (and not by a
third party) in the Building (e.g., a newspaper stand or
shoeshine service or valet parking).
(p) fines, penalties or other costs incurred by Landlord
due to its violation of this Lease, any other lease of space
in the Project, or any governmental rule or authority.
(q) costs for the purchase of sculptures, paintings or
other objects of art for the Project.
(r) any increase in insurance premium to the extent that
such increase is caused by or attributable to the use,
occupancy or act of another tenant.
(s) costs relating to defects in the construction of the
Building or in the Building equipment.
(t) expenditures in connection with Hazardous
Substances.
(u) expenses of the Building and the Common Areas
complying with Americans with Disabilities Act of 1990, and
the related implementing regulations, codes, rules and
guidelines, as such acts and related regulations, codes,
rules and guidelines may be amended from time to time
(collectively, the "ADA"), or any similar federal, state,
county or municipal law or ordinance.
(v) costs in connection with trade and professional
organizations.
(w) capital costs other than as expressly permitted
above.
(x) reserves including Any amounts prepaid for any year
other than the then-current year.
(y) bad debts.
(z) rent on any space used as a leasing office.
(aa) any roofing repairs (but specifically excluding
routine maintenance needed to continue the roof warranties
and the cost of a roof maintenance agreement) during the
first twelve (12) years after the issuance of a certificate
of occupancy for the Building.
(bb) rent on any space used as a management office until
such time as the Building has achieved 50% leased.
(cc) costs incurred in compliance with the Americans with
Disabilities Act or statutes, laws, regulations or other
legislation of similar import for the Building.
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2.3 RENTABLE SQUARE FEET: The number of square feet of net
rentable area as computed in accordance with BOMA standard
ANSI Z65.1 1996.
2.4 DEFAULT RATE: Two Percent above the Prime Rate announced by
Citibank NA, from time to time, for its most favored customers
[or such similar index if such is not available, the prime
rate announced by the Wall Street Journal], not to exceed the
maximum lawful rate of interest.
3. PREMISES:
3.1. Lease of Premises: Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, for the term and subject
to the agreements, covenants, conditions and provisions set
forth in this Lease, to which Landlord and Tenant hereby
mutually agree, the premises (the "PREMISES") described in
PARAGRAPHS 1.1 and 1.2 above.
3.2. Project: The Premises are a part of the office project (the
"Project") described in PARAGRAPH 1. Landlord may increase,
reduce or change the number, dimensions or locations of the
walks, buildings, lobbies, parking and other Common Areas and
other improvements located in the Project in any manner that
Landlord, in its sole discretion shall deem proper; provided,
however, notwithstanding anything to the contrary in this
Lease, Landlord shall not be entitled to materially and
adversely modify the configuration or location of the
Premises or Tenant's reserved parking spaces (however, with
respect to Tenant's reserved parking, Landlord shall be
entitled to materially or adversely modify the configuration
or location of Tenant's reserved parking with Tenant's prior
consent (which consent shall not be unreasonably withheld,
conditioned or delayed). Landlord further reserves the right
to make alterations and/or additions to and to build or cause
to be built additional stories on the Building in which the
Premises are situated and to add any buildings within the
Project site so long as such activities do not materially and
adversely interfere with Tenant's use and enjoyment of the
Premises and its reserved parking spaces, including without
limitation access to both. Landlord reserves the right to
install, maintain, use, repair and replace, pipes, ducts,
conduits and wires leading through the Premises (limited to
the area above the ceiling) and serving other parts of the
Project in a manner that will not materially interfere with
Tenant's use of the Premises. Landlord will also have the
right to increase and expand the size of the Project and/or
the Project site by adding additional land, buildings and
other structures to the Project. Landlord shall have the
right to grant easements for ingress, egress or other
purposes within or across the Project or the Project site.
Landlord shall have the right to change the Project's name
without notice (subject to Tenants rights as set forth in the
paragraph below entitled "Graphics"), to change the Project's
street address upon 90 days prior notice, to grant to any
person or entity the exclusive right to conduct any business
or render any service in or to the Project, (provided such
exclusive right shall not operate to prohibit Tenant from
using the Premises for the purpose set forth in PARAGRAPH 1),
to retain at all times master keys or passkeys to the
Premises (however Landlord's right to access the Premises is
subject to the terms of this Lease), and to place such signs,
notices or displays as Landlord reasonably deems necessary or
desirable upon the roof and exterior of the Project. Landlord
has the right to allow the owners, tenants and guests of the
parcel which is adjacent to the Project to share the use of
the parking garage which is included in the Project.
3.3. Relocation of Tenant: PURPOSELY OMITTED
4. COMMON AREAS:
4.1. Tenant's Right to Use Common Areas: Landlord grants Tenant
and its authorized representatives and invitees the
non-exclusive right to use the Common Areas with others who
are entitled to use the Common Areas subject to Landlord's
rights as set forth in this Lease.
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4.2. Landlord's Control: Landlord has the right to:
(a) establish and enforce reasonable rules and
regulations applicable to all tenants concerning the
maintenance, management, use and operation of the Common
Areas (however, none of Landlord's rules and regulations
which are not attached hereto shall be effective against
Tenant if, to any extent, they are in conflict with the Lease
or impose undue burden on Tenant; and Landlord agrees to
enforce the rules and regulations on a non-discriminatory
basis);
(b) close, if necessary, any of the Common Areas to
prevent dedication of any of the Common Areas or the accrual
of any rights of any person or of the public to the Common
Areas;
(c) close temporarily any of the Common Areas for
maintenance purposes;
(d) select a person, firm or corporation which may be an
entity related to Landlord to maintain, manage, and/or
operate any of the Common Areas;
(e) allow the owners, tenants and visitors of the real
property and improvements, which are adjacent to the Project
to share the use of the parking garage, subject to the terms
of Section 1.11 herein.
Notwithstanding the provisions of this Lease, in exercising
its rights hereunder, Landlord will provide Tenant and its
invitees reasonable access to and from the Premises, the
Building and the parking garage at all times.
5. RENT:
5.1. Base Rent: Tenant will pay to Landlord as rent for the use
and occupancy of the Premises at the times and in the manner
provided below, Base Rent in the amount specified in
PARAGRAPH 1 above payable in advance on the Rent Commencement
Date and on or before the first day of each and every
successive calendar month during the term hereof without
demand, setoff or deduction except as expressly set forth in
this Lease. Notwithstanding anything in this Lease to the
contrary, Tenant shall be entitled to deduct against rent and
other charges due from Tenant, as and when same become due
and payable any final monetary judgment Tenant obtains
against Landlord. Any monetary obligation owed by Landlord to
Tenant shall bear interest from the date accrued at the
Default Rate defined herein. Notwithstanding the foregoing,
in the event that Landlord is the prevailing party on appeal,
Tenant agrees to pay to Landlord, within thirty (30) days of
the issuance of the judgment on appeal all amounts deducted
by Tenant against rent and other charges due from Tenant
together with Default Interest defined herein accrued from
the date of the trial court judgment.
5.2. Sales Tax: Additional Rent: In addition to the Base Rent,
Tenant agrees to pay Landlord monthly all sales or use taxes
or excise taxes imposed or levied by the State of Florida or
any other governmental body or agency against any rent or any
other charge or payment required hereunder to be made by
Tenant to Landlord. All sums of money as shall become due and
payable by Tenant to Landlord under this Lease, including
Tenant's Percentage Share of Operating Expenses, shall be
additional rent which Tenant shall be obligated to pay.
Landlord shall have the same remedies for default in the
payment of additional rent or sales tax as are available to
Landlord in the case of a default in the payment of Base
Rent.
6. OPERATING EXPENSES:
6.1. Operating Expenses Rent: In addition to Base Rent, Tenant
shall pay Tenant's Percentage Share, as specified in
PARAGRAPH 1 above, of the Operating Expenses paid or incurred
by Landlord in each year ("Operating Expenses Rent").
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6.2. Payment: Prior to the Commencement Date and thereafter during
December of each calendar year or as soon thereafter as
practicable, Landlord will give Tenant written notice of its
estimate (line item and detailed support included) of
Operating Expenses Rent for the ensuing calendar year. On or
before the first day of each month during the ensuing
calendar year, Tenant will pay to Landlord 1/12TH of such
estimated amounts, provided that if such notice is not given
in December, Tenant will continue to pay on the basis of the
prior year's estimate until the month after such notice is
given. If at any time or times it appears to Landlord that
the amounts payable for Operating Expenses Rent for the
current calendar year will vary from its estimate by more
than 10%, Landlord, by written notice to Tenant, will not
more than once per calendar year revise its estimate for such
year, and subsequent payments by Tenant for such year will be
in an amount so that by the end of such year Tenant will have
paid a total sum equal to such revised estimate. Landlord
will indicate in its notice to Tenant the reasons Landlord
believes its estimate is low by more than 10%.
6.3. Statement: Within 120 days after the close of each calendar
year or as soon after such 120 DAY period as practicable,
Landlord will deliver to Tenant a statement of amounts of
Operating Expenses Rent payable under this Lease for such
calendar year. If such statement shows an amount owing by
Tenant that is more than the estimated payments for such
calendar year previously made by Tenant, Tenant will pay the
deficiency to Landlord within 30 DAYS after delivery of the
statement. If the statement shows an amount which is less
than the estimated payments previously paid by Tenant for the
calendar year, provided there is no uncured Tenant default,
Landlord will remit the amount owed Tenant with the statement
or shall advise Tenant that Tenant has a credit for such
amount which will be applied to the rental installments next
coming due. Tenant has the right, exercisable no more than
once each calendar year on reasonable notice and at a time
reasonably acceptable to Landlord, to cause an audit to be
performed at Tenant's sole cost and expense of Landlord's
operations and/or books and records pertaining to Operating
Expenses for the preceding calendar year. The Tenant's audit
company must a third party "fee based" firm reasonably
approved by Landlord. Tenant shall also have the right to
review Landlord's books and records in advance of any such
audit using Tenant's personnel and at Tenant's sole cost and
expense, and Landlord will cooperate with such review,
provided such review occurs at Landlord's office during
normal business hours and Tenant give Landlord reasonable
advance notice. In the event it is ultimately determined by
agreement of Landlord and Tenant or by final court judgment
that Landlord has overstated Operating Expenses by more than
7%, within thirty (30) days after demand therefor by Tenant,
Landlord will reimburse Tenant for any overstatement of
Operating Expenses and the reasonable costs of such audit
incurred by Tenant. Further, Landlord will, within thirty
(30) days after demand therefore by Tenant, remit to Tenant
any overpayment of Operating Expenses upon such ultimate
determination. Notwithstanding the foregoing, in the event
that Landlord is the prevailing party on appeal, Tenant
agrees to pay to Landlord, within thirty (30) days of the
issuance of the judgment on appeal all amounts paid by
Landlord to Tenant together with Default Interest defined
herein accrued from the date of the trial court judgment.
6.4. Probation: If for any reason this Lease terminates on a day
other than the last day of a calendar year, the amount of
Operating Expenses Rent payable by Tenant applicable to the
calendar year in which such termination occurs will be
prorated on the basis which the number of days from the
commencement of such calendar year to and including such
termination date bears to 365.
6.5. Computation: Tenant's Percentage Share of the Operating
Expenses is the proportion that the rentable square footage
leased by Tenant bears to the total rentable square footage
of the Project, as determined by Landlord. Notwithstanding
any provision of this PARAGRAPH to the contrary, if the
Project is less than ninety-five percent (95%) leased and/or
occupied during any calendar
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year an adjustment shall be made so that Operating Expenses
Rent shall be computed for such year as though ninety-five
(95%) of the Project had been leased and occupied during such
year. Notwithstanding anything herein to the contrary, in no
event shall Landlord be entitled to recover more than 100% of
its actual Operating Expenses in the aggregate from all
tenants of the Project.
6.6. Taxes Payable by Tenant: Tenant shall be directly responsible
for taxes upon, measured by, or reasonably attributable to
the cost or value of Tenant's equipment, furniture, trade
fixtures and other personal property located in the Premises
(as "personal property" is defined by the appropriate taxing
authority).
7. USE OF PREMISES:
7.1. Effect on Insurance: Tenant shall not use any portion of the
Premises for purposes other than those specified in PARAGRAPH
1. In the event Tenant's particular use of the Premises (as
opposed to general office use that would be conducted by any
tenant occupying the Premises) would increase the existing
rate of insurance upon the Project, Landlord shall notify
Tenant and Tenant shall either discontinue the particular
use giving rise to such consequences (provided that Tenant
agrees to pays Landlord within thirty days of request
therefore for any increased cost incurred to the date of
discontinuance of such particular use) or pay Landlord for
the increased cost as and when same becomes due and payable.
In no event shall Tenant's particular use of the Premises (as
opposed to general office use that would be conducted by any
tenant occupying the Premises) be permitted if it would cause
cancellation of insurance policies covering the Project.
7.2. Continuous Operation: Except for (i) temporary closures due
to casualty, (ii) a temporary closure not to exceed 4 months
in connection with any permitted assignment of this Lease or
sublease of the Premises or (iii) temporary closures not to
exceed 4 months every three years in connection with Tenant's
repairs or alterations to the Premises, Tenant will not leave
the Premises unoccupied or vacant and will continuously
conduct and carry on in the Premises the type of business for
which the Premises are leased during Tenant's normal business
hours. Subject to Landlord's reasonable access control with
respect to Tenant's invitees, Tenant and its invitees shall
have unrestricted access to the Premises, 24 hours per day, 7
days per week, 52 weeks per year.
7.3. Miscellaneous Restrictions: Tenant will operate from the
Premises using the Trade Name set forth in PARAGRAPH 1.
Tenant will not use the Premises for or permit in the
Premises any offensive, noisy, or dangerous trade, business,
manufacture or occupation. Tenant agrees not to cause, permit
or suffer any waste or damage, disfigurement or injury to the
Premises or the fixtures or equipment thereof or the Common
Areas. Tenant will not use the Premises for washing clothes
or cooking and nothing will be prepared, manufactured or
mixed in the Premises which might emit any offensive odor
into the Project; provided, however, Tenant shall be entitled
to brew coffee and tea and use a microwave oven and toaster
in the Premises for internal use only and not for resale.
Tenant will not obstruct the sidewalks or Common Areas in the
Project or use the same for business operations or
advertising. Tenant will not use the Premises for any purpose
which would create unreasonable elevator loads, cause
structural load as set forth in the Construction Rider to be
exceeded or adversely affect the mechanical, electrical,
plumbing or other base building systems. Tenant will at all
times comply with the rules and regulations of the Project
attached hereto as SCHEDULE 3 and, subject to limitations
expressed in Section 4.2 above, with such additional rules
and regulations as may be adopted by Landlord from time to
time.
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8. PARKING:
8.1. Tenant's Parking Rights: Subject to the rules and regulations
of the Project, Tenant shall be entitled to the number of
reserved and unreserved Parking Spaces set forth in PARAGRAPH
1 above. Only automobiles, motorcycles and pickup trucks will
be permitted on the parking areas.
8.2. Landlord's Control Over Parking: Tenant and its authorized
representatives will park their cars only in areas
specifically designated for that purpose by Landlord. Within
ten (10) days after written request by Landlord, Tenant will
furnish to Landlord the license numbers assigned to its cars
and the cars of all of its authorized representatives. If any
car owner fails to park its car in the designated parking
areas, Landlord may tow the car at the cost of the offending
owner. Tenant will not park or permit the parking of any
vehicles adjacent to loading areas so as to interfere in any
way with the use of such areas. Any loading and unloading
shall occur only within designated by Landlord as loading
areas within the parking garage. Landlord shall have the
right, in Landlord's sole discretion, to designate parking
spaces for the exclusive use of a particular tenant or
particular tenants; provided, however, (i) none of Tenant's
reserved parking spaces shall be so designated and (ii) no
such designation shall reduce the number of spaces to which
Tenant is entitled. Landlord will have the right to institute
reasonable procedures and/or methods to enforce the terms of
this SUBPARAGRAPH.
9. GRAPHICS: Tenant, at Tenant's sole cost and expense, will install and
maintain all letters or numerals (including Tenant's logo) on or by
the entrance doors for the Premises. Landlord at Landlord's sole cost
shall place Tenant's name (as well as the name of any key employees
and affiliates of Tenant as it designated, up to a total of five (5)
collective names) on the building lobby directory. Landlord shall
permit the Tenant, at Tenant's sole cost to install exterior signage
placed on the top position of the Federal Highway and Camino Real
curved monuments sign (North side). In the event that an additional
monument sign is located at the corner of Federal Highway and 9th
Street, Tenant shall be entitled to place its signage on the top
position of such additional monument, at Tenant's sole cost; and
Tenant shall exercise its right to signage on the additional monument
by notifying Landlord of such fact within 30 days after Landlord's
notice to Tenant regarding the availability of the additional
monument. All such letters and numerals shall be in the form specified
by Landlord, and no other shall be used or permitted on the Premises.
Tenant shall not place any signs within the Premises which are visible
from the outside the Premises without Landlord's prior written
approval. In the event Landlord allows Building signage identifying
any person or entity (other than Landlord's name), Tenant shall be
entitled to install Building signage identifying Tenant that is at
least equal to such signage in terms of size, prominence and
visibility.
10. ASSIGNMENT AND SUBLETTING; ENCUMBRANCE: Tenant shall not assign this
Lease or sublet any portion of the Premises without prior written
consent of the Landlord, which will not be unreasonably withheld or
delayed, it being understood that it shall be reasonable for Landlord,
among other things, to withhold consent if Landlord is reasonably
dissatisfied with the financial responsibility, identity, reputation
or business character of the proposed assignee or sublessee. Any
change in the ownership of Tenant, if Tenant is a corporation or
partnership, shall constitute an assignment for purposes of this
PARAGRAPH; provided, however, this sentence shall be inapplicable to
Mackenzie Investment Management, Inc. and its affiliates.
Notwithstanding any consent by Landlord, Tenant shall remain liable
(along with each approved assignee and sublessee, which shall
automatically become liable for all obligations of Tenant hereunder
with respect to that portion of the Premises so transferred, except in
the case of a sublease, the sublessee shall only retain such liability
during the term of its sublease), and Landlord shall be permitted to
enforce the provisions of this Lease directly against Tenant or any
assignee or sublessee without proceeding in any way against any other
party. In the event of an assignment, contemporaneously with the
granting of Landlord's consent, Tenant shall cause the assignee
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to expressly assume in writing and agree to perform all of the
covenants, duties and obligations of Tenant hereunder and such
assignee shall be jointly and severally liable therefor along with
Tenant (but any assignee who does not expressly assume such
obligations in writing shall nevertheless be deemed to have assumed
such obligations by acceptance of any such assignment). No usage of
the Premises different from the usage provided for in PARAGRAPH 1
above shall be permitted, and all other terms and provisions of the
Lease shall continue to apply after such assignment or sublease.
Tenant shall not make or consent to any conditional, contingent or
deferred assignment of some or all of Tenant's interest in this Lease
without the prior written consent of Landlord, which Landlord may
withhold in its sole and absolute discretion. Tenant shall not enter
into, execute or deliver any financing or security agreement that can
be given priority over any mortgage given by Landlord or its
successors, and, in the event Tenant does so execute or deliver such
financing or security agreement, such action on the part of Tenant
shall be considered a breach of the terms and conditions of this Lease
and a default by Tenant entitling Landlord to such remedies as are
provided for in this Lease. Landlord shall have the right to assign or
transfer, in whole or in part, Landlord's rights and obligations
hereunder and in the Project and the Premises and subsequent to any
such assignment Landlord shall have no further obligations to Tenant.
In the event of any assignment or sublease, Tenant shall pay to
Landlord any "Transfer Premium" received by Tenant in connection
therewith. As used herein, "Transfer Premium" shall mean all rent,
real estate profit (defined as any proceeds relating to the sale of
services, personal property or Tenant's good will that, in each case,
are in excess of the fair market value thereof) and operating expense
payments paid by the assignee or sublessee to Tenant in excess of the
Base Rental, Operating Expenses and other amounts due from Tenant
hereunder (collectively, the "Consideration"), less any actual
out-of-pocket expenses paid by Tenant to unrelated third parties to
procure or in connection with such assignment or sublease and less the
value of any rent abatement or other free rent afforded the assignee
or subtenant. Notwithstanding the foregoing, Landlord shall be deemed
to have granted consent to any assignment or sublease if it fails to
give its objection with respect thereto in writing in reasonable
detail within ten (10) days of its receipt of Tenant's request. Tenant
shall have the right without Landlord's consent to sublet or assign an
affiliate and any entities into which Tenant is merged or
consolidated, or to an entity to which a substantial portion of
Tenant's assets are transferred. An affiliate means any corporation
which, directly or indirectly, controls or is controlled by or is
under common control with Tenant (and for this purpose "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities or by
contract or otherwise). In the event that Tenant subleases the
Premises, Tenant and Landlord shall split all Consideration in excess
of the Base Rental, Operating Expenses and other amounts due from
Tenant hereunder 50%/50% after subtracting the cost of subleasing the
Premises which includes but is not limited to the value of any rent
abatement, brokerage commissions, tenant improvements, architectural
fees, moving allowance and legal fees.
11. ORDINANCES AND STATUTES: At Tenant's sole cost, Tenant will comply
with all statutes, ordinances and requirements of all municipal, state
and federal authorities now in force, or which may hereafter be in
force (collectively, all of the foregoing, including any applicable
laws, rules and regulations are referred to as "Laws"), pertaining to
Tenants particular use of the Premises, including, but not limited to
the Americans With Disabilities Act (ADA). The commencement or
pendency of any state or federal court abatement proceeding affecting
the Premises and resulting from Tenant's breach of its obligations
under this Lease shall, at the option of the Landlord, be deemed a
breach thereof. Notwithstanding anything to the contrary in this
Lease, Tenant shall be responsible to comply, at its sole cost and
expense (regardless of whether same constitute a capital expense) with
all Laws pertaining to Tenant's particular use of the Premises or for
changes required by Laws or ADA solely within Tenant's Premises, as
opposed to Laws or ADA which are generally applicable to the entire
Building.
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At Landlord's sole cost, Landlord will comply with all Laws now in
force, or which may hereafter be in force, pertaining to the Building
which shall include ADA, including any required modifications thereof,
which cost attributed to capital expenditures shall be the sole
responsibility of Landlord. In the event that any restrooms within the
Building do not comply with all Laws or require refurbishing during
the Lease Term, such costs shall be at the sole expense of Landlord.
12. MAINTENANCE, REPAIRS, ALTERATIONS:
12.1. Tenant's Obligations: Upon possession of the Premises,
subject to punch list items and latent defects (latent
defects include without limitation any failure of Landlord's
Building Standard improvements to comply with Laws), Tenant
acknowledges that the Premises are in good order and repair
unless otherwise indicated herein. Tenant shall, at its own
expense and at all times, maintain the non-structural
elements of the Premises in good and safe condition and shall
surrender the same, at termination hereof, in accordance with
Section 12.4 below. Tenant, at Tenant's expense, shall be
responsible for all repairs required, excepting the
electrical wiring, plumbing and HVAC installations and any
other building system upon the Premises, roof, and the
exterior walls, structural foundations, parking areas and
other Common Areas, which shall be repaired by Landlord and
included in Operating Expenses subject to limitations set
forth above (except that, subject to Section 16.8 below,
Tenant shall be solely responsible for the cost of repair
with respect to any damage occasioned by the negligent or
intentional act of Tenant, its employees, agents,
contractors, and invitees for acts committed by such invitees
while present in the Premises).
12.2. Limits on Alterations: Tenant may not make any structural
improvement or alteration to the Premises which may
materially affect building systems without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Tenant specifically recognizes and
agrees that in no event shall any alterations or improvements
be connected to the glass window wall located on the
southeasterly side of the Building without the prior written
approval of Landlord as to the method of attachment (and in
no event shall there be any penetration of any kind to the
window mullions).
Tenant may not make any nonstructural improvement or
alteration (other than painting, floor covering and wall
covering) of the interior of the Premises costing in excess
of $25,000 without the prior written consent of the Landlord,
which shall not be unreasonably withheld or delayed. In no
event shall any Landlord's refusal to grant consent as
contemplated by the preceding sentence be based on aesthetic
considerations. Landlord's consent shall not be required for
painting, floor covering or wall covering. Prior to the
commencement of any repair, improvement, or alteration for
which Landlord's consent is required, Tenant shall give
Landlord at least 2 DAYS written notice. All alterations will
be made by a licensed and insured contractor consented to by
Landlord and performed in a good and workmanlike manner. All
materials shall be of a quality comparable to or better than
those in the Premises and shall be in accordance with plans
and specifications reasonably approved by Landlord; however,
this sentence shall not apply to painting, floor covering or
wall covering. Landlord may condition its consent to any
improvements or alterations upon Tenant's obtaining such lien
releases, waivers and contractors insurance, as Landlord
shall reasonably require; however, in no event shall Tenant
be required to post any bond or other form of security.
Landlord shall not charge Tenant any management,
administration or coordination fee related to alterations or
repairs of the Premises during the Lease term or any renewal
thereafter.
12.3. Liens: Subject to its entitlement to the Construction
Allowance referenced in the Construction Rider, Tenant will
pay all costs of construction done by it or caused to be done
by it on the Premises as permitted by this Lease. Tenant will
keep the Project free and clear of all
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construction, mechanic's, materialman's, laborer's and
supplier's liens, resulting from construction done by or for
Tenant. The interest of Landlord in the Premises and the
Project shall not be subject to liens for improvements made
by Tenant. Any lien filed by any contractor, materialman,
laborer or supplier performing work for Tenant shall attach
only to Tenant's interest in the Premises. Tenant agrees to
indemnify, defend (by counsel reasonably acceptable to
Landlord) and hold harmless Landlord from and against any and
all costs and liabilities and any and all mechanic's,
materialman's or laborer's liens arising out of or pertaining
to any improvements or construction done by Tenant. All
persons and entities contracting or otherwise dealing with
Tenant relative to the Premises or the Project are hereby
placed on notice of the provisions of this PARAGRAPH, and
Tenant shall further notify in writing such persons or
entities of the provisions of this PARAGRAPH prior to
commencement of any Tenant work in the Premises; provided,
however, Tenant's inadvertent failure to make such
notification shall not be deemed a default of this Lease.
Landlord reserves the right, in addition to the foregoing, to
record in the public records a notice of non-responsibility
as provided for in the Construction Lien law. If any
construction, mechanic's, materialman's or laborer's lien is
ever claimed, fixed or asserted against the Premises or any
other portion of the Project in connection with any such
Tenant work, Tenant shall, within twenty (20) DAYS after
receipt by Tenant of notice of such lien, discharge same as a
lien either by payment or by posting of any bond as permitted
by law. If Tenant shall fail to discharge any such lien,
whether valid or not, within twenty (20) DAYS after receipt
of notice from Landlord, Landlord shall have the right, but
not the obligation, to discharge such lien on behalf of
Tenant and all costs and expenses incurred by Landlord
associated with the discharge of the lien, including without
limitation, attorneys' fees, shall constitute additional rent
hereunder and shall be immediately due and payable by Tenant.
12.4. Surrender of Premises: On the last day of the term hereof or
on any sooner termination, Tenant shall surrender the
Premises to Landlord in "as is" and "broom clean" condition,
ordinary wear and tear and casualty damage excepted, clear
and free of debris. Tenant shall repair any damage to the
Premises occasioned by the installation or removal of
Tenant's trade fixtures, furnishings and equipment. Tenant
shall not be required to remove any tenant improvements.
Tenant will not be charged for any elevator service,
supervision, guard service, cleaning for its move out at the
expiration of its lease term.
12.5 Landlord's Maintenance: Landlord shall maintain the Project
including all Common Areas in first class condition
consistent with other comparable office buildings in downtown
Boca Raton, Florida. Landlord's maintenance obligations shall
include without limitation the following: all maintenance,
replacement and repair (including sweeping and striping)
necessary to maintain all driveways, sidewalks, street and
parking areas free of any material settling, reasonably clear
of standing water and in a slightly and serviceable
condition; maintenance of landscaping; and maintenance of
Building lobby.
13. ENTRY AND INSPECTION: Tenant shall permit Landlord or Landlord's
agents to enter upon the Premises at reasonable times and upon
reasonable notification for the purpose of inspecting the same,
performing any services required of Landlord hereunder and showing the
Premises to potential and existing mortgagees and purchasers and
prospective tenants within the last six (6) months of the Lease term.
Landlord agrees to provide advance verbal notice and announce its
entry with respect to repairs to be conducted within the Premises,
provided however, Landlord's inadvertent failure to make such
notification shall not be deemed a default of this Lease. The
foregoing notwithstanding, Landlord is not required to give notice or
announce its entry to Tenant if Landlord must enter the Premises
because of an emergency or to perform janitorial and other services.
Tenant will permit Landlord at any time within 180 DAYS prior to the
expiration of this Lease, to permit potential tenants to inspect the
Premises. All entries by Landlord will be done in such a manner so as
to create the least possible disturbance to Tenant.
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14. INDEMNIFICATION: Subject to PARAGRAPH 16.8 below, Tenant will
indemnify, defend (by counsel reasonably acceptable to Landlord),
protect and hold Landlord harmless from and against any and all
claims, demands, losses, damages, costs and expenses (including
attorney's fees) or death of or injury to any person or damage to any
property whatsoever arising in favor of third parties and out of or
relating to Tenant's breach or default under this Lease, including,
but not limited to Tenant's breach of PARAGRAPH 21 below or Tenant's
use or occupancy of the Premises or caused by Tenant or its agents,
employees or invitees. Landlord shall not be liable to Tenant for any
damage by or from any act or negligence of any co-tenant or other
occupant of the Project or by any owner or occupant of adjoining or
contiguous property or by any defect in or failure to maintain the
Project or the Premises. Tenant agrees to pay for all damage to the
Project as well as all damage to tenants or occupants thereof caused
by misuse or neglect of said Premises, its apparatus or appurtenances
or the Common Areas, by Tenant or Tenant's employees, agents and
invitees. Notwithstanding anything to the contrary in this Lease, no
indemnity by Tenant shall extend to claims arising by virtue of
negligent or willful acts or omissions by Landlord or Landlord's
employees, agents or contractors. In the event it is adjudicated that
claim and other liabilities contemplated by this paragraph resulted
from the negligent or wrongful acts or omissions of Landlord, its
agents, contractors or employees, Landlord shall have a percentage
responsibility with respect to any judgments against Tenant resulting
from such claims as well as costs incurred by Tenant in its defense of
Landlord in connection with same. Landlord's percentage of
responsibility shall be equal to the percentage of its comparative
negligence as determined in a final court judgment.
Landlord shall indemnify and hold harmless Tenant from and against any
and all third party claims arising from Landlord's operation of the
Project. Notwithstanding anything to the contrary in this Lease, no
indemnity by Landlord shall extend to claims arising by virtue of
negligent or wrongful acts or omissions of Tenant or Tenant's
employees, agents or contractors. In the event of any third party
claim asserted against Tenant and Landlord based on acts or omissions
outside of the Premises, Landlord shall provide and pay for the cost
of Tenant's defense (using counsel selected reasonably acceptable to
Tenant) until such time as it is adjudicated that such claim(s)
resulted from the negligent or wrongful acts or omissions of Tenant,
its agents, contractors or employees. In the event of such
adjudication, Tenant shall have a percentage responsibility with
respect to any judgments against Landlord resulting from such claims
as well as costs incurred by Landlord in its defense of Tenant in
connection with same. Tenant's percentage of responsibility shall be
equal to the percentage of its comparative negligence as determined in
a final court judgment.
15. LANDLORD'S INSURANCE: At all times during the term of this Lease,
Landlord shall procure and maintain the following types of insurance
coverage (any company writing Landlord's insurance shall have a
financial rating not less than that which is maintained by prudent
owners of comparable office buildings in Boca Raton, Florida):
15.1 So called special form All Risk property insurance. The
insurer used by Landlord hereunder shall waive rights of
subrogation against Tenant for losses payable under such
special form All Risk Property insurance, and the Landlord
shall hold Tenant harmless for any loss or damage which is
uninsured, such as a deductible, self-insured retention, or
co-insurance provision.
Commercial general liability insurance in an amount not less
than $1,000,000 for injury or death of one or more persons in
a single accident and for damage to property.
Landlord shall have the right to maintain such insurance as
part of a blanket or umbrella coverage, provided that
Landlord obtains an endorsement specifically identifying the
inclusion of the Project and that such coverage will not be
diminished by other claims under the policy below the
coverage amounts required.
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16. TENANT'S INSURANCE: At all times during the term of this Lease, Tenant
shall, at its sole expense, procure and maintain the following types
of insurance coverage:
16.1. General Liability: Commercial general liability insurance
against any and all damages and liability, including
attorneys' fees on account or arising out of injuries to or
the death of any person or damage to property, however
occasioned, in, on or about the Premises in amounts not less
than $1,000,000 for injury or death of one or more persons in
a single accident and for damage to property;
16.2. Personal Property: Insurance adequate in amount to cover
damage to or replacement of, as necessary, Tenant's personal
property in the Premises including, without limitation, trade
fixtures, furnishings, equipment, goods and inventory;
16.3. Employers Liability/Workers Compensation: Employer's
liability insurance and worker's compensation insurance
providing statutory state benefits for all persons employed
by Tenant in connection with the Premises as required by
applicable law;
16.4. Sprinkler: Insurance covering damage from leakage or
sprinkler systems now or hereafter installed in the Premises
in an amount not less than the current replacement cost
covering Tenant's personal property, Tenant's improvements
and Tenant's trade fixtures.
16.5 Other Insurance: Such other insurance in such amounts as may
be required by a Landlord against other insurable hazards as
at the time are commonly insured against in case of prudent
tenants in comparable office projects in the area in downtown
Boca Raton, Florida.
16.5. Form of Insurance/Companies: All such insurance shall be in a
form reasonably satisfactory to Landlord and carried with
companies reasonably acceptable to Landlord that are licensed
or authorized to do business in the State of Florida, are in
good standing with the Department of Insurance in the State
of Florida and have a rating issued by an organization
regularly engaged in rating insurance companies (including
specifically A.M. Best & Company) of not less than two
ratings below the top rating. Tenant shall provide Landlord
with a Certificate of Insurance showing Landlord and
Landlord's managing agent as an additional insured. The
Certificate shall provide for a 10 DAY written notice to
Landlord in the event of cancellation or material change of
coverage. Not later than 30 DAYS prior to the expiration of
any coverage, renewals of or replacements for such contracts
of insurance shall be delivered to Landlord. In the event
Tenant shall fail to procure any contract of insurance
required under the terms hereof or any renewal of or
replacement for any contract of insurance that is expiring or
has been canceled, Landlord may, but shall not be obligated
to, procure such insurance on behalf of Tenant and the cost
thereof shall be payable to Landlord as additional rent
within 10 DAYS following written demand therefor.
16.6. Subrogation: Landlord and Tenant shall each obtain from their
respective insurers under all policies of fire, theft, public
liability, workers' compensation and other insurance
maintained by either of them at any time during the term
hereof insuring or covering the Premises, a waiver of all
rights of subrogation which the insurer of one party might
otherwise have, if at all, against the other party. Each
party hereby waives any claim against the other party which
is insurable under special form "all risk" property damage
insurance (including coverage for flood, earthquake and
Boiler and Machinery, Business Interruption and Extra
Expense), irrespective of whether such party actually
maintains such insurance. Each party hereby waives any claim
against the other party to which such party's insurance
company would otherwise be subrogated.
17. UTILITIES AND SERVICES: Landlord shall use all reasonable efforts to
furnish (as part of Operating Expenses) heating, ventilation, air
conditioning, janitorial service, electricity for normal lighting and
office machines, cold water for reasonable and normal drinking and
lavatory use, elevator service
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providing access to the Premises, replacement light bulbs and/or
fluorescent tubes and ballasts for standard overhead fixtures. The
level of cooling and heating and the capacity of electricity serving
the Premises shall be no less (subject to matters outside Landlord's
reasonable control) than the minimum amounts of such services
described in the Construction Rider as Landlord's Building Standard
improvements. All of said services other than janitorial and HVAC,
shall be (subject to matters outside Landlord's reasonable control)
provided continuously 24 hours per day, 365 days per year. Janitorial
service shall be provided Monday through Friday, excluding municipally
recognized holidays. HVAC shall be provided Monday through Friday from
7:00 am. to 7:00 p.m. and Saturday from 8:00 a.m. to 1:00 p.m.
("Business Hours"). HVAC required by Tenant at other times shall be
made available subject to the After Hours Charge for each hour of use
beyond non-Business Hours. The After Hours Charge shall be as follows:
$25 per hour during the first five years of the Lease Term; the lesser
of $30 per hour or the Building promulgated per hour rate for overtime
HVAC then in effect during the next five years of the Lease Term; and
during any renewal Lease Term, a per hour charge not in excess of
market charges for comparable buildings in Boca Raton, Florida.
Landlord shall not be liable for failure to furnish any of the
utilities described in this PARAGRAPH 17 if and only if such failure
is not caused by Landlord and is beyond the ability of Landlord to
prevent, and in such case, Tenant shall have no right to abatement of
rental hereunder or to termination of this Lease with respect to any
such interruption nor shall such failure constitute an eviction, nor
shall Landlord be liable under any circumstances for loss of or injury
to property, however occurring, through or in connection with or
incidental to the furnishing of any of the services enumerated above.
However, in the event of a failure of services that renders the
Premises untenantable and is either (i) caused by Landlord's gross
negligence or willful misconduct, or (ii) is within Landlords
reasonable ability to prevent, all rent and other charges hereunder
starting upon expiration of the 3rd business day following Tenant's
notice to Landlord regarding such failure shall xxxxx on a per diem
basis until the Premises are again tenantable. For purposes of the
preceding sentence, the Premises shall be deemed untenantable in the
event of a failure of HVAC or electrical services if Tenant, in its
reasonable judgment, is unable to conduct its business on a normal
basis and closes the Premises to all but essential personnel needed to
prevent damage to Tenants business operations or equipment. Utilities
shall be furnished to Tenant and to the Project only by service
providers who have been approved by Landlord. Landlord agrees to use
reasonable efforts to perform non-critical (i.e. normal and routine
maintenance) maintenance that would materially and adversely interfere
with Tenant's business during non-Business Hours. The foregoing shall
not apply to repairs or emergencies (defined as a situation involving
imminent danger to person or property) or non-critical maintenance
that would not materially or adversely interfere with Tenant's
business.
18. CONDEMNATION: If 25% of the Project shall be taken or condemned for
public use, Landlord may elect to terminate this Lease effective on
the date of taking (provided that Landlord is simultaneously
terminating all other leases in the Building), otherwise this Lease
will remain in full force and effect. If there is a taking of all of
the Premises or a part thereof or Tenant's parking spaces in the
Garage so that the remaining part of the Premises is not suited for
Tenant's continued use, either party may elect to terminate this Lease
effective on the date of taking. If there is a taking of a portion of
the Premises and a part remains which is suitable for Tenant's use in
Tenant's reasonable business judgment, this Lease shall, as to the
part taken, terminate as of the date the condemnor acquires possession
and Tenant terminates its use of the Premises to all but essential
personnel needed to prevent damage to Tenants business operations or
equipment, and thereafter Tenant shall be required to pay such
proportion of the rent for the remaining term as the value of the
Premises remaining bears to the total value of the Premises at the
date of condemnation. The election to terminate this Lease as provided
herein must be exercised, if at all, within 60 DAYS after the nature
and extent of the taking is determined; otherwise, this Lease will
remain in full force and effect. All sums which may be payable on
account of any condemnation claim prosecuted by Landlord shall belong
solely to the Landlord, and Tenant shall not be entitled to any part
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thereof, provided however, that Tenant shall be entitled to prosecute
a separate action for its trade fixtures, tenant improvement expenses,
business damages and moving expenses.
19. FIXTURES: Any and all improvements made to the Premises during the
term hereof shall belong to the Landlord without compensation,
allowance or credit to Tenant, except movable trade fixtures
(including exterior signage) of the Tenant which can be removed
without defacing the Premises or the Project. Notwithstanding anything
herein to the contrary, Tenant shall not be required to remove or
demolish Landlord's Building Standard Improvements or Initial Tenant
Improvements.
20. DESTRUCTION OF PREMISES:
20.1. Partial Destruction: In the event of a partial destruction of
the Premises during the term hereof, from any cause required
to be covered by Landlord's insurance, Landlord must repair
the same to the extent such repairs can be made with the
insurance proceeds made available to Landlord (and not
retained by any lender) and within sixty (60) days under then
existing governmental laws and regulations. Such partial
destruction shall not terminate this Lease and Tenant shall
be entitled to a proportionate reduction of rent while such
repairs are being made, based upon the extent to which the
making of such repairs shall interfere with the business of
Tenant on the Premises. If such repairs cannot be made within
said sixty (60) day period, Landlord, at its option, may make
the repairs within a reasonable time. If Landlord elects to
make said repairs, this Lease will continue in effect and the
rent will be proportionately abated as stated above. If the
repairs cannot be made within 60 DAYS with the available
insurance proceeds and Landlord elects not to make said
repairs, this Lease may be terminated at the option of either
party. Notwithstanding the foregoing, if the Premises are not
rendered tenantable within 270 days from the date of the
casualty, or if the nature of the damage is such that the
Premises can not be rendered tenantable within 270 days from
the date of days from the date of the casualty, Tenant shall
be entitled to cancel this Lease.
20.2. Material/Total Destruction: If the Building in which the
Premises are situated or the Project sustains damage of more
than 1/3 of the replacement cost thereof, Landlord may elect
to terminate this Lease whether the Premises are injured or
not, provided (i) that Landlord is simultaneously terminating
all other leases in the Building or (ii) that Landlord is
simultaneously terminating all other leases within the
portion of the Building damaged and Landlord does not intend
to rebuild the identical Building. A total destruction of the
Building in which the Premises are situated or the Project
shall terminate this Lease.
21. HAZARDOUS SUBSTANCES:
21.1. Definitions: For the purposes of this Agreement, the
following terms have the following meanings:
(a) "ENVIRONMENTAL LAW" means any law, statute,
ordinance or regulation pertaining to health, industrial
hygiene or the environment including, without limitation
CERCLA (Comprehensive Environmental Response, Compensation
and Liability Act of 1980) RCRA (Resources Conservation and
Recovery Act of 1976) and XXXX (Superfund Amendments and
Reauthorization Act of 1986).
(b) "HAZARDOUS SUBSTANCE" means any substance, material
or waste which is or becomes designated, classified or
regulated as being "toxic" or "hazardous" or a "pollutant" or
which is or becomes similarly designated, classified or
regulated, under any Environmental Law, including asbestos,
petroleum and petroleum products.
21.2. Tenant's Responsibilities: At its own expense, Tenant will
procure, maintain in effect and comply with all conditions of
any and all permits, licenses and other governmental and
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regulatory approvals required for Tenant's use of the
Premises. Tenant will not cause or permit any Hazardous
Substance to be brought upon, kept or used in or about the
Project by Tenant, its agents, employees, contractors or
invitees without the prior written consent of Landlord (other
than small quantities normally associated with office use).
Tenant will, in all respects, handle, treat, deal with and
manage any and all Hazardous Substances in, on, under or
about the Premises in total conformity with all applicable
Environmental Laws and prudent industry practices regarding
management of such Hazardous Substances. Tenant will not take
any remedial action in response to the presence of any
Hazardous Substances in or about the Premises or the Project,
nor enter into any settlement agreement, consent decree or
other compromise in respect to any claims relating to any
Hazardous Substances in any way connected with the Premises
without first notifying Landlord of Tenant's intention to do
so and affording Landlord ample opportunity to appear,
intervene or otherwise appropriately assert and protect
Landlord's interests with respect thereto. Notwithstanding
anything to the contrary in this Lease, Landlord shall be
solely responsible for, and Tenant shall have no liability
with respect to, any Hazardous Substances on, under or within
the Project not introduced by Tenant or its agents, employees
or contractors. Landlord shall indemnify and hold harmless
Tenant from and against any liability in connection with
Hazardous Substances described in the preceding sentence.
Tenant shall be entitled to maintain small quantities of
Hazardous Substances as are permitted by law and normal for
Tenant's Permitted Use (e.g., substances contained in
batteries, toner for copy machines, etc.) so long as Tenant's
use of same are in strict compliance with applicable Laws.
Landlord represents that, to the best of its knowledge, there
will be no Hazardous Substances presently on, under or within
Project as of the Commencement Date of this Lease.
21.3. Indemnification: If the Premises or the Project become
contaminated in any manner for which Tenant is legally liable
or otherwise become affected by any release or discharge of a
Hazardous Substance caused by Tenant, its employees,
contractors or agents, Tenant shall immediately notify
Landlord of the release or discharge of the Hazardous
Substance, and Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord) and hold harmless Landlord
from and against any and all claims, damages, fines,
judgments, penalties, costs, liabilities or losses
(including, without limitation, a decrease in value of the
Project or the Premises, damages caused by loss or
restriction of rentable or usable space, or any damages
caused by adverse impact on marketing of the space, and any
and all sums paid for settlement of claims, attorneys' fees,
consultant fees and expert fees) arising during or after the
term of this Lease and arising as a result of such
contamination, release or discharge. This indemnification
includes, without limitation, any and all costs incurred
because of any investigation of the site or any cleanup,
removal or restoration mandated by federal, state or local
agency or political subdivision.
22. EVENTS OF DEFAULT: If one or more of the following events occurs, such
occurrence constitutes an Event of Default:
22.1. Abandonment/Vacation: Tenant abandons or vacates the Premises
or removes any or all of its furniture, fixtures and personal
property, except in the normal course of business; or
22.2. Rent: Tenant fails to pay any monthly Base Rent or Operating
Expenses Rent, if applicable, as and when the same becomes
due and payable, and such failure continues for more than ten
(10) days after Landlord's notice of such failure to Tenant,
provided that Landlord shall not be obligated to provide more
than one (1) such notice in any calendar year and failure by
Tenant to pay Base Rent or Operating Expenses Rent when due
in a calendar year in which such notice has previously been
given shall immediately constitute an event of default; or
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22.3. Other Sums: Tenant fails to pay any other sum or charge
payable by Tenant hereunder as and when the same becomes due
and payable, and such failure continues for more than ten
(10) days after Landlord gives written notice of such failure
to Tenant; or
22.4. Other Provisions: Tenant fails to perform or observe any
other agreement, covenant, condition or provision of this
Lease to be performed or observed by Tenant as and when
performance or observance is due, and such failure continues
for more than twenty (20) days after Landlord gives written
notice thereof to Tenant, or if the default cannot reasonably
be cured within said twenty (20) day period and Tenant fails
promptly to commence with due diligence and dispatch the
curing of such default or, having so commenced, thereafter
fails to prosecute or complete with due diligence and
dispatch the curing of such default or fails to complete the
cure within a reasonable period of time (however, if Tenant
fails to cure such default within 45 days after the
expiration of such 20 day period, Landlord shall then be
entitled to effectuate a cure in which case Tenant shall be
responsible for Landlord's out-of-pocket costs with respect
to same); or
22.5. Insolvency: Tenant (A) files or consents by answer or
otherwise to the filing against it of a petition for relief
or reorganization or arrangement or any other petition in
bankruptcy or liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction; (B) makes
an assignment for the benefit of its creditors; (C) consents
to the appointment of a custodian, receiver, trustee or other
officer with similar powers of itself or of any substantial
part of its property; or (D) takes action for the purpose of
any of the foregoing; or
22.6. Receiver: A court or governmental authority of competent
jurisdiction, without consent by Tenant, enters an order
appointing a custodian, receiver, trustee or other officer
with similar powers with respect to it or with respect to any
substantial power of its property, or constituting an order
for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or
insolvency law of any jurisdiction, or ordering the
dissolution, winding up or liquidation of Tenant, or if any
such petition is filed against Tenant and such petition is
not dismissed within 60 DAYS; or
22.7. Attachments: This Lease or any estate of Tenant hereunder is
levied upon under any attachment or execution and such
attachment or execution is not vacated within sixty (60)
days.
22.8. Assignment/Sublease: Tenant assigns this Lease or subleases
all or any portion of the Premises without Landlord's prior
written consent.
23. REMEDIES OF LANDLORD UPON TENANT'S EVENT OF DEFAULT:
23.1. Termination: In the event of an Event of Default by Tenant,
Landlord may, at his option, terminate the Lease and
repossess the Premises pursuant to the laws of the State of
Florida and recover from Tenant as damages:
(a) the unpaid rent and other amounts due at the time of
termination plus interest thereon at the Default Rate from
the due date until paid;
(b) the present value of the balance of the rent for the
remainder of the term after termination less the present
value of the fair market value rental of the Premises for
said period (both determined by applying a discount rate of
1 1/2% below the Wall Street Journal Prime Rate); and
(c) any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to
perform its obligations under the Lease or which in the
ordinary course of things would be likely to result
therefrom, including, without limitation, the cost of
recovering the Premises.
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23.2. Landlord's Options: Landlord may, in the
alternative, (i) continue this Lease in effect, as
long as Landlord does not terminate Tenant's right
to possession, and Landlord may enforce all its
rights and remedies under the Lease, including the
right to recover the rent as it becomes due under
the Lease; or (ii) terminate Tenant's right of
possession (but not this Lease) and repossess the
Premises pursuant to the laws of the State of
Florida, without demand or notice of any kind to
Tenant except that which is required by Florida law
and its requirements of legal process, in which
event Landlord shall use commercially reasonable
efforts to relet the Premises for the account of
Tenant for such rent and upon such terms as shall be
reasonable. For purpose of such reletting Landlord
is authorized by Tenant to decorate or to make any
repairs, changes, alterations or additions in or to
the Premises that may be necessary or convenient, at
Tenant's expense, provided that the same are
justified by the economics of the replacement lease
in Landlord's reasonable determination. Tenant shall
also be responsible for rent for the period that the
Premises are vacant and all costs of re-letting,
including without limitation, brokerage commissions
and attorneys' fees. Tenant shall also be liable for
any deficiency of such rental below the total rental
and all other payments herein provided for the
unexpired balance of the term of this Lease; or
(iii) exercise any and all other rights and remedies
available to Landlord at law or in equity.
24. SECURITY DEPOSIT: PURPOSELY OMITTED
25. LIEN FOR RENT: Landlord expressly waives all rights of levy, distraint
or execution with respect to Tenant's property, including without
limitation any statutory or common law security interest or landlord's
lien for rent.
26. LIMITATION ON LANDLORD'S PERSONAL LIABILITY: Tenant specifically
agrees to look solely to Landlord's interest in the Project and its
rents (subject to prior assignment and subordination in favor of third
parties) for the recovery of any judgment from Landlord, it being
agreed that Landlord (and any officers, shareholders, partners,
directors or employees of Landlord or of any partners in the entity
comprising Landlord) shall never be personally liable for any such
judgment.
27. ATTORNEY'S FEES: If there is any legal action or proceeding between
Landlord and Tenant regarding this Lease or to protect or establish
any right or remedy of either Landlord or Tenant hereunder, the
unsuccessful party to such action or proceeding will pay to the
prevailing party all costs and expenses, including reasonable
attorneys' fees incurred by such prevailing party in such action or
proceeding and in any appearance in connection therewith, and if such
prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorney's fees will be determined by
the court handling the proceeding and will be included in and as a
part of such judgment. Wherever used in this Lease, "attorney's fees"
and "costs" shall include those incurred at the trial level and at all
levels of appeal as well as those incurred in any bankruptcy
proceedings.
28. WAIVER: No failure of either party to enforce any term hereof shall be
deemed to be a waiver.
29. SEVERABILITY: If any clause or provisions of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the term hereof, then it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is
also the intention of both parties that in lieu of each clause or
provision that is illegal, invalid or unenforceable, there shall be
added as a part of this Lease, a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as
may be possible and be legal, valid and enforceable. Notwithstanding
the foregoing, this paragraph shall be inapplicable to the extent any
Laws would void any obligation of Tenant to pay rent or other charges
due from Tenant to Landlord hereunder or Landlord to provide
utilities, services or access to the Premises and parking.
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30. NOTICES: All notices or other communications required or permitted
hereunder must be in writing, and be (i) personally delivered
(including by means of professional messenger service) with signed
receipt, (ii) sent by overnight, receipted courier, with request for
next Business Day delivery, or (iii) sent by registered or certified
mail, postage prepaid, return receipt requested, to the addresses set
forth in PARAGRAPH 1. All notices sent by mail will be deemed received
on the date of acceptance or rejection of service.
31. HOLDING OVER: Any holding over after the expiration or termination of
this Lease shall only be for a period of sixty (60) days and construed
as a month-to-month tenancy on the same terms of this Lease except
that per diem Base Rent shall be 125% of the per diem Base Rent for
the month of the Lease preceding the month in which the expiration or
termination occurred, and otherwise in accordance with the terms
hereof, as applicable. In the event Tenant shall be or become a
holdover tenant, Tenant shall also indemnify Landlord against all
claims for damages against Landlord as a result of Tenant's possession
of the Premises after such 60 day period, including, without
limitation, claims for damages by any tenant to whom Landlord may have
leased the Premises, or any portion thereof, for a term commencing
after the expiration or termination of this Lease.
32. TIME: Time is of the essence of this Lease.
33. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to
the benefit of the assigns and successors in interest of Landlord and
is binding upon and inures to the benefit of Tenant and Tenant's heirs
and successors and, to the extent assignment may be approved by
Landlord or otherwise permitted hereunder, Tenant's assigns.
34. SUBORDINATION: This Lease is and shall always be subordinate to the
lien of any mortgages which are now or shall at any future time be
placed upon the Project, the Premises or Landlord's rights hereunder,
and to any renewals, extensions, modifications or consolidations of
any such mortgage, if and only if, in each instance Tenant receives a
non-disturbance agreement from the holder of each and every such
mortgage. Landlord represents that as of the date of this Lease, the
only mortgage encumbering the Project and the Building is in favor of
Bank Atlantic (the "Existing Lender"), and Landlord shall use
reasonable, diligent efforts deliver to Tenant no later than the
Delivery Date the non-disturbance agreement having been signed by the
Existing Lender in the form attached hereto as Schedule 4. If Tenant
does not receive the non-disturbance agreement from the Existing
Lender within 10 days after the date this Lease is signed by the
parties, Tenant shall be entitled to cancel this Lease by notice of
cancellation given to Landlord prior to the expiration of such 10 day
period. Tenant's obligation to subordinate this Lease to any future
lender shall be subject to receipt of a non-disturbance agreement in
the form attached hereto as Schedule 4 (but for changing the name of
the lender and identification of the mortgage and related loan
documents or other changes approved by Tenant, which approval shall
not be unreasonably withheld, conditioned or delayed).
35. ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS:
35.1. Content: Tenant shall at any time upon not less than 15 DAYS'
prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing:
(a) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified,
is in full force and effect), the amount of any security
deposit, and the date to which the rent and other charges are
paid in advance, if any; and
(b) acknowledging that there are not, to Tenant's
knowledge without investigation, any uncured defaults on the
part of Landlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be conclusively
relied upon by a prospective purchaser or encumbrancer to the
Premises.
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35.2. Failure to Deliver: If Tenant fails to deliver such statement
within such time, Landlord shall be entitled to send Tenant a
reminder notice, and if Tenant shall fail to deliver such
statement within 5 days after receipt of the reminder notice,
the following shall be conclusive upon Tenant:
(A) that this Lease is unmodified and in full force and
effect, without modification except as may be
represented by Landlord;
(B) that there are no uncured defaults in Landlord's
performance; and
(C) that not more than one month's rent has been paid in
advance or such failure may be considered by Lessor
as a default by Tenant under this Lease.
36. AUTHORIZATION: If Tenant executes this Lease as a corporation or
partnership, then Tenant and the person(s) executing this Lease on
behalf of Tenant, represent and warrant that such entity is duly
qualified to do business in the State in which the Project is located
and that the individuals executing this Lease on Tenant's behalf are
duly authorized to execute and deliver this Lease on Tenant's behalf.
37. JOINT AND SEVERAL LIABILITY: In the event that more than one person or
entity executes the Lease as Tenant, all such persons and entities
shall be jointly and severally liable for all of Tenant's obligations
hereunder. In the event that Tenant is a partnership, all general
partners shall be jointly and severally liable for all of Tenant's
obligations hereunder.
38. FORCE MAJEURE: Each party shall be excused for the period of any delay
in the performance of any obligations hereunder when prevented from
doing so by cause or causes beyond that party's absolute control which
shall include, without limitation, all labor disputes, civil
commotion, civil disorder, riot, civil disturbance, war, war-like
operations, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental moratoriums, fire or other casualty or
Acts of God.
39. RECORDING: Tenant shall not record this Lease, or any memorandum or
short form thereof, without the written consent and joinder of
Landlord, which may be unreasonably withheld.
40. RIDER: A Rider, signed by the parties [X] is attached [ ] is not
attached hereto.
41. ENTIRE AGREEMENT: The foregoing constitutes the entire agreement
between the parties and may be modified only by a writing signed by
both parties.
42. GOVERNING LAW: This Lease shall be construed in accordance with the
internal laws of the State of Florida (without regard to conflicts of
law or choice of law rules). Landlord and Tenant hereby submit to the
jurisdiction of the Civil Courts of the State of Florida in respect of
any suit or other proceeding brought in connection with or arising out
of this Lease and venue shall be in Palm Beach County, Florida.
43. RADON GAS: The following statement is included in order to comply with
Florida statutory law requirements: 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 and radon testing may be obtained from
your county public health unit.
44. MOVING ALLOWANCE: Landlord shall provide Tenant upon lease
commencement with a moving allowance of $1.50 per rentable square foot
to help defray Tenant's cost of moving (including without limitation
costs of cabling and relocation of systems) upon receipt of invoices
for such expenditures. Tenant will not be charged for any elevator
service, supervision, guard service (unless after normal building
operating hours), and cleaning for its initial move in.
45. OPTION TO RENEW: Tenant has two (2) options to renew the lease for a
period of five (5) years each provided that in exercising each Tenant
(i) is not in default hereunder beyond any applicable cure
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period and (ii) gives Landlord written notice via registered mail
return receipt requested and received by Landlord not later than
twelve (12) months prior to initial lease expiration or first extended
option period as applicable. All terms and conditions as contained in
the Lease shall remain the same except that the renewal rate shall be
the "prevailing market rate" for similar space in comparable buildings
for similar inducements, and lease term in downtown Boca Raton area.
If Tenant should fail to exercise the first option to renew within the
time period aforementioned upon the terms and conditions herein
stated, both the first and second option to renew shall automatically
lapse and expire and Tenant shall have no further right, title or
interest in and to the Premises upon expiration of the initial Lease
term. The tern "prevailing market rate" per rentable square foot shall
mean the annual rate of rent determined by Landlord and accepted by
Tenant, as the prevailing market base rental rate in the downtown area
of Boca Raton, Florida for comparable office space which has been
built out for occupancy (taking into consideration the duration of the
terms for which such space is being leased, location and/or floor
level within the applicable building, when the applicable rate first
becomes effective, quality and location of the applicable building,
rental concessions, build-out allowances and other relevant factors)
for a lease term commencing on the Option Period commencement date.
Executed leases and bona fide written offers to lease comparable space
in the Building received by Landlord from third parties (at arm's
length) may be used by Landlord as an indication of the prevailing
market rate. In the event of Tenant's rejection of Landlord's quoted
prevailing market rate with ten (10) days of receipt of same from
Landlord, Landlord and Tenant shall thereafter each select a broker
with substantial experience in the downtown area of Boca Raton,
Florida, office market for the purpose of making a determination of
the prevailing market rate for each option period commencement date;
provided that if either Landlord or Tenant shall fail to notify the
other of the identity of its selected broker as aforesaid within
twenty (20) days of the others' written demand therefore (which demand
shall identify the notifying party's broker and make specific
reference to the consequences imposed by this provision for
non-selection), the party who shall have failed to identify its broker
shall be deemed to have irrevocably consented to the prevailing market
rate determined in good faith by the broker selected by the other
party. Assuming that both brokers are timely selected, however, the
two selected brokers shall then each independently make a
determination of prevailing market rate for each subsequent option
period commence date and shall together select a third broker,
experienced as aforesaid. The jointly selected broker shall then
select one of the two determinations as aforesaid for each remaining
option period commencement date which is closest to the prevailing
market rate for purposes of this provision. This determination, so
long as it is made in good faith, shall be final and not subject to
appeal. Each party to the Lease shall pay the fees and cost of its own
broker and one-half of the fees and costs payable to the
jointly-selected broker determined as aforesaid (the foregoing
collectively referred to as the "Three-Broker Method").
46. RIGHT OF FIRST REFUSAL: Landlord agrees to provide Tenant with a
continuous right of first refusal which is subordinate to any existing
tenant then in place and under lease (including any renewal right
stated in existing tenant's lease, this subordination meaning only that
the existing tenant shall have superior rights with respect to its own
space) on space located on the 2nd and 3rd floors of Building Two at
First Union Plaza. In the event that the Landlord receives an
acceptable offer from a third party for space, then Landlord shall
provide Tenant with the acceptable offer and Tenant shall notify the
Landlord within five (5) business days of receiving same of its intent
to exercise its right. Should the Tenant exercise its right, and if
such offer is a bonafide arm's length offer, the rental, terms and
conditions shall be per Tenant's existing lease, except for 1) the area
which shall be equivalent to the prospect's area; and 2) lease term
shall be coterminous with this Lease, however if initial lease term is
less than five (5) years the term shall be extended out to a minimum
five (5) year lease, or to a maximum ten (10) year lease. Lease term is
at Tenant's sole election. Should Tenant fail to exercise the right of
first refusal within the time period aforementioned upon the terms and
conditions herein stated, such right of first refusal for that
particular third party offer to lease space shall lapse.
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47. SATELLITE DISH: If required by Tenant, Landlord shall grant Tenant a
license to install a satellite dish or other communications equipment
on the roof of the building at no rental cost to Tenant, together with
the right to install such cabling and other installations reasonably
acceptable to Landlord, subject however to all terms and conditions of
the Site License Agreement Rider attached hereto and made a part
hereof as Schedule 2. All Dish size and design must be architectural
compatible to the Project, comply with all governmental structural
requirements and Laws and be reasonably approved by Landlord.
48. GENERATOR: Tenant shall have the right to install a generator for
Tenant's sole use in a mutually acceptable location, at Tenant's sole
cost and expense. Tenant hereby indemnifies, defends (by counsel
reasonably acceptable to Landlord), protects and holds Landlord
harmless from and against any and all claims, demands, losses,
damages, costs and expenses (including attorney's fees) or death of or
injury to any person or damage to any property whatsoever arising in
favor of third parties or Landlord and out of or relating to Tenant's
installation, maintenance or use of its generator, regardless of
whether caused by Tenant or its agents, employees or invitees.
49. OPTION TO EXPAND: Tenant shall have an option to expand onto the third
floor for rentable square footage totaling approximately 8,000
provided that Tenant gives Landlord written notice not later than ten
(10) days following March 25, 2006. The rental rate, tenant
improvements, and additional incentives shall be the prevailing market
rate (as determined in accordance with Section 46 above) taking into
account the foregoing for similar space for buildings in the general
downtown Boca Raton area but in no event will rental rate be lower
than current rate being paid by Tenant at time of option. In the event
of a disagreement between the parties as to prevailing market rate,
such rate will be resolved by arbitration using the "Three Broker
Method" as utilized in connection with Tenant's renewal option. Rent
on the expansion space will commence upon the earlier of (i) sixty
days following Landlord's delivery of the possession of the expansion
space or (ii) Tenant's conducting its business within such expansion
space. Landlord shall deliver possession of the expansion space to
Tenant upon expiration of the terms of the two leases currently
existing for such space.
50. OPPORTUNITY TO LEASE AVAILABLE SPACE: During the term of lease, Tenant
shall have the right to lease available space in the building, on the
2nd and 3rd floors, by providing Landlord written notice
of its intent. Upon Landlord receiving notice from Tenant that it
requires additional space, landlord shall notify Tenant in writing
that space is available (or not) and the terms upon which Landlord
would lease such space. Such terms shall in any event not exceed the
prevailing market rate (as determined in accordance with Section 46
above) taking into account the foregoing for similar space for
buildings in the general downtown Boca Raton area but in no event will
rental rate be lower than current rate being paid by Tenant at time of
the election of such right. In the event that Landlord and Tenant
cannot agree on terms however Tenant still elects to lease such space,
then the parties shall then proceed to arbitration based on the Three
Broker Method.
51. WAIVER OF THE RIGHT TO TRIAL BY JURY: LANDLORD AND TENANT HEREBY
KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT LANDLORD OR TENANT MAY HEREINAFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS LEASE OR THE PREMISES, OR THE PROJECT.
52. CONSENTS AND APPROVALS: Except as otherwise set forth in this Lease,
in each instance where a party's approval or consent is required or
its opinion controls any aspect of this Lease affecting the other
party, (i) such approval shall not be unreasonably withheld or delayed
unless
-27-
this Lease expressly allows such approval or consent to be withheld
arbitrarily or in the party's sole determination, and (ii) such
opinion shall be reasonably rendered.
53. CONSEQUENTIAL DAMAGES: Notwithstanding anything to the contrary in
this Lease, neither party shall be liable to the other party for
consequential damages or punative damages; provided, however, the
limitation for consequential damages shall not apply to consequential
damages that Tenant shall be entitled to seek from Landlord on account
of Landlord unreasonably withholding consent to Tenant's desired
assignment of this Lease or sublease of the Premises.
54. LANDLORD'S DEFAULT: Without limiting other remedies expressly reserved
to Tenant in this Lease or any remedies of Tenant at law or in equity,
Tenant shall be entitled to terminate this Lease in case of Landlord's
default which remains uncured after the applicable cure period. The
applicable cure period shall be the same period of time following
Tenant's notice to Landlord of the default applicable to defaults of
Tenant. In the event Tenant terminates this Lease on account of
Landlord's default, Landlord shall, in addition to other remedies
expressly reserved to Tenant in this Lease, pay Tenant the unamortized
portion of costs and expenses paid by Tenant in connection with the
Tenant Finish over and above the Tenant-Allowance.
-28-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
BOCA II ASSOCIATES, LTD.,
a Florida limited partnership
By: XXXXX PARTNERS LIMITED,
a Florida limited partnership,
its general partner
By: SPL Florida, Inc., a Florida
corporation, its general partner
WITNESSES:
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ ----------------------------------------
Xxxxx X. Xxxxx, President
------------------------------
TENANT:
Mackenzie Investment Management, Inc.
/s/ Xxxxxx X. Xxxxxx By: /s/ C. Xxxxxxx Xxxxxx
------------------------------ ----------------------------------------
/s/ Xxxxxxxx Xxxxxx Print Name: C. Xxxxxxx Xxxxxx Title: Sr. V.P.
------------------------------ ------------------ ---------
-29-
EXHIBIT A
Parcel 1
All of Xxx X, Xxxxx 00 of SPANISH RIVER COMPANY SUBDIVISION, Plat A, in the Town
of Boca Raton, Florida, according to the Plat thereof recorded in the Office of
the Clerk of the Circuit Court in and for Palm Beach County, Florida, in Plat
Book 16, Pates 27 to 30.
LESS THE FOLLOWING DESCRIPTION:
A portion of Xxx "X", Xxxxx 00, Xxxxxxx Xxxxx Xxxx Xx., Xxxx "A", according to
the plat thereof as recorded in Plat Book 16, at Pages 27 through 30, of the
Public Records of Palm Beach County, Florida, in Section 29, Township 47 South,
Range 43 East, being more particularly described as follows:
COMMENCE at the Northwest corner of the Northwest one-quarter (N.W. 1/4) of said
Section 29; thence along the North line of said Northwest one-quarter (N.W.
1/4), North 88(degrees)58'21" East for a distance of 421.90 feet; thence, South
00(degrees)53'04" East for a distance of 836.28 feet; thence South
01(degrees)19'12" East for a distance of 2319.02 feet; thence South
88(degrees)40'48" West for a distance of 40.00 feet to the POINT OF BEGINNING,
said point also being the Northeast corner of said Lot "C"; thence along the
East line of said Xxx "X", Xxxxx 00(xxxxxxx)00'00" East for a distance of 250.33
feet to the Southeast corner of said Lot "C"; thence along the South line of
said Xxx "X", Xxxxx 00(xxxxxxx)00'00" West for a distance of 42.15 feet to a
point of curvature of a circular curve concave to the Northwest, having for its
elements a central angle of 90(degrees)16'41", a radius of 30.00 feet and a
chord bearing of North 43(degrees)49'09" East; thence run Northeasterly along
the arc of said curve for a distance of 47.27 feet to a point of tangency on a
line being 12 feet West of and parallel with the aforementioned East line of Lot
"C"; thence along said parallel line, North 01(degrees)19'12" West for a
distance of 208.29 feet to a point of curvature of a circular curve concave to
the West, having for its elements a central angle of 33(degrees)13'28", a radius
of 21.75 feet and a chord bearing of North 17(degrees)55'56" West; thence run
Northerly along the arc of said curve for a distance of 12.61 feet to a point of
non-tangency on the North line of said Lot "C"; thence along said North line,
North 88(degrees)56'27" East for a distance of 15.56 feet to the POINT OF
BEGINNING.
TOGETHER WITH:
Parcel 2
The East 300 feet of Lot B in Block 27 of SPANISH RIVER LAND COMPANY'S PLAT "A",
according the plat thereof as recorded in Plat Book 17, Pages 27 to 30, of the
Public Records of Palm Beach County, Florida, and Xxx 00 xx Xxxxx 00 xx XXXXXX
DEVELOPMENT CORP. PLAT 1, according to the plat thereof as recorded in Plat Book
3, Page 37, of the Public Records of Palm Beach County, Florida.
TOGETHER WITH:
Parcel 3
A portion of Lots "A" and "B", Block 27, of SPANISH RIVER LAND CO. Plat "A", as
recorded in Plat Book 16, Page 28, of the Public Records of Palm Beach County,
Florida, more fully described as follows:
Commerce at the Xxxxxxxxx xxxxxx xx xxxx Xxx "X", Xxxxx 00, being the
intersection of the North Right of Way line of Camino Real and the West line of
a 20 foot alley, thence South 88(degrees)30'00" West along said North Right of
Way line, a distance of 300.00 feet to the Point of Beginning; thence continue
South 98(degrees)30'00" West along said Right of Way line, a distance of 240.85
feet; thence North 1(degree)30'00" West a distance of 125.00 feet; thence South
88(degrees)30'00" West a distance of 156.11 feet; thence Northeasterly along the
new Right of Way line of Xxxxx Highway on a curve to the right having a radius
of 428.34 feet, a central angle of 13(degrees)12'00", an arc distance of 98.67
feet; thence Northeasterly along said new Right of Way line on a curve to the
left having a radius of 528.34 feet, a central angle of 6(deg)05'00", an arc
distance of 56.10 feet; thence North 88(degrees)30'00" East along the South
Right of Way line of S.E. 0xx Xxxxxx 304.78 feet; thence South 1(degree)44'00"
East, a distance of 249.85 feet more or less to the point of beginning.
EXHIBIT A
LESS THE FOLLOWING DESCRIPTION:
A portion of Lots A and B, Block 27, of the Subdivision of SPANISH RIVER LAND
CO. FLAT A, as recorded in Plat Book 16, Page 28, of the Public Records of Palm
Beach County, Florida, more fully described as follows:
Commencing at the Southwest corner of said Lot A, being the intersection of the
old East right-of-way line of Xxxxx Highway with the existing North right-of-
way line of Camino Real; thence on a magnetic bearing of North 88(degrees)30'00"
East, along said existing North right-of-way line a distance of 20.32 feet;
thence Northerly on a curve, concave to the East having a chord bearing of North
17(degrees)48'52" East, a chord distance of 132.46 feet, a radius of 428.34
feet, a central angle of 17(degrees)47'20", for an arc distance of 132.99 feet
to the Point of Beginning; thence North 88(degrees)30'00" East, and parallel to
said existing North right-of-way line of Camino Real, a distance of 156.11 feet;
thence North 1(degrees)30'00" West, a distance of 25.00 feet; thence South
88(degrees)20'00" West, a distance of 141.58 feet to a point on the aforesaid
curve extended; thence Southerly along said curve, having a chord bearing of
South 28(degrees)38'33" West, a chord distance of 28.91 feet, a radius of 428.34
feet, a central angle of 3(degrees)52'05", an arc distance of 28.91 feet, to the
Point of Beginning.
Schedule 1(a)
[FLOOR PLAN]
Total square footage shown is based on useable square footage
measured by BOMA ANSI Z65.1 1996 standards. Common area loss
factor shall not exceed 12%.
Schedule 1(b)
[FLOOR PLAN]
Total square footage shown is based on useable square footage
measured by BOMA ANSI Z65.1 1996 standards. Common area loss
factor shall not exceed 12%.
Schedule 1(c)
[FLOOR PLAN]
Total square footage shown is based on usable square footage
measured by BOMA ANSI Z65.1 1996 standards. Common area loss
factor shall not exceed 12%.
SCHEDULE 2
SITE LICENSE RIDER
(Rooftop)
1. GRANT. Subject to the following terms and conditions,
Landlord hereby grants Tenant the nonexclusive license to install, maintain,
operate and remove radio communications equipment and related appurtenances on
certain designated space on roof of the Building, and licenses to Tenant the
use of certain designated portion of the Building appropriate electric and
telephone connections within or without the Building (the space on and within
the Building for Tenant attachment and additional space for Tenant's occupancy
and connections hereafter collectively the "Site"). This license is irrevocable
during the term of the Lease provided that Tenant complies with this Rider and
does not remain in default of the Lease beyond the expiration of any applicable
cure period. The Site is provided to Tenant in "AS IS, WHERE-IS, WITH ALL
FAULTS" condition to be mutually determined by Landlord and Tenant. Landlord
shall continue to have the right to grant others rights to occupy or utilize
the roof of the Building.
2. USE. Tenant shall have the right, at its sole expense, to
install, construct, maintain, modify and repair (and, with
Landlord's prior written approval, which shall not be
unreasonably withheld) supplement, replace and upgrade radio
and other communications transmitting and receiving antennas,
supporting mounts' and cables, equipment, storage structures
and other improvements relating thereto (collectively the
"Equipment") on the Site. Tenant shall provide Landlord a
description of the external antennas and their mounting
brackets included. Tenant shall have the right to use, as
reasonably determined by Landlord and Tenant, the Building
conduit and sleeving connecting such locations and servicing
the equipment as currently existing within, provided, however,
that Tenant shall connect its Equipment to those adequate
sources of electricity and telephone which are located closest
to Tenant's site (with the consent and coordination of the
appropriate telecommunications provider) unless Landlord has
given, its written approval of Tenant connecting to
alternative sources. The aforementioned uses and equipment are
hereafter referred to as "Permitted Uses". Except as
specifically approved by Landlord in writing (which approval
shall not be unreasonably withheld or delayed), antennas and
other Equipment must not extend above Building roof parapet
walls or be visible from the Common Areas and shall be located
on the roof of the Building. All exterior antennas and other
external Equipment shall be painted so as to reasonably match
the appearance of the surfaces on which they are mounted. Any
changes in number, type, or location of antennas or other
Equipment shall require Landlord's prior written approval,
which shall not be unreasonably withheld. Tenant may install
at its sole cost and expense a chain link non-electrified
security fence around the Site so long as it provides Landlord
with a duplicate key to the fence. All Equipment and
31
all work performed with respect thereto shall be in compliance with all Laws at
Tenant sole cost and expense. Tenant shall be solely responsible, at its
expense, for securing any and all building permits and approvals, zoning
changes or approvals, variances, use permits and other governmental permits
from applicable governmental authorities, including any Federal Aviation
Administration approval (collectively, "Permits,') prior to any construction or
other work on the Site. Landlord agrees to reasonably cooperate with Tenant in
obtaining the Permits, provided Landlord is not obligated to expend any funds,
bring any legal actions in furtherance of the same, or have any liability or
cost associated therewith. Tenant agrees to reimburse Landlord, on demand, its
reasonable attorney's fees to review any documentation requested to be executed
or consent to by Landlord. Landlord makes absolutely no representations or
warranties regarding the Permits or whether the Permits are obtainable and
shall have no liability to Tenant for failure to obtain any Permits. Copies of
the Permits shall be provided to Landlord within five (5) days of obtaining
same and in all events prior to installation of the Equipment. Tenant shall
promptly pay all costs and expenses incurred in connection with the
installation, construction, maintenance, repair, operation, upgrade,
replacement or removal of the Equipment and shall not cause or permit any lien
to be created against the Site. Nothing in this Rider will be deemed in any way
to give Tenant any right, power or authority to contract for or permit to be
furnished any service or materials which would give rise to the filing of any
construction, mechanics' or materialmen's lien against Landlord's estate or
interest in the Project, it being agreed that no estate or interest of Landlord
in the Project will be subject to any lien arising in connection with any
alteration, additions or improvements made by or on behalf of Tenant. Tenant
agrees to incorporate the provisions of this paragraph into the contract with
any contractor installing the Equipment or otherwise conducting work on the
Site on behalf of Tenant; provided, however, Tenant's inadvertent failure to
make such notification shall not be deemed a default of this Rider or the
Lease. Landlord reserves the right, in addition to the foregoing, to record in
the public records a notice of non-responsibility as provided for in the
Construction Lien law. Tenant shall, within ten (14) days after being requested
to do so by Landlord, execute, acknowledge and deliver to Landlord a notice of
this Rider in recordable form confirming that the terms of the Rider with the
third party expressly provides that the interest of Landlord in the Project
shall not be subject to liens for improvements made or other work performed by
or on behalf of Tenant and such other information as may be required by Chapter
713, Florida Statutes to prevent the interest of Landlord in the Project from
being subject to liens for improvements made or other work performed by or on
behalf of Tenant. Tenant shall only use the Equipment for its own personal use,
and in no event shall Tenant be permitted to allow the Equipment to be used by
or for the direct or indirect benefit of anyone other party other than an
affiliate and any entities into which Tenant is merged or
32
consolidated, or an entity to which a substantial portion of Tenant's assets
are transferred, or any permitted assignee or subtenant under the Lease.
3. MAINTENANCE. Tenant, at its sole cost, shall comply with all
applicable Laws relating to its possession of the Site and use
of the Equipment. Tenant shall be responsible for all
maintenance of the Equipment and for the cost of all repairs
or damage to the Building caused by Tenant, or Tenant's
agents, employees, contractors or subcontractors, subject to
Section 16.6 of the Lease. Tenant shall timely and promptly
commence (not to exceed five (5) business days) repair, and
diligently pursue completion of such repair, at Tenant's sole
cost any such damage (however, if Tenant fails to cure such
repair within 45 days, Landlord shall then be entitled to
effectuate a cure in which case Tenant shall be responsible
for Landlord's out-of-pocket cost with respect to same). If
the Equipment is damaged or in need of maintenance or repair
so that it is creating or could create a hazard, the
determination of which will be made by Landlord in its sole
discretion, then Landlord has the right to require Tenant to
promptly perform such maintenance and repairs as Landlord
deems necessary. If Tenant fails to promptly perform such
maintenance or repairs, Landlord may, upon notice to Tenant,
enter onto the Site and perform such maintenance or repairs,
in which case Tenant shall reimburse Landlord for all costs
and expenses associated with such maintenance and repairs plus
an administrative fee of ten percent (10%) of the cost of the
repairs. If necessary upon notice from Landlord, Tenant shall
remove the Equipment, at its expense, if required for Landlord
to conduct repair or maintenance on the roof or any portion of
the Project; provided, however, Landlord agrees to use
reasonable efforts to perform non-critical (i.e. normal and
routine maintenance) maintenance that would materially and
adversely interfere with Tenant's use of its equipment during
non-Business Hours. The foregoing shall not apply to repairs
or emergencies (defined as a situation involving imminent
danger to person or property) or non-critical maintenance that
would not materially or adversely interfere with Tenant's use
of its equipment.
4. INTERFERENCE.
(a) Tenant agrees to install Equipment only of types and
generating frequencies, which will not cause interference to transmissions, or
signals from Landlord and other users of the Project as may be already in place
or may hereafter be placed on the Project. Tenant shall not change the
frequency range outside of the 1850-1990 MHZ frequency range if it interferes
with other users within the Project. In the event that the Equipment causes
such interference, Tenant will take all steps necessary to correct and
eliminate the interference. If the interference cannot be eliminated within 48
hours after receipt of written notice from Landlord to Tenant, Tenant shall
disconnect electronic power and shut down the Equipment (except for
intermittent operation for the purpose of testing, after performing
maintenance, repair, modification, replacement, or other action taken for the
purpose of correcting such interference)
33
until such interference is corrected, and if such interference is not corrected
within 30 days after receipt of the written notice, Tenant agrees to remove the
Equipment from the Project and this Rider shall terminate as if by expiration.
(b) Tenant will not permit the Equipment to create
discernible adverse affects on any other equipment located on or in the
Building, or transmissions or reception of signals of such other equipment.
Tenant and Landlord acknowledge the Equipment emits electromagnetic fields. The
guidelines for human exposure to these electromagnetic fields are recommended
in "American National Standard Safety Levels with respect to Human Exposure to
Radio Frequency Electromagnetic Fields, 300 KHZ to 000 XXX," (XXXX X00.0-0000)
issued by the American National Standards Institute and adopted by the Federal
Communications Commission, as same may be undated or amended from time to time
(the "ANSI Standards"). Tenant agrees to fully comply with the latest adopted
edition of the ANSI Standards and any other standards or regulations which may
be adopted from time to time by governmental agencies having jurisdiction over
the use of the Equipment.
(c) Landlord shall have no liability for any
interference to Tenant's operation of the Equipment caused by a third party.
Landlord agrees to use reasonable efforts enforce upon any third party users of
the Building roof the similar restrictions regarding interference as set forth
in this Paragraph 4, provided that Landlord shall not be obligated to expend
funds or institute a lawsuit against such third party user.
(d) In the event of any default hereunder which remains
uncured after expiration of the non-monetary default cure period set forth in
the Lease, Landlord shall also have the right to terminate this Rider
independent of or in connection with the Lease termination.
5. IMPROVEMENTS, UTILITIES AND ACCESS.
(a) The Equipment shall remain the exclusive property of
Tenant, and Tenant shall have the obligation to remove all Equipment following
any termination of this Rider and to repair all damage caused by the
Equipment's installation, operation, repair, replacement or removal.
(b) At its sole cost and expense, Tenant shall have the
right to install utilities and to improve present utilities on the Project for
Tenant use only, including but not limited to the installation of emergency
power generators, in order to service the Equipment throughout the tern of this
Rider. The foregoing right of Tenant is subject to Landlord's reasonable prior
approval of the plans and specifications therefore and the contractor
performing such work. Tenant shall have no right to adversely effect the
structural, electrical, utility, roof or mechanical systems existing in the
Project or increase the burden thereon. All such work will be in compliance
with all rules, regulations and Laws governing same. Landlord shall have the
right to require Tenant to use a contractor selected by Landlord in the event
such work may impact the roof, electrical or utility system or the structural
integrity of the Project. Tenant shall be responsible for all utility
connection charges, and all utility use charges, for electricity or any other
utility used by Tenant. Unless otherwise agreed in writing by Landlord, all
utility services to the equipment shall be separately metered at Tenant's sole
cost and expense. All utility
2
installations, connections and upgrades by Tenant are limited to the Permitted
Uses unless Tenant obtains Landlord's prior written consent.
(c) Tenant agrees to observe such reasonable rules and
regulations as Landlord shall from time to time adopt for users of the roof,
provided, however that, subject to reasonable safety ans security precautions,
Landlord shall allow access to the Site and the Equipment at all times, 24
hours each day, every day, through a reasonable means of ingreess and egress.
Tenant, at its sole expense, may use appropriate, non-dangerous means of
restricting unauthorized access to Site and the Equipment, provided, however,
that Landlord shall have access to the Site for inspections and repairs at all
times.
6. HOLD HARMLESS. Tenant agrees to defend, indemnify and hold
Landlord and its Affiliates or subsidiary companies, their offices, agent and
employees harmless from any and all liabilities, costs, damages, expenses,
losses, claims, actions, suits, causes of action, judgements, and charges of
every kind and nature whatsoever arising in favor of third parties, including
reasonable attorney's fees, which may in any manner arise our of or relating to
Tenant's use or occupancy of the Project or its installation, operation,
repair, replacement, maintenance or removal of the Equipment or the performance
or non-performance of this Rider by Tenant, Tenant's contractors,
subcontractors, employees, agents or assigns, including without limitation,
those that may arise our of the use or furnishings of materials, and as to such
claims, actions, suits, causes of action, judgments, and charges of every kind
and nature whatsoever arising from or resulting from any misconduct by Tenant,
its subcontractors, agents, servants, employees, or any or all of them.
"Affiliates" shall mean any person or entity that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with, another person or entity. "Control" for this definition
shall be defined as holding at least a majority of voting power or operating
control. The indemnification obligations set forth herein shall survive the
expiration or termination of this Rider.
7. COMPLIANCE WITH LAWS. All installations and operations in
connection with this Rider by Tenant shall be conducted in accordance with all
applicable rules and regulations of the Federal Communications, Federal Agency,
and all other applicable federal, state Laws, codes and regulation. Tenant is
solely responsible for the licensing, operation and maintenance of Tenant's
Equipment, including, without limitation, compliance with any terms of its
Federal Communications Commissions license with respect of building light
observation any notification to the Federal Aviation Administration in that
regard. Tenant's Equipment, transmission lines, and any related devises, and
the installation, maintenance and operation thereof, shall not damage the
Building, the Project, or any Project or properties adjoining, or interfere
with the use of the Building and the remainder of the Project, by Landlord,
others, and Tenant shall defend, indemnify and hold harmless Landlord from any
and all liabilities, claims, damages, losses, causes of action, costs and
expenses (including attorney's fees and costs through trial and all appellate
levels) arising from or in connection with any such damage or interference.
This obligation of Tenant's to defend, indemnify and hold harmless Landlord
survives the termination of this Rider.
3
SCHEDULE 3
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by Tenants
or used by them for any purpose other than for ingress and
egress from their respective premises. The halls, passages,
exits, entrances, elevators and stairways 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 reasonable judgment of
Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its Tenants,
provided that nothing herein contained shall be construed to
prevent such access to persons with whom any Tenant normally
deals in the ordinary course of such Tenant's business unless
such persons are engaged in illegal activities. No Tenant,
and no employees or invitees of any Tenant, shall go upon the
roof of the Building, except in accordance with reasonable
procedures established by Landlord.
2. Except as permitted by the Lease, no sign, placard, picture,
name, advertisement or notice, visible from the exterior of
the Building shall be inscribed, painted, affixed, installed
or otherwise displayed by any Tenant either on its premises
or any part of the Building without the prior written consent
of Landlord, and Landlord shall have the right to remove any
such sign, placard, picture, name, advertisement, or notice
without notice to and at the expense of Tenant.
If Landlord shall have given such consent to any Tenant at
any time, whether before or after the execution of the Lease,
such consent shall in no way operate as a waiver or release
of any of the provisions hereof or of such Lease, and shall
be deemed to relate only to the particular sign, placard,
picture, name, advertisement or notice so consented to by
Landlord and shall not be construed as dispensing with the
necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard,
picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be
printed, painted, affixed and inscribed at the expense of the
Tenant by a person approved by Landlord.
3. The bulletin board or directory of the Building will be
provided exclusively for the display of the name and location
of Tenants only and Landlord reserves the right to exclude
any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be
attached to, hung or placed in, or used in connection with,
any window or door on the premises without the prior written
consent of Landlord. In any event with the prior written
consent of Landlord, all such items shall be installed
inboard of Landlord's standard window covering and shall in
no way be visible from the exterior of the Building. No
articles shall be placed or kept on the windowsills so as to
be visible from the exterior of the Building. No articles
shall be placed against glass partitions or doors which might
appear unsightly from outside Tenant's premises.
5. Landlord reserves the right to exclude from the Building
between the hours of 6:00 P.M. and 8:00 A.M. and at all hours
on Saturday, Sundays, and holidays all persons who are not
Tenants or their accompanied guests in the Building. Each
Tenant shall be responsible for all persons for whom it
allows to enter the Building and shall be liable to Landlord
for all acts of such persons.
1
Landlord shall in no case be liable for damages for
unintentional error with regard to the admission to or
exclusion from the Building of any person.
Landlord shall provide security service for the building
consistent with first class office buildings in major
metropolitan areas in the Southeast United States.
During the continuance of any invasion, mob, riot, public
excitement or other circumstances rendering such action
advisable in Landlord's opinion, Landlord reserves the right
to prevent access to the Building by closing the doors, or
otherwise, for the safety of Tenants and protection of the
Building and property in the Building.
6. No Tenant shall employ any person or persons other than the
janitor of Landlord for the purpose of cleaning premises
unless otherwise agreed to by Landlord in writing. Except with
the written consent of Landlord no person or persons other
than those approved by Landlord shall be permitted to enter
the Building for the purpose of cleaning same. No Tenant shall
cause any unnecessary labor by reason of such Tenant's
carelessness or indifference in the preservation of good order
and cleanliness of the premises, however, occurring, or for
any damage done to the effects of any Tenant by the janitor or
any other employee or any other person.
7. (Intentionally omitted)
8. Each Tenant shall see that all doors of its premises are
closed and securely locked and must observe strict care and
caution that all water faucets or water apparatus are entirely
shut off before the Tenant or its employees leave such
premises, and that all utilities shall likewise be carefully
shut off so as to prevent waste or damage, and for any default
or carelessness the Tenant shall make good all injuries and
sustained by other Tenants or occupants of the Building of
Landlord. On multiple-tenancy floors, all Tenants shall keep
the door or doors to the Building corridors closed at all
times except for ingress and egress.
9. As more specifically provided in the Tenant's Lease of the
premises, Tenant shall not waste electricity, water or air
conditioning and agrees to cooperate fully with Landlord to
assure the most effective operation of the Building's heating
and air conditioning, and shall refrain from attempting to
adjust any controls.
10. No Tenant shall alter any lock or access device or install a
new or additional lock or access device or any bolt on any
door of its premises without the prior written consent of
Landlord. If Landlord shall give its consent, Tenant shall in
each case furnish Landlord with a key for any such lock.
11. Each Tenant, upon the termination of the Tenancy, shall
deliver to Landlord all the keys or access devises for the
Building, offices, rooms and toilet rooms which shall have
been furnished the Tenant or which the Tenant shall have had
made. In the event of the loss of any keys or access devices
so furnished by Landlord, Tenant shall pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than for
which they were constructed and no foreign substance of any
kind whatsoever, including, but not limited to, coffee
grounds shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Tenant, who, or whose
employees or invitees(while such invitees are inside the
Premises), shall have caused it.
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13. No Tenant shall use or keep in its premises or the Building
any kerosene, gasoline or inflammable or combustible fluid or
material other than limited quantities necessary for the
operation or maintenance of office equipment. No Tenant shall
use any method of heating or air conditioning other than that
supplied by Landlord.
14. No Tenant shall use, keep or permit to be used or kept in its
premises any foul or noxious gas or substance or permit or
suffer such premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors and/or vibrations or
interfere in any way with other Tenants or those having
business therein, nor shall any animals or birds be brought
or kept in or about any premises of the Building.
15. No cooking shall be done or permitted by any Tenant on its
premises (except that use by the Tenant of Underwriters'
Laboratory approved equipment for the preparation of coffee,
tea, hot chocolate and similar beverages for Tenants and
their employees shall be permitted, provided that such
equipment and use in accordance with applicable federal,
state and city laws, codes, ordinances, rules and
regulations) nor shall premises be used for lodging. Use of
microwave ovens for warming of prepared foods for use of
Tenant, its employees and business invitees, is permitted, so
long as such food is not sold to third parties for profit.
16. Except with the prior written consent of Landlord, no Tenant
shall sell, permit the sale, at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise in or on any premises, nor shall Tenant carry on,
or permit or allow any employee or other person to cant' on,
the business of stenography, typewriting or any similar
business in or from any premises for the service or
accommodation of occupants of any other portion of the
Building, nor shall the premises of any tenant be used for
the storage of merchandise or for manufacturing of any kind,
or the business of a public xxxxxx shop, beauty parlor, nor
shall the premises of any Tenant be used for any improper, or
reasonably objectionable purpose, or any business activity
other than that specifically provided for in such Tenant's
lease. This paragraph shall be inapplicable to the sale of
mutual funds, securities, insurance products and other
financial goods and services that are part of Tenants
business.
17. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with,
Landlord's instructions in their instillation.
18. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires are to be
introduced or installed. No boring or cutting for wires will
be allowed without the prior written consent of Landlord. The
location of burglar alarms, telephones, call boxes or other
office equipment affixed to all premises shall be subject to
the written approval of Landlord.
19. Except as provided in Section 47 of the Lease, no Tenant
shall install any radio or television antenna, loudspeaker or
any other device on the exterior walls or the roof of the
Building. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Building or
elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of
its premises in any manner except as approved in writing by
Landlord. The expense of repairing any damage resulting from
a violation of this rule or the removal of any floor covering
shall be borne by the Tenant by whom, or by whose
contractors, employees or invitees, the damage shall have
been caused.
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21. No furniture, freight, equipment or other property which is
excessively bulky will be received in the Building or carried
up or down the elevators except between such hours and in
such elevators as shall be reasonably designed by Landlord.
Landlord shall have the right to prescribe the weight, size
and position of all safes, furniture, files, bookcases or
other heavy equipment brought into the Building. Safes or
other heavy objects shall, if considered necessary by
Landlord, stand on wood strips of such thickness as
determined by Landlord to be necessary to properly distribute
the weight thereof. Landlord will not be responsible for loss
of or damage to any such safe, equipment or property from any
cause, and all damage done to the Building by moving or
maintaining any such safe, equipment or other property shall
be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that may be transmitted
to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any
tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The
persons employed to move such equipment in or out of the
Building must be acceptable by Landlord.
22. No Tenant shall place a load upon any floor of the premises
which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law. No Tenant
shall xxxx, or drive nails, screws or drill into, the
partitions, woodwork or plaster or in any way deface such
premises or any part thereof, without prior approval from
Landlord which approval will not be unreasonably withheld.
23. (Intentionally omitted)
24. There shall not be used in any space, or in the public areas
of the Building, either by Tenant or others, any hand trucks
except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may
approve. No other vehicles of any kind shall be brought by
any Tenant into or kept in or about the premises.
25. Each Tenant shall store all its trash and garbage within the
interior of it premises, and Landlord as part of janitorial
services provided to Tenant shall remove Tenant's trash and
garbage as provided for in the Lease. No materials shall be
placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary
and customary manner of removing and disposing of trash and
garbage in this area without violation of any law or
ordinance governing such disposal. All trash, garbage and
refuse disposal shall be made only through entryways and
elevators provided for such purposes and at such times as
Landlord may designate.
26. Canvassing, soliciting, distributing of handbills or any
other written material and peddling in the outside of the
Premises are prohibited and each Tenant shall cooperate to
prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
27. Landlord reserves the right to exclude or expel from the
Building any person who, in Landlord's judgment, is
intoxicated or under the influence of liquor or drugs or who
is in violation of any of the rules and regulations of the
Building.
4
28. Without the prior written consent of Landlord, Tenant shall
not use the name of the Building in connection with or in
promoting or advertising the business of Tenant except as
Tenant's address.
29. Tenant shall comply with all energy conservation, safety,
fire protection and evacuation procedures and regulations
established by Landlord or any governmental agency.
30. Tenant assumes any and all responsibility for protecting its
premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the premises
closed.
31. Tenant's contractors performing work within the Common Areas
must sign in with the management office prior to beginning
any work. Employees of Landlord shall not perform any work or
do anything outside of their regular duties unless given
special instructions from Landlord, and no employees will
admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
32. (Intentionally omitted)
33. Landlord reserves the right to make such other and reasonable
rules and regulations as in its judgment may from time to
time be needed for safety and security, for care and
cleanliness of the Building and for the preservation of good
order therein. Tenant agrees to abide by all such Rules and
Regulations hereinabove stated and any additional rules and
regulations which are adopted. All such rules and
regulations, however, shall apply to all Tenants uniformly in
the Building. No additional rules or regulations shall be
effective against Tenant if, to any extent, they are in
conflict with the Lease or impose undue burden on Tenant.
34. (Intentionally omitted)
35. (Intentionally omitted)
36. Tenant will refer all contractors, contractor's
representatives and installation technicians, rendering any
service to Tenant, to Landlord for Landlord's reasonable
approval before performance of any contractual service. This
provision shall apply to all work performed in the Building,
including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the
Building. No fee will be charged by Landlord pursuant to this
paragraph.
37. Tenant shall give prompt notice to Landlord of any accidents
to or defects in plumbing, electrical fixtures, or heating
apparatus so that such accidents or defects may be attended
to properly.
38. The Project is designated as a "Non-Smoking" Building. This
means that smoking is prohibited in all areas of the
building. Individual tenants may not allow smoking areas in
their offices. We have placed cigarette urns on the patio at
the lakeside fountain to the north of the main lobby for the
convenience of smokers. Employees may not smoke at the
front/guest entrance to the building.
39. Tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by Tenant's employees,
agents, clients, customers, and (while present in the
Premises) guests.
5
40. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify, alter or amend, in whole
or in part, the terms, covenants, agreements and conditions
of any Lease of premises in the Building.
41. Tenant shall not allow occupancy of the Premises to exceed an
average of six (6) persons per one thousand (1000) rentable
square feet. This limitation shall not apply to temporary
events including without limitation board meetings and
investor seminars.
6
THEREOF OR AS TO THE CONDITION OF THE LANDLORD'S BUILDING
STANDARD IMPROVEMENTS, EITHER EXPRESS OR IMPLIED, AND THAT
THE LANDLORD EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT
THE LANDLORD'S BUILDING STANDARD IMPROVEMENTS ARE OR WILL BE
SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE.
Notwithstanding anything to the contrary in this Lease if, as
of the date the Premises are delivered to Tenant: (i) any
portion of the Landlord's Building Standard Improvements not
in full compliance with all Laws; (ii) any latent defects in
the Landlord's Building Standard Improvements, then Landlord
shall be obligated to correct same, after notice and
opportunity to cure as provided for in the Lease. However the
foregoing obligation of Landlord shall not change the
definition of "Landlord's Delay". In the event that the
defect continues for more than sixty (60) days after Tenant
gives written notice thereof to Landlord, or if the defect
cannot reasonably be cured within said sixty (60) day period
and Landlord fails promptly to commence with due diligence
and dispatch the curing of such defect or, having so
commenced, thereafter fails to prosecute or complete with due
diligence and dispatch the curing of such defect or fails to
complete the cure within a reasonable period of time
(however, if Landlord fails to cure such default within
thirty (30) days after the expiration of such sixty (60) day
period, Tenant shall then be entitled to effectuate a cure in
which case Landlord shall be responsible for Tenant's
out-of-pocket costs with respect to same). Landlord agrees
that it will diligently pursue and seek to enforce any
warranties of the contractor(s) and/or manufacturer of any
defective materials incorporated therein. Landlord shall not
be in default for actions, inactions or failures, including
but not limited to insolvency, of any contractor or
manufacturer.
6. Cost of Initial Tenant Improvements. Landlord will pay all
costs and expenses of installing and constructing the
Building Standard Improvements. Landlord will further pay all
costs and expenses of installing and constructing the Tenant
Initial Improvements, being the remainder of the Initial
Tenant Improvements (including labor, materials architectural
and engineering costs) up to the aggregate amount of $35.00
per rentable square foot of the Premises (the "Improvement
Allowance"). Such payment will be made as and when due under
Tenant's construction contract subject to a 10% retainage
which will be funded by Landlord and subject to lien free
completion of the Tenant Initial Improvements at all times.
Tenant shall pay the amount, if any (the "Excess TI Cost"),
by which the cost of the Tenant Initial Improvements exceeds
the Improvement Allowance. The Excess TI Cost shall be
payable (i) one-half within 30 days of the date that Landlord
approves the Tenant Initial Improvements and Tenant commences
the Tenant Initial Improvements (ii) the remainder within 30
days of the date that Landlord's architect or contractor
certifies substantial completion of the Initial Tenant
Improvements. Past due sums shall bear interest at the
Default Rate as set forth in the Lease. Tenant will not be
responsible to pay any so-called "impact fee" or off-site
improvement costs related to Tenant Building Permit
Condition; and any such fees or cost shall be paid by
Landlord as and when due. Tenant shall be permitted to spend
any unused portion of the Improvement Allowance exceeding
$30.00 per rentable square foot for "soft costs" associated
with
4
Tenant's occupancy of the Premises including, but not limited
to, furniture, file cabinets, telephone equipment and
cabling. Notwithstanding anything to the contrary in this
Lease, (i) Tenant shall be required to pay for utilities used
during construction of Tenant Initial Improvements prior to
commencement of this Lease Term and (ii) Landlord shall not
charge for its construction supervision or coordination
regarding the Initial Tenant Improvements.
Landlord Tenant
/s/ Xxxxx X. Xxxxx /s/ C. Xxxxxxx Xxxxxx
---------------------------- ----------------------------------
5
CONSTRUCTION RIDER
ATTACHED TO LEASE BETWEEN BOCA II ASSOCIATES, LTD.
AND EXECUTED SIMULTANEOUSLY THEREWITH
1. Work by Landlord. Landlord shall cause to be constructed and/or
installed in the Premises, "Landlord's Building Standard Improvements" as set
forth below. Landlord's Building Standard improvements shall be limited to the
following, all constructed in a good and workmanlike manner in compliance with
all Laws:
Core Conditions Elevator lobbies, drywall core taped and floated
ready to receive finishes; Exterior perimeter of
core, drywall, taped and floated ready to receive
finishes; Elevator cabs completely finished and
ready to use; Fire stairs finished, painted and
ready to use; Rest rooms fully code and ADA
compliant and ready to use; All core required doors,
frames, and hardware installed and operational.
Construction and finishing of elevators, restrooms
and lobby will be in accordance with the following
materials set forth on the attached Schedule of
Finish Materials.
Signage & Graphics Code required signage at core and public areas
complete; Elevator signage, inside and out; Fire
stair signage, inside and out of the stairwell; Rest
rooms signage installed.
Shell Conditions Exterior drywall installed, taped and floated.
Electrical Electrical transformers (75 KVA). 42 circuit
distribution panels in place on both 408/277 volt
and 208/120 volt on each floor; 277 V power for
lighting at panels (1 1/2 watt capacity per square
foot of Rentable Area of the Premises for Tenant's
exclusive use); 120 V power at panels connected at
load (5 watt capacity per square foot of Rentable
Area of the Premises for Tenant's exclusive use) at
electrical room
Telephone 400 pair riser backbone systems on all seven floors
at telephone room. Telephone closets on each floor
will contain grounded backboards.
Mechanical Floor air handlers in place and operational; Main
air distribution ducts in place to and including VAV
boxes in accordance with building standard (i.e. 12
on each floor, with 2 of the 12 located in the
Common Areas).
Life Safety Operational life safety system complying with all
applicable NFPA requirements, including exit signs,
horns, enumerators, smoke detector for core area
with additional capacity to add certain Tenant
requirements. Emergency fixtures shall be located on
a full floor, non-partitioned basis in stairwells,
building exits, lobbies and toilet rooms.
1
Sprinkler System Plumbing lines and all heads installed and turned
down on grid in accordance with building standard
(i.e.121 heads turned up on the 4th floor, 122 heads
turned up on the 5th floor and 126 heads turned up
on the 6th floor, with 14 of each of the foregoing
located in the Common Areas).
HVAC Specifications
Outside temperature Indoor Temperature
Summer 75-94 degrees F. dry bulb 74-76 degrees F. at
50% relative humidity
Winter 55-74 degrees F. wet bulb 72-76 degrees F.
assuming no humidification
Floors Floors will be leveled so there is no more than a
1/4 inch variation for every ten feet to the extent
needed to implement Tenant's architectural design or
installation of systems.
Security A card reading system will be located at the ground
floor building entry, delivery and one passenger
elevator and delivery door entrance.
Windows
Floor Load Bearing Capacity 100 lbs per square foot live load.
"Tenant Initial Improvements" shall consist of all improvements, changes,
alterations, additions, equipment, fixtures, and decoration other than
Landlord's Building Standard Improvements required to put the Premises in the
condition to permit Tenant to open and conduct its business therein as required
by this Lease, which shall be the responsibility of Tenant, at Tenant's sole
cost and expense, including without limitation any and all permits and approval
for Tenant Initial Improvements and the certificate of occupancy for the
Premises (other than required to satisfy Tenant's Building Permit Condition).
Landlord shall have the right to supervise the construction, at no charge to
Tenant, of the Tenant Initial Improvements which shall be constructed by Tenant
in compliance with all Laws and lien free. Landlord's supervision means only
monitoring of the Tenant Initial Improvements in order to confirm their
compliance with Laws and the approved plans. Landlord agrees it will not
unreasonably interfere with progress of the Tenant Initial Improvements, and in
no event shall Landlord give directives to Tenant's contractor, subcontractors,
laborers or other workers. Tenant agrees to use Landlord's base building
mechanical, electrical and plumbing engineer as well as Landlord's life safety
and electrical subcontractors in connection with Tenant Initial Improvements,
subject to such engineers and subcontractors prices being "in line" with market
fees or costs and competitively bid. All other contractors or subcontractors
used by Tenant shall be licensed and subject to Landlord's prior written
approval.
2
2. Completion of Construction. If Landlord's Building Standard
Improvements are not substantially complete by the time
period set forth in the Lease, for any reason, Landlord will
not be liable or responsible to Tenant for any claims,
damages or liabilities in connection therewith or by reason
thereof. Within five (5) days after the Delivery Date, the
authorized representative of Landlord and Tenant shall
conduct a walk through inspection of the Premises and prepare
a list of any defects, incomplete unsatisfactory items (the
"Punchlist Items") with respect to Landlord's Building
Standard Improvements. Should Tenant not conduct a walk
through inspection within five (5) days after the Delivery
Date, it shall be presumed that Landlord's Building Standard
Improvements is complete and satisfactory in all respects
other than with respect to latent defects. Landlord shall be
obligated within a reasonable amount of time not to exceed
sixty (60) unless additional time is reasonably needed to
cure the Punchlist Items. This time provision shall not apply
to latent defects (i.e. those which are not capable of being
ascertained during a walk through inspection or are a
violation of Law not actually known to Tenant), and Tenant
shall, within twelve (12) months following the Delivery Date,
have the right to report to Landlord any latent defects which
are in need of repair based upon the obligation of Landlord
to do work to the Premises. In connection therewith, the
provisions set forth above shall otherwise apply with respect
to Landlord's obligation to cure said latent defects.
3. Tenant Delay. Tenant covenants that it shall not cause Tenant
Delay. In the event of Tenant Delay, the substantial
completion of Landlord Building Standard Improvements shall
be deemed to be the date such substantial completion would
have occurred but for Tenant Delay. As used herein, "Tenant
Delay" shall mean (i) the number of days of delay in
preparing any of such documentation caused by changes
requested by Tenant to any aspect of the Landlord Building
Standard Improvements which were reflected in documentation
previously approved by Tenant; (ii) the positive difference,
if any, between the increase and decrease in the number of
days required to complete the Landlord Building Standard
Improvements caused by changes requested by Tenant to the
working drawings after Tenant's approval thereof or (iii)
delays caused as a result of Tenant's, its agents,
contractors or subcontractors negligent or wrongful acts or
omissions.
4. Planning and Construction. Landlord and Tenant shall
cooperate in good faith in the planning and construction of
the Landlord Building Standard Improvements, and Tenant shall
respond promptly to any request from Landlord for Tenant's
approval of any particular aspect thereof. Landlord's failure
to object to Tenant's plans within 15 days after submission
of the to Landlord for approval together with specific
reasons for disapproval shall be deemed approval of Tenant's
plans.
5. Disclaimer of Warranty. EXCEPT AS OTHERWISE SET FORTH IN
HEREIN, TENANT ACKNOWLEDGES THAT THE CONSTRUCTION AND
INSTALLATION OF THE LANDLORD'S BUILDING STANDARD IMPROVEMENTS
WILL BE PERFORMED BY AN UNAFFILIATED CONTRACTOR OR
CONTRACTORS AND THAT ACCORDINGLY LANDLORD HAS MADE AND WILL
MAKE NO WARRANTIES TO TENANT WITH RESPECT TO THE QUALITY OF
CONSTRUCTION
3
[FLOOR LAYOUT]
Construction Rider Schedule 1 (a)
Landlord's Building standard improvements.
Landlord's building improvements may be substituted based upon
availability so long as quality is consistent with specified items
(DOOR AND WINDOW TYPES)
[PICTURE]
FIRST XXXXX XXXXX
XXXXXX XXXXX
XXXX XXXXX, XXXXXXX
Landlord's building standard improvements
Landlord's building standard improvements may be substituted
based upon availability so long as quality is consistent
with specified item(s).
Construction Rider Schedule 1 (b)
DOOR AND FRAME SCHEDULE
[UNREADABLE CHART]
FINISH HARDWARE SCHEDULE
[UNREADABLE CHART]
WALL SCHEDULE
[UNREADABLE CHART]
DOOR AND FRAME SCHEDULE
[UNREADABLE TABLE]
Construction Rider Schedule 1 (c)
Landlord's building standard improvements.
Landlord's building standard improvements may be substituted based upon
availability so long as quality is consistent with specified item(s).
FIRST XXXXX XXXXX
XXXXXX XXXXX
XXXX XXXXX, XXXXXXX
Landlord's building standard improvements.
Landlord's building standard improvements may be substituted
based upon availability so long as quality is consistent with
specified item(s).
Construction Rider Schedule 1 (d)
FINISH NOTES:
[UNREADABLE TABLE]
EXHIBIT A
Parcel 1
All of Xxx X, Xxxxx 00 of SPANISH RIVER LAND COMPANY SUBDIVISION, Plat A, in the
Town of Boca Raton, Florida, according to the Plat thereof recorded in the
Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida,
in Plat Book 16, Pages 27 to 30.
LESS THE FOLLOWING DESCRIPTION:
A portion of Xxx "X", Xxxxx 00, Xxxxxxx Xxxxx Xxxx Xx., Xxxx "A", according to
the plat thereof as recorded in Plat Book 16, at Pages 27 through 30, of the
Public Records of Palm Beach County, Florida, in Section 29, Township 47 South,
Range 43 East, being more particularly described as follows:
COMMENCE at the Northwest corner of the Northwest one-quarter (N.W. 1/4) of said
Section 29; thence along the North line of said Northwest one-quarter (N.W.
1/4), North 88(degrees)58'21" East for a distance of 421.90 feet; thence, South
00(degrees)53'04" East for a distance of 836.28 feet; thence South
01(degrees)19'12" East for a distance of 2319.02 feet; thence South
88(degrees)40'48" West for a distance of 40.00 feet to the POINT OF BEGINNING,
said point also being the Northeast corner of said Lot "C"; thence along the
East line of said Xxx "X", Xxxxx 00(xxxxxxx)00'00" East for a distance of 250.33
feet to the Southeast corner of said Lot "C"; thence along the South line of
said Xxx "X", Xxxxx 00(xxxxxxx)00'00" West for a distance of 42.15 feet to a
point of curvature of a circular curve concave to the Northwest, having for its
elements a central angle of 90(degrees)16'41", a radius of 30.00 feet and a
chord bearing on North 43(degrees)49'09" East; thence run Northeasterly along
the arc of said curve for a distance of 47.27 feet to a point of tangency on a
line being 12 feet West of and parallel with the aforementioned East line of Lot
"C"; thence along said parallel line, North 01(degrees)19'12" West for a
distance of 208.29 feet to a point of curvature of a circular curve concave to
the West, having for its elements a central angle of 33(degrees)13'28", a radius
of 21.75 feet and a chord bearing of North 17(degrees)55'56" West; thence run
Northerly along the arc of said curve for a distance of 12.61 feet to a point of
non-tangency on the North line of said Lot "C"; thence along said North line,
North 88(degrees)56'27" East for a distance of 15.56 feet to the POINT OF
BEGINNING.
TOGETHER WITH:
Parcel 2
The East 300 feet of Lot B in Block 27 of SPANISH RIVER LAND COMPANY'S PLAT "A",
according to the plat thereof as recorded in Plat Book 17, Pages 27 to 30, of
the Public Records of Palm Beach County, Florida, and Xxx 00 xx Xxxxx 00 xx
XXXXXX DEVELOPMENT CORP. PLAT 1, according to the plat thereof as recorded in
Plat Book 3, Page 37, of the Public Records of Palm Beach County, Florida.
TOGETHER WITH:
Parcel 3
A portion of Lots "A" and "B", Block 27, of SPANISH RIVER LAND CO. Plat "A", as
recorded in Plat Book 16, Page 28, of the Public Records of Palm Beach County,
Florida, more fully described as follows:
Commence at the Southeast corner of said Lot "B", Block 27, being the
intersection of the North Right of Way line of Camino Real and the West line of
a 20 foot alley, thence South 88(degrees)30'00" West along said North Right of
Way line, a distance of 300.00 feet to the Point of Beginning; thence continue
South 98(degrees)30'00" West along said Right of Way line, a distance of 240.85
feet; thence North 1(degrees)30'00" West a distance of 125.00 feet; thence South
88(degrees)30'00" West a distance of 156.11 feet; thence Northeasterly along the
new Right of Way line of Xxxxx Highway on a curve to the right having a radius
of 128.34 feet, a central angle of 13(degrees)12'00", an arc distance of 98.67
feet; thence Northeasterly along said new Right of Way line on a curve to the
left having a radius of 528.34 feet, a central angle of 6(degrees)05'00", an arc
distance of 56.10 feet; thence North 88(degrees)30'00" East along the South
Right of Way line of S.E. 0xx Xxxxxx 304.78 feet; thence South 1(degrees)44'00"
East, a distance of 249.85 feet more or less to the point of beginning.
EXHIBIT A
LESS THE FOLLOWING DESCRIPTION:
A portion of Lots A and B, Block 27, of the Subdivision of SPANISH RIVER LAND
CO. PLAT A, as recorded in Plat Book 16, Page 28, of the Public Records of Palm
Beach County, Florida, more fully described as follows:
Commencing at the Southwest corner of said Lot A, being the intersection of the
old East right-of-way line of Xxxxx Highway with the existing North
right-of-way line of Camino Real; thence on a magnetic bearing of North
88(degrees) 30' 00" East, along said existing North right-of-way line a distance
of 20.32 feet; thence Northerly on a curve, concave to the East having a chord
bearing of North 17(degrees) 48' 52" East, a chord distance of 132.46 feet, a
radius of 428.34 feet, a central angle of 17(degrees) 47' 20", for an arc
distance of 132.99 feet to the Point of Beginning; thence North 88(degrees) 30'
00" East, and parallel to said existing North right-of-way line of Camino Real,
a distance of 156.11 feet; thence North 1(degree) 30' 00" West, a distance of
25.00 feet; thence South 88(degrees) 20' 00" West, a distance of 141.58 feet to
a point on the aforesaid curve extended; thence Southerly along said curve,
having a chord bearing of South 28(degrees) 38' 33" West, a chord distance of
28.91 feet, a radius of 428.34 feet, a central angle of 3(degrees) 52' 05", an
arc distance of 28.91 feet, to the Point of Beginning.
EXHIBIT B
ESTOPPEL CERTIFICATE
1. The Lease dated _______________, executed by _____________ as Landlord
and _______________ as Tenant, together with the following amendments:
___________________________________________, a copy of which is annexed
hereto and made a part hereof, is a full, true and complete copy of the
Lease. The premises which are the subject of the Lease are described as
follows:_______________________________________________.
2. Tenant has delivered to Landlord a security deposit in the amount of
$___________.
3. Rent is due and payable as follows:
(a) Fixed or Base Rent is payable monthly in the amount of $________
commencing on _______________ and _______________ months of prepaid
rent in the amount of $__________________ has been paid;
(B) The lease ________ is/ ________ is not a "triple net" lease.
Tenant is currently paying Additional Rent in the following amount per
month: $_______________.
(c) Tenant's proportionate share of the common expenses
constituting Additional Rent is __________%.
4. The term of the Lease commenced on __________________, and terminates
on ____________________;
5. The Lease, to the best of Tenant's knowledge with investigation, is in
good standing:
6. The Lease ________ does/ ________ does not contain an option to extend
such Lease, the term of which extension is for _______________________.
